Migration Legislation with Annotations. 9780455237732, 0455237735

Citation preview

Migration Law Annotated Migration Act with Related Commentary

Thomson Reuters (Professional) Australia Limited 19 Harris Street Pyrmont NSW 2009 Tel: (02) 8587 7000 Fax: (02) 8587 7100 [email protected] www.thomsonreuters.com.au For all customer inquiries please ring 1300 304 195 (for calls within Australia only)

INTERNATIONAL AGENTS & DISTRIBUTORS

NORTH AMERICA Thomson Reuters Eagan United States of America

ASIA PACIFIC Thomson Reuters Sydney Australia

LATIN AMERICA Thomson Reuters São Paulo Brazil

EUROPE Thomson Reuters London United Kingdom

Migration Law Annotated Migration Act with Related Commentary

BEN PETRIE LLB (Hons), BA, BSc

NATASHA BOSNJAK LLB (Hons), BA, Grad Dip (Psych)

FOREWORD BY

JUDGE GRANT RIETHMULLER

LAWBOOK CO. 2016

Published in Sydney by Thomson Reuters (Professional) Australia Limited ABN 64 058 914 668 19 Harris Street, Pyrmont, NSW National Library of Australia. Cataloguing-in-Publication entry Migration Law: Annotated Migration Act with Related Legislation / Ben Petrie; Natasha Bosnjak Includes index. ISBN: 9780 4 552 37732 (paperback) Subjects: Emigration and immigration law — Australia. Australia — Emigration and immigration. 342.94082 © 2016 Thomson Reuters (Professional) Australia Limited This publication is copyright. Other than for the purposes of and subject to the conditions prescribed under the Copyright Act, no part of it may in any form or by any means (electronic, mechanical, microcopying, photocopying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without prior written permission. Inquiries should be addressed to the publishers. Product Developer: Catherine Fitzgerald Editor: Nikki Savvides Editorial team: Angela Bandiera, Nicola Bodor, Elizabeth Gandy, Paul Godwin, Ursula Neumayer-Stewart, Vanessa Schlenert, Chris Wallace Printed by Ligare Pty Ltd, Riverwood, NSW This book has been printed on paper certified by the Programme for the Endorsement of Forest Certification (PEFC). PEFC is committed to sustainable forest management through third party forest certification of responsibly managed forests. For more info: http://www.pefc.org

FOREWORD In Australia migration law has a long and complex history reflected in a vast array of visa categories contained in long and detailed legislative provisions. Over the last 20 years migration cases have dominated the judgments of the High Court of Australia as Australia’s administrative law has developed through the close scrutiny of thousands of litigants challenging decisions made under the Migration Act. The law in this area is inevitably controversial, involving those with hopes and dreams of a better life through refuge in a country of safety, opportunities to be educated, reuniting with family members, or by bringing skills to contribute to life in Australia. The fundamental nature of migration issues invites emotive political debate about significant policy issues that affect Australian society as a whole. What is easily overlooked in this turbulent arena of political debate is that the meaning and operation of the specific provisions of the Act is of more immediate concern to visa applicants. Ultimately it is the technical provisions in force at the time of a visa application that determines whether an individual is able to obtain, or retain, a visa, residency, or citizenship. It is through the myriad of individual cases, decided in the thicket of technical provisions that the legal and social policy issues have emerged. The law has tested the relationship between the judicial and administrative branches of government as courts have been persuaded to quash decisions of the Minister, delegates and tribunals in cases where the outcomes have not been effected in accordance with substantive or procedural law. This area of law highlights the importance of the rule of law in a just society. The careful practitioner must not only deal with legislation and regulations that are lengthy and technical, but also an enormous volume of case law. The sheer number of migration and refugee cases reported on the Australian Legal Information Institute website highlights the problem of locating relevant judgments: a search for cases where the Minister for Immigration was a party returns over 30,000 decisions. In the High Court alone, there are 115 appeal decisions to which the Minister for Immigration has been a party. No other civil law litigant has had so many cases in the High Court in the last 20 years. As a judge of the Federal Circuit Court, where the majority of migration cases are filed, I am only too well aware of the complexities that arise from the unique facts and circumstances of individual cases, each requiring individual consideration. This overwhelming volume of materials has called out for a work such as this for some time. Ben Petrie and Natasha Bosnjak, have undertaken the herculean task of collecting and identifying the seminal decisions in a structured and readable form to explain the operation of the key provisions of the Act. They have clearly drawn upon their experience as litigators and academic training to produce such a practical and accessible work. In an area such as this, where there is such an overwhelming volume of materials, it is the careful selection of key references and information that adds the greatest value for those dealing with cases on a daily basis. Practitioners, judges and administrators will benefit greatly from the resources so thoughtfully collected in the annotations, coupled with the clear statements of the law, and selected quotes © 2016 THOMSON REUTERS

v

Migration Law

from the cases. I have no doubt that access to these materials will ensure that visa applicants will avoid many technical pitfalls, and present their cases with the nuances of the law in mind, enabling them to have their applications determined on their merits. Fortunately the format of this work allows for regular updates, so important in an area of law where the legislation, regulations and case law changes so rapidly and relentlessly. We are indeed fortunate that two lawyers with such experience at the coal face of migration law litigation have been prepared to share their insightful and eminently practical distillation of the law. I can only commend the work to all who seek to understand the operation of the relevant provisions of the Act. Judge Grant Riethmuller Federal Circuit Court Chambers, Melbourne 1 May 2016

vi

Migration Law

PREFACE The question of how to treat foreigners has long occupied a central place in Australia’s national conscience. One of the first pieces of legislation passed by the Parliament of the newly formed federation in 1901 was the Immigration Restriction Act 1901 (Cth) which, together with the Pacific Island Labourers Act 1901 (Cth) and the Post and Telegraph Act 1901 (Cth), outlined the nation’s vision of a “white” future, utilising the infamous “Dictation Test”. Foretelling a trend that was never to cease, the legislation was also among the first to be amended with the passage of the Immigration Restriction Amendment Act 1905 (Cth) which made the Dictation Test even more difficult for immigrants to overcome. Between 1905 and 1949 the legislation would be amended a further 13 times, operating in tandem with various other pieces of migration-focussed laws. The Migration Act 1958 (Cth), which is the principal focus of this book, consolidated and modernised (by the standards of the time) Australia’s migration legislation. The Minister for Immigration who introduced the Bill, the Hon. A.R. Downer, MP, had been a prisoner of war in Changi1 and, no doubt reflecting on his own experiences, adopted a more humane approach to the treatment of migrants. Having discarded the Dictation Test, which was described in the Explanatory Memorandum to the Bill as “objectionable on a number of grounds”,2 he described the Act as the “finest immigration charter that the world has yet seen”.3 The apparent price of achieving this feat however was an Act that was “necessarily rather long and technical”.4 Evidently, the Minister did not anticipate the extent to which the scheme of legislation would be built upon over the next fifty years. Each Government since, even where the party in power has not changed, has sought to impose its own peculiar migration policy, with the necessary amendments to the Act. The result is a unique mixture of drafting styles and policy objectives contained within a single piece of legislation. As long as Australia remains a popular destination for migrants from around the world, the Department, tribunals and courts will be called upon to interpret the various provisions of the Act and the Regulations, while being ever-mindful of the growing body of case law that has traversed the same ground. The Department has forecast in this regard that yearly immigration is set to increase to approximately 525,000 (excluding forecast departures) by the year ending June 2019.5 Unsurprisingly, a large number of those whose migration applications are rejected seek to challenge the decision made against them. In the year ending June 2015, a total of 18,534 applications for review were made to the former Migration Review Tribunal and Refugee Review Tribunal.6 And those figures have predictably translated to a significant number of judicial review cases before the courts. Thus, over 90% of all applications for constitutional writs made to the High Court in the past 5 years have been migration matters.7 In the Federal Court, a total of 367 cases arising under the Migration Act were initiated for the year ending June 2015, representing a 36% increase on the preceding year.8 But it is the Federal Circuit Court which hears the majority of cases: in the 2014-15 financial year, 3,896 applications for judicial review were filed across the country.9 This is a significant increase on the 959 applications that were filed in the corresponding period of 2010-11.10 The result is that the Migration Act is one of the most litigated pieces of legislation in the country. © 2016 THOMSON REUTERS

vii

Migration Law

Given the regular changes in the legislation and case law that migration agents and lawyers are required to keep abreast of, it is surprising (or perhaps unsurprising) that the Act has not previously been subjected to a rigorous section-by-section exposition. That has been the objective of the authors of this book. We have sought to explain each section of the Act by reference to illuminating case law or explanatory memoranda. Inevitably, when dealing with legislation of the size of the Act, we have had to select certain cases over others with the consequence that some cases which people may consider to be important have been excluded. We have also provided limited guidance in relation to the Regulations, Ministerial Directions and other Legislative Instruments. In the process of drafting this book large parts have had to be revised, and revised again, due to significant legislative amendments or judicial pronouncements. In particular, the Migration Review Tribunal and Refugee Review Tribunal were amalgamated with the Administrative Appeals Tribunal on 1 July 2015 pursuant to the Tribunals Amalgamation Act 2015 (Cth). Additionally, the Immigration Assessment Authority was created as a separate office within the Administrative Appeals Tribunal to administer a new fast track system for certain unauthorised maritime arrivals or as specified by the Minister, and commenced hearing matters in early 2015. Important cases have also been handed down. In Plaintiff S297/2015 v Minister for Immigration and Border Protection [2015] HCA 3, the Minister had refused to grant the plaintiff a protection visa because of the plaintiff’s status as an unauthorised maritime arrival. The High Court held however that the Minister could not attach an additional consequence to a person being an unauthorised maritime arrival beyond that fixed by the Act and ordered the Minister to instead grant the plaintiff a permanent protection visa, depriving the Minister of any further opportunity to consider the matter. In relation to migration visas, in Ahmad v Minister for Immigration and Border Protection [2015] FCAFC 182, a Full Court of the Federal Court determined that an applicant for a skilled visa may seek merits review of a refusal to grant the visa notwithstanding that the proposed sponsor’s nomination of the applicant has been refused. In more recent times, in Plaintiff M68/2015 v Minister for Immigration and Border Protection & Ors [2016] HCA 1 the High Court considered, among other things, the circumstances in which the Executive may detain a person; the scope and limits of Commonwealth Executive power; the constitutional validity of s 198AHA of the Act; and the power of the Commonwealth to enter into and give effect to arrangements with a foreign country under that provision for the “regional processing” of unlawful maritime arrivals. These judgments represent but a few of those delivered in the preceding 12 months that the practitioner who specialises in migration law will find to be of interest. While we could go on providing further musings in relation to the vagaries of migration law, it is rather appropriate that we acknowledge those who played an important role in the preparation and production of this book. We are grateful to the team at Thomson Reuters and, in particular, single out for thanks Catherine Fitzgerald for her unwavering support, guidance and encouragement. We also record our sincere appreciation (in alphabetical order) to Nicola Bodor, Liz Gandy, Ursula Neumayer-Stewart, Nikki Savvides, Vanessa Schlenert and the broader production and editorial team, for calmly overseeing the various stages of the project and expertly handling a manuscript of such a large size. Finally, the authors thank Judge Riethmuller for kindly agreeing to write a foreword to this book. The authors have endeavoured to state the law as at 1 May 2016. Any errors in the book are that of the authors alone. Ben Petrie Natasha Bosnjak May 2016

viii

Migration Law

Preface 1 Australian Dictionary of Biography, http://adb.anu.edu.au/biography/downer-sir-alexander-russell-alick12434, accessed 10 May 2016. 2 3 4 5

Migration Bill 1958 (Cth), Explanatory Memorandum at [7]. Australian Dictionary of Biography (n 1). Migration Bill 1958 (Cth), Explanatory Memorandum, p 1. The Department of Immigration and Border Protection, “The Outlook for Net Overseas Migration: As at June 2015”, June 2015, https://www.border.gov.au/ReportsandPublications/Documents/statistics/nom-June2015.pdf, accessed 10 May 2016. 6 Australian Government, Migration Review Tribunal – Refugee Review Tribunal, “Annual Report 2014-15”, 29 September 2015, http://www.aat.gov.au/aat/files/MRDAnnualReports/MRTRRTAR201415.pdf, accessed 10 May 2016. 7 High Court of Australia, Annual Report 2014-2015, 12 November 2015, 19, (http://www.hcourt.gov.au/assets/corporate/annual-reports/hca-annual-report-2014-15.pdf). 8 Federal Court of Australia, Annual Report 2014-2015, 16 September 2015, (http://www.fedcourt.gov.au/__data/assets/pdf_file/0006/29778/Annual-Report-2014-15.pdf).

23 17

9 Federal Circuit Court of Australia, Annual Report 2014-2015, 2 September 2015, 59. 10 Ibid, 66.

© 2016 THOMSON REUTERS

ix

CONTENTS Foreword ...................................................................................................................................................... v Preface ........................................................................................................................................................ vii About this publication ............................................................................................................................... xiii About the authors ...................................................................................................................................... xix Table of Cases ........................................................................................................................................... xxi

MIGRATION ACT 1958 ................................................................................................. 1 Table of Provisions ...................................................................................................................................... 3 Table of Amending Legislation ................................................................................................................. 27 Table of Annotations .................................................................................................................................. 51 Part 1 — Preliminary (ss 1–12) ................................................................................................................ 59 Part 2 – Arrival, presence and departure of persons (ss 13–274) .......................................................... 119 Part 3 – Migration agents and immigration assistance (ss 275–332H) ................................................. 565 Part 4 – Offences relating to decisions under Act (ss 334–336) ............................................................ 625 Part 4A – Obligations relating to identifying information (ss 336A–336L) .......................................... 627 Part 5 – Review of Part 5-reviewable decisions (ss 336M–393) ........................................................... 639 Part 6 – Migration Review Tribunal [Repealed] (ss 394–408) .............................................................. 799 Part 7 – Review of Part 7-reviewable decisions (ss 408–473) .............................................................. 801 Part 7A – Statutory agency for purposes of Public Services Act [Repealed] (s 473A) ........................ 945 Part 7AA – Fast track review process in relation to certain protection visa decisions (ss 473BA–473JF) ........................................................................................................................... 947 Part 8 – Judicial review (ss 474–484) ..................................................................................................... 989 Part 8A – Restrictions on court proceedings (ss 486A–486D) ............................................................ 1011 Part 8B – Costs orders where proceedings have no reasonable prospect of success (ss 486E–486K) .... 1019 Part 8C – Reports on persons in detention for more than 2 years (ss 486L–486Q) .......................... 1023 Part 8D – Civil penalties (ss 486R–486ZG) ......................................................................................... 1025 Part 8E – Investigation powers relating to certain offences and provisions (ss 487A–487ZH) ......... 1031 Part 9 – Miscellaneous (ss 487ZI–507) ................................................................................................ 1047 The Schedule – Acts relating to immigration and deportation ............................................................. 1157

MIGRATION REGULATIONS 1994 ......................................................................... 1160 Table of Provisions ................................................................................................................................. 1161 Table of Amending Legislation .............................................................................................................. 1181 Commentary to the Migration Regulations 1994 .................................................................................. 1205 Part 1 – Preliminary (regs 1.01–1.44) ................................................................................................... 1223 Part 2 – Visas (regs 2.01–2.55) ............................................................................................................. 1297 Part 2A – Sponsorship applicable to Division 3A of Part 2 of the Act (regs 2.56–2.106) ................ 1383 Part 3 – Immigration clearance and collection of information (regs 3.01–3.31) ................................ 1481 Part 4 – Review of decisions (regs 4.01–4.40] ..................................................................................... 1499 Part 5 – Miscellaneous (regs 5.01–5.45) ............................................................................................... 1525 Schedule 1 – Classes of visas ................................................................................................................ 1561 Schedule 3 – Additional criteria applicable to unlawful non-citizens and certain bridging visa holders .................................................................................................................................... 1695 © 2016 THOMSON REUTERS

xi

Migration Law

Schedule 4 – Public interest criteria and related provisions ................................................................ 1699 Schedule 5 — Special return criteria .................................................................................................... 1713 Schedule 5A – Evidentiary requirements for student visas .................................................................. 1717 Schedule 5B – Evidentiary requirements for student visa – secondary applicants ............................. 1755 Schedules 6–6C – General points tests [Repealed] .............................................................................. 1761 Schedule 6D – General points test for General Skilled Migration Visas mentioned in subregulation 2.26AC(1) ............................................................................................................... 1763 Schedule 7 – Business skills points test – attributes and points [Repealed] ....................................... 1771 Schedule 7A – Business innovation and investment points test – attributes and points (Business Skills Provisional) (Class EB) visas) ........................................................................... 1773 Schedule 8 — Visa conditions ............................................................................................................... 1779 Schedule 8A — Amount of partial refund [Repealed] ......................................................................... 1795 Schedule 9 – Special entry and clearance arrangements ...................................................................... 1797 Schedule 10 – Prescribed forms ............................................................................................................ 1803 Schedule 11 – Memorandum of Understanding ................................................................................... 1809 Schedule 12 – Exchange of letters ........................................................................................................ 1811 Schedule 13 – Transitional arrangements .............................................................................................. 1813 Ministerial Directions and Legislative Instruments .............................................................................. 1837

RELATED LEGISLATION ........................................................................................ 1911 Immigration (Guardianship of Children) Act 1946 (Cth) ..................................................................... 1913 Immigration (Guardianship of Children) Regulations 2001 (Cth) ....................................................... 1923 Migration (Visa Application) Charge Act 1997 (Cth) .......................................................................... 1929 Migration Agents Registration Application Charge Act 1997 (Cth) .................................................... 1935 Migration Agents Registration Application Charge Regulations 1998 (Cth) ....................................... 1941 Border Protection (Validation and Enforcement Powers) Act 2001 (Cth) ........................................... 1945 Migration Agents Regulations 1998 (Cth) ............................................................................................ 1955 Index ....................................................................................................................................................... 2009

xii

Migration Law

ABOUT THIS PUBLICATION SCOPE OF THIS WORK Migration Law – Annotated Migration Act with Related Legislation contains the full text of the Migration Act 1958 with clear and comprehensive annotations written by Ben Petrie and Natasha Bosnjak. The publication also contains related legislation. It is an essential reference for legal practitioners, business professionals and students of migration law. A table of annotated provisions is included at p 51 of this volume, as is a table of the cases mentioned in the annotations at p xxi. Annotations to legislative provisions and non-legislative material are distinguished from legislative provisions by the use of shading. Legislative provisions are shaded whereas the annotations are not. The content of this publication is drawn from the online subscription work Migration Act Annotated.

LEGISLATION Migration Law contains the following legislation: • Migration Act 1958 • Migration Regulations 1994 (except Schedule 2) • Immigration (Guardianship of Children) Act 1946 • Immigration (Guardianship of Children) Regulations 2001 • Migration (Visa Application) Charge Act 1997 • Migration Agents Registration Application Charge Act 1997 • Migration Agents Registration Application Charge Regulations 1998 • Border Protection (Validation and Enforcement Powers) Act 2001 • Migration Agents Regulations 1998 CURRENCY The Acts and regulations reproduced in this book are current as at 19 April 2016. LEGISLATIVE AMENDMENTS IN THIS EDITION Migration Law takes account of the amendments listed below. Where provisions of an amending Act have not yet commenced, special notes have been included in the section affected by the changes with a heading “Future commencements”. Migration Act 1958 (Cth) Amending Acts • Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 – Act 116 of 2014 © 2016 THOMSON REUTERS

xiii

Migration Law

• Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 – Act 135 of 2014 • Migration Amendment (Protection and Other Measures) Act 2015 – Act 35 of 2015 • Customs and Other Legislation Amendment (Australian Border Force) Act 2015 – Act 41 of 2015 • Tribunals Amalgamation Act 2015 – Act 60 of 2015 • Migration Amendment (Regional Processing Arrangements) Act 2015 – Act 104 of 2015 • Migration Amendment (Strengthening Biometrics Integrity) Act 2015 – Act 115 of 2015 • Acts and Instruments (Framework Reform) (Consequential Provisions) Act 2015 – Act 126 of 2015 • Migration Amendment (Charging for a Migration Outcome) Act 2015 – Act 161 of 2015 • Statute Law Revision Act (No 1) 2016 – Act 4 of 2016 • Migration Legislation Amendment (Cessation of Visa Labels) Act 2016 – Act 34 of 2016 Migration Regulations 1994 (Cth) Amending Act and Regulations • Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 – Act 135 of 2014 (as amended by the Migration Amendment (Protection and Other Measures) Act 2015) • Customs and Other Laws (Repeal and Consequential Amendments) Regulation 2015 – SLI 31 of 2015 • Migration Amendment (2015 Measures No 1) Regulation 2015 – SLI 34 of 2015 • Migration Amendment (Protection and Other Measures) Regulation 2015 – SLI 47 of 2015 • Migration Amendment (Resolving the Asylum Legacy Caseload) Regulation 2015 – SLI 48 of 2015 • Customs and Other Legislation Amendment (Australian Border Force) Regulation 2015 – SLI 90 of 2015 • Migration Amendment (Investor Visas) Regulation 2015 – SLI 102 of 2015 • Migration Legislation Amendment (2015 Measures No 2) Regulation 2015 – SLI 103 of 2015 • Migration Amendment (Visa Labels) Regulation 2015 – SLI 144 of 2015 • Migration Amendment (Conversion of Protection Visa Applications) Regulation 2015 – SLI 164 of 2015 • Migration Amendment (Special Category Visas and Special Return Criterion 5001) Regulation 2015 – SLI 169 of 2015 • Migration Legislation Amendment (2015 Measures No 3) Regulation 2015 – SLI 184 of 2015 • Migration Amendment (Clarifying Subclass 457 Requirements) Regulation 2015 – SLI 185 of 2015 xiv

Migration Law

About this Publication

• Migration Amendment (Offshore Resources Activity) Regulation 2015 – SLI 211 of 2015 • Migration Amendment (Charging for a Migration Outcome and Other Measures) Regulation 2015 – SLI 242 of 2015 • Migration Legislation Amendment (2015 Measures No 4) Regulation 2015 – SLI 243 of 2015 • Migration Amendment (Priority Consideration of Certain Visa Applications) Regulation 2016 – F2016L00295 of 2016 • Migration Legislation Amendment (2016 Measures No 1) Regulation 2016 – F2016L00523 of 2016 Migration (Visa Application) Charge Act 1997 (Cth) Amending Act • Statute Law Revision Act (No 2) 2015 – Act 145 of 2015 Migration Agents Registration Application Charge Act 1997 (Cth) Amending Act • Statute Law Revision Act (No 2) 2015 – Act 145 of 2015 Migration Agents Regulations 1998 (Cth) Amending Regulations • Migration Legislation Amendment (2015 Measures No 2) Regulation 2015 – SLI 103 of 2015 – Act 145 of 2015 FUTURE COMMENCEMENTS Migration Act 1958 (Cth) Amending legislation

Number

Norfolk Island Legislation 59 of 2015 Amendment Act 2015 Biosecurity 62 of 2015 (Consequential Amendments and Transitional Provisions) Act 2015

Date of gazettal/assent/ registration 26 May 2015 16 Jun 2015

Date of commencement Sch 2 items 249-254 commence 1 Jul 2016 Sch 2 items 34 and 35 commence at the same time as s 3 of the Biosecurity Act 2015 commences (to be proclaimed or 16 Jun 2016)

Migration Regulations 1994 (Cth) Amending legislation

Number

Migration Legislation Amendment (2016 Measures No 1) Regulation 2016

F2016L00523 of 2016

© 2016 THOMSON REUTERS

Date of gazettal/assent/ registration 15 April 2016

Date of commencement Sch 4 items 1-26 and 33-50 and Sch 5 item 2 commence 1 Jul 2016

xv

Migration Law

Amending legislation

Number

Date of gazettal/assent/ registration 19 Apr 2016

Trade Legislation F2016L00539 of Amendment (Australian 2016 Trade and Investment Commission) Regulation 2016 Immigration (Guardianship of Children) Act 1946 (Cth) Amending legislation

Number

Norfolk Island Legislation 59 of 2015 Amendment Act 2015

Date of gazettal/assent/ registration 26 May 2015

Date of commencement Sch 1 item 21 commences 1 May 2016

Date of commencement Sch 2 items 225 and 226 commence 1 Jul 2016

PROPOSED AMENDMENTS Migration Act 1958 (Cth) Guardian for Unaccompanied Children Bill 2014 – 2nd reading speech Senate 16 Jul 2014. Report of Senate Legal and Constitutional Affairs Legislation Committee tabled 9 Feb 2015. Sch 1 items 3-9 commence at the same time as provs covered by table item 2 (to be proclaimed, or 6 months after date of assent). Migration Amendment (Free the Children) Bill 2016 – 2nd reading speech Senate 2 Mar 2016. Sch 1 items 1-13 commence on date of assent. Migration Amendment (Humanitarian Visa Intake) Bill 2014 – 2nd reading speech Senate 25 Sep 2014. Sch 1 items 1-3 commence day after date of assent. Migration Amendment (Protecting Babies Born in Australia) Bill 2014 – debate Senate 25 Feb 2016. Senate Legal and Constitutional Affairs Legislation Committee report tabled 10 Feb 2015. Sch 1 item 1 commences day after date of assent. Migration Amendment (Visa Maximum Numbers Determinations) Bill 2013 – debate Senate 12 Dec 2013. Sch 1 items 1 and 2 commence day after date of assent. Immigration (Guardianship of Children) Act 1946 (Cth) Guardian for Unaccompanied Children Bill 2014 – 2nd reading speech Senate 16 Jul 2014. Report of Senate Legal and Constitutional Affairs Legislation Committee tabled 9 Feb 2015. Sch 1 items 1 and 2 commence at the same time as provs covered by table item 2 (to be proclaimed, or 6 months after date of assent).

LEGISLATION — SPECIAL FEATURES HISTORY NOTES The history notes have been entered into an abbreviated form using the number and year of the amending Act, rule or regulation and a descriptor (eg. “insrt”) to show the effect of the amending Act, rule or regulation. The abbreviations used in the historical notes are as follows: • insrt — inserted • am — amended • subst — substituted xvi

Migration Law

Legislation — special features

• • • • • •

rep — repealed exp — expired reinsrt — reinserted renum — renumbered reloc — relocated mod – modified

Example: History note under s 46B(7) of the Migration Act 1958 (Cth): [Subs (7) am Act 35 of 2015, s 3 and Sch 3 item 10, with effect from 18 Apr 2015]

This note indicates that subsection (7) was amended by Act 35 of 2015, Schedule 3 item 10. Section 3 is a reference to the enacting provision. Details of the short title of the amending Act or regulation, assent/gazettal/registration and commencement dates and transitional provisions are located in the Table of Amending Legislation following the Table of Provisions. EDITOR’S NOTES Editor’s notes have been integrated into this publication to assist practitioners with identifying information relevant to the interpretation of a particular section or regulation, including: (1) gaps in numbering in a particular Act or regulation; and (2) misdescribed amendments, drafting errors or disallowances. Example: Editor’s note under reg 2.08H of the Migration Regulations 1994 (Cth): [Editor’s Note: Reg 2.08H as insrt by SLI 234 of 2013, reg 4 and Sch 1 item 2, with effect from 18 Oct 2013, was disallowed by the Senate on 2 Dec 2013.]

CROSS REFERENCES Cross-references have been integrated into this publication to indicate where other Legislative Instruments affect a provision of the Migration Act 1958 (Cth) or the Migration Regulations 1994 (Cth). Example: Cross-reference under s 5 of the Migration Act 1958 (Cth): [Cross-reference: Legislative Instruments: IMMI 15/004 — Migration Regulations 1994 – Specification of Evidence of Functional English Language Proficiency 2015: This Instrument specifies the qualifications or experience necessary for the purposes of providing evidence of English language proficiency. This includes specifying educational experience and results obtained as a consequence of sitting specific English language tests including the International English Language Testing System (IELTS) test.]

Cross-references have also been integrated to indicate where Ministerial Directions affect a provision of the Migration Act 1958 (Cth) or the Migration Regulations 1994 (Cth). Example: Cross-reference under s 5 of the Migration Act 1958 (Cth): [Cross-reference: Ministerial Directions: Bridging E Visas – Cancellation under s 116(1)(g) – Reg 2.43(1)(p) or (q) (Direction No. 63): The purpose of this Direction is to guide decision-makers who are delegated to perform functions or exercise powers under the Act to cancel the visa of a non-citizen under s 116(1)(g) and reg 2.43(1)(p) or (q).]

© 2016 THOMSON REUTERS

xvii

Migration Law

MIGRATION LAW ONLINE Migration Law is also available as the online service Migration Act Annotated. It has all the features of the book and in addition it has the following benefits to keep you up to date with developments in migration law: • Regular updates – The commentary is updated regularly and amendments to legislation are available soon after commencement. • Linking and integration – Migration Act Annotated online works in conjunction with other Thomson Reuters Online services so that you can click on a case name and get access to Firstpoint litigation history and case summary and citation links which will take you directly to the full text of cases.

ENQUIRIES Considerable care has been taken in this compilation, but the interpretation and consolidation of the legislation is complex. The publisher invites feedback on this edition. If improvements or errors are advised, we will seek to publish updates online and in future releases. Correspondence may be addressed to: [email protected] Phone from Australia: 1300 304 195 Fax from Australia: 1300 304 196 Thomson Reuters Customer Service Reply Paid 3502 PO Box 3502 Rozelle NSW 2039

xviii

Migration Law

ABOUT THE AUTHORS Ben Petrie, LLB (Hons), BA, BSc Ben Petrie has a broad commercial and public law practice with a particular emphasis on judicial review proceedings. He has acted in many notable cases litigated under the Migration Act, and has appeared as advocate for the Minister for Immigration and Border Protection before the Federal Circuit Court, Federal Court and High Court.

Natasha Bosnjak, LLB (Hons), BA, Grad Dip (Psych) Natasha Bosnjak is a Senior Associate at Clayton Utz in the Litigation and Dispute Resolution team. She acts in both public law and commercial matters. Natasha has advised the Minister for Immigration and Border Protection for nearly a decade in hundreds of migration matters (from the Tribunal to the various courts, including the Federal Circuit Court, Federal Court and High Court).

© 2016 THOMSON REUTERS

xix

TABLE OF CASES A A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225; 142 ALR 331; 71 ALJR 381; [1997] 4 Leg Rep 9; [1997] HCA 4 ..................................................... 5L.20, 36.20, 36.30 A v Pelekanakis (1999) 91 FCR 70; 57 ALD 131; [1999] FCA 236 ..................................... 54.20, 54.40 AZAAD v Minister for Immigration and Citizenship (2010) 189 FCR 494; 274 ALR 55; [2010] FCAFC 156 ....................................................................................................... 360.140, 425.140 Abebe v Commonwealth of Australia (1999) 197 CLR 510; 55 ALD 1; 162 ALR 1; 73 ALJR 584; 7 Leg Rep 2; [1999] HCA 14 ............................................................................... 5AAA.20 Aboriginal Affairs, Minister for v Peko-Wallsend Ltd (1986) 162 CLR 24; 66 ALR 299; [1986] HCA 40 ................................................................................................ 56.120, 359.180, 424.180 Adrian Phillip Joel v Migration Agents Registration Board (1997) 49 ALD 79; [1997] FCA 989 ......................................................................................................................................... 309.40 Ahmad v Minister for Immigration and Border Protection [2015] FCAFC 182 ............ 338.160, 338.260 Ahmed v Minister for Immigration and Citizenship [2011] HCATrans 35 ...................... 477.80, 477A.80 Ahmed v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 156; [2001] FCA 1101 .................................................................................................................... 366C.20, 366C.80 Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; 66 ALJR 271; [1992] HCA 10 ........................................................................................................ 339.60, 411.220, 473BD.30 Akpata v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 65 ................................................................... 501.20, 501.240, 501A.180, 501B.120, 501F.40 Algama v Minister for Immigration and Multicultural Affairs (2001) 115 FCR 253; 194 ALR 37; [2001] FCA 1884 ........................................................................................... 366D.20, 427.80 Amin and Migration Agents Registration Authority [2005] AATA 257 ........................................ MAR.20 Anani v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCCA 1140 ..................................................................................................................................... 41.60, 41.140 Andrayani v Minister for Immigration and Citizenship [2011] FCA 117 .......................................... 41.60 Andrayani v Minister for Immigration and Citizenship [2011] HCASL 106 ..................................... 41.60 Annetts v McCann (1990) 170 CLR 596 97 ALR 177; [1990] HCA 57 ...................................... 357A.40 Annetts v McCann (1990) 170 CLR 596; 97 ALR 177; [1990] HCA 57 ....... 51A.40, 97A.40, 118A.40, 127A.40, 422B.40 Antipova v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 151 FCR 480; [2006] FCA 584 ................ 51A.100, 97A.100, 118A.100, 127A.100, 357A.120, 422B.120 Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230 ....................................................................... 360.200, 366C.80, 425.180, 427.180 Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225; 142 ALR 331; 71 ALJR 381; [1997] 4 Leg Rep 9; [1997] HCA 4 .............................. 5H.20, 5J.20, 5J.30 Applicant A2 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 576 ............................................................................................................. 477.80, 477A.80 Applicant in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705 ......................................................................................................................... MDLI.10 Applicant M1014 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1190 ................................................................................................. 373.40, 435.40 Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387; 77 ALD 541; 206 ALR 242; 78 ALJR 854; [2004] HCA 25 ............................................................. 36.20 © 2016 THOMSON REUTERS

xxi

Table of Cases

Applicant VAAN of 2001 v Minister for Immigration and Multicultural Affairs (2002) 70 ALD 289; [2002] FCA 197 ........................................................................................................... 269.60 Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 ................................................................... 348.120, 414.120 Application of Amalgamated Anthracite Collieries Ltd, Re (1927) 43 TLR 672 ........... 501.40, 501A.80, 501B.60 Assad v Minister for Immigration and Citizenship [2009] FMCA 722 ............................................. 41.60 Assi v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 260 ................................................................................................................................. 347.260, 412.280 Attorney General v Wentworth (1988) 14 NSWLR 481 .............................................................. MAR.220 Australia Meat Holding Pty Ltd v Kazi [2004] 2 Qd R 459; [2004] QCA 147 .............................. 235.20 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; 94 ALR 11; 64 ALJR 462; [1990] HCA 33 ........................................................................................ 290.40, 303.40, MAR.40 Australian Capital Territory Revenue, Commissioner for v Alphaone Pty Ltd (1994) 49 FCR 576; 127 ALR 699; 34 ALD 324 ...................................................................................... 357A.40 Australian Capital Territory Revenue, Commissioner for v Alphaone Pty Ltd (1994) 49 FCR 576; 34 ALD 324; 127 ALR 699 ...................................................................................... 422B.40 Australian Maritime Officers’ Union v Assistant Minister for Immigration and Border Protection [2015] FCAFC 45 ......................................................................................................... 9A.20 Avaiya v Minister for Immigration and Border Protection [2014] FCCA 268 ............................. 486D.20 Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513; [2015] FCAFC 83 .................................................................................................................................... 501.290

B Bains v Minister for Immigration and Citizenship (2012) 205 FCR 217; 128 ALD 544; [2012] FCA 649 ............................................................................................................ 360.260, 425.240 Baker v The Queen (2004) 223 CLR 513; 210 ALR 1; [2004] HCA 45 ................... 137L.60, 473DD.30 Bal v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 189 ALR 566; 69 ALD 634; [2002] FCAFC 189 .......................................................................................... 46.30 Ball v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 199; 199 ALR 374; [2003] FCA 699 ............................ 107.100, 109.120, 119.160, 127.60, 501G.140 Basbas v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1602 ............................................................................................................................................. 486C.20 Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs (2004) 219 CLR 486; 208 ALR 271; [2004] HCA 36 ................................................................. 273.20 Berenguel v Minister for Immigration and Citizenship (2010) 264 ALR 417; 84 ALJR 251; [2010] HCA 8 .................................................................................................................... MR0.100 Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651; 234 ALR 114; [2007] HCA 14 ................................................................................................... 486A.20 Border Protection v WZAPN [2015] HCA 22 ..................................................................................... 5J.20 Braganza v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 364; 183 ALR 123; [2001] FCA 318 .......................................................................................... 347.280, 348.140 Briginshaw v Briginshaw (1938) 60 CLR 336; ALR 334; 12 ALJR 100; [1938] HCA 34 ......... MAR.20 Brown v Minister for Immigration and Citizenship (2009) 112 ALD 67; [2009] FCA 1098 ......... 501.20 Burton v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 149 FCR 20; [2005] FCA 1455 ......................................................................................... 375A.40, 375A.60 Bushell v Repatriation Commission (1992) 175 CLR 408; 109 ALR 30; [1992] HCA 47 ......... 348.100, 414.100

C C v Minister for Immigration and Multicultural Affairs (1999) 94 FCR 366; 59 ALD 643; [1999] FCA 1430 .................................................................................................................. 5J.20, 36.20 CZAY v Minister for Immigration [2012] FMCA 50 ....................................................... 477.80, 477A.80 xxii

Migration Law

Table of Cases

Cabal v Minister for Immigration and Multicultural Affairs [2001] FCA 546 ............... 360.280, 425.260 Calado v Minister for Immigration and Multicultural Affairs (1997) 81 FCR 450 ................ 5J.20, 36.20 Carlos v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 456; [2001] FCA 1087 .................................................................................................................... 362A.40, 362A.60 Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; 87 ALR 412; 63 ALJR 561; [1989] HCA 62 ............................................................................................. 5J.20, 36.20 Chan Ta Srey v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 308; [2003] FCA 1292 ............................................................................ 66.20, 66.60, 66.120 Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; 87 ALR 412; 63 ALJR 561; [1989] HCA 62 ........................................................................... 5J.10, 36.20 Chang and Migration Agents Registration Authority [2014] AATA 235 ..................................... MAR.120 Cheaib v Minister of State for Immigration and Multicultural Affairs (1997) 75 FCR 308; 145 ALR 379 ................................................................................................................................. 128.20 Cheema v Minister for Immigration and Citizenship [2011] FCA 121 .............................................. 41.60 Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293; 58 ALD 321; 170 ALR 553; 74 ALJR 775; 21(7) Leg Rep 11; [2000] HCA 19 ............. 5J.20, 5J.30, 36.20, 36.30, 65.40 Cheng v Minister for Immigration and Citizenship (2011) 198 FCR 559; [2011] FCA 1290 .... 379A.220, 379C.80, 441A.220, 441C.80, 473HB.120, 494B.240, 494C.80 Chhuon v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 74 ALD 381; 198 ALR 500; [2003] FCA 565 .................................................................................. 131.80 Chiorny v Minister for Immigration and Multicultural Affairs (1997) 73 FCR 237; 44 ALD 605; 154 ALR 191 ..................................................................................... 120.20, 373.40, 435.40 Choi v Minister for Immigration and Citizenship [2008] FMCA 1717 .......... 107.100, 109.120, 119.160, 127.60, 494A.20, 501G.140 Chu Keng Lim v Minister for Immigration Local Government and Ethnic Affairs (1992) 176 CLR 1; 110 ALR 97; 67 ALJR 125 ...................................................... 46A.30, 189.40, 195A.100 Citizenship v SZKPQ (2008) 166 FCR 84; 101 ALD 5; [2008] FCAFC 21 ............................. 473HB.40 Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307; [1979] FCA 21 ....................................................................................... 46.30, 47.20, 338.200, 411.140 Commonwealth v Tasmania (1983) 158 CLR 1; 46 ALR 625; 57 ALJR 450; [1983] HCA 21 ........................................................................................................................................... 5J.20, 36.20 Commonwealth of Australia (Department of Defence), Re; Ex parte Marks (2000) 177 ALR 491; 75 ALJR 470; [2000] HCA 67 ................................................................................. 486A.40 Commonwealthv Fernando (2012) 200 FCR 1; 126 ALD 10; 287 ALR 267; [2012] FCAFC 18 ...................................................................................................................................... 194.20 Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; 169 ALR 400; [2000] HCA 5 ................................................................... 359C.20, 424C.20 Cunliffe v Commonwealth (Migration Agents Case) (1994) 182 CLR 272; 124 ALR 120; [1994] HCA 44 .............................................................................................................................. Pt 3.20

D Dai v Minister for Immigration and Citizenship (2007) 165 FCR 458; 243 ALR 642; [2007] FCAFC 199 ........................................................................................................................ 41.220 Daniel v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 205 ALR 198; [2004] FCA 21 ............................................................................................. 477.80, 477A.80 Davis v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 686 ............................................................................................................................................... 375A.60 Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 .......................... MAR.220 Dhanoa v Minister for Immigration and Citizenship [2010] HCATrans 200 ..... 349.60, 349.100, 415.60, 415.100, 473CC.30 Dissanayake v Minister for Immigration and Multicultural Affairs [2002] FCA 976 ........ 359.20, 424.20 Djalic v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 292; 206 ALR 488; [2004] FCAFC 151 .............................................................................. 501.20 © 2016 THOMSON REUTERS

xxiii

Table of Cases

Dogolau v Minister for Immigration and Citizenship [2012] FMCA 529 ......................................... 41.60 Dostanov v Minister for Immigration [2007] FMCA 792 ................................................... 361.60, 426.60 Dostanov v Minister for Immigration and Citizenship [2007] FMCA 792 ......................... 361.40, 426.40 Doukmak v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 432; [2001] FCA 1821 ........................................................................................................................... 128.20 Dowlat v Minister for Immigration [2009] FMCA 171 ....................................................... 359.40, 424.40 Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; 24 ALR 577; 46 FLR 409 ........................................................................................................................ 499.20; MDLI.10 Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 .................... MDLI.220 Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; 77 ALJR 1088; [2003] HCA 26 ................................................................................... 348.120, 414.120 Dunn v Minister for Immigration and Citizenship [2007] FMCA 1349 ........................ 366D.40, 427.140

E Ejani v Migration Agents Registration Authority [2009] AATA 240 .......................................... MAR.160 El Ess v Minister for Immigration (2004) 142 FCR 43; [2004] FCA 1038 .............................. MDLI.220 Enjam v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCCA 1046 ............................................................................................................................. 360A.60, 425A.60 Esber v Commonwealth (1992) 174 CLR 430; 106 ALR 577; [1992] HCA 20 ............... 348.60, 414.60, MR0.120 Eshchenko v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2005) 147 FCR 545; [2005] FCA 1772 ................................................................................... 503A.20 Evans v Minister for Immigration and Indigenous Affairs (2003) 135 FCR 306; 203 ALR 320; [2003] FCAFC 276 ............................................................................................ 503A.20, 503A.60

G Gabay v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 485 .................................................................................................................................................... 41.60 Gajjar v Minister for Immigration and Citizenship (2013) 87 ALJR 549; [2013] HCA 13 .............. 57.20 Gazi v Minister for Immigration and Citizenship (now Minister for Immigration and Border Protection) [2013] FCA 1094 .................................... 362B.80, 362B.100, 426A.80, 426A.100 Gbojueh v Minister for Immigration and Citizenship (2012) 202 FCR 417; 289 ALR 107; [2012] FCA 288 ............................................................................................. 501.40, 501A.80, 501B.60 General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 ............................................................................................................................ MAR.220 Genovese v BGC Construction Pty Ltd [2006] FMCA 1507 ........................................................... 477.60 Giri v Minister for Immigration and Citizenship [2011] FMCA 282 .......................................... 359C.100 Giri v Minister for Immigration and Citizenship [2011] FCA 928 .............................................. 359C.100 Godley v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 83 ALD 411; [2004] FCA 774 ....................................................... 500A.60, 500A.200, 501.120, 501.220 Goldie v Minister for Immigration & Multicultural Affairs (2001) 111 FCR 378; 33 AAR 446; [2001] FCA 1318 ................................................................................................................. 500.160 Guo v Migration Agents Registration Authority [2013] AATA 225 ............................................ MAR.120

H Haneef v Minister for Immigration and Citizenship (2007) 161 FCR 40; 242 ALR 290; [2007] FCA 1273 ....................................................................... 500A.80, 500A.220, 501.140, 501.300 Hanna v Migration Agents Registration Authority (1999) 94 FCR 358; 30 AAR 422; [1999] FCA 1657 ........................................................................................................................ MAR.20 Haque v Minister for Immigration and Citizenship (2010) 115 CLR 371; 185 FCR 86; [2010] FCA 461 ....................................................................... 379A.20, 441A.20, 473HB.20, 494B.20 xxiv

Migration Law

Table of Cases

Hartnett v Migration Agents Registration Authority (2004) 140 FCR 388; [2004] FCAFC 269 .......................................................................... 276.20, MAR.80, MAR.100, MAR.200, MAR.240 Hasan v Minister for Immigration and Citizenship (2010) 184 FCR 523; 114 ALD 602; [2010] FCA 375 .................................................... 66.80, 66.100, 347.120, 347.140, 412.140, 412.160 Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413; [2010] FCAFC 40 ..... 358.20, 358.60, 359.120, 359A.280, 359B.180, 359C.20, 359C.60, 359C.80, 360.80, 360.180, 363A.40, 423.20, 423.60, 424.120, 424A.280, 424B.180, 424C.20, 424C.60, 424C.80 Herald and Weekly Times v Magistrates’ Court [1999] 3 VR 231; [1999] VSC 136 ..................... 365.60 Herijanto v Refugee Review Tribunal (2000) 174 ALR 681; 74 ALJR 1398; [2000] HCA 16 ....................................................................................................................................... 373.40, 435.40 Heydarkhani v The Queen [2014] WASCA 52 ............................................................................... 233B.60 Hicks v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 146 FCR 427; [2005] FCAFC 84 ......................................................................................................... 32.100 Ho v Professional Services Review Committee No 295 [2007] FCA 388 ................. 137L.60, 473DD.30 Hong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 1308 ................................................................................................................................... 363.20, 427.20 Horne v Minister for Immigration and Citizenship (2008) 101 ALD 143; 246 ALR 380; [2008] FCA 581 .......................................................................................................................... 494A.20 Horvath v Secretary of State for the Home Department [2001] 1 AC 489 ............................. 5J.20, 36.20 Hossain v Minister for Immigration and Multicultural Affairs [2000] FCA 842 ...... 362B.160, 426A.160 Howells v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 580; 213 ALR 379; [2004] FCAFC 327 ............................................... 499.20, 499.80, MDLI.10 Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 44; [2001] FCA 1802 ...................................................................................................................... 348.120, 414.120 Hu v Li-Chien Liu [2011] FMCA 21 ................................................................................... 313.40, 314.20 Huai Xin Li v Minister for Immigration and Citizenship (2008) 102 ALD 354; [2008] FCA 902 ........................................................................................................................ 348.120, 414.120 Hughes & Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127; [1955] ALR 525; [1955] HCA 28 .............................................................................. 290.40, 303.40, MAR.40, MAR.160 Hughes v Minister for Immigration and Multicultural Affairs (1998) 53 ALD 607; [1998] FCA 1155 ....................................................................................................................................... 31.120 Humayun v Minister for Immigration (2006) 149 FCR 558; 90 ALD 482; [2006] FCAFC 35 ................................................................................................................................... 116.160, 137J.80 Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; 58 ALR 305; [1984] FCA 176 .................................................................................... 476A.120, 477.40, 477A.40, 477A.100

I Illukkumbura v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1715 ......................................................................................................................................... 33.80 Immigration, Local Government and Ethnic Affairs, Minister for v Gray (1994) 33 ALD 13; 50 FCR 189; 19 AAR 266 ................................................................................................ MDLI.220 Immigration, Minister for v Kang [2012] FMCA 732 ...................................................................... 474.60 Immigration, Minister for v Lee [2014] FCCA 2881 ...................................................................... 338.260 Immigration, Minister for v Zhou (2006) 152 FCR 115; [2006] FCAFC 96 .................. 116.160, 137J.80 Immigration, Multicultural Affairs and Citizenship, Minister for v SZRHU [2013] FCAFC 91; (2013) 215 FCR 35 ................................................................................................................... 36.20 Immigration, Multicultural Affairs and Citizenship, Minister for v SZRNY (2013) 214 FCR 374; [2013] FCAFC 104 ...... 368.20, 368A.40, 368D.20, 430.20, 430A.40, 430D.20, 473EB.20 Immigration, Multicultural and Indigenous Affairs, Minister for v WACO [2004] HCATrans 430 .......................................................................................... 357A.20, 422B.20, 473DA.20 Immigration and Border Protection, Minister for v Dhillon [2014] FCAFC 157 ......... 360.300, 360.320, 425.280, 429A.40 Immigration and Border Protection, Minister for v Kim (2014) 220 FCR 494; [2014] FCA 390 ................. 379A.20, 379A.200, 441A.20, 441A.200, 473HB.20, 473HB.110, 494B.20, 494B.220 © 2016 THOMSON REUTERS

xxv

Table of Cases

Immigration and Citizenship, Minister for v Abdul Manaf (2009) 111 ALD 437; [2009] FCA 963 .......................................................................................................... 66.140, 347.160, 412.180 Immigration and Citizenship, Minister for v Applicant A125 of 2003 (2007) 163 FCR 285; 243 ALR 691; [2007] FCAFC 162 ......................................................................... 360.60, 425.60 Immigration and Citizenship, Minister for v Brar (2009) 175 FCR 432; 108 ALD 309; [2009] FCAFC 53 .......................................................................................................................... 41.220 Immigration and Citizenship, Minister for v Brar (2012) 201 FCR 240; 126 ALD 99; [2012] FCAFC 30 .................................. 107.80, 107.160, 108.40, 108.80, 109.100, 109.180, 119.100 Immigration and Citizenship, Minister for v Chamnam You [2008] FCA 241 .................. 358.20, 423.20 Immigration and Citizenship, Minister for v Dhanoa (2009) 180 FCR 510; [2009] FCAFC 153 ................................................................................... 349.60, 349.100, 415.60, 415.100, 473CC.30 Immigration and Citizenship, Minister for v Hart (2009) 179 FCR 212; 111 ALD 502; [2009] FCAFC 112 ........................................................................................................................ 134.60 Immigration and Citizenship, Minister for v Islam (2012) 202 FCR 46 ........................ 338.160, 338.260 Immigration and Citizenship, Minister for v Khadgi (2010) 190 FCR 248; 274 ALR 438; [2010] FCAFC 145 ............................................................................................... 56.60, 359.80, 424.80 Immigration and Citizenship, Minister for v Khandakar [2011] FCAFC 22 ................................... 73.100 Immigration and Citizenship, Minister for v Li (2013) 249 CLR 332; 297 ALR 225; 87 ALJR 618; [2013] HCA 18 ............. 348.100, 353.20, 353.40, 353.60, 357A.20, 357A.80, 357A.140, 357A.180, 359AA.220, 362B.80, 362B.100, 363.20, 363.40, 363.80, 414.100, 420.20, 420.40, 420.60, 422B.20, 422B.80, 422B.140, 422B.180, 424AA.220, 426A.80, 426A.100, 427.20, 427.40, 427.120, 473DA.20, 473FA.20, 473FA.30 Immigration and Citizenship, Minister for v MZYHS (2011) 119 ALD 534; [2011] FCA 53 ................................................................................................................................... 359.160, 424.160 Immigration and Citizenship, Minister for v MZYYL (2012) 207 FCR 211; (2012) 133 ALD 465; [2012] FCAFC 147 ........................................................................................................ 36.20 Immigration and Citizenship, Minister for v MZYZA [2013] FCA 572 ..... 362C.80, 362C.160, 368.100, 368.180, 423B.160, 426B.80, 430.100, 430.180 Immigration and Citizenship, Minister for v Manaf (2009) 111 ALD 437; [2009] FCA 963 ..... 379C.20, 379D.20, 441C.20, 441D.20, 473HD.10, 494C.20 Immigration and Citizenship, Minister for v SZGUR (2011) 241 CLR 594; 273 ALR 223; [2011] HCA 1 ....... 57.40, 120.40, 348.80, 359.100, 359.160, 359A.40, 359AA.40, 362C.80, 363.60, 368.100, 414.80, 424.100, 424A.40, 424.160, 424AA.40, 426B.80, 427.60, 430.100, 473EA.20 Immigration and Citizenship, Minister for v SZIAI (2009) 259 ALR 429; 83 ALJR 1123; [2009] HCA 39 ..................................................................... 348.80, 359.100, 414.80, 424.100, 427.60 Immigration and Citizenship, Minister for v SZIQB [2008] FCAFC 20 ........................ 360.280, 425.260 Immigration and Citizenship, Minister for v SZIZO (2009) 238 CLR 627; 259 ALR 405; [2009] HCA 37 .............................................. 107.80, 108.80, 109.100, 119.100, 360A.120, 425A.120 Immigration and Citizenship, Minister for v SZKPQ (2008) 166 FCR 84; 101 ALD 5; [2008] FCAFC 21 .......... 379A.60, 379A.120, 379G.140, 441A.60, 441A.120, 441G.140, 473HB.70, 473HG.70, 494B.80, 494B.140, 494D.140 Immigration and Citizenship, Minister for v SZKTI (2009) 238 CLR 489; 258 ALR 434; [2009] HCA 30 ............................... 56.40, 56.100, 359.20, 359.60, 359.140, 424.20, 424.60, 424.140 Immigration and Citizenship, Minister for v SZLFX (2009) 238 CLR 507; 258 ALR 448; [2009] HCA 31 .................. 57.80, 120.80, 359A.100, 359AA.100, 424A.100, 424AA.100, 473DE.60 Immigration and Citizenship, Minister for v SZLSP (2010) 187 FCR 362; 11 ALD 259; 272 ALR 115; [2010] FCAFC 108 ......... 5J.20, 36.20, 362C8.40, 362C.20, 368.20, 368.40, 426B.20, 426B.40, 430.20, 430.40 Immigration and Citizenship, Minister for v SZMDS (2010) 240 CLR 611; 266 ALR 367; [2010] HCA 16 ................................................................................. 362C.20, 368.20, 426B.20, 430.20 Immigration and Citizenship, Minister for v SZMOK (2009) 110 ALD 15; 257 ALR 427; [2009] FCAFC 83 .................................................................................................... 422B.20, 473DA.20 Immigration and Citizenship, Minister for v SZMTR (2009) 180 FCR 586; [2009] FCAFC 186 ............................................................................................ 379A.60, 441A.60, 473HB.40, 494B.80 Immigration and Citizenship, Minister for v SZNCR [2011] FCA 369 .......................... 360.220, 425.200 xxvi

Migration Law

Table of Cases

Immigration and Citizenship, Minister for v SZNVW (2010) 183 FCR 575; 114 ALD 666; [2010] FCAFC 41 ......................................................................................................... 360.100, 425.100 Immigration and Citizenship, Minister for v SZQOY (2012) 206 FCR 25; 294 ALR 84; [2012] FCAFC 131 .......................................................................... 368.20, 368D.20, 430.20, 430D.20 Immigration and Citizenship, Minister for v SZQRB (2013) 210 FCR 505; 132 ALD 269; 296 ALR 525; [2013] FCAFC 33 .................... 5J.30, 36.20, 36.30, 46A.30, 195A.80, 198.20, 198.60 Immigration and Citizenship, Minister for v Saba Bros Tiling Pty Ltd (2011) 194 FCR 11; 278 ALR 474; [2011] FCA 233 .................................................. 359C.20, 359C.40, 424C.20, 424C.40 Immigration and Citizenship, Minister for v Zhang (2009) 179 FCR 135; 111 ALD 531; [2009] FCAFC 129 ............................................................................................... 38.80, 162.40, 162.60 Immigration and Ethnic Affairs, Minister for v Guo Wei Rong (1997) 191 CLR 559; 48 ALD 481; 144 ALR 567; 71 ALJR 743; [1997] 9 Leg Rep 2; [1997] HCA 22 ............. 5H.20, 5J.20, 5J.30, 36.10, 36.20, 36.30 Immigration and Ethnic Affairs, Minister for v Wu Shan Liang (1996) 185 CLR 259; 136 ALR 481; [1996] HCA 6 ..................................................................... 56.120, 65.40, 359.180, 424.180 Immigration and Multicultural Affairs, Minister for v A [1999] FCA 1679; (1999) 168 ALR 594 ........................................................................................................................................... 69.20 Immigration and Multicultural Affairs, Minister for v Anthonypillai (2001) 106 FCR 426; 192 ALR 256; [2001] FCA 274 ................................................................................... 359.100, 424.100 Immigration and Multicultural Affairs, Minister for v Bhardwaj (2002) 209 CLR 597; 76 ALJR 598; 187 ALR 117; [2002] HCA 11 ............... 368.200, 368A.40, 368D.60, 430.200, 430A.40, 430D.60, 473EB.20 Immigration and Multicultural Affairs, Minister for v Chan (2001) 34 AAR 94; [2001] FCA 1552 ................................................................................... 500A.80, 500A.220, 501.140, 501.300 Immigration and Multicultural Affairs, Minister for v Eshetu (1999) 197 CLR 611; 162 ALR 577; [1999] HCA 21 ............................................................................................... 353.20, 420.20 Immigration and Multicultural Affairs, Minister for v George (2004) 139 FCR 127; 85 ALD 513; [2004] FCAFC 276 ...................... 107.100, 109.120, 119.160, 127.60, 494A.20, 501G.140 Immigration and Multicultural Affairs, Minister for v Ibrahim (2000) 204 CLR 1; 62 ALD 1; 175 ALR 585; 74 ALJR 1556; 21(17) Leg Rep 2; [2000] HCA 55 ...... 5H.20, 5J.20, 36.10, 36.20 Immigration and Multicultural Affairs, Minister for v Jia (2001) 205 CLR 507; 178 ALR 421; [2001] HCA 17 ...................................................................................................................... 502.60 Immigration and Multicultural Affairs, Minister for v Khawar (2002) 210 CLR 1; 674 ALD 577; 187 ALR 574; 76 ALJR 667; 23(6) Leg Rep 11; [2002] HCA 14 .................. 5J.20, 36.20 Immigration and Multicultural Affairs, Minister for v Lay Lat (2006) 151 FCR 214; 231 ALR 412; [2006] FCAFC 61 ............ 51A.100, 97A.100, 118A.100, 127A.100, 357A.120, 422B.120 Immigration and Multicultural Affairs, Minister for v Li (2000) 103 FCR 486; 178 ALR 523; 62 ALD 627; [2000] FCA 1456 .................................................................................. 46.30, 47.20 Immigration and Multicultural Affairs, Minister for v Li Yue (2000) 249 CLR 332; 176 ALR 66; [2000] FCA 856 ........................................................ 362C.120, 368.140, 426B.120, 430.140 Immigration and Multicultural Affairs, Minister for v Maltsin (2005) 88 ALD 304; [2005] FCAFC 118 ................................................................. 361.60, 361.80, 362.40, 362.60, 426.60, 426.80 Immigration and Multicultural Affairs, Minister for v Mohammad (2000) 101 FCR 434; 62 ALD 397; [2000] FCA 1275 ....................................................................................... 360.20, 425.20 Immigration and Multicultural Affairs, Minister for v S152/2003 (2004) 222 CLR 1; 77 ALD 296; 205 ALR 487; 78 ALJR 678; [2004] HCA 18 ....................................... 5J.10, 5J.20, 36.20 Immigration and Multicultural Affairs, Minister for v SZGMF [2006] FCAFC 138 ............. 359AA.120, 424AA.120 Immigration and Multicultural Affairs, Minister for v Sharma (1999) 90 FCR 513; [1999] FCA 31 .................................................................... 349.20, 349.80, 349.120, 415.20, 415.80, 415.120 Immigration and Multicultural Affairs, Minister for v Singh (2002) 209 CLR 533; 67 ALD 257; 186 ALR 393; 76 ALJR 514; 23(4) Leg Rep 18; [2002] HCA 7 .............................. 5J.20, 36.20 Immigration and Multicultural Affairs, Minister for v W157/00A (2002) 125 FCR 433; 203 ALR 5; [2000] FCAFC 281 ................................................................................................ 501G.40 © 2016 THOMSON REUTERS

xxvii

Table of Cases

Immigration and Multicultural Affairs, Minister for v Yusuf (2001) 206 CLR 323; 180 ALR 1; [2001] HCA 30 .... 348.120, 362C.20, 362C.60, 362C.80, 368.20, 368.80, 368.100, 414.120, 426B.20, 426B.60, 426B.80, 430.20, 430.80, 430.100 Immigration and Multicultural Affairs, Minister for; Ex parte Lam (2003) 214 CLR 1; 195 ALR 502; [2003] HCA 6 ............................... 51A.40, 97A.40, 118A.40, 127A.40, 357A.40, 422B.40 Immigration and Multicultural and Indigenous Affairs, Minister for v Ahmed (2005) 143 FCR 314; [2005] FCAFC 58 .............................. 116.100, 116.120, 119.120, 119.140, 348.20, 414.20 Immigration and Multicultural and Indigenous Affairs, Minister for v Ahmed [2005] FCAFC 58 ...................................................................................................................................... 120.20 Immigration and Multicultural and Indigenous Affairs, Minister for v Alam (2005) 145 FCR 345; 219 ALR 629; [2005] FCAFC 132 .............................................................................. 41.220 Immigration and Multicultural and Indigenous Affairs, Minister for v George (2004) 139 FCR 127; 85 ALD 513; [2004] FCAFC 276 ......................................... 501.280, 501A.220, 501B.160 Immigration and Multicultural and Indigenous Affairs, Minister for v Godley (2005) 141 FCR 552; [2005] FCAFC 10 ..................... 500A.20, 500A.60, 500A.200, 501.100, 501.120, 501.220 Immigration and Multicultural and Indigenous Affairs, Minister for v Huynh (2004) 139 FCR 505; [2004] FCAFC 256 ..................................................................................................... 501.290 Immigration and Multicultural and Indigenous Affairs, Minister for v Katisat [2005] FCA 1908 ........................................................................................... 359.80, 361.60, 362.40, 424.80, 426.60 Immigration and Multicultural and Indigenous Affairs, Minister for v NAMW (2004) 140 FCR 572; 84 ALD 325; [2004] FCAFC 264 ................................................................................. 57.20 Immigration and Multicultural and Indigenous Affairs, Minister for v Nystrom (2006) 228 CLR 566; 230 ALR 370; [2006] HCA 50 ................................................ 31.20, 31.140, 31.180, 34.20 Immigration and Multicultural and Indigenous Affairs, Minister for v SCAR (2003) 128 FCR 553; 198 ALR 293; [2003] FCAFC 126 ................. 360.20, 360.100, 360.220, 425.20, 425.100, 425.200 Immigration and Multicultural and Indigenous Affairs, Minister for v SGLB (2004) 207 ALR 12; 78 ALJR 992; [2004] HCA 32 ........................................................................................ 65.40 Immigration and Multicultural and Indigenous Affairs, Minister for v SZAYW (2005) 145 FCR 523; [2005] FCAFC 154 ............................................................................ 429.20, 429.40, 429.60 Immigration and Multicultural and Indigenous Affairs, Minister for v SZFHC (2006) 150 FCR 439; 231 ALR 630; [2006] FCAFC 73 ............ 360.40, 360A.60, 362B.20, 362B.40, 362B.100, 362B.140, 425.40, 425A.60, 426A.20, 426A.40, 426A.100, 426A.140 Immigration and Multicultural and Indigenous Affairs, Minister for v SZFML (2006) 154 FCR 572; 236 ALR 294; [2006] FCAFC 152 ................ 360.80, 360.160, 360A.80, 425.80, 425.160, 425A.80 Immigration and Multicultural and Indigenous Affairs, Minister for v Sun (2005) 146 FCR 498; [2005] FCAFC 201 ................ 359.20, 359.120, 359A.280, 359C.80, 360.180, 363A.40, 424.20, 424.120, 424A.280, 424C.80 Immigration and Multicultural and Indigenous Affairs, Re, Minister for; Ex parte Applicants S134/2002 (2003) 211 CLR 441; 195 ALR 1; [2003] HCA 1 ..... 48B.30, 91F.40, 91L.40, 91Q.40, 195A.130, 351.120, 417.120, 501J.120 In Kocakaya v Minister for Immigration and Citizenship [2013] FCA 55 ................................. 362C.100 In Minister for Immigration and Citizenship v Dhanoa (2009) 180 FCR 510; [2009] FCAFC 153 ................................................................................................................... 349.100, 415.100

J Jagroop v Minister for Immigration and Border Protection (2013) 61 AAR 542; [2013] FCA 1287 .............................................................................. 499.100, MDLI.10, MDLI.20, MDLI.180 Jagroop v Minister for Immigration and Border Protection (2014) 225 FCR 482; [2014] FCAFC 123 ............................................................ 499.100, 500.160, MDLI.10, MDLI.20, MDLI.180 Jalagam v Minister for Immigration and Citizenship [2009] FCA 197 ........ 379G.40, 441G.40, 494D.40 Javillonar v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 311; [2001] FCA 854 .......................................................................................................................... 501G.40 xxviii

Migration Law

Table of Cases

Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 76 FCR 301; [1997] FCA 551 ............................................................................................................................ 349.80, 415.80 Jess v Scott (1986) 12 FCR 187; 70 ALR 185; [1986] FCA 365 ............................. 476A.120, 477A.100 Jia Le Geng v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 87; 52 ALD 20; [1998] FCA 768 ............................................................................................................. 502.60 Joel v Migration Agents Registration Authority (2000) 110 FCR 202; 63 ALD 380; [2000] FCA 1919 ..................................................................................................................... 308.20, MAR.280 Johnson v Minister for Immigration and Multicultural and Indigenous Affairs (No 3) (2004) 136 FCR 494; [2004] FCA 137 .......................................................................................... 34.60 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 ...................................................................... 435.40

K Kaur v Minister for Immigration and Border Protection [2013] FCA 1333 ............. 359A.40, 359AA.40, 424A.40, 424AA.40 Kazi v Migration Agents Registration Authority [2006] AATA 42 ............................................. MAR.260 Khan v Migration Agents with Discretionary Authorities [2005] AATA 13 ............................... MAR.260 Khan v Minister for Immigration and Citizenship (2011) 192 FCR 173; 276 ALR 1; [2011] FCAFC 21 ....................................................................................................................... 357A.20 Khan v Minister for Immigration and Multicultural Affairs [1999] FCA 1790 ................ 269.80, 269.120 Khandakar v Minister for Immigration and Citizenship [2010] FMCA 611 .................................... 73.100 Khant v Minister for Immigration and Citizenship (2009) 112 ALD 241; [2009] FCA 1247 ..... 357A.20 Khergamwala v Minister for Immigration and Citizenship [2007] FMCA 609 ............ 359C.20, 424C.20 Kim v Minister for Immigration and Multicultural Affairs [2001] FCA 1063 .... 31.100, 65.60, MR0.100 Kim v Minister for Immigration and Multicultural Affairs [2006] FCAFC 64 ............ 379C.20, 379D.20, 441C.20, 441D.20, 473HD.10, 494C.20 Kim v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 38 AAR 304; [2004] FCA 31 ....................................................................................................................... 134.20 Kioa v West (1985) 159 CLR 550; 62 ALR 321; [1985] HCA 81 .................. 51A.40, 97A.40, 118A.40, 127A.40, 357A.40, 422B.40, 500.160 Kishore v Minister for Immigration and Multicultural Affairs (2002) 117 FCR 147; [2002] FCA 240 ........................................................................................................................................... 41.60 Kocakaya v Minister for Immigration and Citizenship [2013] FCA 55 ....... 368.120, 426B.100, 430.120 Kokcinar v Minister for Immigration [2007] FMCA 1035 ............................................................ 375A.20 Kondis v State Transport Authority (1984) 154 CLR 672; 55 ALR 225; [1984] HCA 61 ............. 273.40 Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 .............. 423A.20 Korovata v Minister for Immigration and Multicultural Affairs [2001] FCA 1446 ........ 360A.40, 366.20, 425A.40, 429A.20 Kosi v Minister for Immigration, Multicultural and Indigenous Affairs [2002] FCA 1467 .............. 41.40 Krummrey v Minister or Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 557; 227 ALR 562; [2005] FCAFC 258 ................................................................................ 41.80 Kumar v Minister for Immigration (2008) 221 FLR 361; [2008] FMCA 1458 ............... 137J.80, 476.40 Kumar v Minister for Immigration and Border Protection [2013] FCCA 1860 .............................. 365.20

L Lam v Minister for Immigration and Multicultural Affairs (2000) 104 FCR 454; 63 ALD 632; [2000] FCA 1226 ................................................................................................................ 501A.40 Lam v Minister for Immigration and Multicultural Affairs (2002) 117 FCR 325; 66 ALD 569; [2002] FCA 175; [2002] FCAFC 36 ................................................................................. 501A.40 Le v Minister for Immigration and Citizenship (2007) 157 FCR 321; [2007] FCAFC 20 ......... 379G.20, 441G.20, 473HG.10, 494A.20, 494D.20 Lee v Department of Education and Science (1967) 66 LGR 211 ............................ 360A.100, 425A.100 Lee v Minister for Immigration and Citizenship (2007) 159 FCR 181; 241 ALR 363; [2007] FCAFC 62 ............................................................. 379G.200, 441G.200, 473HG.90, 494D.200 © 2016 THOMSON REUTERS

xxix

Table of Cases

Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 305 ..................................................................................................................................... 348.40, 414.40 Lilienthal v Migration Agents Registration Authority (2002) 117 FCR 558; 34 AAR 371; [2002] FCA 93 .................................................................................... 290.20, 290.60, 303.60, MAR.40 Liu v Minister for Immigration and Multicultural and Indigenous Affairs (2001) 113 FCR 541; 187 ALR 348; [2001] FCA 1362 ..... 355.100, 355.200, 355A.80, 355A.160, 355A.180, 422.80, 422.180, 422A.80, 422A.160, 422A.180 Lo v Minister for Immigration and Citizenship (2007) 159 FCR 160; 95 ALD 332; [2007] FCA 553 ............................................................................................................................ 134.80, 135.40 Long v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 183; [2000] FCA 1172 ..................................................................................................................... 366C.20, 427.100 Long v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 610; [2003] FCAFC 218 ............................................................................................................. 501G.40 Lu v Minister for Immigration and Multicultural Affairs (2004) 135 FCR 450; [2004] FCA 181 ......................................................................... 107.100, 109.120, 119.160, 127.60, 501G.140 Lu v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 141 FCR 346; [2004] FCAFC 340 ............................................................................... 501.40, 501A.80, 501B.60

M M v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 333; 91 ALD 629; [2006] FCA 1247 ............ 359.120, 359A.280, 359B.20, 359B.180, 359C.80, 360.180, 363A.40, 424.120, 424A.280, 424B.20, 424B.180, 424C.80 M175 of 2002 v Minister for Immigration and Citizenship [2007] FCA 1212 ............................. 427.180 M211 of 2003 v Refugee Review Tribunal (2004) 82 ALD 24; 212 ALR 520; [2004] FCAFC 293 .................................................................................................................... 477.80, 477A.80 M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 146; 199 ALR 290; [2003] FCAFC 131 ............. 198.20, 198.60, 348.60, 414.60, MR0.120 M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 .... 359A.130, 424A.130 MZXBQ v Minister for Immigration and Citizenship (2008) 166 FCR 483; [2008] FCA 319 ..................................... 57.80, 120.80, 359AA.100, 359A.100, 424AA.100, 424A.100, 473DE.60 MZXKH v Minister for Immigration and Citizenship [2007] FCA 663 ................... 359AA.60, 359A.60, 424AA.60, 424A.60, 473DE.40 MZXLW v Minister for Immigration and Citizenship [2007] FCA 912 ................... 362B.120, 426A.120 MZXOT v Minister for Immigration and Citizenship (2008) 233 CLR 601; 247 ALR 58; [2008] HCA 28 ................................................................................ 347.300, 412.300, 476.60, 476B.20 MZXPI v Minister for Immigration [2010] FMCA 1296 ............................................................... 486D.20 MZYFH v Minister for Immigration and Citizenship (2010) 188 FCR 151; 115 ALD 409; [2010] FCA 559 ................ 359A.100, 359AA.100, 359AA.260, 424A.100, 424AA.100, 424AA.260, 473DE.60 MZYHF v Minister for Immigration and Citizenship (2010) 118 ALD 534; [2010] FCA 1250 .................................................................... 359A.60, 359AA.60, 424A.60, 424AA.60, 473DE.40 MZYKV v Minister for Immigration and Citizenship [2012] FCA 947 .......................... 366.20, 429A.20 MZYKV v Minister for Immigration and Citizenship [2012] FMCA 326 ...................... 366.20, 429A.20 MZYWK v Minister for Immigration and Citizenship [2012] FMCA 802 ................................... 477A.40 MZYYO v Minister for Immigration and Citizenship (2013) 214 FCR 68; [2013] FCA 49 ....... 477A.40 MZYYO v Minister for Immigration and Citizenship [2013] FCA 49 ............................................ 198.60 MZYZA v Minister for Immigration and Citizenship [2013] FMCA 15 .................... 362C.160, 368.180, 423B.160, 430.180 MZZCU v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCCA 1060 ................................................................................................ 347.180, 347.220, 412.200, 412.240 MZZCU v Minister for Immigration and Border Protection [2013] FCA 1178 ............. 347.180, 412.200 xxx

Migration Law

Table of Cases

MZZDJ v Minister for Immigration and Border Protection (2013) 216 FCR 153; 137 ALD 466; [2013] FCAFC 156 .... 379G.40, 379G.60, 379G.120, 379G.160, 441G.40, 441G.60, 441G.120, 441G.160, 473HG.20, 473HG.30, 473HG.60, 473HG.80, 494D.40, 494D.60, 494D.120, 494D.160 MZZFI v Minister for Immigration and Border Protection [2013] FCA 1337 ........ 362B.100, 362B.140, 426A.100, 426A.140 MZZRO v Minister for Immigration and Border Protection [2014] FCCA 882 ............. 477.80, 477A.80 Maan v Minister for Immigration and Citizenship (2009) 179 FCR 581; 112 ALD 25; [2009] FCAFC 150 ................................................................................... 116.140, 137L.60, 473DD.30 Madafferi v Minister for Immigration and Multicultural Affairs [2001] FCA 788 ........................ 501E.40 Maddaferi v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 326; 70 ALD 644; [2002] FCAFC 220 ................................................................................................... 501A.40 Mafi v Minister for Immigration and Multicultural Affairs [2000] FCA 566 .................................... 41.60 Magaming v The Queen (2013) 302 ALR 462; 87 ALJR 1060; [2013] HCA 40 ..................... 233A.100, 233C.100, 236B.60 Margaret Jane Hughes v Minister for Immigration and Multicultural Affairs [1998] FCA 1155 ............................................................................................................................................ MR0.100 Maroun v Minister for Immigration and Citizenship (2009) 112 ALD 424; [2009] FCA 1284 .............. 379A.80, 379A.100, 441A.80, 441A.100, 473HB.50, 473HB.60, 494B.100, 494B.120, 494B.260 Marques v Minister for Immigration [2003] FMCA 488 ........................................... 359B.100, 424B.100 Massy v Minister for Immigration and Citizenship (2008) 216 FLR 59; [2008] FMCA 63 ............ 41.60 Matete v Minister for Immigration and Citizenship [2008] FCA 1876 .......................... 352.120, 418.100 Maurice Blackburn Pty Ltd v Commonwealth [2014] FCA 767 ................................................... 476A.20 Mazhar v Minister for Immigration and Multicultural Affairs (2000) 64 ALD 395; 183 ALR 188; [2000] FCA 1759 ........................................................................................ 360.100, 425.100 Metera v Administrative Appeals Tribunal (2008) 105 ALD 18; [2008] FCA 1627 .................... 477A.40 Migration Agents Registration Authority v Barrie Goldsmith (2001) 113 FCR 18; 184 ALR 723; [2001] FCA 778 ........................................................................................ 290A.60, 290A.80 Milne v Minister for Immigration and Citizenship (2010) 52 AAR 1; [2010] FCA 495 .............. 500.160 Milne v Minister for Immigration and Citizenship [2011] FCAFC 41 .......................................... 500.160 Milon v Minister for Immigration [2009] FMCA 85 ..................................................................... 494B.40 Minister for Immigration and Multicultural Affairs, Re; Ex parte Cassim (2000) 175 ALR 209; 74 ALJR 1404; [2000] HCA 50 .......................................................................... 359.100, 424.100 Minister for Immigration and Multicultural Affairs, Re; Ex parte Cohen (2001) 177 ALR 473; 75 ALJR 542; [2001] HCA 10 ............................................................... 348.60, 414.60, MR0.120 Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 58 ALD 609; 168 ALR 407; 74 ALJR 405; [2000] HCA 1 ................ 362C.20, 362C.120, 362C.140, 368.20, 368.140, 368.160, 423A.20, 426B.20, 426B.120, 426B.140, 430.20, 430.140, 430.160 Minister for Immigration and Multicultural Affairs, Re; Ex parte Miah (2001) 206 CLR 57; 179 ALR 238; [2001] HCA 22 ............ 51A.20, 97A.20, 118A.20, 127A.20, 357A.20, 357A.100, 422B.20, 422B.100, 473DA.20 Minister for Immigration and Multicultural Affairs, Re; Ex parte S154/2002 (2003) 201 ALR 437; 77 ALJR 1909; [2003] HCA 60 ..................................................................... 363.20, 427.20 Minister for Immigration and Multicultural Affairs, Re; Ex parte Sithamparapillai [2004] HCATrans 364 ............................................................................................... 477.80, 477A.80, 486A.40 Minister for Immigration and Multicultural and Indigenous Affairs, Re; Ex parte Palme (2003) 216 CLR 212; 201 ALR 327; [2003] HCA 56 ........... 66.60, 500A.140, 500A.160, 501C.120, 501G.80, 501G.100 Mitrevski v Minister for Immigration and Multicultural Affairs [2001] FCA 221 .......................... 269.60 Moana v Minister for Immigration and Border Protection [2015] FCAFC 54 .............................. 501.290 Mohamad v Minister for Immigration and Multicultural Affairs [2001] FCA 939 ........................... 41.60 Mohammad v Migration Agents Registration Authority [2004] AATA 1401 ........... MAR.180, MAR.260 Moldrich v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1010 ....................................................................................................................................... 41.160 Morton v Union Steamship Co of New Zealand Ltd (1951) 83 CLR 402; [1951] HCA 42 .......... 504.20 © 2016 THOMSON REUTERS

xxxi

Table of Cases

Muin v Refugee Review Tribunal (2002) 190 ALR 601; 76 ALJR 966; [2002] HCA 30 ............. 352.60, 373.40, 418.60, 435.40 Mujedenovski v Minister for Immigration and Citizenship (2009) 112 ALD; [2009] FCAFC 149 ................................................................................ 500A.60, 500A.200, 501.120, 501.220 Multicultural Affairs v Eshetu (1999) 197 CLR 611; 73 ALJR 746; 162 ALR 577; [1999] HCA 21 ..................................................................................................................................... 473FA.20 Muradzi v Minister for Immigration [2011] FMCA 342 ..................................................... 46.30, MR0.60 Murphy v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 135 FCR 550; [2004] FCA 657 ....... 379C.40, 379C.60, 379D.40, 379D.60, 441C.40, 441C.60, 441D.40, 441D.60, 473HD.20, 473HD.30, 494C.40, 494C.60

N NAAO v Secretary, Department of Immigration and Multicultural Affairs (2002) 117 FCR 401; 34 AAR 508; [2002] FCA 292; [2002] FCAFC 64 ....................... 503A.40, 503A.80, 503A.100 NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 123 FCR 298; 193 ALR 449; [2002] FCAFC 228 .............................................................. 129.100, 131.60 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; 219 ALR 27; [2004] FCAFC 263 ......................................... 5AAA.20, 348.120, 414.120 NADK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 184 ............................................................. 362B.100, 362B.140, 426A.100, 426A.140 NAFJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 91 ..... 423A.20 NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 CLR 161; 213 ALR 668; 79 ALJR 609; [2005] HCA 6 .... [5H.20], 36.10, 36.20, 500.20 NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51; [2005] FCAFC 134 ............................... 56.60, 359.80, 359.160, 424.80, 424.160, 473EA.20 NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121 ......... 360.100, 362B.20, 362B.100, 362B.140, 362B.160, 425.100, 426A.20, 426A.100, 426A.140, 426A.160 NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 .................................................... 51A.40, 97A.40, 118A.40, 127A.40, 357A.40, 422B.40 NAQF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 130 FCR 456; [2003] FCA 781 ................. 51A.100, 97A.100, 118A.100, 127A.100, 357A.120, 366A.40, 422B.120 NASF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 162 ......................................................................... 362B.100, 362B.140, 426A.100, 426A.140 NATB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 506; 80 ALD 799; [2003] FCAFC 292 ............................................................................... 198.60 NAVK v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 135 FCR 567; [2004] FCAFC 160 ...................................................................... 376.60, 438.60, 473GB.40 NAVM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 99 ................................................................................... 359AA.180, 359A.220, 424AA.180, 424A.220 NAWZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 199 ........................................................................................................................... 98.20, 98.30 NAZY v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 87 ALD 357; [2005] FCA 744 .................................................................................... 359A.130, 424A.130 NBBL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 152 FCR 592; [2006] FCA 1045 ....................................................................................... 362B.20, 426A.20 NBKS v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 156 FCR 205; 237 ALR 592; [2006] FCAFC 174 ................................................. 359AA.120, 424AA.120 NBMZ v Minister for Immigration and Border Protection (2014) 138 ALD 495; 307 ALR 49; [2014] FCAFC 38 ............................................................................. 501.260, 501A.200, 501B.140 NBNB v Minister for Immigration and Border Protection (2014) 138 ALD 455; 307 ALR 90; [2014] FCAFC 39 ................................................................................................................. 501.200 xxxii

Migration Law

Table of Cases

Nafi v The Queen (2012) 32 NTLR 124; 225 A Crim R 55; [2012] NTCCA 13 ........................ 236B.40 Nevistic v Minister for Immigration and Ethnic Affairs (1981) 51 FLR 325; 34 ALR 639; [1981] FCA 41 ......................................................................................................................... MDLI.220 Nezovic v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2003) 133 FCR 190; 203 ALR 33; [2003] FCA 1263 ............................................................. 501G.20 Nguyen v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 169; [2001] FCA 360 ........................................................................................................................................... 41.60 Nguyen Thanh Trong v Minister of Immigration Local Government and Ethnic Affairs (1996) 66 FCR 239; 42 ALD 255; [1996] FCA 1674 .................... 339.40, 339.60, 411.100, 411.220, 473BD.20, 473BD.30 Noeung v Minister for Immigration and Multicultural Affairs (2002) 125 FCR 503; [2002] FCA 1304 .......................................................................................................................... 129.20, 129.40

O O’Sullivan v Repatriation Commission (2003) 128 FCR 590; [2003] FCA 387 ........................... 500.160 Ofa v Minister for Immigration [2005] FMCA 1684 .......................................................................... 41.60 Ogawa v Minister for Immigration and Citizenship (2011) 199 FCR 51; [2011] FCA 1358 ..... 360A.80, 360A.100, 425A.80, 425A.100 Onea v Minister for Immigration and Multicultural Affairs (1997) 80 FCR 254; [1997] FCA 1472 ......................................................................................................................................... 46.30 Osborne v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 416; [2002] FCA 1113 ......... 107.100, 109.120, 119.160, 127.60, 501.280, 501A.20, 501A.220, 501B.160, 501G.140

P Pannu v Minister for Immigration and Citizenship [2007] FCA 152 ............................................ 366C.60 Pannu v Minister for Immigration and Multicultural Affairs [2006] FMCA 883 ......................... 366C.20 Parker v The Queen [2002] FCAFC 133 .................................................................... 476A.120, 477A.100 Patel v Minister for Immigration and Citizenship (2009) 108 ALD 151; [2009] FCA 392 ......... 347.280, 348.140 Patel v Minister for Immigration and Citizenship [2011] FCA 1220 ................................................. 55.40 Patel v Minister for Immigration and Citizenship [2012] FCA 145 ............................... 347.100, 412.120 Patterson, Re; Ex parte Taylor (2001) 207 CLR 391; 64 ALD 545; 182 ALR 657; 75 ALJR 1439; [2001] HCA 51 ........... 34.40, 500A.100, 500A.120, 500A.180, 501.40, 501.60, 501.80, 501.180, 501A.80, 501A.100, 501A.120, 501A.160, 501B.60, 501B.80, 501B.100, 501C.20, 501C.100, 501C.140 Peck v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] FCA 810 ......................................................................................... 476A.120, 477A.100 Pelling v Bow County Court [2001] EWCA Civ 122 ....................................................................... 365.60 Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6; 56 ALD 231; [1999] FCA 507 ..................................... 360.200, 366C.20, 366C.80, 425.180, 427.100, 427.180 Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs (2000) 103 FCR 539; 175 ALR 706; [2000] FCA 1113 ............ 51A.40, 97A.40, 118A.40, 127A.40, 357A.40, 422B.40 Pilkington v Migration Agents Registration Authority (2008) 104 ALD 143; 48 AAR 200; [2008] AATA 886 ................................................................................... MAR.40, MAR.120, MAR.140 Plaintiff 150/2013 v Minister for Immigration and Border Protection (2014) 309 ALR 255; 88 ALJR 735; [2014] HCA 25 ................................................................................. 85.20, 85.40, 86.20 Plaintiff B15a v Minister for Immigration and Border Protection [2015] HCA 24 ....................... 5AA.20 Plaintiff M47/2012 v Director General of Security (2012) 251 CLR 1; 292 ALR 243; 86 ALJR 1372; [2012] HCA 46 ...... 5H.20, 13.20, 29.140, 31.100, 36.10, 65.20, 65.60, 198.60; 500.20, 500.140, 504.20, 504.40, MR0.100 © 2016 THOMSON REUTERS

xxxiii

Table of Cases

Plaintiff M61/2010 v Commonwealth (2010) 243 CLR 319; 272 ALR 14; 85 ALJR 133; [2010] HCA 41 ................... 46A.10, 46A.20, 46A.30, 51A.40, 97A.40, 118A.40, 127A.40, 195A.20, 195A.60, 195A.80, 198.20, 357A.40, 422B.40 Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144; 280 ALR 18; [2011] HCA 32 ................................................................................................. 198.20, 198.60 Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship (2013) 304 ALR 135; 88 ALJR 324; [2013] HCA 53 .................. 46A.20, 189.20, 195A.40, 195A.60 Plaintiff M79/2012 v Minister for Immigration and Citizenship (2013) 252 CLR 336; 298 ALR 1; 87 ALJR 682;133 ALD 221; [2013] HCA 24 ........................ 29.40, 37A.10, 37A.20, 37A.30 Plaintiff M90/2009 v Minister for Immigration and Citizenship [2009] HCATrans 279 ................ 477.80, 477A.80, 486A.40 Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636; 290 ALR 616; [2012] HCA 31 ..... 48B.20, 351.40, 351.80, 351.100, 417.40, 417.80, 417.100, 501A.140, 501J.40, 501J.80, 501J.100 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; 195 ALR 24; [2003] HCA 2 ...................... 51A.20, 97A.20, 118A.20, 127A.20, 357A.20, 422B.20, 474.20, 474.40 Plaintiff S297/2013 v Minister for Immigration and Border Protection (2014) 309 ALR 209; 88 ALJR 722; [2014] HCA 24 ....................................... 85.20, 86.20, 88.20, 89.20, 90.20, 91.20 Plaintiff S297/2015 v Minister for Immigration and Border Protection (2015) 143 ALD 553; 316 ALR 161; [2015] HCA 3 ................................................................................................. 36.30 Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219; 312 ALR 537; 88 ALJR 847; [2014] HCA 34 .... 46A.10, 46A.20, 46A.30, 189.20, 189.40, 195A.40, 195A.100 Pomare v Minister for Immigration and Citizenship (2008) 167 FCR 494; 47 AAR 341; [2008] FCA 458 ........................................................................................................................ 501G.120 Potter v Minahan (1908) 7 CLR 277; 14 ALR 635; [1908] HCA 63 ................................................ 34.40 Poudyal v Minister for Immigration [2005] FMCA 265 ................................... 349.60, 415.60, 473CC.30 Prodduturi v Minister for Immigration and Border Protection [2015] FCAFC 5 ............................ 476.60

Q Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26; 28 ALD 538; 45 IR 292 ............ 353.40, 353.60, 420.40, 420.60, 473FA.30

R R v Kelly (Attorney-General’s Reference No 53 of 1998) [2000] 1 QB 198; [1999] 2 All ER 13 ........................................................................................................................ 137L.60, 473DD.30 R v Thames Magistrates Court; Ex parte Polemis [1974] 1 WLR 1371 .................. 360A.100, 425A.100 Raj v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 346; [2000] FCA 74 ................................................................................................................................. 368D.80, 430D.80 Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565; 130 ALR 314 ................. 36.20 Randhawa v MILGEA (1994) 52 FCR 437 .............................................................................. 5J.20, 36.20 Re Peng v Department of Immigration and Multicultural Affairs and AAT [1998] AATA 12 ....................................................................................................................................... 290.60, 303.60 Refugee Review Tribunal, Re; Ex parte Aala (2000) 204 CLR 82; 176 ALR 219; [2000] HCA 57 .......................................... 359A.240, 359AA.200, 360.260, 424A.240, 424AA.200, 425.240 Refugee Review Tribunal, Re; Ex parte H (2001) 179 ALR 425; 75 ALJR 982; [2001] HCA 28 ......................................................................................................................... 360.240, 425.220 Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583; 30 AAR 74; [1999] FCA 1238 ........................................................................................................... 499.40 Romano v Minister for Immigration and Citizenship (2011) 124 ALD 198; [2011] FCA 1351 .............................................................................................................................................. 501.320 Rozsy v Migration Agents Registration Authority [2008] AATA 434 .... MAR.160, MAR.180, MAR.260 Russell v Migration Agents Registration Authority [2008] AATA 22 ......................................... MAR.260 xxxiv

Migration Law

Table of Cases

S S v Minister for Immigration and Multicultural Affairs (2003) 217 CLR 387; 77 ALD 541; 206 ALR 242; 78 ALJR 854; [2004] HCA 25 .......................................................... 5L.10, 5L.20 S v Secretary, Department of Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 217; 216 ALR 252; [2005] FCA 549 ........................................................................... 273.40 S103 v Minister for Immigration [2005] FMCA 1148 ...................................... 376.60, 438.60, 473GB.40 S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; 78 ALD 8; 203 ALR 112; 78 ALJR 180; [2003] HCA 71 ..................................................... 5J.20, 36.20, S487 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1309 ................................................................................................................................... 352.80, 418.80 S487 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 125 ..................................................................................................................................... 352.80, 418.80 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294; 215 ALR 162; [2005] HCA 24 ....... 357A.160, 359AA.20, 366C.80, 422B.160, 424AA.20 SHJB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 43; [2003] FCAFC 303 ........................................................................................... 108.60, 109.80 SRH and Comptroller-General of Customs, Re (1995) 37 ALD 581; 21 AAR 401 .................... MAR.40 SZ v Minister for Immigration and Multicultural Affairs (2000) 173 ALR 353; 101 FCR 342; [2000] FCA 836 ............................................................................................ 29.40, 29.80, MR0.40 SZAFE v Minister for Immigration [2003] FMCA 410 .................................................................... 429.60 SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18; 97 ALD 1; 237 ALR 634; 81 ALJR 1659; [2007] HCA 40 ......................................................................... 5J.20, 36.20 SZAYW v Minister for Immigration and Citizenship [2004] FMCA 796 ....................................... 429.60 SZAYW v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 230 CLR 486; 229 ALR 423; [2006] HCA 49 ....................................................................... 365.40, 429.60 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; 231 ALR 592; [2006] HCA 63 .............. 358.40, 360.20, 360.60, 360.120, 423.40, 425.20, 425.60, 425.120 SZBHU v Minister for Immigration and Citizenship [2007] FCA 1614 ....................... 362B.40, 426A.40 SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; 81 ALJR 1190; [2007] HCA 26 ...................... 57.40, 57.60, 57.160, 120.40, 120.60, 120.140, 359AA.20, 359AA.40, 359AA.80, 359AA.160, 359A.40, 359A.80, 359A.180, 424AA.20, 424AA.40, 424AA.80, 424AA.160, 424A.40, 424A.80, 424A.180, 473DE.30, 473DE.50 SZCTH v Minister for Immigration (No 2) [2004] FMCA 284 ......................................................... 56.20 SZDPB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 110 ......................................................................... 362B.100, 362B.140, 426A.100, 426A.140 SZDQL v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 144 FCR 356; [2005] FCA 769 ..................................................................................... 359B.100, 424B.100 SZDQO v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 144 FCR 251; [2005] FCA 1026 ....................................................................................... 360A.80, 425A.80 SZECD v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 53; 227 ALR 656; [2006] FCA 31 ............................................................................. 46.30, 47.20 SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214; 230 ALR 1; [2006] FCAFC 2 ............................................................... 359A.130, 424A.130 SZEHN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1389 ............................................................................................................................... 359.160, 424.160 SZEPR v Minister for Immigration [2005] FMCA 1608 ..................................................... 358.80, 423.80 SZEWL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 968 ......................................................................................................................... 359AA.20, 424AA.20 SZEXZ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 449 ........................................................................................................................... 359B.100, 424B.100 SZEXZ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCATrans 640 ......................................................................................................... 359B.100, 424B.100 © 2016 THOMSON REUTERS

xxxv

Table of Cases

SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; 96 ALD 510; 237 ALR 64; 81 ALJR 1404; [2007] HCA 35 .......... 98.40, 362B.20, 362B.60, 362B.180, 379G.180, 426A.20, 426A.60, 426A.180, 441G.180, 494D.180 SZFOH v Minister for Immigration and Citizenship (2007) 159 FCR 199; 241 ALR 653; [2007] FCAFC 63 .......... 360A.120, 362B.40, 379G.140, 425A.120, 426A.40, 441G.140, 473HG.70, 494D.140 SZGJO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 393 .................................................................................................................................................... 98.20 SZGME v Minister for Immigration and Citizenship (2008) 168 FCR 487; 102 ALD 31; 247 ALR 467; [2008] FCAFC 91 ........................................................... 46.30, 47.20, 48A.10, 48A.20 SZGZW v Minister for Immigration, Multicultural and Indigenous Affairs [2006] FCA 457 ..... 360.280, 425.260 SZHEW v Minister for Immigration and Citizenship [2009] FCA 783 .......... 360.200, 425.180, 427.180 SZHFW v Minister for Immigration [2006] FMCA 86 .................................................. 359C.20, 424C.20 SZHKA v Minister for Immigration and Citizenship (2008) 172 FCR 1; 249 ALR 58; [2008] FCAFC 138 ........................................................................................................... 364.20, 428.20 SZHSQ v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 159; [2006] FCA 1295 ................................................................................................................ 362B.100, 426A.100 SZHZD v Minister for Immigration and Multicultural Affairs [2008] FMCA 4 ............... 358.40, 360.60, 423.40, 425.60 SZIGQ v Minister for Immigration and Citizenship [2007] FCA 328 ...................... 362B.100, 426A.100 SZIMG v Minister for Immigration and Citizenship (2008) 167 FCR 362; 100 ALD 553; [2008] FCA 368 ................................................................................................................ 360.80, 425.80 SZINT v Minister for Immigration and Citizenship [2006] FMCA 1259 ........................................ 425.80 SZINT v Minister for Immigration and Multicultural Affairs [2006] FMCA 1259 ...................... 359C.60 SZIWV v Minister for Immigration and Citizenship [2007] FCA 1338 ............................................ 98.20 SZJDS v Minister for Immigration and Citizenship (2012) 201 FCR 1; 126 ALD 78; [2012] FCAFC 27 ............. 347.200, 347.220, 347.240, 347.260, 412.220, 412.240, 412.260, 412.280 SZJGO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 393 .................................................................................................................................................... 98.30 SZJQP v Minister for Immigration and Citizenship (2007) 98 ALD 575; 45 AAR 510; [2007] FCA 1613 ................................ 362B.20, 362B.100, 362B.160, 426A.20, 426A.100, 426A.160 SZJUB v Minister for Immigration and Citizenship [2007] FCA 1486 ............... 358.40, 360.60, 423.40, 425.60 SZKGF v Minister for Immigration and Citizenship [2008] FCAFC 84 ................. 379A.280, 441A.280, 473HB.150, 494B.320 SZKUT v Minister for Immigration [2010] FMCA 241 ................................................................ 486D.20 SZLBR v Minister for Immigration and Citizenship (2008) 216 FLR 141; [2008] FMCA 154 ................. 379A.60, 379A.280, 441A.60, 441A.280, 473HB.40, 473HB.150, 494B.80, 494B.320 SZLHP v Minister for Immigration and Citizenship (2008) 172 FCR 170; [2008] FCAFC 152 .................................................................................................................................................... 98.40 SZLPO v Minister for Immigration and Citizenship (2009) 177 FCR 1; 255 ALR 407; [2009] FCAFC 51 ............................................................................................................. 359.40, 424.40 SZLTR v Minister for Immigration and Citizenship [2008] FCA 1889 .............................. 359.40, 424.40 SZLWQ v Minister for Immigration and Citizenship (2008) 172 FCR 452; [2008] FCA 1406 ..................................................................................... 359B.140, 359B.160, 424B.140, 424B.160 SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415; [2009] FCAFC 46 ............ 359A.20, 359A.160, 359A.240, 359AA.20, 359AA.140, 359AA.200, 424A.20, 424A.160, 424A.240, 424AA.20, 424AA.140, 424AA.200 SZMFJ v Minister for Immigration [2009] FMCA 771 .................................................................... 477.60 SZMNO v Minister for Immigration and Citizenship [2009] FCA 797 ........................................ 477A.40 SZMTJ v Minister for Immigration and Citizenship (No 2) (2009) 109 ALD 242; [2009] FCA 486 ............................................................. 359AA.60, 359A.60, 424AA.60, 424A.60, 473DE.40 SZMXP v Minister for Immigration [2009] FMCA 495 ..................................................... 359.40, 424.40 SZNBW v Minister for Immigration and Citizenship [2009] FMCA 425 ................ 359A.140, 424A.140 xxxvi

Migration Law

Table of Cases

SZNKO v Minister for Immigration and Citizenship (2010) 184 FCR 505; (2010) 267 ALR 35; [2010] FCA 297 .......................................................................................................... 359A.60 SZNKO v Minister for Immigration and Citizenship (2010) 184 FCR 505; 267 ALR 35; [2010] FCA 297 ..... 359A.220, 359AA.60, 359AA.180, 424A.60, 424A.220, 424AA.60, 424AA.180 SZNOA v Minister for Immigration and Citizenship [2010] FCA 60 ................. 359AA.260, 424AA.260 SZNZL v Minister for Immigration and Citizenship (2010) 186 FCR 271; [2010] FCA 621 ............................................................ 379C.40, 379D.40, 441C.40, 441D.40, 473HD.20, 494C.40 SZNZU v Minister for Immigration and Citizenship [2010] FMCA 197 ........................ 477.60, 477A.60 SZOAU v Minister for Immigration and Citizenship [2010] FMCA 606 ............... 56.60, 359.80, 424.80 SZOBI v Minister for Immigration and Citizenship [2011] HCATrans 347 .............. 379A.40, 379A.320, 379B.40, 441A.40, 441A.320, 441B.40, 473HB.30, 473HB.170, 494B.60, 494B.360 SZOBI v Minister for Immigration and Citizenship (No 2) (2010) 119 ALD 233; [2010] FCAFC 151 .... 379A.40, 379A.320, 379B.40, 441A.40, 441A.320, 441B.40, 473HB.30, 473HB.170, 494B.60, 494B.360 SZOFE v Minister for Immigration and Citizenship (2010) 185 FCR 129; 269 ALR 343; [2010] FCAFC 79 ................................................. 66.80, 66.100, 347.120, 347.140, 412.140, 412.160 SZOIN v Minister for Immigration and Citizenship (2011) 191 FCR 123; 276 ALR 247; [2011] FCAFC 38 ........................................................... 352.100, 376.40, 418.100, 438.40, 473GB.30 SZOQA v Minister for Immigration and Citizenship [2001] FCA 907 ........................... 366.20, 429A.20 SZOQA v Minister for Immigration and Citizenship [2011] FMCA 213 ........................ 366.20, 429A.20 SZOQY v Minister for Immigration and Citizenship [2011] FMCA 120 ................ 379A.300, 441A.300, 473HB.160, 494B.340 SZOVP v Minister for Immigration and Citizenship (No 2) [2011] FMCA 442 ........... 360.220, 425.200 SZOXP v Minister for Immigration and Border Protection [2015] FCAFC 69 ............................. 5CB.10 SZQBI v Minister for Immigration and Citizenship [2011] FCA 1388 .................... 476A.120, 477A.100 SZQDZ v Minister for Immigration and Citizenship (2012) 200 FCR 207; 286 ALR 331; [2012] FCAFC 26 ........................................................................................................ 476A.20, 477.100 SZQFD v Minister for Immigration [2011] FMCA 598 ...................................................... 373.40, 435.40 SZQGA v Minister for Immigration and Citizenship [2012] FCA 593 ...................................... 494AA.20 SZQLD v Minister for Immigration and Citizenship [2011] FCA 1339 ........................ 476A.20, 477.100 SZQLJ v Minister for Immigration and Citizenship [2011] FMCA 932 ...... 424.120, 424A.280, 424C.80 SZQNO v Minister for Immigration and Citizenship [2012] FCA 326 ................................... 5J.20, 36.20 SZQPN v Minister for Immigration and Citizenship [2012] FCA 424 .......................... 476A.20, 477.100 SZQQU v Minister for Immigration [2014] FCCA 425 ..................................................................... 56.20 SZQVV v Minister for Immigration and Citizenship (2012) 130 ALD 472; [2012] FCA 871 ..................................................................................................................................... 348.20, 414.20 SZRLO v Minister for Immigration and Citizenship [2013] FCA 825 .................. 56.60, 56.120, 359.80, 359.180, 424.80, 424.180 SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142 ......................... 427.160 SZRTC v Minister for Immigration and Border Protection [2014] FCAFC 43 ................................. 36.20 SZRVF v Minister for Immigration and Citizenship [2013] FCCA 764 .................. 379A.260, 441A.260, 473HB.140, 494B.300 SZSDA v Minister for Immigration and Citizenship (2012) 135 ALD 17; [2012] FCA 1319 ................................................................................................................................ 477.80, 477A.80 SZSPI v Minister for Immigration and Border Protection (2014) 317 ALR 1; [2014] FCAFC 140 ....................................................................................................................... 198.60, 256.20 SZTEQ v Minister for Immigration and Border Protection (2015) 229 FCR 497; [2015] FCAFC 39 ........................................................................................................................................ 5J.20 SZTES v Minister for Immigration and Border Protection [2015] FCA 719 .................................. 477.40 SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3 ............ 359A.20, 359A.40, 359A.130, 359AA.40, 424A.20, 424A.40, 424A.130, 424AA.40 SZTOX v Minister for Immigration and Border Protection [2015] FCAFC 77 ................................ 36.20 SZTUF v Minister for Immigration and Border Protection [2014] FCCA 545 ............................ 477A.40 Saeed v Minister for Immigration and Citizenship (2009) 176 FCR 53; [2010] FCAFC 41 ..... 422B.120 © 2016 THOMSON REUTERS

xxxvii

Table of Cases

Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; 115 ALD 493; 267 ALR 204; 84 ALJR 507; [2010] HCA 23 ......... 51A.60, 51A.80, 51A.100, 56.80, 57.20, 57.120, 57.140, 97A.60, 97A.80, 97A.100, 118A.60, 118A.80, 118A.100, 120.120, 127A.60, 127A.80, 127A.100, 357A.60, 357A.100, 357A.120, 422B.60, 422B.100, 422B.120, 473DA.20 Sainju v Minister for Immigration and Citizenship (2010) 185 FCR 86; 115 ALD 371; [2010] FCA 461 ..... 107.140, 109.160, 119.200, 127.100, 379A.140, 379A.240, 379B.60, 441A.140, 441A.240, 441B.60, 473HB.80, 473HB.130, 494B.20, 494B.160, 494B.280, 494C.20, 501G.60, 501G.180 Salazar v Minister for Immigration and Multicultural Affairs [2001] FCA 899 .............................. 41.140 Saleem v Migration Review Tribunal [2004] FCA 234 ........................ 107.40, 107.160, 108.40, 109.180 Sandhu v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 842 .... 359A.240, 359AA.200, 424A.240, 424AA.200 Selliah v Minister for Immigration [1999] FCA 615 ........................................................................ 429.20 Sese v Minister for Immigration and Multicultural Affairs (2000) 60 ALD 477; [2000] FCA 326 ........................................................................................................................................... 41.60 Sevim v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 126; [2001] FCA 1597 ....................................................................................................................................... 41.120 Seymour v Migration Agents Registration Authority (2007) 156 FCR 544; 44 AAR 532; [2007] FCAFC 5 ............................................................................................................... 300.20, 300.40 Seymour v Migration Agents Registration Authority (2007) 215 FCR 203; 45 AAR 370; [2007] FCAFC 76 .......................................................................................................................... 290.20 Shahabuddin v Minister for Immigration and Multicultural Affairs [2001] FCA 273 ....... 46.30, MR0.60 Shanahan v Scott (1957) 96 CLR 245; [1957] HCA 4 ..................................................................... 504.20 Shao v Minister for Immigration and Multicultural and Indigenous Affairs (2007) 157 FCR 300; [2007] FCA 18 ............................................................................................. 137J.20, 137J.80 Shek v Minister for Immigration [2006] FCA 522 ........................................................... 116.160, 137J.80 Shi v Migration Agents Registration Authority [2005] AATA 904 .............................................. MAR.220 Shi v Migration Agents Registration Authority (2008) 235 CLR 286; 248 ALR 390; [2008] HCA 31 ................................................................................................. 290.20, 303.80, MAR.20 Shrestha v Minister for Immigration and Citizenship [2013] FMCA 32 ....................................... 366C.60 Siaw v Minister for Immigration and Multicultural Affairs [2001] FCA 953 ......................... 5J.10, 5J.20 Simsek v McPhee (1982) 148 CLR 636; [1982] HCA 7 ................................................................... 5H.20 Singh v Minister for Immigration [2012] FMCA 1005 ....................... 359A.100, 359AA.100, 424A.100, 424AA.100, 473DE.60 Singh v Minister for Immigration and Citizenship (2012) 266 FLR 85; [2012] FMCA 634 ........ 366.20, 429A.20 Singh v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 453; 179 ALR 542; [2000] FCA 1426 ............................................................................. 502.60, 502.80, 502.120 Singh v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 152; 194 ALR 599; [2001] FCA 389 ............................................................ 54.20, 54.40, 56.60, 359.80, 424.80 Singh v Minister for Immigration and Multicultural Affairs (2001) 115 FCR 1; [2001] FCA 1376 ...................................................................................................................... 427.100, 427.160 Sochorova v Minister for Immigration [2010] FMCA 33 ................................................................... 67.20 Sosrohadipoespito v Migration Agents Registration Authority [2001] AATA 293 ..................... MAR.260 State for Immigration and Multicultural Affairs, Minister of v Harjanto [1981] FCA 703 .............. 37.20, 73.20 Success Australia Group Pty Ltd v Minister for Immigration [2014] FCCA 327 ....... 476.120, 476A.100 Suh v Minister for Immigration and Citizenship (2009) 175 FCR 515; 108 ALD 470; [2009] FCAFC 42 ........................................................................................................................ 411.180 Sullivan v Department of Transport (1978) 1 ALD 383; 20 ALR 323 .......................................... 500.160 Susaki v Minister for Immigration and Multicultural Affairs [2002] FCA 1229 ................ 373.40, 435.40 Swee Yen Tay v Minister for Immigration and Citizenship (2010) 183 FCR 163; [2010] FCAFC 23 ................................................................................................................................ 473HD.30 Szabo v Minister for Immigration and Border Protection [2014] HCATrans 226 .......... 338.160, 338.260 xxxviii

Migration Law

Table of Cases

T TJI v Minister for Immigration and Ethnic Affairs (1998) 55 ALD 508; 158 ALR 681 ........ 5J.20, 36.20 Takli v Minister for Immigration and Multicultural Affairs [2000] FCA 1186 ................................ 269.40 Tang v Minister for Immigration and Citizenship (2013) 217 FCR 55; (2013) 139 ALD 217; (2013) 138 ALD 37; (2013) 305 ALR 547; [2013] FCAFC 139 ..................... 476A.20, 477.100 Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424; [2014] FCA 673 ....................................................................................................................................... 501.290 Tay v Minister for Immigration and Citizenship (2010) 183 FCR 163; [2010] FCAFC 23 ....... 379C.60, 379D.60, 441C.60, 441D.60, 494C.60 Tennakoon v Minister for Immigration and Multicultural Affairs [2001] FCA 615 .......... 269.20, 269.60, 269.100, 269.140 Terera v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 135 FCR 335; [2003] FCA 1570 .............................................................................................. 41.60, 41.180 The Australian Capital Territory Revenue, Commissioner for v Alphaone Pty Ltd (1994) 49 FCR 576; 34 ALD 324; 127 ALR 699 .................................... 51A.40, 97A.40, 118A.40, 127A.40 Thongpraphai v Minister for Immigration and Multicultural Affairs [2000] FCA 1590 ................... 41.60 Tio v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 126 FCR 185; 197 ALR 117; [2003] FCAFC 53 ......................................................................................... 135.60 Toor v Minister for Immigration [2012] FMCA 804 ........................ 359A.260, 359AA.220, 359AA.240, 359AA.280, 424A.260, 424AA.220, 424AA.240, 424AA.280 Tran v Commonwealth (2010) 187 FCR 54; 271 ALR 1; [2010] FCAFC 80 .... 42.60, 42.100, 261A.20, 261A.40 Trinh v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 706 .................................................................................................................................................. 41.100 Trinh v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 945 .................................................................................................................................................... 41.40 Tutugri v Minister for Immigration and Multicultural Affairs (1990) 95 FCR 592; [1999] FCA 1785 ....................................................................................................................................... 269.40

U Uddin v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCCA 906 ........ 365.20 Uddin v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 841 ................................................................................................................................................ 137J.60 Uddin v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 149 FCR 1; [2005] FCAFC 218 ................................. 116.100, 116.120, 119.20, 119.120, 119.140, 120.20 Uelese v Minister for Immigration and Border Protection [2015] HCA 15 ................... 500.130, 500.180 Uranek v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 37 ................................................................................................................................... 366C.80 Usman v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 966 ............................................................................................................... 359B.120, 424B.120

V V v Minister for Immigration and Ethnic Affairs (1999) 92 FCR 355; 55 ALD 629; [1999] FCA 428 ........................................................................................................................................... 5J.20 VAAC v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 168; [2003] FCAFC 74 ......................... 51A.40, 97A.40, 118A.40, 127A.40, 357A.40, 422B.40 VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471; [2004] FCAFC 123 .................... 57.40, 120.40, 359A.40, 359AA.40, 424A.40, 424AA.40 VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459 ................................................................................................................ 359.20, 424.20 © 2016 THOMSON REUTERS

xxxix

Table of Cases

VEAN v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 280 ..................... 379A.160, 379B.80, 379G.80, 379G.100, 441A.160, 441B.80, 441G.80, 441G.100, 473HB.90, 473HG.40, 473HG.50, 494B.180, 494D.80, 494D.100 VEAN of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 570; 204 ALR 80; [2003] FCAFC 311 ................. 379G.140, 441G.140, 473HG.70, 494D.140 VHAF v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 122 FCR 270; [2002] FCA 1243 ............................................................................................ 29.140, 41.100 VHAJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 80; 75 ALD 609; [2003] FCAFC 186 ........... 57.180, 120.160, 359A.200, 424A.200, 473DE.80 VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 ................................................... 57.100, 120.100, 359A.120, 424A.120, 473DE.70 VNAA v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 136 FCR 407; [2004] FCAFC 134 ........... 360A.60, 362B.100, 362B.140, 425A.60, 426A.100, 426A.140 VU v Minister for Immigration and Citizenship (2008) 101 ALD 211; [2008] FCAFC 59 .......... 477.80, 477A.80 VWBF v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 154 FCR 302; [2006] FCA 851 ....................................................................................................... 424A.130 VWEX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 460 .................................................................................................................................................. 269.60 VWFY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1723 .............................................................................................................................................. 427.180 VWOK v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 135; [2005] FCAFC 249 .................................................................................................... MR0.20 VXDC v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 146 FCR 562; [2005] FCA 1338 .............. 51A.100, 97A.100, 118A.100, 127A.100, 357A.120, 422B.120 Vahaakolo v Minister for Immigration and Indigenous Affairs [2002] FCA 648 ............................ 41.200 Vanstone, Re; Ex parte Auva’a (2003) 134 FCR 379; [2003] FCA 1506 ............................ 41.60, 41.160 Vassiliou v Migration agents Registration Authority [2013] AATA 905 ..................................... MAR.100 Vella v Minister for Immigration and Border Protection [2015] FCAFC 53 ............... 501C.20, 501C.40, 503A.90 Verlicia v Minister for Immigration and Multicultural Affairs [2004] FCA 1529 ............................. 41.60 Voitenko v Minister for Immigration and Ethnic Affairs (1999) 92 FCR 355; 55 ALD 629; [1999] FCA 428 ............................................................................................................................... 36.20

W W157/00A v Minister for Immigration and Multicultural Affairs (2001) 190 ALR 55; [2001] FCA 1536 ................................................................... 500A.20, 500A.140, 500A.160, 501G.20 WABZ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 134 FCR 271; 204 ALR 687; [2004] FCAFC 30 ............................................................... 366D.20, 427.80 WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511; 77 ALD 1; [2003] FCAFC 171 .................................................................................. 427.180 WACQ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FMCA 78 ..................................................................................................................................... 486B.40 WAGJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 277 ............................................................................................ 348.80, 363.60, 414.80, 427.60 WAID v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 220 ...................................................... 51A.100, 97A.100, 118A.100, 127A.100, 357A.120, 422B.120 WAIV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1186 .......................................................................................................................................... 494AB.20 WAJC v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1631 .......................................................................................................................................... 494AB.20 WASB v Minister for Immigration and Citizenship (2013) 217 FCR 292; [2013] FCA 1016 .............................................................................................................................................. 501.160 xl

Migration Law

Table of Cases

WZANC v Minister for Immigration (No 2) (2012) 210 FCR 585; 135 ALD 247; [2012] FCA 1461 ......................................................... 376.40, 376.60, 438.40, 438.60, 473GB.30, 473GB.40 WZANC v Minister for Immigration (No 2) (2012) 266 FLR 121; [2012] FMCA 504 ................ 376.40, 438.40, 473GB.30 WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 .................................. 5J.20 Wang v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 548; 179 ALR 1; [2000] FCA 1599 .................................................................................................... 5J.20, 36.20 Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 167 ......................................................................................... 129.20, 129.100, 129.120, 131.20, 131.60 Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 496; [1948] 1 ALR 89; [1947] HCA 21 .............................................................................. 46A.20, 195A.40 Weng v Minister for Immigration and Citizenship (No 2) (2011) 121 ALD 77; [2011] FCA 444 ......................................................................................................................................... 134.40 Williams v City of Melbourne (1933) 49 CLR 142; [1933] HCA 56 .............................................. 504.20 Williams v Minister for Immigration and Border Protection (2014) 226 FCR 112; [2014] FCA 674 ................................................................................................................. MDLI.20, MDLI.180 Wilson v Minister for Immigration and Citizenship (2012) 135 ALD 60; [2012] FCA 1421 .... 501G.120 Wong v Minister for Immigration [2009] FMCA 7474 .................................................... 477.80, 477A.80 Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 146 FCR 10; [2004] FCAFC 242 .................................................................................................... 501C.120 Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 51 .... 501C.120 Wong v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCA 422 ......................................................................................................................................... 73.120 Woods v Migration Agents Registration Authority (2004) 39 AAR 519; [2004] FCA 1622 ..... MAR.120 Wu Yu Fang v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 245; 135 ALR 583 .................................................................................................................................... 46.30, MR0.60

X Xie v Minister for Immigration and Multicultural Affairs (1999) 95 FCR 543; 167 ALR 188; [1999] FCA 1480 ................................................................................................. 360.280, 425.260 Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172 ................... 347.60, 379C.20, 379C.60, 379D.20, 379D.60, 412.60, 441C.20, 441C.60, 441D.20, 441D.60, 473HD.10, 473HD.30, 494C.20, 494C.60

Y Yap v Minister for Immigration (2014) 291 FLR 54; [2014] FCCA 2476 ...................................... 194.20 Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495; 62 ALD 513; [2000] FCA 906 ............. 46.30, 47.20, 69.20, 69.40, 338.200, 338.220, 411.140, 411.160, MR0.60 Yuan v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 500 .................................................................................................................................................. 41.160

Z Zeng v Minister for Immigration and Citizenship [2007] FMCA 169 ............................................. 365.60 Zhang v Minister for Immigration and Citizenship (2007) 161 FCR 419; [2007] FCAFC 151 .................................................................................. 107.120, 109.140, 119.180, 127.80, 501G.160 Zhang v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1706 .................................................................................................................................................. 98.20 Zhao v Minister for Immigration and Multicultural Affairs [2000] FCA 1235 ................ 119.40, 119.100 Zhao v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1532 ............................................................................................................................................. 501C.60 © 2016 THOMSON REUTERS

xli

Table of Cases

Zhaou v Minister for Immigration [2002] FCA 748 ......................................................................... 121.60 Zhong v MIAC (2008) 171 FCR 444; 102 ALD 86; [2008] FCA 507 ............................................ 107.20 Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 211 ALR 261; [2004] FCAFC 248 ..................................................................................... 338.200, 411.140

xlii

Migration Law

Migration Act 1958 Annotated Migration Act with Related Commentary

TABLE OF PROVISIONS Part 1 - Preliminary 1 2 3 3A 3B 4 4AA 4A 5 5AAA 5AA 5A 5B 5C 5CA 5CB 5D 5E 5F 5G 5H 5J 5K 5L 5LA 5M 6 7 7A 8 9 9A 10 11 12

Short title................................................................................................................................ 59 Commencement..................................................................................................................... 59 Repeal and savings................................................................................................................ 59 Act not to apply so as to exceed Commonwealth power...................................................... 59 Compensation for acquisition of property...............................................................................60 Object of Act........................................................................................................................... 60 Detention of minors a last resort............................................................................................ 61 Application of the Criminal Code............................................................................................ 61 Interpretation...........................................................................................................................61 Non-citizen’s responsibility in relation to protection claims....................................................89 Meaning of unauthorised maritime arrival.............................................................................. 90 Meaning of personal identifier................................................................................................ 92 When personal identifier taken not to have been provided................................................... 93 Meaning of character concern................................................................................................93 Child of a person.................................................................................................................... 94 De facto partner......................................................................................................................94 Limiting the types of identification tests that authorised officers may carry out.................... 96 Meaning of purported privative clause decision..................................................................... 96 Spouse....................................................................................................................................96 Relationships and family members........................................................................................ 97 Meaning of refugee................................................................................................................ 97 Meaning of well-founded fear of persecution........................................................................101 Membership of a particular social group consisting of family...............................................111 Membership of a particular social group other than family.................................................. 112 Effective protection measures.............................................................................................. 113 Particularly serious crime......................................................................................................114 Effect of limited meaning of enter Australia etc....................................................................114 Act to extend to certain Territories........................................................................................114 Effect on executive power to protect Australia’s borders..................................................... 114 Certain resources installations to be part of Australia..........................................................114 Certain sea installations to be part of Australia....................................................................115 Migration zone etc.—offshore resources activities............................................................... 115 Certain children taken to enter Australia at birth..................................................................117 Visa applicable to 2 or more persons...................................................................................117 Application of Part VA of the Marriage Act........................................................................... 118

Part 2 - Arrival, presence and departure of persons Division 1 - Immigration status 13 Lawful non-citizens............................................................................................................... 119 14 Unlawful non-citizens............................................................................................................120 15 Effect of cancellation of visa on status.................................................................................120 16 Removal of immigration rights of inhabitant of Protected Zone...........................................120 17 Pre-cleared flights.................................................................................................................120 Division 2 - Power to obtain information and documents about unlawful non-citizens 18 Power to obtain information and documents about unlawful non-citizens...........................121 19 Scales of expenses.............................................................................................................. 121 20 Reasonable compensation................................................................................................... 121 21 Failure to comply with section 18 notice.............................................................................. 121 © 2016 THOMSON REUTERS

3

Migration Act 1994 24 25 26 27

Information and documents that incriminate a person.........................................................122 Copies of documents............................................................................................................122 Minister may retain documents............................................................................................ 122 Division binds the Crown......................................................................................................123

Division 3 - Visa for non-citizens Subdivision A - General provisions about visas 28 Interpretation.........................................................................................................................123 29 Visas..................................................................................................................................... 123 30 Kinds of visas....................................................................................................................... 126 31 Classes of visas................................................................................................................... 126 32 Special category visas..........................................................................................................130 33 Special purpose visas.......................................................................................................... 133 34 Absorbed person visas......................................................................................................... 136 35 Ex-citizen visas..................................................................................................................... 142 35A Protection visas—classes of visas....................................................................................... 143 36 Protection visas—criteria provided for by this Act................................................................146 37 Bridging visas....................................................................................................................... 167 37A Temporary safe haven visas.................................................................................................168 38 Criminal justice visas............................................................................................................ 170 38A Enforcement visas................................................................................................................ 171 38B Maritime crew visas.............................................................................................................. 171 39 Criterion limiting number of visas......................................................................................... 173 39A Minimum annual numbers of Protection (Class XA) visas and Refugee and Humanitarian (Class XB) visas................................................................................................................... 175 40 Circumstances for granting visas......................................................................................... 175 41 Conditions on visas.............................................................................................................. 177 42 Visa essential for travel........................................................................................................ 186 43 Visa holders must usually enter at a port............................................................................ 188 Subdivision AA - Applications for visas 44 Extent of following Subdivisions........................................................................................... 190 45 Application for visa............................................................................................................... 190 45AA Application for one visa taken to be an application for a different visa............................... 192 45A Visa application charge........................................................................................................ 194 45B Amount of visa application charge....................................................................................... 194 45C Regulations about visa application charge...........................................................................195 46 Valid visa application............................................................................................................ 195 46AA Visa applications, and the grant of visas, for some Act-based visas.................................. 202 46A Visa applications by unauthorised maritime arrivals............................................................ 203 46B Visa applications by transitory persons................................................................................209 47 Consideration of valid visa application................................................................................. 210 48 Non-citizen refused a visa or whose visa cancelled may only apply for particular visas....213 48A No further applications for protection visa after refusal or cancellation...............................215 48B Minister may determine that section 48A does not apply to non-citizen............................. 217 49 Withdrawal of visa application.............................................................................................. 220 50 Only new information to be considered in later protection visa applications.......................221 51 Order of consideration.......................................................................................................... 221 Subdivision AB - Code of procedure for dealing fairly, efficiently and quickly with visa applications 51A Exhaustive statement of natural justice hearing rule........................................................... 221 52 Communication with Minister................................................................................................225 53 Delegation by Attorney-General [Repealed].........................................................................226 54 Minister must have regard to all information in application................................................. 226 55 Further information may be given........................................................................................ 227 56 Further information may be sought...................................................................................... 227 57 Certain information must be given to applicant....................................................................230 58 Invitation to give further information or comments...............................................................234

4

Migration Law

Table of Provisions 59 Interviews..............................................................................................................................235 60 Medical examination............................................................................................................. 235 61 Prescribed periods................................................................................................................235 62 Failure to receive information not require action..................................................................236 63 When decision about visa may be made............................................................................. 236 64 Notice that visa application charge is payable.....................................................................236 Subdivision AC - Grant of visas 65 Decision to grant or refuse to grant visa..............................................................................237 65A Period within which Minister must make decision on protection visas [Repealed]............. 239 66 Notification of decision......................................................................................................... 239 67 Grant and refusal of visa—how and when...........................................................................243 68 When visa is in effect........................................................................................................... 243 69 Effect of compliance or non-compliance.............................................................................. 245 Subdivision AE - Evidence of visas [Repealed]............................................................................................... 246 Subdivision AF - Bridging visas 72 Interpretation.........................................................................................................................246 73 Bridging visas....................................................................................................................... 247 74 Further applications for bridging visa................................................................................... 249 75 When eligible non-citizen in immigration detention granted visa.........................................250 76 Bridging visa not affect visa applications............................................................................. 250 Subdivision AG - Other provisions about visas 77 Visas held during visa period............................................................................................... 250 78 Children born in Australia..................................................................................................... 250 79 Effect on visa of leaving Australia........................................................................................ 251 80 Certain persons taken not to leave Australia....................................................................... 251 81 Extent of visa authority......................................................................................................... 251 82 When visas cease to be in effect......................................................................................... 251 83 Certain persons taken to be included in spouse, de facto partner or parent’s visa............253 84 Minister may suspend processing of visa applications........................................................ 253

Subdivision AH - Limit on visas 85 Limit on visas........................................................................................................................254 86 Effect of limit......................................................................................................................... 256 87 Limit does not prevent visas for certain persons................................................................. 256 87A Limit does not prevent the grant of visas to certain people who are unable to meet health or character requirements before the limit applies because of circumstances beyond their control........................................................................................................................... 257 88 Limit does not affect processing of applications.................................................................. 258 89 Determination of limit not to mean failure to decide............................................................ 258 90 Order of dealing with limited visas....................................................................................... 259 91 Order of dealing with visas...................................................................................................259 Subdivision AI - Safe third countries 91A Reason for Subdivision.........................................................................................................260 91B Interpretation.........................................................................................................................260 91C Non-citizens covered by Subdivision....................................................................................260 91D Safe third countries.............................................................................................................. 260 91E Non-citizens to which this Subdivision applies unable to make valid applications for certain visas..........................................................................................................................261 91F Minister may determine that section 91E does not apply to non-citizen............................. 261 91G Applications made before regulations take effect................................................................ 263 Subdivision AJ - Temporary safe haven visas 91H Reason for this Subdivision..................................................................................................263 91J Non-citizens to whom this Subdivision applies.................................................................... 264 91K Non-citizens to whom this Subdivision applies are unable to make valid applications for certain visas..........................................................................................................................264 91L Minister may determine that section 91K does not apply to a non-citizen..........................264

© 2016 THOMSON REUTERS

5

Migration Act 1994

Subdivision AK - Non-citizens with access to protection from third countries 91M Reason for this Subdivision..................................................................................................265 91N Non-citizens to whom this Subdivision applies.................................................................... 266 91P Non-citizens to whom this Subdivision applies are unable to make valid applications for certain visas..........................................................................................................................267 91Q Minister may determine that section 91P does not apply to a non-citizen..........................267 Subdivision AL - Other provisions about protection visas 91V Verification of information..................................................................................................... 268 91W Evidence of identity and bogus documents......................................................................... 270 91WA Providing bogus documents or destroying identity documents............................................270 91WB Application for protection visa by member of same family unit........................................... 271 91X Names of applicants for protection visas not to be published by the High Court, Federal Court or Federal Circuit Court.............................................................................................. 271 91Y Secretary’s obligation to report to Minister [Repealed]........................................................ 271 Subdivision B - The “points” system 92 Operation of Subdivision...................................................................................................... 272 93 Determination of applicant’s score....................................................................................... 272 94 Initial application of “points” system..................................................................................... 272 95 Applications in pool.............................................................................................................. 272 95A Extension of period in pool...................................................................................................273 96 Minister may set pool mark and pass mark......................................................................... 273 Subdivision C - Visas based on incorrect information may be cancelled 97 Interpretation.........................................................................................................................275 97A Exhaustive statement of natural justice hearing rule........................................................... 275 98 Completion of visa application..............................................................................................278 99 Information is answer........................................................................................................... 279 100 Incorrect answers................................................................................................................. 280 101 Visa applications to be correct............................................................................................. 280 102 Passenger cards to be correct............................................................................................. 280 103 Bogus documents not to be given etc..................................................................................280 104 Changes in circumstances to be notified............................................................................. 280 105 Particulars of incorrect answers to be given........................................................................ 281 106 Obligations to give etc. information is not affected by other sources of information...........281 107 Notice of incorrect applications............................................................................................ 281 107A Possible non-compliances in connection with a previous visa may be grounds for cancellation of current visa...................................................................................................286 108 Decision about non-compliance........................................................................................... 286 109 Cancellation of visa if information incorrect......................................................................... 288 110 Cancellation provisions apply whatever source of knowledge of non-compliance..............291 111 Cancellation provisions apply whether or not non-compliance deliberate...........................292 112 Action because of one non-compliance not prevent action because of other noncompliance............................................................................................................................292 113 No cancellation if full disclosure........................................................................................... 292 114 Effect of setting aside decision to cancel visa..................................................................... 292 115 Application of Subdivision.....................................................................................................292 Subdivision D - Visas may be cancelled on certain grounds 116 Power to cancel.................................................................................................................... 293 117 When visa may be cancelled............................................................................................... 297 118 Cancellation powers do not limit or affect each other..........................................................298 Subdivision E - Procedure for cancelling visas under Subdivision D in or outside Australia 118A Exhaustive statement of natural justice hearing rule........................................................... 298 119 Notice of proposed cancellation........................................................................................... 302 120 Certain information must be given to visa holder................................................................ 306 121 Invitation to give comments etc............................................................................................310 122 Prescribed periods................................................................................................................ 311 123 Failure to accept invitation not require action...................................................................... 311

6

Migration Law

Table of Provisions 124 When decision about visa cancellation may be made......................................................... 311 125 Application of Subdivision to non-citizen in immigration clearance..................................... 312 126 Application of Subdivision to non-citizen in questioning detention...................................... 312 127 Notification of decision......................................................................................................... 312 Subdivision F - Other procedure for cancelling visas under Subdivision D outside Australia 127A Exhaustive statement of natural justice hearing rule........................................................... 315 128 Cancellation of visas of people outside Australia.................................................................318 129 Notice of cancellation........................................................................................................... 319 130 Prescribed periods................................................................................................................322 131 Decision about revocation of cancellation............................................................................322 132 Notification of decision about revocation of cancellation..................................................... 324 133 Effect of revocation of cancellation...................................................................................... 324 Subdivision FA - Additional personal powers for Minister to cancel visas on section 109 or 116 grounds 133A Minister’s personal powers to cancel visas on section 109 grounds...................................324 133B Other provisions relating to the exercise of powers in section 133A.................................. 325 133C Minister’s personal powers to cancel visas on section 116 grounds...................................326 133D Cancellation under subsection 133A(1) or 133C(1)—method of satisfying Minister of matters.................................................................................................................................. 327 133E Cancellation under subsection 133A(1) or 133C(1)—notice of cancellation....................... 327 133F Cancellation under subsection 133A(3) or 133C(3)—Minister may revoke cancellation in certain circumstances........................................................................................................... 327 Subdivision FB - Emergency cancellation on security grounds 134A Natural justice....................................................................................................................... 328 134B Emergency cancellation on security grounds.......................................................................328 134C Decision about revocation of emergency cancellation.........................................................328 134D Effect of revocation of cancellation...................................................................................... 329 134E Notice of cancellation........................................................................................................... 329 134F Effect of cancellation on other visas.................................................................................... 330 Subdivision G - Cancellation of business visas 134 Cancellation of business visas............................................................................................. 330 135 Representations concerning cancellation of business visa..................................................334 136 Review of decisions..............................................................................................................335 137 Provision of information—holders of business visas............................................................336 Subdivision GA - Cancellation of approval as a business sponsor [Repealed]............................................... 337 Subdivision GB - Automatic cancellation of student visas 137J Non-complying students may have their visas automatically cancelled.............................. 337 137K Applying for revocation of cancellation.................................................................................339 137L Dealing with the application..................................................................................................339 137M Notification of decision......................................................................................................... 340 137N Minister may revoke cancellation on his or her own initiative............................................. 341 137P Effect of revocation...............................................................................................................341 Subdivision GC - Cancellation of regional sponsored employment visas 137Q Cancellation of regional sponsored employment visas........................................................341 137R Representations concerning cancellation etc.......................................................................342 137S Notice of cancellation........................................................................................................... 342 137T Cancellation of other visas................................................................................................... 342 Subdivision H - General provisions on cancellation 138 Cancellation and revocation of cancellation of visas—how and when................................ 343 139 Visas held by 2 or more....................................................................................................... 343 140 Cancellation of visa results in other cancellation................................................................. 343

Division 3A - Sponsorship Subdivision A - Preliminary 140A Division applies to prescribed kinds of visa......................................................................... 344 140AA Division 3A—purposes......................................................................................................... 344

© 2016 THOMSON REUTERS

7

Migration Act 1994 140AB Ministerial Advisory Council on Skilled Migration.................................................................345 Subdivision B - Approving sponsors and nominations 140E Minister to approve sponsor................................................................................................. 345 140F Process for approving sponsors...........................................................................................345 140G Terms of approval as a sponsor...........................................................................................346 140GA Variation of terms of approval as a sponsor........................................................................ 346 140GB Minister to approve nominations.......................................................................................... 346 140GBA Labour market testing—condition.........................................................................................347 140GBB Labour market testing—major disaster exemption...............................................................349 140GBC Labour market testing—skill and occupational exemptions................................................. 350 140GC Work agreements................................................................................................................. 351 Subdivision C - Sponsorship obligations 140H Sponsorship obligations—general........................................................................................ 351 140HA Sponsorship obligations—Minister’s responsibility...............................................................352 140I Amounts payable to the Commonwealth [Repealed]...........................................................352 140J Amounts payable in relation to sponsorship obligations......................................................352 Subdivision D - Enforcement 140K Sanctions for failing to satisfy sponsorship obligations........................................................353 140L Regulations may prescribe circumstances in which sponsor may be barred or sponsor’s approval cancelled................................................................................................................354 140M Cancelling approval as a sponsor or barring a sponsor...................................................... 355 140N Process for cancelling or barring approval as a sponsor.................................................... 355 140O Waiving a bar........................................................................................................................355 140P Process for waiving a bar.....................................................................................................356 140Q Civil penalty—failing to satisfy sponsorship obligations.......................................................356 140R [Repealed]............................................................................................................................ 356 140RA Enforceable undertakings..................................................................................................... 356 140RB Enforcing undertakings [Repealed]...................................................................................... 357 Subdivision E - Liability and recovery of amounts 140S Liability to pay amounts........................................................................................................357 140SA Interest up to judgment........................................................................................................ 357 140SB Interest on judgment.............................................................................................................358 140SC Certain plaintiffs may choose small claims procedure in magistrates courts...................... 358 140T Notice regarding amount of debt or other amount...............................................................359 140U Liability is in addition to any other liability............................................................................359 Subdivision F - Inspector powers 140UA Exercise of inspector powers............................................................................................... 359 140V Inspectors............................................................................................................................. 359 140W Identity cards........................................................................................................................ 360 140X Purpose for which powers of inspectors may be exercised................................................ 361 140XA When powers of inspectors may be exercised.................................................................... 361 140XB Power of inspectors to enter premises or places.................................................................361 140XC Powers of inspectors while on premises or at a place........................................................ 361 140XD Persons assisting inspectors................................................................................................ 362 140XE Power to ask for person’s name and address..................................................................... 362 140XF Power to require persons to produce records or documents.............................................. 363 140XG Self-incrimination.................................................................................................................. 363 140XH Certain records and documents are inadmissible................................................................363 140XI Power to keep records or documents.................................................................................. 363 140XJ Disclosure of information by the Secretary or Australian Border Force Commissioner...... 364 Subdivision G - Application of Division to partnerships and unincorporated associations 140ZB Partnerships—sponsorship rights and obligations............................................................... 364 140ZC Partnerships—offences and civil penalties...........................................................................365 140ZD Partnership ceases to exist.................................................................................................. 365 140ZE Unincorporated associations—sponsorship rights and obligations......................................365

8

Migration Law

Table of Provisions 140ZF Unincorporated associations—offences and civil penalties................................................. 366 140ZG Unincorporated association ceases to exist.........................................................................366 Subdivision H - Miscellaneous 140ZH Disclosure of personal information by Minister.................................................................... 367 140ZI Disclosure of personal information to Minister..................................................................... 368 140ZJ Unclaimed money................................................................................................................. 369 140ZK Other regulation making powers not limited.........................................................................369

Division 4 - Criminal justice visitors Subdivision A - Preliminary 141 Object of Division................................................................................................................. 369 142 Interpretation.........................................................................................................................369 143 Delegation by Attorney-General........................................................................................... 370 144 Authorised officials................................................................................................................370 Subdivision B - Criminal justice certificates for entry 145 Commonwealth criminal justice entry certificate.................................................................. 370 146 State criminal justice entry certificate...................................................................................371 Subdivision C - Criminal justice certificates etc. staying removal or deportation 147 Commonwealth criminal justice stay certificate....................................................................371 148 State criminal justice stay certificate.................................................................................... 372 149 Application for visa not to prevent certificate....................................................................... 372 150 Criminal justice stay certificates stay removal or deportation..............................................372 151 Certain warrants stay removal or deportation...................................................................... 373 152 Certain subjects of stay certificates and stay warrants may be detained etc..................... 373 153 Removal or deportation not contempt etc. if no stay certificate or warrant.........................373 154 Officer not liable—criminal justice stay certificates or warrants...........................................373 Subdivision D - Criminal justice visas 155 Criminal justice visas............................................................................................................ 374 156 Criterion for criminal justice entry visas............................................................................... 374 157 Criterion for criminal justice stay visas.................................................................................374 158 Criteria for criminal justice visas...........................................................................................374 159 Procedure for obtaining criminal justice visa........................................................................374 160 Conditions of criminal justice visa........................................................................................ 374 161 Effect of criminal justice visas.............................................................................................. 375 Subdivision E - Cancellation etc. of criminal justice certificates and criminal justice visas 162 Criminal justice certificates to be cancelled......................................................................... 375 163 Stay warrant to be cancelled................................................................................................377 164 Effect of cancellation etc. on criminal justice visa................................................................378 Division 4A - Enforcement visas 164A Definitions............................................................................................................................. 378 164B Grant of enforcement visas (fisheries matters).................................................................... 378 164BA Grant of enforcement visas (environment matters)..............................................................380 164C When enforcement visa ceases to be in effect....................................................................381 164D Applying for other visas........................................................................................................ 382 Division 5 - Immigration clearance 165 Interpretation.........................................................................................................................382 166 Persons entering to present certain evidence of identity etc...............................................383 167 When and where evidence to be presented........................................................................ 384 168 Section 166 not to apply...................................................................................................... 384 169 Section 166 not usually to apply.......................................................................................... 385 170 Certain persons to present evidence of identity...................................................................385 171 Assistance with evidence..................................................................................................... 386 172 Immigration clearance.......................................................................................................... 387 173 Visa ceases if holder enters in way not permitted............................................................... 388

© 2016 THOMSON REUTERS

9

Migration Act 1994 174 175 175A 175B

Visa ceases if holder remains without immigration clearance............................................. 388 Departing person to present certain evidence etc............................................................... 388 Determinations relating to kinds of passports...................................................................... 390 Collection, access and disclosure of information................................................................. 390

Division 6 - Certain non-citizens to be kept in immigration detention 176 Reason for Division.............................................................................................................. 390 177 Interpretation.........................................................................................................................390 178 Designated persons to be in immigration detention.............................................................391 179 Beginning of immigration detention of certain designated persons..................................... 391 180 Detention of designated person........................................................................................... 392 181 Removal from Australia of designated persons................................................................... 392 182 No immigration detention or removal after certain period....................................................393 183 Courts must not release designated persons...................................................................... 394 184 No actions for certain unlawful custody [Repealed].............................................................394 185 Effect of Division on status etc.............................................................................................394 186 Division applies despite other laws...................................................................................... 394 187 Evidence............................................................................................................................... 394 Division 7 - Detention of unlawful non-citizens Subdivision A - General provisions 188 Lawful non-citizen to give evidence of being so.................................................................. 395 189 Detention of unlawful non-citizens........................................................................................395 190 Non-compliance ..............................................................................................................................................398 with immigration clearance or requirement to provide personal identifier 191 End of certain detention....................................................................................................... 398 192 Detention of visa holders whose visas liable to cancellation...............................................399 192A Authorisation of identification tests in certain cases [Repealed]..........................................400 193 Application of law to certain non-citizens while they remain in immigration detention........400 194 Detainee to be told of consequences of detention.............................................................. 401 195 Detainee may apply for visa.................................................................................................402 195A Minister may grant detainee visa (whether or not on application).......................................402 196 Duration of detention............................................................................................................ 408 197 Effect of escape from immigration detention........................................................................409 Subdivision B - Residence determinations 197AA Persons to whom Subdivision applies..................................................................................409 197AB Minister may determine that person is to reside at a specified place rather than being held in detention centre etc.................................................................................................. 409 197AC Effect of residence determination.........................................................................................409 197AD Revocation or variation of residence determination.............................................................410 197AE Minister not under duty to consider whether to exercise powers........................................ 410 197AF Minister to exercise powers personally................................................................................ 410 197AG Tabling of information relating to the making of residence determinations..........................411 Division 7A - Offences relating to immigration detention 197A Detainees must not escape from detention..........................................................................411 197B Manufacture, possession etc. of weapons by detainees..................................................... 411 Division 8 - Removal of unlawful non-citizens etc. Subdivision A - Removal 197C Australia’s non-refoulement obligations irrelevant to removal of unlawful non-citizens under section 198................................................................................................................. 412 198 Removal from Australia of unlawful non-citizens................................................................. 412 198A [Repealed]............................................................................................................................ 417 Subdivision B - Regional processing 198AA Reason for Subdivision.........................................................................................................417 Regional processing country................................................................................................ 417 198AB 198AC Documents to be laid before Parliament..............................................................................418

10

Migration Law

Table of Provisions 198AD 198AE 198AF 198AG 198AH 198AHA

Taking unauthorised maritime arrivals to a regional processing country.............................419 Ministerial determination that section 198AD does not apply..............................................420 No regional processing country............................................................................................421 Non-acceptance by regional processing country................................................................. 421 Application of section 198AD to certain transitory persons................................................. 422 Power to take action etc. in relation to arrangement or regional processing functions of a country.................................................................................................................................. 422 198AI Ministerial report................................................................................................................... 423 198AJ Reports about unauthorised maritime arrivals..................................................................... 424 Subdivision C - Transitory persons etc. 198B Power to bring transitory persons to Australia..................................................................... 424 199 Dependants of removed non-citizens...................................................................................425

Division 9 - Deportation 200 Deportation of certain non-citizens.......................................................................................425 201 Deportation of non-citizens in Australia for less than 10 years who are convicted of crimes................................................................................................................................... 425 202 Deportation of non-citizens upon security grounds..............................................................426 203 Deportation of non-citizens who are convicted of certain serious offences........................ 427 204 Determination of time for sections 201 and 202.................................................................. 429 205 Dependants of deportee....................................................................................................... 429 206 Deportation order to be executed.........................................................................................430 Division 10 - Costs etc. of removal and deportation 207 Interpretation.........................................................................................................................430 210 Removed or deported non-citizen liable for costs of removal or deportation......................430 211 Costs of detained spouses, de facto partners and dependants [Repealed]........................431 212 Costs of removed or deported spouses, de facto partners and dependants...................... 431 213 Carriers may be liable for costs of removal and deportation...............................................431 214 Non-citizens and carriers jointly liable..................................................................................432 215 Costs are debts due to the Commonwealth.........................................................................432 216 Use of existing ticket for removal or deportation................................................................. 432 217 Vessels required to convey certain removees..................................................................... 432 218 Vessels required to convey deportees or other removees.................................................. 433 219 Exemption from complying................................................................................................... 433 220 Waiver of requirement.......................................................................................................... 433 221 Cost of removal under notice............................................................................................... 434 222 Orders restraining certain non-citizens from disposing etc. of property.............................. 434 223 Secretary or Australian Border Force Commissioner may give direction about valuables of detained non-citizens....................................................................................................... 435 224 Dealing with seized valuables.............................................................................................. 437 Division 11 - Duties of masters in relation to crews 225 Production of identity documents and mustering of crew.................................................... 439 226 Production of identity documents by persons on board resources installation................... 439 227 Production of identity documents by persons on board sea installation............................. 440 228 Master to report absences....................................................................................................440 Division 12 - Offences etc. in relation to entry into, and remaining in, Australia Subdivision A - People smuggling and related offences 228A Application of Subdivision.....................................................................................................441 228B Circumstances in which a non-citizen has no lawful right to come to Australia..................441 229 Carriage of non-citizens to Australia without documentation............................................... 442 230 Carriage of concealed persons to Australia......................................................................... 443 231 Master of vessel to comply with certain requests................................................................ 444 232 Penalty on master, owner, agent and charterer of vessel................................................... 444 233A Offence of people smuggling................................................................................................445 233B Aggravated offence of people smuggling (danger of death or serious harm etc.).............. 447

© 2016 THOMSON REUTERS

11

Migration Act 1994 233C 233D 233E 234 234A 235 236 236A 236B 236C 236D 236E 236F

Aggravated offence of people smuggling (at least 5 people).............................................. 449 Supporting the offence of people smuggling........................................................................452 Concealing and harbouring non-citizens etc........................................................................ 453 False documents and false or misleading information etc. relating to non-citizens............ 454 Aggravated offence of false documents and false or misleading information etc. relating to non-citizens (at least 5 people)........................................................................................ 454 Offences in relation to work..................................................................................................455 Offences relating to visas..................................................................................................... 457 No discharge without conviction for certain offences...........................................................458 Mandatory minimum penalties for certain offences............................................................. 458 Time in immigration detention counts for sentencing etc.................................................... 459 Burden and standard of proof in relation to age.................................................................. 460 Evidentiary certificates in proceedings for offences.............................................................460 Evidentiary certificates—procedural matters........................................................................ 461

Subdivision B - Offences relating to abuse of laws allowing spouses etc. of Australian citizens or of permanent residents to become permanent residents 237 Reason for Subdivision.........................................................................................................462 238 Interpretation.........................................................................................................................462 239 Application of Subdivision.....................................................................................................462 240 Offence to arrange marriage to obtain permanent residence..............................................463 241 Offence to arrange pretended de facto relationship to obtain permanent residence.......... 463 242 Offence to arrange pretended interdependency relationship to obtain permanent residence [Repealed]............................................................................................................463 243 Offences relating to application for permanent residence because of marriage or de facto relationship.................................................................................................................. 463 244 Offences relating to an application for permanent residence because of interdependency relationship [Repealed]......................................................................................................... 464 245 Offences of making false or unsupported statements......................................................... 464 Subdivision C - Offences and civil penalties in relation to work by non-citizens 245AA Overview............................................................................................................................... 465 245AB Allowing an unlawful non-citizen to work............................................................................. 465 245AC Allowing a lawful non-citizen to work in breach of a work-related condition....................... 466 245AD Aggravated offences if a person allows, or continues to allow, another person to work.... 467 245AE Referring an unlawful non-citizen for work...........................................................................467 245AEA Referring a lawful non-citizen for work in breach of a work-related condition.....................468 245AEB Aggravated offences if a person refers another person to a third person for work............ 469 245AF Circumstances in which this Subdivision does not apply.................................................... 469 245AG Meaning of work and allows to work....................................................................................470 245AH Meaning of exploited............................................................................................................ 470 245AI Meaning of other terms [Repealed]......................................................................................470 245AJ Criminal liability of executive officers of bodies corporate................................................... 470 245AK Civil liability of executive officers of bodies corporate......................................................... 471 245AL Contravening civil penalty provisions................................................................................... 472 245AM Geographical scope of offence and civil penalty provisions................................................ 472 245AN Charge and trial for an aggravated offence......................................................................... 474 245AO Treatment of partnerships.................................................................................................... 475 245AP Treatment of unincorporated associations........................................................................... 475 Subdivision D - Offences and civil penalties in relation to sponsored visas 245AQ Definitions............................................................................................................................. 476 245AR Prohibition on asking for or receiving a benefit in return for the occurrence of a sponsorship-related event.................................................................................................... 477 245AS Prohibition on offering to provide or providing a benefit in return for the occurrence of a sponsorship-related event.................................................................................................... 478 245AT Criminal liability of executive officers of bodies corporate................................................... 478 245AU Civil liability of executive officers of bodies corporate......................................................... 478 245AV Contravening civil penalty provisions................................................................................... 479

12

Migration Law

Table of Provisions 245AW 245AX 245AY

Geographical scope of offence and civil penalty provisions................................................ 480 Treatment of partnerships.................................................................................................... 482 Treatment of unincorporated associations........................................................................... 482

Division 12A - Chasing, boarding etc. aircraft 245A Definitions............................................................................................................................. 483 245E Identifying an aircraft and requesting it to land for boarding............................................... 483 245F Power to board and search etc. aircraft...............................................................................484 245FA Searches of people on certain ships or aircraft................................................................... 488 Division 12B - Reporting on passengers and crew of aircraft and ships 245I Definitions............................................................................................................................. 489 245J Approval of primary reporting systems.................................................................................490 245K Approval of fall-back reporting systems............................................................................... 491 245L Obligation to report on persons arriving in Australia............................................................491 245LA Obligation to report on persons departing from Australia.................................................... 492 245LB Dealing with information collected under this Division etc...................................................493 245M Approved fall-back reporting systems may be used in certain circumstances....................494 245N Offence for failure to comply with reporting obligations.......................................................494 Division 13 - Examination, search, detention and identification 246 Appointment of boarding stations.........................................................................................495 247 Vessels to enter ports and be brought to boarding stations................................................ 495 248 Exemption............................................................................................................................. 497 249 Certain persons may be prevented from entering or landing.............................................. 497 250 Detention of suspected offenders.........................................................................................497 251 Powers of entry and search................................................................................................. 498 252 Searches of persons............................................................................................................ 500 252AA Power to conduct a screening procedure............................................................................ 501 252A Power to conduct a strip search...........................................................................................502 252B Rules for conducting a strip search......................................................................................504 252C Possession and retention of certain things obtained during a screening procedure or strip search........................................................................................................................... 505 252D Authorised officer may apply for a thing to be retained for a further period........................506 252E Magistrate may order that thing be retained........................................................................ 507 252F Detainees held in State or Territory prisons or remand centres.......................................... 507 252G Powers concerning entry to a detention centre................................................................... 507 253 Detention of deportee........................................................................................................... 509 254 Removees and deportees held in other custody................................................................. 510 255 Prescribed authorities........................................................................................................... 511 256 Person in immigration detention may have access to certain advice, facilities etc............. 511 257 Persons may be required to answer questions....................................................................512 257A Person may be required to provide personal identifiers...................................................... 512 258 Minister may determine that specified persons are not to be required to provide personal identifiers etc........................................................................................................................ 513 258A When ..............................................................................................................................................514 detainees must not be required to provide personal identifiers under section 257A 258B Information to be provided – authorised officers carrying out identification tests................514 258C Information to be provided when identification tests not carried out [Repealed].................514 258D Regulations may prescribe manner for carrying out identification tests.............................. 514 258E General rules for carrying out identification tests.................................................................514 258F Person must not be required to provide personal identifiers in a cruel, inhuman or degrading way etc................................................................................................................ 515 258G Authorised officer may get help to carry out identification tests.......................................... 515 259 Detention of vessel for purpose of search........................................................................... 515 260 Detention of vessel pending recovery of penalty................................................................. 516 261 Disposal of dilapidated vessels etc...................................................................................... 517

© 2016 THOMSON REUTERS

13

Migration Act 1994

Division 13AA - Identification of immigration detainees Subdivision A - Provision of personal identifiers 261AA Immigration detainees must provide personal identifiers.....................................................518 261AB Authorised officers must require and carry out identification tests...................................... 519 261AC Information to be provided before carrying out identification tests...................................... 519 Subdivision B - How identification tests are carried out 261AD General rules for carrying out identification tests.................................................................520 261AE Use of force in carrying out identification tests.................................................................... 521 261AF Identification tests not to be carried out in cruel, inhuman or degrading manner etc......... 522 261AG Authorised officer may get help to carry out identification tests.......................................... 522 261AH Identification tests to be carried out by authorised officer of same sex as non-citizen.......522 261AI Independent person to be present....................................................................................... 522 261AJ Recording of identification tests........................................................................................... 522 261AK Retesting...............................................................................................................................523 Subdivision C - Obligations relating to video recordings of identification tests 261AKA Definitions............................................................................................................................. 524 261AKB Accessing video recordings..................................................................................................524 261AKC Authorising access to video recordings................................................................................525 261AKD Providing video recordings................................................................................................... 525 261AKE Unauthorised modification of video recordings.................................................................... 526 261AKF Unauthorised impairment of video recordings......................................................................526 261AKG Meanings of unauthorised modification and unauthorised impairment etc..........................527 261AKH Destroying video recordings................................................................................................. 527 Division 13AB - Identification of minors and incapable persons 261AL Minors................................................................................................................................... 527 261AM Incapable persons................................................................................................................ 528 Division 13A - Automatic forfeiture of things used in certain offences Subdivision A - Automatic forfeiture 261A Forfeiture of things used in certain offences........................................................................528 Subdivision B - Seizure 261B Seizure of things used in certain offences........................................................................... 530 Subdivision C - Dealing with things seized as automatically forfeited 261C Application of this Subdivision..............................................................................................530 261D Notice of seizure...................................................................................................................530 261E Dealing with thing before it is condemned........................................................................... 531 261F Thing condemned if not claimed in time.............................................................................. 531 261G Dealing with claim for thing.................................................................................................. 531 261H What happens if thing is claimed......................................................................................... 532 261I Dealing with thing after it is condemned.............................................................................. 533 Subdivision D - Operation of Division 261J Operation of Division............................................................................................................ 533 Subdivision E - Minister’s order that a thing not be condemned as forfeited 261K Minister’s order that a thing not be condemned.................................................................. 533 Division 14 - Recovery of costs from certain persons 262 Liability to the Commonwealth for the cost of keeping, maintaining and removing certain persons................................................................................................................................. 534 263 Secretary or Australian Border Force Commissioner able to issue notice of debt..............535 264 Garnishee notice.................................................................................................................. 536 265 Debt from failure to comply with garnishee notice...............................................................536 266 Future debts......................................................................................................................... 537 267 Secretary may freeze amounts to secure future debts........................................................537 268 Application of Division to the Crown.................................................................................... 538

14

Migration Law

Table of Provisions

Division 14A - Monitoring compliance with student visa conditions Subdivision A - Preliminary 268AA Definitions............................................................................................................................. 538 268AB Division binds the Crown......................................................................................................539 268AC Criminal Code applies [Repealed]........................................................................................539 268AD Powers conferred on magistrates in their personal capacity............................................... 539 Subdivision B - Notices requiring information and documents 268BA Production notices................................................................................................................ 539 268BB Contents of the production notice........................................................................................ 540 268BC Serving production notices................................................................................................... 540 268BD Attendance notices............................................................................................................... 541 268BE Contents of attendance notice............................................................................................. 541 268BF Scales of expenses.............................................................................................................. 541 268BG Reasonable compensation for giving copies........................................................................541 268BH Offence: failing to comply with a notice............................................................................... 541 268BI Offence: giving false or misleading information................................................................... 542 268BJ Offence: giving false or misleading document..................................................................... 542 268BK Information and documents that incriminate a person.........................................................542 268BL Copies of documents............................................................................................................543 268BM Officer may retain documents.............................................................................................. 543 268BN Owner of document must be given copy............................................................................. 543 268BO Retaining documents............................................................................................................ 543 268BP Officer may apply to magistrate or tribunal member for a further period............................ 544 268BQ Magistrate or tribunal member may order retention for further period................................ 544 Subdivision C - Searching education providers’ premises 268CA Authorised officer may enter premises for a visa monitoring purpose................................ 544 268CB Being on premises with consent.......................................................................................... 545 268CC Consent................................................................................................................................ 545 268CD Authorised officer may apply for monitoring warrant........................................................... 545 268CE Magistrate or tribunal member may issue monitoring warrant.............................................545 268CF Magistrate or tribunal member may require more information.............................................545 268CG Contents of monitoring warrant............................................................................................ 545 268CH Use of reasonable force and assistance..............................................................................546 268CI Monitoring powers of authorised officers............................................................................. 546 268CJ Authorised officer on premises with consent may ask questions........................................ 547 268CK Authorised officer on premises under warrant may ask questions...................................... 547 268CL Offence: failure to answer question......................................................................................547 268CM Offence: giving false or misleading information................................................................... 548 268CN Offence: ..............................................................................................................................................548 giving or showing documents that are false or misleading in material particulars 268CO Use of electronic equipment in exercising monitoring powers.............................................548 268CP Use of electronic equipment by experts...............................................................................548 268CQ Extension of period...............................................................................................................549 268CR Powers without warrant in emergency situations.................................................................549 268CS Retaining seized things........................................................................................................ 549 268CT Authorised officer may apply for a thing to be retained for a further period........................550 268CU Magistrate or tribunal member may order that thing be retained........................................ 550 268CV Occupier to provide authorised officer with all facilities and assistance..............................551 268CW Announcement before entry................................................................................................. 551 268CX Copy of monitoring warrant to be given to occupier before entry....................................... 551 268CY Compensation for damage to electronic equipment or data................................................551 268CZ Occupier entitled to be present during execution of monitoring warrant............................. 552 268CZA Identity cards........................................................................................................................ 552 268CZB Authorised officer must produce identity card on request................................................... 552 268CZC Officer may apply for warrants by telephone etc................................................................. 552 268CZD Magistrate or tribunal member may grant warrant by telephone etc...................................553

© 2016 THOMSON REUTERS

15

Migration Act 1994 268CZE 268CZF 268CZG 268CZH

Procedure for issuing warrant by telephone etc.................................................................. 553 Procedure after telephone warrant ceases or is executed.................................................. 553 Form of warrant authorises exercise of power.....................................................................554 Court to assume that exercise of power not authorised by telephone etc. warrant............554

Division 15 - General 269 Securities.............................................................................................................................. 554 270 Reports of absences of crews of vessels............................................................................ 558 271 Proof of certain matters........................................................................................................ 558 272 Migrant centres..................................................................................................................... 561 273 Detention centres................................................................................................................. 561 274 Secretary or Australian Border Force Commissioner may issue documents containing information concerning certain persons............................................................................... 563

Part 3 - Migration agents and immigration assistance Division 1 - Preliminary 275 Interpretation.........................................................................................................................566 276 Immigration assistance......................................................................................................... 567 277 Immigration legal assistance................................................................................................ 569 278 Relation by employment....................................................................................................... 570 279 Part VIIC of the Crimes Act 1914 to apply to this Part........................................................ 570 279A Application of the Criminal Code [Repealed]....................................................................... 570 Division 2 - Restrictions on giving of immigration assistance and making of immigration representations 280 Restrictions on giving of immigration assistance................................................................. 571 281 Restriction on charging fees for immigration assistance..................................................... 572 282 Restriction on charging fees for immigration representations..............................................573 283 False representation that a person is a registered migration agent.................................... 573 284 Restriction on self-advertising of the giving of immigration assistance............................... 574 285 Restriction on other advertising of immigration assistance..................................................574 Division 3 - Registration of migration agents 286 Individuals may be registered as migration agents..............................................................575 287 Register of Migration Agents................................................................................................ 575 288 Application for registration.................................................................................................... 576 288A Publishing requirement......................................................................................................... 577 288B Requiring applicants to make statutory declarations or to answer questions..................... 577 289 Registration...........................................................................................................................577 289A Applicant must not be registered if does not satisfy registration requirements...................578 290 Applicant must not be registered if not a person of integrity or not fit and proper..............578 290A Applicant for repeat registration must not be registered if he or she has not done continuing professional development................................................................................... 581 290B Applicant must not be registered if any unpaid registration status charge..........................582 291 Applicant must not be registered if registration refused in past year.................................. 582 291A Applicant must not be registered if suspension would be in effect..................................... 582 292 Applicant must not be registered if registration cancelled in past 5 years.......................... 582 292A Applicant must not be registered if any barring period has not ended................................582 292B Applicant must not be registered unless he or she holds appropriate professional indemnity insurance..............................................................................................................583 293 Applicant under 18 must not be registered.......................................................................... 583 294 Applicant must not be registered if not an Australian citizen, permanent resident or New Zealander with special visa.................................................................................................. 583 295 Notice of refusal of application............................................................................................. 583 299 Period of registration............................................................................................................ 583 300 Automatic continuation of registration.................................................................................. 584 301 Migration Agents Registration Authority must warn of expiry.............................................. 586 302 Automatic deregistration....................................................................................................... 586

16

Migration Law

Table of Provisions 303 304 304A 305 305A 305B 305C 306 306AA

Disciplining registered migration agents...............................................................................586 Period of suspension............................................................................................................ 588 Conditions for lifting cautions............................................................................................... 589 Notice of disciplinary decision.............................................................................................. 589 Making disciplinary details publicly available....................................................................... 589 Providing disciplinary details to clients.................................................................................589 Requiring registered migration agents to give information or documents........................... 590 Review by the Administrative Appeals Tribunal................................................................... 590 Stay orders........................................................................................................................... 591

Division 3AA - Disciplining registered migration agents for engaging in vexatious activity Subdivision A - Definitions 306AB Definitions............................................................................................................................. 591 Subdivision B - Referral of registered migration agents for disciplinary action 306AC Minister may refer registered migration agent to the Migration Agents Registration Authority................................................................................................................................591 306AD Ministerial determinations..................................................................................................... 592 306AE Registered migration agent may make submissions........................................................... 593 306AF Notice of referral decision under section 306AC................................................................. 593 306AG Migration ..............................................................................................................................................594 Agents Registration Authority’s decision after a referral under section 306AC 306AGAA Minister may refer agent again if Migration Agents Registration Authority takes no disciplinary action................................................................................................................. 595 306AGAB Notice of referral decision under section 306AG................................................................. 595 306AGAC Migration Agents Registration Authority’s disciplinary decision after a referral under section 306AGAA................................................................................................................. 596 306AGA Cautions or suspensions...................................................................................................... 597 Subdivision D - Review 306AJ Review by the Administrative Appeals Tribunal................................................................... 597 306AK Stay orders........................................................................................................................... 597 Subdivision E - Making disciplinary details available 306AL Making disciplinary details publicly available....................................................................... 597 306AM Providing disciplinary details to clients.................................................................................598 Division 3A - Documents relating to clients of inactive migration agents and deceased migration agents 306A Objects of this Division......................................................................................................... 598 306B Inactive migration agents......................................................................................................599 306C Clients................................................................................................................................... 600 306D Power to obtain documents from inactive migration agent..................................................600 306E Power to obtain documents from representative of deceased inactive migration agent.....601 306F Power ..............................................................................................................................................601 to obtain documents from representative of deceased registered migration agent 306G Reasonable compensation................................................................................................... 602 306H Failure to comply with notice................................................................................................602 306J Self-incrimination.................................................................................................................. 602 306K Migration Agents Registration Authority to give client documents to clients....................... 603 306L Compensation—constitutional safety-net............................................................................. 603 Division 4 - Investigations and decision-making by the Migration Agents Registration Authority 307 Investigations [Repealed]..................................................................................................... 604 308 Requiring registered migration agents to give information.................................................. 604 309 Persons may make submissions..........................................................................................605 310 Persons may appear before Migration Agents Registration Authority................................. 606 311 Migration Agents Registration Authority not bound by legal forms etc................................ 607 Division 4A - Disciplining former registered migration agents Subdivision A - Complaints about provision of immigration assistance 311A Barring former registered migration agents from being registered for up to 5 years.......... 607

© 2016 THOMSON REUTERS

17

Migration Act 1994 311B Notice of disciplinary decision.............................................................................................. 607 311C Making disciplinary details publicly available....................................................................... 607 311D Former registered migration agent may make a submission etc.........................................608 311E Authority not bound by legal forms etc................................................................................ 608 311EA Requiring former registered migration agents to give information or documents................609 311F Review by the Administrative Appeals Tribunal................................................................... 609 Subdivision B - Engaging in vexatious activity 311G Definitions............................................................................................................................. 609 311H Minister may refer former registered migration agent for disciplinary action.......................610 311J Former registered migration agent may make submissions................................................ 610 311K Notice of referral decision.....................................................................................................610 311L Taking of disciplinary action..................................................................................................611 311M Review by the Administrative Appeals Tribunal................................................................... 612 311P Making disciplinary details publicly available....................................................................... 612

Division 5 - Obligations of registered migration agents 312 Notification obligations..........................................................................................................612 312A Notification of giving of immigration assistance to visa applicants...................................... 613 312B Notification of giving of immigration assistance to review applicants.................................. 613 313 Persons charged for services to be given detailed statement of services.......................... 614 314 Code of Conduct for migration agents................................................................................. 615 Division 6 - Migration Agents Registration Authority 315 Appointing the Migration Institute of Australia Limited as the Migration Agents Registration Authority........................................................................................................... 615 316 Functions of Migration Agents Registration Authority.......................................................... 615 317 General powers of the Migration Agents Registration Authority.......................................... 616 318 Power to refer people to mediation...................................................................................... 616 319 Power to refer lawyers’ conduct to other authorities............................................................616 319A Institute may delegate powers and functions.......................................................................617 320 Minister may delegate powers and functions.......................................................................617 321 Disclosure of personal information to the Migration Agents Registration Authority.............618 321A Disclosure of personal information by the Migration Agents Registration Authority............ 618 322 Annual report........................................................................................................................ 618 Division 6A - Registration application fees and registration status charges 332A Collection of registration status charge................................................................................ 619 332B Payments to Migration Institute of Australia Limited............................................................ 619 Division 7 - Other things 332C Removing disciplinary details—registered migration agents................................................620 332D Removing disciplinary details—former registered migration agents.................................... 620 332E Protection from civil proceedings......................................................................................... 620 332F Disclosure of personal information by the Secretary........................................................... 621 332G Disclosure of personal information by a review authority.................................................... 621 332H Giving of notices under this Part.......................................................................................... 622

Part 4 - Offences relating to decisions under Act 334 335 336

Offences ..............................................................................................................................................625 in relation to false or misleading statements regarding the making of decisions Offence of undertaking, for reward, to cause decisions to be made etc............................. 625 Court may order reparation for loss suffered....................................................................... 625

Part 4A - Obligations relating to identifying information Division 1 - Preliminary 336A Definitions............................................................................................................................. 627 336B Application............................................................................................................................ 627 Division 2 - Accessing identifying information 336C Accessing identifying information......................................................................................... 628

18

Migration Law

Table of Provisions 336D

Authorising access to identifying information....................................................................... 628

Division 3 - Disclosing identifying information 336E Disclosing identifying information......................................................................................... 629 336F Authorising disclosure of identifying information to foreign countries etc............................631 336FA Disclosure of certain personal identifiers to selected individuals.........................................633 336FB Disclosure of other relevant information to selected individuals..........................................633 336FC Disclosure of certain personal identifiers to the general public........................................... 634 336FD Disclosure of other relevant information to the general public............................................ 635 Division 4 - Modifying and impairing identifying information 336G Unauthorised modification of identifying information............................................................635 336H Unauthorised impairment of identifying information............................................................. 635 336J Meanings of unauthorised modification and unauthorised impairment etc..........................636 Division 5 - Destroying identifying information 336K Destroying identifying information........................................................................................ 636 336L Identifying information that may be indefinitely retained......................................................637

Part 5 - Review of Part 5-reviewable decisions Division 1 - Interpretation 336M Simplified outline of this Part................................................................................................640 336N Scope of this Part................................................................................................................. 641 337 Interpretation.........................................................................................................................641 Division 2 - Part 5-reviewable decisions 338 Definition of Part 5-reviewable decision................................................................................642 339 Conclusive certificates.......................................................................................................... 650 Division 3 - Part 5-reviewable decisions: Tribunal review 346 Decisions reviewable by Immigration Review Tribunal [Repealed]..................................... 652 347 Application for review of Part 5-reviewable decisions..........................................................652 348 Tribunal to review Part 5-reviewable decisions....................................................................660 349 Tribunal powers on review of Part 5-reviewable decisions..................................................666 350 Review of assessments made under section 93................................................................. 669 351 Minister may substitute more favourable decision............................................................... 669 352 Tribunal to notify Secretary of application for review of Part 5-reviewable decisions......... 673 Division 4 - Part 5-reviewable decisions: Tribunal powers 353 Tribunal’s way of operating.................................................................................................. 675 353A Principal Member may give directions [Repealed]...............................................................677 353B Guidance decisions.............................................................................................................. 677 Division 5 - Part 5-reviewable decisions: conduct of review 357A Exhaustive statement of natural justice hearing rule........................................................... 678 358 Documents to be given to the Tribunal................................................................................ 683 359 Tribunal may seek information............................................................................................. 685 359AA Information and invitation given orally by Tribunal while applicant appearing.....................690 359A Information and invitation given in writing by Tribunal......................................................... 698 359B Requirements for written invitation etc................................................................................. 707 359C Failure to give information, comments or response in response to written invitation......... 710 360 Tribunal must invite applicant to appear.............................................................................. 714 360A Notice of invitation to appear................................................................................................722 361 Applicant may request Tribunal to call witness and obtain written material........................ 727 362 Certain bridging visa decisions—request to call witnesses................................................. 729 362A Applicant entitled to have access to written material before Tribunal................................. 731 362B Failure of applicant to appear before Tribunal..................................................................... 732 362C Failure to appear—Tribunal’s decisions, written statements and notifying the applicant.... 739 363 Powers of the Tribunal etc....................................................................................................745

© 2016 THOMSON REUTERS

19

Migration Act 1994 363A 364 365 366 366A 366B 366C 366D 367

Tribunal does not have power to permit a person to do something he or she is not entitled to do......................................................................................................................... 747 Tribunal’s power to take evidence........................................................................................749 Review to be in public.......................................................................................................... 750 Oral evidence by telephone etc............................................................................................752 Applicant may be assisted by another person while appearing before Tribunal................. 752 Other persons not to be assisted or represented while appearing before Tribunal............ 753 Interpreters........................................................................................................................... 753 Examination and cross-examination not permitted.............................................................. 756 Certain bridging visa decisions—to be made within prescribed period............................... 757

Division 6 - Part 5-reviewable decisions: Tribunal decisions 368 Tribunal’s decision and written statement............................................................................ 757 368A Notifying parties of Tribunal’s decision (decision not given orally)...................................... 764 368D Tribunal’s decisions given orally...........................................................................................765 369 Certain Tribunal decisions to be published [Repealed]........................................................768 Division 7 - Part 5-reviewable decisions: offences 370 Failure to comply with summons..........................................................................................768 371 Refusal to be sworn or to answer questions........................................................................769 372 Contempt of Tribunal [Repealed]..........................................................................................769 373 Protection of members and persons giving evidence [Repealed] ...................................... 769 374 Fees for persons giving evidence [Repealed]..................................................................... 771 Division 8 - Part 5-reviewable decisions: miscellaneous 375 Restrictions on disclosure of certain information etc........................................................... 771 375A Certain information only to be disclosed to Tribunal............................................................771 376 Tribunal’s discretion in relation to disclosure of certain information etc.............................. 773 377 Disclosure of confidential information [Repealed]................................................................ 775 378 Tribunal may restrict publication of certain matters............................................................. 775 379 Sittings of Tribunal [Repealed]............................................................................................. 775 Division 8A - Part 5-reviewable decisions: giving and receiving documents 379AA Giving documents by Tribunal where no requirement to do so by section 379A or 379B method.................................................................................................................................. 776 379A Methods by which Tribunal gives documents to a person other than the Secretary.......... 777 379B Methods by which Tribunal gives documents to the Secretary........................................... 783 379C When a person other than the Secretary is taken to have received a document from the Tribunal................................................................................................................................. 785 379D When the Secretary is taken to have received a document from the Tribunal................... 789 379E Tribunal may give copies of documents [Repealed]............................................................ 791 379EA Giving documents by Tribunal—combined applications.......................................................791 379F Giving documents etc. to the Tribunal..................................................................................791 379G Authorised recipient.............................................................................................................. 792 Division 9 - Referral of decisions to Administrative Appeals Tribunal [Repealed] ........................................... 797 Part 6 - Migration Review Tribunal [Repealed] ................................................................................ 799

Part 7 - Review of Part 7-reviewable decisions Division 1 - Interpretation 408 Simplified outline of this Part................................................................................................802 409 Scope of this Part................................................................................................................. 803 410 Interpretation.........................................................................................................................803 Division 2 - Part 7-reviewable decisions 411 Definition of Part 7-reviewable decision................................................................................804 412 Application for review of Part 7-reviewable decisions..........................................................809 413 Refugee Review Tribunal to deal with the backlog of review applications [Repealed]....... 816 414 Tribunal to review Part 7-reviewable decisions....................................................................817

20

Migration Law

Table of Provisions 414A 415 416 417 418 419

Period within which Refugee Review Tribunal must review decision on protection visas [Repealed]............................................................................................................................ 821 Tribunal powers on review of Part 7-reviewable decisions..................................................821 Multiple review applications—consideration of information..................................................825 Minister may substitute more favourable decision............................................................... 826 Tribunal to notify Secretary of application for review of Part 7-reviewable decisions......... 830 Certain decisions made by members of the Tribunal in their capacity as delegates of the Minister to be treated as decisions of the Tribunal for certain purposes [Repealed].......... 831

Division 3 - Part 7-reviewable decisions: Tribunal powers 420 Refugee Review Tribunal’s way of operating.......................................................................831 420A Principal Member may give directions [Repealed]...............................................................833 420B Guidance decisions.............................................................................................................. 834 Division 4 - Part 7-reviewable decisions: conduct of review 422B Exhaustive statement of natural justice hearing rule........................................................... 834 423 Documents to be given to the Tribunal................................................................................ 839 423A How Tribunal is to deal with new claims or evidence.......................................................... 841 424 Tribunal may seek information............................................................................................. 843 424AA Information and invitation given orally by Tribunal while applicant appearing.....................848 424A Information and invitation given in writing by Tribunal......................................................... 855 424B Requirements for written invitation etc................................................................................. 864 424C Failure to give information, comments or response in response to written invitation......... 867 425 Tribunal must invite applicant to appear.............................................................................. 870 425A Notice of invitation to appear................................................................................................877 426 Applicant may request Tribunal to call witnesses................................................................ 881 426A Failure of applicant to appear before Tribunal..................................................................... 883 426B Failure to appear—Tribunal’s decisions, written statements and notifying the applicant.... 890 427 Powers of the Tribunal etc....................................................................................................896 428 Tribunal’s power to take evidence........................................................................................902 429 Review to be in private.........................................................................................................903 429A Oral evidence by telephone etc............................................................................................905 Division 5 - Part 7-reviewable decisions: Tribunal decisions 430 Tribunal’s decision and written statement............................................................................ 906 430A Notifying parties of Tribunal’s decision (decision not given orally)...................................... 912 430D Tribunal’s decision given orally............................................................................................ 914 431 Identifying information not to be published.......................................................................... 917 Division 6 - Part 7-reviewable decisions: offences 432 Failure to comply with summons..........................................................................................917 433 Refusal to be sworn or to answer questions........................................................................917 434 Contempt of Tribunal [Repealed]..........................................................................................918 Division 7 - Part 7-reviewable decisions: miscellaneous 435 Protection of members and persons giving evidence [Repealed]....................................... 918 436 Fees for persons giving evidence [Repealed]......................................................................919 437 Restrictions on disclosure of certain information etc........................................................... 919 438 Tribunal’s discretion in relation to disclosure of certain information etc.............................. 920 439 Disclosure of confidential information [Repealed]................................................................ 922 440 Tribunal may restrict publication or disclosure of certain matters........................................922 440A Principal Member’s obligation to report to Minister [Repealed]........................................... 922 441 Sittings of the Refugee Review Tribunal [Repealed]........................................................... 922 Division 7A - Review 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.................................................................................................................................. 922 441A Methods by which Tribunal gives documents to a person other than the Secretary.......... 924 441B Methods by which Tribunal gives documents to the Secretary........................................... 930

© 2016 THOMSON REUTERS

21

Migration Act 1994 441C 441D 441E 441EA 441F 441G

When a person other than the Secretary is taken to have received a document from the Tribunal................................................................................................................................. 931 When the Secretary is taken to have received a document from the Tribunal................... 935 Tribunal may give copies of documents [Repealed]............................................................ 938 Giving documents by Tribunal—combined applications.......................................................938 Giving documents etc. to the Tribunal..................................................................................938 Authorised recipient.............................................................................................................. 938

Division 8 - Referral of decisions to Administrative Appeals Tribunal [Repealed] ........................................... 943 Division 9 - Establishment and membership of the Refugee Review Tribunal [Repealed] 457 Establishment of the Refugee Review Tribunal [Repealed].................................................943 458 Membership of Refugee Review Tribunal [Repealed]..........................................................944 459 Appointment of members [Repealed]...................................................................................944 460 Principal Member [Repealed]............................................................................................... 944 Division 10 - Registry and officers [Repealed]

Part 7A - Statutory agency for purposes of Public Service Act [Repealed] Part 7AA - Fast track review process in relation to certain protection visa decisions Division 1 - Introduction 473BA Simplified outline of this Part................................................................................................947 473BB Definitions............................................................................................................................. 948 473BC Minister may determine that certain decisions are to be reviewed under this Part............ 949 473BD Minister may issue conclusive certificate in relation to certain decisions............................949 Division 2 - Referral of fast track reviewable decisions to Immigration Assessment Authority 473CA Referral of fast track reviewable decisions.......................................................................... 951 473CB Material to be provided to Immigration Assessment Authority.............................................951 473CC Review of decision............................................................................................................... 952 Division 3 - Conduct of review Subdivision A - Natural justice requirements 473DA Exhaustive statement of natural justice hearing rule........................................................... 953 Subdivision B - Review on the papers 473DB Immigration Assessment Authority to review decisions on the papers................................955 Subdivision C - Additional information 473DC Getting new information........................................................................................................956 473DD Considering new information in exceptional circumstances................................................ 956 473DE Certain new information must be given to referred applicant.............................................. 958 473DF Invitation to give new information or comments in writing or at interview........................... 962 Division 4 - Decisions of Immigration Assessment Authority 473EA Immigration Assessment Authority’s decision and written statement.................................. 962 473EB Notification of Immigration Assessment Authority’s decision............................................... 963 473EC Certain decisions of the Immigration Assessment Authority to be published...................... 964 Division 5 - Exercise of powers and functions by Immigration Assessment Authority 473FA How Immigration Assessment Authority is to exercise its functions.................................... 965 473FB Practice directions................................................................................................................ 966 473FC Guidance decisions.............................................................................................................. 967 Division 6 - Disclosure of information 473GA Restrictions on disclosure of certain information etc........................................................... 967 473GB Immigration Assessment Authority’s discretion in relation to disclosure of certain information etc...................................................................................................................... 967 473GC Disclosure of confidential information...................................................................................969

22

Migration Law

Table of Provisions 473GD

Immigration Assessment Authority may restrict publication or disclosure of certain matters.................................................................................................................................. 970

Division 7 - Giving and receiving review documents etc. 473HA Giving documents by Immigration Assessment Authority where no requirement to do so by section 473HB or 473HC method................................................................................... 971 473HB Methods by which Immigration Assessment Authority gives documents to a person other than the Secretary................................................................................................................ 972 473HC Methods ..............................................................................................................................................978 by which Immigration Assessment Authority gives documents to the Secretary 473HD When a person other than the Secretary is taken to have received a document from the Immigration Assessment Authority....................................................................................... 978 473HE When the Secretary is taken to have received a document from the Immigration Assessment Authority........................................................................................................... 982 473HF Giving documents etc. to the Immigration Assessment Authority........................................982 473HG Authorised recipient.............................................................................................................. 982 Division 8 - The Immigration Assessment Authority 473JA The Immigration Assessment Authority................................................................................ 986 473JB Administrative arrangements................................................................................................ 987 473JC Appointment of Senior Reviewer..........................................................................................987 473JD Acting Senior Reviewer........................................................................................................ 987 473JE Staff.......................................................................................................................................987 473JF Delegation.............................................................................................................................987

Part 8 - Judicial review Division 1 - Privative clause 474 Decisions under Act are final................................................................................................989 Division 2 - Jurisdiction and procedure of courts 474A Definition of AAT Act migration decision...............................................................................992 475 This Division not to limit section 474....................................................................................993 475A Section 476 not to affect the jurisdiction of the Federal Court or Federal Magistrates Court in certain cases [Repealed]........................................................................................ 993 476 Jurisdiction of the Federal Circuit Court...............................................................................994 476A Limited jurisdiction of the Federal Court.............................................................................. 996 476B Remittal by the High Court................................................................................................... 999 477 Time limits on applications to the Federal Circuit Court.................................................... 1000 477A Time limits on applications to the Federal Court............................................................... 1004 478 Persons who may make application...................................................................................1008 478A Application for review by Federal Magistrates Court [Repealed].......................................1008 479 Parties to review................................................................................................................. 1008 480 Intervention by Attorney-General........................................................................................1008 481 Operation etc. of decision...................................................................................................1009 482 Changing person holding, or performing the duties of, an office.......................................1009 483 Section 44 of the Administrative Appeals Tribunal Act 1975 [Repealed]...........................1009 483A Jurisdiction of the Federal Magistrates Court [Repealed]..................................................1009 484 Exclusive jurisdiction of High Court, Federal Court and Federal Circuit Court................. 1009

Part 8A - Restrictions on court proceedings 486A 486AA 486AB 486B 486C 486D

Time limit on applications to the High Court for judicial review......................................... 1011 Intervention by Attorney-General........................................................................................1013 Operation etc. of decision...................................................................................................1013 Multiple parties in migration litigation................................................................................. 1013 Persons who may commence or continue proceedings in the Federal Circuit Court or the Federal Court......................................................................................................................1015 Disclosing other judicial review proceedings......................................................................1016

Part 8B - Costs orders where proceedings have no reasonable prospect of success 486E

Obligation where there is no reasonable prospect of success.......................................... 1019

© 2016 THOMSON REUTERS

23

Migration Act 1994 486F 486G 486H 486I 486J 486K

Cost orders......................................................................................................................... 1019 Person must be given reasonable opportunity to argue against costs order.................... 1020 Limited waiver of legal professional privilege.....................................................................1020 Lawyer’s certification.......................................................................................................... 1020 Part does not limit other powers to order costs against third parties................................ 1020 Definitions........................................................................................................................... 1021

Part 8C - Reports on persons in detention for more than 2 years 486L 486M 486N 486O 486P 486Q

What is the detention reporting start time for a person?................................................... 1023 What is a detention reporting time for a person?...............................................................1023 Secretary’s obligation to report to Commonwealth Ombudsman...................................... 1023 Commonwealth Ombudsman to give Minister assessment of detention arrangements... 1024 Minister to table statement from Commonwealth Ombudsman.........................................1024 Application of Ombudsman Act 1976................................................................................. 1024

Part 8D - Civil penalties Division 1 - Obtaining a civil penalty order 486R Civil penalty orders............................................................................................................. 1025 486S Additional rules relating to the sponsorship civil penalty provisions..................................1026 486T Civil enforcement of penalty............................................................................................... 1026 486U Conduct contravening more than one civil penalty provision............................................ 1026 486V Multiple contraventions....................................................................................................... 1027 486W Proceedings may be heard together.................................................................................. 1027 486X Civil evidence and procedure rules for civil penalty orders............................................... 1027 486Y Requirement for persons to assist in applications for civil penalty orders........................ 1027 Division 2 - Civil proceedings and criminal proceedings 486Z Civil proceedings after criminal proceedings......................................................................1028 486ZA Criminal proceedings during civil proceedings...................................................................1028 486ZB Criminal proceedings after civil proceedings......................................................................1028 486ZC Evidence given in civil proceedings not admissible in criminal proceedings.....................1028 Division 3 - Miscellaneous 486ZD Ancillary contravention of civil penalty provisions.............................................................. 1028 486ZE Mistake of fact.................................................................................................................... 1029 486ZF State of mind...................................................................................................................... 1029 486ZG Civil double jeopardy.......................................................................................................... 1030

Part 8E - Investigation powers relating to certain offences and provisions Division 1 - Preliminary 487A Definitions........................................................................................................................... 1031 Division 2 - Requiring persons to give information or produce documents 487B Secretary or Australian Border Force Commissioner may require a person to give information or produce a document................................................................................... 1032 487C Self-incrimination................................................................................................................ 1033 Division 3 - Search warrants Subdivision A - Search powers 487D Authorised officer may enter premises by consent or under a search warrant.................1033 487E Search powers of authorised officers.................................................................................1034 487F Powers relating to electronic equipment............................................................................ 1034 487G Seizing evidence of the contravention of related provisions etc........................................1035 487H Persons assisting authorised officers.................................................................................1035 487J Use of force in executing a search warrant....................................................................... 1036 Subdivision B - Powers of authorised officers to ask questions and seek production of documents 487K Authorised officer may ask questions and seek production of documents........................1036 Subdivision C - Obligations and incidental powers of authorised officers 487L Consent.............................................................................................................................. 1036

24

Migration Law

Table of Provisions 487M Announcement before entry under search warrant............................................................1037 487N Authorised officer to be in possession of search warrant.................................................. 1037 487P Details of search warrant etc. to be given to occupier...................................................... 1037 487Q Completing execution of search warrant after temporary cessation..................................1038 487R Completing execution of search warrant stopped by court order...................................... 1038 487S Expert assistance to operate electronic equipment........................................................... 1038 487T Compensation for damage to electronic equipment.......................................................... 1039 Subdivision D - Occupier’s rights and responsibilities 487U Occupier entitled to observe execution of search warrant.................................................1040 487V Occupier to provide authorised officer with facilities and assistance.................................1040 Subdivision E - General provisions relating to seizure 487W Copies of seized things to be provided..............................................................................1040 487X Receipts for seized things.................................................................................................. 1041 487Y Return of seized things.......................................................................................................1041 487Z Issuing officer may permit a seized thing to be retained................................................... 1042 487ZA Disposal of seized things....................................................................................................1042 487ZB Compensation for acquisition of property...........................................................................1043 Subdivision F - Issue of search warrants 487ZC Issue of search warrants.................................................................................................... 1043 487ZD Search warrants by telephone, fax etc...............................................................................1044 487ZE Authority of search warrant................................................................................................ 1045 487ZF Offence relating to search warrants by telephone, fax etc................................................ 1045 Subdivision G - Identity cards 487ZG Identity cards...................................................................................................................... 1045 Subdivision H - Powers of issuing officers 487ZH Powers of issuing officers...................................................................................................1046

Part 9 - Miscellaneous Division 1 - Bogus documents 487ZI Prohibition on, and forfeiture of, bogus documents........................................................... 1047 487ZJ Seizure of bogus documents..............................................................................................1047 487ZK Document condemned as forfeited.................................................................................... 1047 487ZL Dealing with a document after it is condemned as forfeited..............................................1048 Division 2 - Other 487 Liability for identification tests.............................................................................................1048 488 Tampering with movements records...................................................................................1048 488A Giving information to other relevant agencies....................................................................1050 488AA Things seized under Crimes Act search warrant and information about such things....... 1050 488B Authorisation to disclose information to an officer............................................................. 1051 489 Notified data bases.............................................................................................................1051 490 Identification card to be deemed to continue to be in a form approved by the Minister...1051 491 Offences in relation to escaping from custody [Repealed]................................................ 1051 492 Commencement of prosecutions........................................................................................1052 493 Conduct of directors, employees and agents.....................................................................1052 494 Jurisdiction of courts...........................................................................................................1053 494AA Bar on certain legal proceedings relating to unauthorised maritime arrivals.....................1053 494AB Bar on certain legal proceedings relating to transitory persons........................................ 1055 494A Giving ............................................................................................................................................1056 documents by Minister where no requirement to do so by section 494B method 494B Methods by which Minister gives documents to a person................................................. 1057 494C When a person is taken to have received a document from the Minister.........................1064 494D Authorised recipient............................................................................................................ 1068 495 Minister may approve forms............................................................................................... 1073 495A Minister may arrange for use of computer programs to make decisions etc.................... 1073 495B Minister ............................................................................................................................................1074 may substitute more favourable decisions for certain computer-based decisions 496 Delegation...........................................................................................................................1074

© 2016 THOMSON REUTERS

25

Migration Act 1994 497 498 499 500 500A 501 501A

Delegate not required to perform certain administrative tasks.......................................... 1075 Exercise of powers under Act.............................................................................................1075 Minister may give directions............................................................................................... 1075 Review of decision............................................................................................................. 1077 Refusal or cancellation of temporary safe haven visas..................................................... 1088 Refusal or cancellation of visa on character grounds........................................................1096 Refusal or cancellation of visa—setting aside and substitution of non-adverse decision under subsection 501(1) or (2)........................................................................................... 1108 501B Refusal or cancellation of visa—setting aside and substitution of adverse decision under subsection 501(1) or (2)......................................................................................................1114 501BA Cancellation of visa—setting aside and substitution of non-adverse decision under section 501CA.....................................................................................................................1118 501C Refusal or cancellation of visa—revocation of decision under subsection 501(3) or 501A(3)................................................................................................................................1118 501CA Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)................................................................................................. 1123 501D Refusal or cancellation of visa—method of satisfying Minister that person passes the character test...................................................................................................................... 1123 501E Refusal or cancellation of visa—prohibition on applying for other visas........................... 1124 501F Refusal or cancellation of visa—refusal of other visa applications and cancellation of other visas...........................................................................................................................1126 501G Refusal or cancellation of visa—notification of decision.................................................... 1127 501H Refusal or cancellation of visa—miscellaneous provisions................................................1132 501HA Application of sections 501 to 501H to transitional (permanent) visas and transitional (temporary) visas................................................................................................................ 1132 501J Refusal or cancellation of protection visa—Minister may substitute more favourable decision............................................................................................................................... 1132 501K Identity of applicants for protection visas not to be published by the Administrative Appeals Tribunal................................................................................................................. 1136 501L Disclosure of information to the Minister............................................................................ 1137 502 Minister may decide in the national interest that certain persons are to be excluded persons............................................................................................................................... 1138 503 Exclusion of certain persons from Australia....................................................................... 1140 503A Protection ............................................................................................................................................ of information supplied by law enforcement agencies or intelligence agencies 1141 503B Protection of confidential information disclosed to Federal Court or Federal Circuit Court—permanent non-disclosure orders...........................................................................1145 503C Protection of confidential information disclosed to Federal Court or Federal Circuit Court—interim non-disclosure orders................................................................................. 1149 503D Details of gazetted agency to be treated as protected information................................... 1150 504 Regulations......................................................................................................................... 1150 505 Regulations about visa criteria........................................................................................... 1155 506 Regulations about passenger cards................................................................................... 1155 506A Regulations may provide for infringement notices............................................................. 1156 507 Marital or relationship status...............................................................................................1156 THE SCHEDULE - ACTS RELATING TO IMMIGRATION AND DEPORTATION ...................... 1157

26

Migration Law

TABLE OF AMENDING LEGISLATION Principal legislation

Number

Migration Act 1958

62 of 1958

Date of gazettal/assent/ registration 8 Oct 1958

Date of commencement Pt III ss 59–64: 10 Nov 1958; remainder: 1 Jun 1959

This legislation has been amended as follows:

Amending legislation Migration Act 1964 Migration Act 1966 Migration Act 1973 Statute Law Revision Act 1973 Administrative Changes (Consequential Provisions) Act 1976 Migration Amendment Act 1979

Number 87 of 1964 10 of 1966 16 of 1973 216 of 1973 91 of 1976

Date of gazettal/assent/ registration 5 Nov 1964 6 May 1966 11 Apr 1973 19 Dec 1973 20 Sep 1976

117 of 1979

29 Oct 1979

Migration Amendment Act (No 2) 1979 Migration Amendment Act 1980

118 of 1979

29 Oct 1979

89 of 1980

29 May 1980

Migration Amendment Act (No 2) 175 of 1980 1980 (am by Migration Legislation Amendment Act 1989)

© 2016 THOMSON REUTERS

17 Dec 1980

Date of commencement 5 Nov 1964 6 May 1966 11 Apr 1973 31 Dec 1973 S 3: 22 Dec 1975

Ss 1, 2, 3(1), 4, 5, 7, 11–14, 16–19, 22–25 and 27–29: 29 Oct 1979; remainder: 1 Nov 1979 1 Nov 1979 S 3: 1 Jul 1980; remainder: 29 May 1980 Ss 3(2), 4, 7(2), 9, 12 and 13: 23 Jan 1981; remainder: 14 Jan 1981

27

Migration Act 1958

Principal legislation

Number

Migration Act 1958

62 of 1958

Date of gazettal/assent/ registration 8 Oct 1958

Date of commencement Pt III ss 59–64: 10 Nov 1958; remainder: 1 Jun 1959

This legislation has been amended as follows:

Amending legislation Statute Law Revision Act 1981

Number 61 of 1981

Date of gazettal/assent/ registration 12 Jun 1981

Off-shore Installations (Miscellaneous Amendments) Act 1982 (am by Statute Law (Miscellaneous Provisions) Act (No 2) 1984) Migration Amendment (Emigration of Certain Children) Act 1983 Migration Amendment Act 1983 Torres Strait Treaty (Miscellaneous Amendments) Act 1984 Statute Law (Miscellaneous Provisions) Act (No 1) 1984 Taxation Laws Amendment Act 1984 Migration Amendment Act 1986 Intelligence and Security (Consequential Amendments) Act 1986 Statute Law (Miscellaneous Provisions) Act (No 2) 1986 Mutual Assistance in Criminal Matters (Consequential Amendments) Act 1987 Sea Installations (Miscellaneous Amendments) Act 1987

51 of 1982

16 Jun 1982

73 of 1983

28 Oct 1983

25 Nov 1983

112 of 1983 22 of 1984

13 Dec 1983 26 Apr 1984

72 of 1984

25 Jun 1984

2 Apr 1984 Pt VII ss 17–21: 15 Feb 1985 S 3: 23 Jul 1984

123 of 1984

19 Oct 1984

71 of 1986 102 of 1986

24 Jun 1986 17 Oct 1986

168 of 1986

18 Dec 1986

86 of 1987

5 Jun 1987

104 of 1987

6 Nov 1987

28

Date of commencement Ss 58 and 59: 1 Nov 1979; ss 60 and 115: 12 Jun 1981 Pt VI ss 42–51: 14 Jul 1982

Pt X ss 171–175: 14 Dec 1984 20 Aug 1986 1 Feb 1987

S 3: 11 May 1987 S 3: 1 Aug 1988; remainder: 5 Jun 1987 Pts I–V ss 1–30 and Pt VIII s 57: 15 Oct 1987; remainder: 6 Nov 1987

Migration Law

Table of Amending Legislation

Principal legislation

Number

Migration Act 1958

62 of 1958

Date of gazettal/assent/ registration 8 Oct 1958

Date of commencement Pt III ss 59–64: 10 Nov 1958; remainder: 1 Jun 1959

This legislation has been amended as follows:

Amending legislation Migration Amendment Act 1987

Number 133 of 1987

Date of gazettal/assent/ registration 16 Dec 1987

Statute Law (Miscellaneous Provisions) Act 1987 Extradition (Repeal and Consequential Provisions) Act 1988 Statute Law (Miscellaneous Provisions) Act 1988 Migration Amendment Act 1988 Migration Amendment Act (No 2) 1988

141 of 1987

18 Dec 1987

Date of commencement Ss 3–5: 16 Sep 1987; ss 6, 7, 9(a) and (b): 1 Jan 1988; remainder: 16 Dec 1987 S 3: 1 Jan 1988

5 of 1988

9 Mar 1988

1 Dec 1988

38 of 1988

3 Jun 1988

S 3: 4 Nov 1987

49 of 1988 151 of 1988

15 Jun 1988 26 Dec 1988

Migration Legislation Amendment Act 1989 (am by Migration Legislation Amendment (Consequential Amendments) Act 1989 and Migration Legislation Amendment Act (No 2) 1989)

59 of 1989

19 Jun 1989

Migration Amendment Act 1989 Petroleum (Australia-Indonesia Zone of Cooperation) (Consequential Provisions) Act 1990 Social Security (Rewrite) Transition Act 1991

61 of 1989 37 of 1990

19 Jun 1989 7 Jun 1990

1 Jul 1988 Ss 1, 2, 3(1) and 11: 26 Dec 1988; remainder: 1 Jul 1989 Ss 1 and 2: 19 Jun 1989; Pt 3 ss 36 and 37: 19 Jun 1990; s 27: 1 Jul 1989; s 35: 20 Dec 1989; remainder: 19 Dec 1989 1 Jul 1989 18 Feb 1991

70 of 1991

25 Jun 1991

1 Jul 1991

© 2016 THOMSON REUTERS

29

Migration Act 1958

Principal legislation

Number

Migration Act 1958

62 of 1958

Date of gazettal/assent/ registration 8 Oct 1958

Date of commencement Pt III ss 59–64: 10 Nov 1958; remainder: 1 Jun 1959

This legislation has been amended as follows:

Amending legislation Migration Amendment Act 1991

Number 86 of 1991

Date of gazettal/assent/ registration 26 Jun 1991

Migration Amendment Act (No 2) 1991 (am by Migration Laws Amendment Act 1992) Migration Amendment Act (No 3) 1991 Migration Amendment Act 1992

196 of 1991

18 Dec 1991

Date of commencement Ss 3(a), (b), (e), 5–7, 8(e), (h), (i), 9–14, 20 and 23(b): 26 Dec 1991; remainder: 26 Jun 1991 15 Jan 1992

198 of 1991

18 Dec 1991

18 Dec 1991

24 of 1992

6 May 1992

Migration Amendment Act (No 2) 1992 Migration Amendment Act (No 3) 1992 Migration Laws Amendment Act 1992

84 of 1992

30 Jun 1992

Ss 1–3 and 7: 6 May 1992; ss 4 and 6: 3 Jun 1992; remainder: 6 Nov 1992 30 Jun 1992

85 of 1992

30 Jun 1992

21 Sep 1992

175 of 1992

16 Dec 1992

Migration Laws Amendment Act (No 2) 1992

176 of 1992

16 Dec 1992

Pt 3 ss 9 and 10: 15 Jan 1992; remainder: 16 Dec 1992 Ss 1–3 and 5: 1 Jan 1993; ss 4, 6 and 7 and Pt 3 ss 8–11: 1 Mar 1993; remainder: 16 Dec 1992

30

Migration Law

Table of Amending Legislation

Principal legislation

Number

Migration Act 1958

62 of 1958

Date of gazettal/assent/ registration 8 Oct 1958

Date of commencement Pt III ss 59–64: 10 Nov 1958; remainder: 1 Jun 1959

This legislation has been amended as follows:

Amending legislation Migration Reform Act 1992 (am by Migration Laws Amendment Act 1993, Migration Legislation Amendment Act 1994, Statute Law Revision Act 1996 and Migration Legislation Amendment Act (No 1) 1998) Migration (Offences and Undesirable Persons) Amendment Act 1992 (am by Migration Laws Amendment Act 1993) International Labour Organisation (Compliance with Conventions) Act 1992 Migration Amendment Act (No 4) 1992 Migration Laws Amendment Act 1993

Number 184 of 1992

Date of gazettal/assent/ registration 17 Dec 1992

213 of 1992

24 Dec 1992

220 of 1992

24 Dec 1992

Ss 4(2), 6 and 7: 1 Sep 1994; remainder: 24 Dec 1992 24 Dec 1992

235 of 1992

24 Dec 1992

24 Dec 1992

59 of 1993

28 Oct 1993

Migration Amendment (″Points″ System) Act 1993 Maritime Legislation Amendment Act 1994 Migration Legislation Amendment Act 1994 (am by Statute Law Revision Act 1996) Migration Legislation Amendment Act (No 4) 1994

14 of 1994

19 Jan 1994

Ss 6–8, 11, 14–17 and 19: 1 Sep 1994; ss 9, 10, 12, 21–23, 25, 26, 33 and 35: 1 Jul 1993; remainder: 28 Oct 1993 19 Jan 1994

20 of 1994

15 Feb 1994

1 Aug 1994

60 of 1994

9 Apr 1994

Ss 3–83: 1 Sep 1994

136 of 1994

15 Nov 1994

15 Nov 1994

© 2016 THOMSON REUTERS

Date of commencement Ss 1, 2 and 31: 17 Dec 1992; ss 4(e), (f), 6, 21, 22 and 32: 1 Jul 1993; remainder: 1 Sep 1994

31

Migration Act 1958

Principal legislation

Number

Migration Act 1958

62 of 1958

Date of gazettal/assent/ registration 8 Oct 1958

Date of commencement Pt III ss 59–64: 10 Nov 1958; remainder: 1 Jun 1959

This legislation has been amended as follows:

Number 1 of 1995

Date of gazettal/assent/ registration 17 Feb 1995

19 of 1995

29 Mar 1995

S 3: 28 Aug 1995; remainder: 29 Mar 1995

85 of 1995

1 Jul 1995

100 of 1995

15 Sep 1995

Migration Legislation Amendment 102 of 1995 Act (No 6) 1995 (am by Migration Legislation Amendment Act (No 5) 1995)

18 Sep 1995

Migration Legislation Amendment Act (No 1) 1995

110 of 1995

29 Sep 1995

Family Law Reform (Consequential Amendments) Act 1995 Law and Justice Legislation Amendment Act (No 1) 1995 Migration Legislation Amendment Act (No 1) 1996 Statute Law Revision Act 1996

140 of 1995

12 Dec 1995

175 of 1995

16 Dec 1995

Sch 10 item 4: 1 Jul 1995 Sch 1 items 2–4, 6, 7, 11, 12 and 18: 1 Sep 1994; remainder: 15 Sep 1995 Ss 1(2), 5, 8 and 9: 1 Nov 1989; ss 6 and 7: 24 Dec 1992; ss 13–18: 18 Sep 1995; remainder: 1 Sep 1994 Sch 2: 1 Nov 1995; remainder: 29 Sep 1995 Sch 1 Pt 8: 11 Jun 1996 16 Dec 1995

25 of 1996

28 Jun 1996

28 Jun 1996

43 of 1996

25 Oct 1996

Migration Legislation Amendment Act (No 1) 1997

27 of 1997

10 Apr 1997

Sch 5 item 86: 25 Oct 1996 Sch 1: 1 May 1997

Amending legislation Migration Legislation Amendment Act (No 2) 1995 International War Crimes Tribunals (Consequential Amendments) Act 1995 (am by Statute Law Revision Act 1996) Customs, Excise and Bounty Legislation Amendment Act 1995 Migration Legislation Amendment Act (No 5) 1995 (am by Migration Legislation Amendment Act (No 1) 1998)

32

Date of commencement 17 Feb 1995

Migration Law

Table of Amending Legislation

Principal legislation

Number

Migration Act 1958

62 of 1958

Date of gazettal/assent/ registration 8 Oct 1958

Date of commencement Pt III ss 59–64: 10 Nov 1958; remainder: 1 Jun 1959

This legislation has been amended as follows:

Amending legislation Migration Legislation Amendment Act (No 3) 1997 Environment, Sport and Territories Legislation Amendment Act 1997 Foreign Affairs and Trade Legislation Amendment Act 1997

Number 92 of 1997

Date of gazettal/assent/ registration 30 Jun 1997

118 of 1997

7 Jul 1997

150 of 1997

17 Oct 1997

Migration Legislation Amendment (Migration Agents) Act 1997 (am by Public Employment (Consequential and Transitional) Amendment Act 1999)

205 of 1997

17 Dec 1997

Migration Legislation Amendment 113 of 1998 Act (No 1) 1998 (am by Migration Legislation Amendment (Electronic Transactions and Methods of Notification) Act 2001 and Migration Legislation Amendment Act (No 1) 2001) Migration Legislation Amendment 114 of 1998 (Strengthening of Provisions relating to Character and Conduct) Act 1998 (am by Migration Legislation Amendment Act (No 1) 2001) Migration Legislation Amendment 34 of 1999 (Temporary Safe Haven Visas) Act 1999

11 Dec 1998

© 2016 THOMSON REUTERS

Date of commencement 30 Jun 1997 Sch 1 item 48: 7 Jul 1997 Sch 2 items 8 and 9: 17 Oct 1997 Sch 1 items 67 and 68: 17 Dec 1997; Sch 1 Pt 3: 5 Dec 1999 ; Sch 3 Pts 1 and 2: 21 Jan 1999; Sch 3 Pts 4 and 5: 21 Mar 1999; remainder: 21 Mar 1998 Sch 1, Sch 2 Pt 1 and Sch 3: 1 Jun 1999 ; Sch 2 Pt 2: 5 Feb 1999 ; Schs 4–6: 1 Mar 1999

11 Dec 1998

1 Jun 1999

20 May 1999

Sch 1 item 11: 2 Jun 1999; remainder: 20 May 1999

33

Migration Act 1958

Principal legislation

Number

Migration Act 1958

62 of 1958

Date of gazettal/assent/ registration 8 Oct 1958

Date of commencement Pt III ss 59–64: 10 Nov 1958; remainder: 1 Jun 1959

This legislation has been amended as follows:

Amending legislation Migration Legislation Amendment Act (No 1) 1999

Number 89 of 1999

Date of gazettal/assent/ registration 16 Jul 1999

Date of commencement Ss 1–3: 16 Jul 1999; Sch 1 items 1, 2, 4 and 10 and Sch 3: 3 Dec 1998; remainder: 22 Jul 1999 Sch 1 items 607–614: 5 Dec 1999 Sch 1 items 1–29, 33–63 and 65–70: 16 Dec 1999; Sch 1 items 30–32: 11 Dec 2001; Sch 1 item 64: 1 Sep 1994 Sch 3 items 1 and 40–43: 10 Dec 1999 Sch 2: 1 Mar 2000

Public Employment (Consequential 146 of 1999 and Transitional) Amendment Act 1999 Border Protection Legislation 160 of 1999 Amendment Act 1999

11 Nov 1999

161 of 1999

10 Dec 1999

175 of 1999

22 Dec 1999

9 of 2000

7 Mar 2000

2 Jul 2000

25 of 2000

3 Apr 2000

Ss 4–6 and Sch 2 item 36: 26 Oct 1999

Australian Security Intelligence Organisation Legislation Amendment Act 1999 Migration Legislation Amendment (Migration Agents) Act 1999 (am by Migration Legislation Amendment Act (No 1) 2001) Australian Federal Police Legislation Amendment Act 2000 Timor Gap Treaty (Transitional Arrangements) Act 2000

34

8 Dec 1999

Migration Law

Table of Amending Legislation

Principal legislation

Number

Migration Act 1958

62 of 1958

Date of gazettal/assent/ registration 8 Oct 1958

Date of commencement Pt III ss 59–64: 10 Nov 1958; remainder: 1 Jun 1959

This legislation has been amended as follows:

Amending legislation Migration Legislation Amendment Act (No 1) 2000

Number 28 of 2000

Date of gazettal/assent/ registration 3 Apr 2000

Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 (am by Statute Law Revision Act 2006)

137 of 2000

24 Nov 2000

Education Services for Overseas Students (Consequential and Transitional) Act 2000 Migration Legislation Amendment (Overseas Students) Act 2000

166 of 2000

21 Dec 2000

168 of 2000

21 Dec 2000

Migration Legislation Amendment (Integrity of Regional Migration Schemes) Act 2001 Migration Legislation Amendment (Electronic Transactions and Methods of Notification) Act 2001

33 of 2001

28 Apr 2001

58 of 2001

28 Jun 2001

© 2016 THOMSON REUTERS

Date of commencement Schs 1–4, Sch 5 items 1–4 and Schs 6–8: 28 Apr 2000 (see Gaz S216 of 2000); Sch 9: 1 Jun 1999 Ss 1–3 and Sch 1 items 1, 4, 6, 7, 9–11 and 32: 24 Nov 2000; remainder: 24 May 2001 Sch 3: 4 Jun 2001 Sch 1: 4 Jun 2001; Schs 2 and 3: 1 Mar 2001; remainder: 21 Dec 2000 Remainder: 1 Jul 2001 Sch 4 item 1: 28 Apr 2000; Sch 4 item 2: 1 Mar 2001; Sch 4 item 3: 1 Jun 1999; remainder: 10 Aug 2001

35

Migration Act 1958

Principal legislation

Number

Migration Act 1958

62 of 1958

Date of gazettal/assent/ registration 8 Oct 1958

Date of commencement Pt III ss 59–64: 10 Nov 1958; remainder: 1 Jun 1959

This legislation has been amended as follows:

Amending legislation Migration Legislation Amendment (Immigration Detainees) Act 2001

Number 85 of 2001

Migration Legislation Amendment 97 of 2001 (Application of Criminal Code) Act 2001 Migration Legislation Amendment 105 of 2001 (Immigration Detainees) Act (No 2) 2001 Border Protection (Validation and Enforcement Powers) Act 2001 Migration Amendment (Excision from Migration Zone) Act 2001 Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001 Migration Legislation Amendment Act (No 1) 2001 (am by Migration and Ombudsman Legislation Amendment Act 2005)

36

Date of gazettal/assent/ registration 18 Jul 2001

22 Aug 2001

Date of commencement Sch 1 item 5: 19 Sep 2001; remainder: 27 Jul 2001 19 Sep 2001

126 of 2001

27 Sep 2001

Ss 1 and 2: 17 Sep 2001; remainder: 28 Sep 2001 27 Sep 2001

127 of 2001

27 Sep 2001

27 Sep 2001

128 of 2001

27 Sep 2001

27 Sep 2001

129 of 2001

27 Sep 2001

Sch 1 items 6–11 and Sch 2 items 5–7: 1 Oct 2001; Sch 2 items 1–4: 1 Jun 1999; Sch 2 item 7A: 16 Dec 1999; Sch 2 items 8 and 9: 1 Jun 1999; Sch 2 item 10: 1 Mar 2000; remainder: 27 Sep 2001

17 Sep 2001

Migration Law

Table of Amending Legislation

Principal legislation

Number

Migration Act 1958

62 of 1958

Date of gazettal/assent/ registration 8 Oct 1958

Date of commencement Pt III ss 59–64: 10 Nov 1958; remainder: 1 Jun 1959

This legislation has been amended as follows:

Amending legislation Migration Legislation Amendment Act (No 5) 2001 Migration Legislation Amendment Act (No 6) 2001 Migration Legislation Amendment (Judicial Review) Act 2001

Number 130 of 2001

Date of gazettal/assent/ registration 27 Sep 2001

131 of 2001

27 Sep 2001

1 Oct 2001

134 of 2001

27 Sep 2001

Jurisdiction of the Federal Magistrates Service Legislation Amendment Act 2001

157 of 2001

1 Oct 2001

Migration Legislation Amendment (Transitional Movement) Act 2002

10 of 2002

4 Apr 2002

Migration Legislation Amendment (Migration Agents) Act 2002

35 of 2002

26 Jun 2002

International Criminal Court (Consequential Amendments) Act 2002 Migration Legislation Amendment (Procedural Fairness) Act 2002 Border Security Legislation Amendment Act 2002 Security Legislation Amendment (Terrorism) Act 2002

42 of 2002

27 Jun 2002

60 of 2002

3 Jul 2002

Sch 1: 2 Oct 2001; remainder: 27 Sep 2001 Sch 3: 2 Oct 2001; Sch 4 items 1–10 and Sch 5: 2 Oct 2001; remainder: 1 Oct 2001 Sch 1: 12 Apr 2002; remainder: 4 Apr 2002 Sch 1 items 3, 5 and 9–17: 1 Nov 2002 ; remainder: 26 Jun 2002 Schs 1–7: 26 Sep 2002; remainder: 28 Jun 2002 4 Jul 2002

64 of 2002

5 Jul 2002

65 of 2002

5 Jul 2002

Migration Legislation Amendment (Migration Advice Industry) Act 2003

3 of 2003

24 Feb 2003

© 2016 THOMSON REUTERS

Date of commencement 21 Dec 2001

Sch 6 item 9: 5 Jan 2003 Sch 1 items 14–18: 6 Jul 2002 24 Feb 2003

37

Migration Act 1958

Principal legislation

Number

Migration Act 1958

62 of 1958

Date of gazettal/assent/ registration 8 Oct 1958

Date of commencement Pt III ss 59–64: 10 Nov 1958; remainder: 1 Jun 1959

This legislation has been amended as follows:

Amending legislation Migration Legislation Amendment (Contributory Parents Migration Scheme) Act 2003 Petroleum (Timor Sea Treaty) (Consequential Amendments) Act 2003

Number 5 of 2003

Date of gazettal/assent/ registration 19 Mar 2003

10 of 2003

2 Apr 2003

Crimes Legislation Enhancement Act 2003

41 of 2003

3 Jun 2003

Migration Legislation Amendment (Protected Information) Act 2003

75 of 2003

15 Jul 2003

Date of commencement Sch 1: 20 Mar 2003 Sch 1 items 1–52, 54–75 and 78–82: 20 May 2002; remainder: 2 Apr 2003 Sch 3 items 14 and 42: 3 Jun 2003 Sch 1 items 5A–5D, 6A and 8 and Sch 2: 16 Jul 2003; remainder: 15 Jul 2003 Sch 1: 24 Sep 2003; remainder: 23 Sep 2003 14 Oct 2003

Migration Amendment (Duration of 90 of 2003 Detention) Act 2003

23 Sep 2003

99 of 2003

14 Oct 2003

122 of 2003

5 Dec 2003

Sch 3 item 2: 1 Jul 2004

2 of 2004

27 Feb 2004

25 of 2004

25 Mar 2004

Sch 1: 27 Aug 2004; remainder: 27 Feb 2004 Sch 2 items 33, 35 and 36: 25 Mar 2004

Migration Legislation Amendment (Sponsorship Measures) Act 2003 Family and Community Services and Veterans’ Affairs Legislation Amendment (2003 Budget and Other Measures) Act 2003 Migration Legislation Amendment (Identification and Authentication) Act 2004 Customs Legislation Amendment (Application of International Trade Modernisation and Other Measures) Act 2004

38

Migration Law

Table of Amending Legislation

Principal legislation

Number

Migration Act 1958

62 of 1958

Date of gazettal/assent/ registration 8 Oct 1958

Date of commencement Pt III ss 59–64: 10 Nov 1958; remainder: 1 Jun 1959

This legislation has been amended as follows:

Amending legislation Migration Legislation Amendment (Migration Agents Integrity Measures) Act 2004 Australian Federal Police and Other Legislation Amendment Act 2004 Australian Passports (Transitionals and Consequentials) Act 2005

Number 48 of 2004

Date of gazettal/assent/ registration 21 Apr 2004

64 of 2004

22 Jun 2004

7 of 2005

18 Feb 2005

Administrative Appeals Tribunal Amendment Act 2005 Migration Amendment (Detention Arrangements) Act 2005

38 of 2005

1 Apr 2005

79 of 2005

29 Jun 2005

Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Act 2005

103 of 2005

23 Aug 2005

Migration Litigation Reform Act 2005

137 of 2005

15 Nov 2005

Migration and Ombudsman Legislation Amendment Act 2005

141 of 2005

12 Dec 2005

© 2016 THOMSON REUTERS

Date of commencement Sch 1: 1 Jul 2004 ; remainder: 21 Apr 2004 Sch 2 item 9: 1 Jul 2004 Ss 4–11 and Sch 1: 1 Jul 2005; remainder: 18 Feb 2005 Sch 1 item 226: 16 May 2005 Sch 1 item 17: 1 Dec 2005; remainder: 29 Jun 2005 Sch 2 items 1–9: 24 Aug 2005; Sch 2 items 10–12: 30 Nov 2005 Sch 1: 1 Dec 2005 ( F2005L03684); remainder: 15 Nov 2005 Sch 1, Sch 2 item 27 and Sch 4 items 1–18 and 20: 12 Dec 2005; Sch 3: 13 Dec 2005

39

Migration Act 1958

Principal legislation

Number

Migration Act 1958

62 of 1958

Date of gazettal/assent/ registration 8 Oct 1958

Date of commencement Pt III ss 59–64: 10 Nov 1958; remainder: 1 Jun 1959

This legislation has been amended as follows:

Amending legislation Anti-Terrorism Act (No 2) 2005

Number 144 of 2005

Date of gazettal/assent/ registration 14 Dec 2005

Offshore Petroleum (Repeals and Consequential Amendments) Act 2006

17 of 2006

29 Mar 2006

Postal Industry Ombudsman Act 2006 (am by Migration and Ombudsman Legislation Amendment Act 2005) Family Law Amendment (Shared Parental Responsibility) Act 2006 Education Services for Overseas Students Legislation Amendment (2006 Measures No 2) Act 2006

25 of 2006

6 Apr 2006

46 of 2006

22 May 2006

144 of 2006

6 Dec 2006

Defence Legislation Amendment Act 2006

159 of 2006

11 Dec 2006

Environment and Heritage Legislation Amendment Act (No 1) 2006

165 of 2006

12 Dec 2006

Migration Amendment (Employer Sanctions) Act 2007

7 of 2007

19 Feb 2007

40

Date of commencement Sch 7 items 13 and 14: 11 Jan 2006; Sch 10 items 31 and 32: 14 Dec 2005 Sch 2 items 46 and 47: 1 Jul 2008 ( s 2(1) and F2008L02273) Sch 1 item 15: 6 Oct 2006

Sch 8 item 102: 1 Jul 2006 Sch 1, Sch 2 item 1, Schs 3 and 4: 1 Jan 2007; Sch 2 items 2–7: 1 Jul 2007; remainder: 6 Dec 2006 Sch 1: 1 Oct 2007; remainder: 11 Dec 2006 Sch 1 items 854–869: 19 Feb 2007 ( F2007L00411) Schs 1 and 2: 19 Aug 2007; remainder: 19 Feb 2007

Migration Law

Table of Amending Legislation

Principal legislation

Number

Migration Act 1958

62 of 1958

Date of gazettal/assent/ registration 8 Oct 1958

Date of commencement Pt III ss 59–64: 10 Nov 1958; remainder: 1 Jun 1959

This legislation has been amended as follows:

Amending legislation Statute Law Revision Act 2007

Number 8 of 2007

Date of gazettal/assent/ registration 15 Mar 2007

Australian Citizenship 21 of 2007 (Transitionals and Consequentials) Act 2007 (am by Migration Legislation Amendment (Information and Other Measures) Act 2007) Migration Amendment (Border 62 of 2007 Integrity) Act 2007

15 Mar 2007

Migration Legislation Amendment (Information and Other Measures) Act 2007

63 of 2007

15 Apr 2007

Education Services for Overseas Students Legislation Amendment Act 2007 Migration Amendment (Maritime Crew) Act 2007

70 of 2007

28 May 2007

73 of 2007

28 May 2007

Migration Amendment (Statutory Agency) Act 2007

87 of 2007

21 Jun 2007

© 2016 THOMSON REUTERS

15 Apr 2007

Date of commencement Sch 4 items 18 and 19: 15 Mar 2007 Schs 1–3: 1 Jul 2007 ( s 2(1) and F2007L01653); remainder: 15 Mar 2007 Schs 1–3: 1 Jul 2007 ( F2007L01792); remainder: 15 Apr 2007 Sch 1 items 1–65, 71 and 72 and Sch 2: 1 May 2007 ( F2007L01135); Sch 1 items 66–68 and 70: 1 Jul 2007; remainder: 15 Apr 2007 Sch 1: 1 Jul 2007; remainder: 28 May 2007 Sch 1 items 1–16: 1 Jul 2007 ( F2007L01795) 22 Jun 2007

41

Migration Act 1958

Principal legislation

Number

Migration Act 1958

62 of 1958

Date of gazettal/assent/ registration 8 Oct 1958

Date of commencement Pt III ss 59–64: 10 Nov 1958; remainder: 1 Jun 1959

This legislation has been amended as follows:

Amending legislation Migration Amendment (Review Provisions) Act 2007 Fisheries Legislation Amendment (New Governance Arrangements for the Australian Fisheries Management Authority and Other Matters) Act 2008

Number 100 of 2007

Date of gazettal/assent/ registration 28 Jun 2007

36 of 2008

24 Jun 2008

Statute Law Revision Act 2008

73 of 2008

3 Jul 2008

Migration Legislation Amendment Act (No 1) 2008

85 of 2008

15 Sep 2008

42

Date of commencement 29 Jun 2007 Sch 3 items 67–69: 24 Jun 2009; Sch 4 items 7 and 8: 22 Jul 2008 Sch 1 items 32 and 33: 1 Mar 2001 Sch 1 and Sch 4 items 1–4, 6(1) and (2): 27 Oct 2008 ( F2008L03538); Sch 2 items 1–3, 12–15 and 18–20: 15 Feb 2009 ( F2009L00268); Sch 2 items 10, 11, 16, 16A, 17, 21 and 22 and Sch 3 items 1–6 and 18–25: 15 Mar 2009; Sch 3 items 7–17: 15 Sep 2008; Sch 4 items 5, 6(3) and 7: 19 Sep 2008 ( F2008L03482)

Migration Law

Table of Amending Legislation

Principal legislation

Number

Migration Act 1958

62 of 1958

Date of gazettal/assent/ registration 8 Oct 1958

Date of commencement Pt III ss 59–64: 10 Nov 1958; remainder: 1 Jun 1959

This legislation has been amended as follows:

Amending legislation Number Migration Amendment (Notification 112 of 2008 Review) Act 2008

Date of gazettal/assent/ registration 31 Oct 2008

Offshore Petroleum Amendment (Greenhouse Gas Storage) Act 2008 Same-Sex Relationships (Equal Treatment in Commonwealth Laws–General Law Reform) Act 2008 Migration Legislation Amendment (Worker Protection) Act 2008

117 of 2008

21 Nov 2008

144 of 2008

9 Dec 2008

159 of 2008

18 Dec 2008

Migration Legislation Amendment Act (No 1) 2009

10 of 2009

25 Feb 2009

Customs Legislation Amendment (Name Change) Act 2009 Fair Work (State Referral and Consequential and Other Amendments) Act 2009 Migration Amendment (Protection of Identifying Information) Act 2009

33 of 2009

22 May 2009

54 of 2009

25 Jun 2009

69 of 2009

8 Jul 2009

Disability Discrimination and Other Human Rights Legislation Amendment Act 2009

70 of 2009

8 Jul 2009

© 2016 THOMSON REUTERS

Date of commencement Sch 1 items 1–9, 11–19, 21–27 and 29: 5 Dec 2008 ( F2008L04521) Sch 3 items 19 and 20: 22 Nov 2008 Sch 10 items 12A and 13–75: 1 Jul 2009 Sch 1: 14 Sep 2009 ( F2009L02375) Schs 1–3: 15 Mar 2009 ( F2009L01026); remainder: 25 Feb 2009 Sch 2 item 42: 23 May 2009 Sch 12 item 4: 14 Sep 2009 Sch 1: 14 Sep 2009 ( F2009L03098); remainder: 8 Jul 2009 Sch 3 items 43 and 44: 5 Aug 2009

43

Migration Act 1958

Principal legislation

Number

Migration Act 1958

62 of 1958

Date of gazettal/assent/ registration 8 Oct 1958

Date of commencement Pt III ss 59–64: 10 Nov 1958; remainder: 1 Jun 1959

This legislation has been amended as follows:

Amending legislation Migration Amendment (Abolishing Detention Debt) Act 2009

Number 85 of 2009

Military Justice (Interim Measures) 91 of 2009 Act (No 1) 2009

Date of gazettal/assent/ registration 18 Sep 2009

22 Sep 2009

Anti-People Smuggling and Other Measures Act 2010

50 of 2010

31 May 2010

Freedom of Information Amendment (Reform) Act 2010

51 of 2010

31 May 2010

Statute Law Revision Act 2011

5 of 2011

22 Mar 2011

Acts Interpretation Amendment Act 46 of 2011 2011

27 Jun 2011

81 of 2011

25 Jul 2011

Migration Amendment (Strengthening the Character Test and Other Provisions) Act 2011

44

Date of commencement Sch 1 items 1–25 and 30–33: 9 Nov 2009 ( F2009L04033); remainder: 18 Sep 2009 Sch 1 items 250 and 251: 22 Sep 2009 Sch 1 items 7–12: 1 Jun 2010 Sch 5 items 37 and 38 and Sch 7: 1 Nov 2010 Sch 7 items 94 and 95: 19 Apr 2011 Sch 2 items 761–767 and Sch 3 items 10 and 11: 27 Dec 2011 Sch 1 item 1: 26 Jul 2011; Sch 1 items 2–6: 26 Apr 2011; remainder: 25 Jul 2011

Migration Law

Table of Amending Legislation

Principal legislation

Number

Migration Act 1958

62 of 1958

Date of gazettal/assent/ registration 8 Oct 1958

Date of commencement Pt III ss 59–64: 10 Nov 1958; remainder: 1 Jun 1959

This legislation has been amended as follows:

Amending legislation Migration Amendment (Complementary Protection) Act 2011

Number 121 of 2011

Date of gazettal/assent/ registration 14 Oct 2011

Deterring People Smuggling Act 2011

135 of 2011

29 Nov 2011

Extradition and Mutual Assistance in Criminal Matters Legislation Amendment Act 2012

7 of 2012

20 Mar 2012

Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 Migration (Visa Evidence) Charge (Consequential Amendments) Act 2012 Migration Legislation Amendment (Student Visas) Act 2012

113 of 2012

17 Aug 2012

125 of 2012

12 Sep 2012

192 of 2012

12 Dec 2012

Privacy Amendment (Enhancing Privacy Protection) Act 2012

197 of 2012

12 Dec 2012

Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Traffıcking) Act 2013 Migration Amendment (Reform of Employer Sanctions) Act 2013

6 of 2013

7 Mar 2013

10 of 2013

14 Mar 2013

© 2016 THOMSON REUTERS

Date of commencement Sch 1 items 1–35: 24 Mar 2012 ( F2012L00650); remainder: 14 Oct 2011 Sch 1: 16 Dec 1999; remainder: 29 Nov 2011 Sch 1 item 13 and Sch 4 item 1: 20 Sep 2012 Sch 1: 18 Aug 2012 Sch 1: 24 Nov 2012 ; remainder: 12 Sep 2012 Sch 1 items 6 and 7: 13 Apr 2013 ( F2013L00485) Sch 5 items 52–55: 12 Mar 2014 Sch 2 items 3–13 and Sch 3: 8 Mar 2013 Sch 1: 1 Jun 2013 ( F2013L00788); remainder: 14 Mar 2013

45

Migration Act 1958

Principal legislation

Number

Migration Act 1958

62 of 1958

Date of gazettal/assent/ registration 8 Oct 1958

Date of commencement Pt III ss 59–64: 10 Nov 1958; remainder: 1 Jun 1959

This legislation has been amended as follows:

Amending legislation Federal Circuit Court of Australia (Consequential Amendments) Act 2013

Number 13 of 2013

Date of gazettal/assent/ registration 14 Mar 2013

Maritime Powers (Consequential Amendments) Act 2013 Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Act 2013

16 of 2013

27 Mar 2013

35 of 2013

20 May 2013

Crimes Legislation Amendment (Law Enforcement Integrity, Vulnerable Witness Protection and Other Measures) Act 2013

74 of 2013

28 Jun 2013

Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 Migration Amendment (Offshore Resources Activity) Act 2013

98 of 2013

28 Jun 2013

117 of 2013

29 Jun 2013

46

Date of commencement Sch 1 items 331–350 and Sch 2 item 1: 12 Apr 2013 ; Sch 3 items 97 and 98: 1 Jun 2013 Sch 4: 27 Mar 2014 Sch 1 items 1–14: 1 Jun 2013 ( F2013L00880); Sch 1 items 15 and 16: 21 May 2013; Sch 1 items 17–62: 1 Jun 2013; Sch 2: 27 Mar 2014; remainder: 20 May 2013 Sch 3 items 3–5: 29 Jun 2013; Sch 3 items 6–10: 27 Mar 2014 Sch 1 items 62 and 63: 1 Aug 2013 ( F2013L01435) Remainder: 29 Jun 2013; Sch 1 items 1–9 : 29 Jun 2014

Migration Law

Table of Amending Legislation

Principal legislation

Number

Migration Act 1958

62 of 1958

Date of gazettal/assent/ registration 8 Oct 1958

Date of commencement Pt III ss 59–64: 10 Nov 1958; remainder: 1 Jun 1959

This legislation has been amended as follows:

Amending legislation Migration Amendment (Temporary Sponsored Visas) Act 2013

Number 122 of 2013

Date of gazettal/assent/ registration 29 Jun 2013

Migration Amendment Act 2014

30 of 2014

27 May 2014

Statute Law Revision Act (No 1) 2014

31 of 2014

27 May 2014

Migration Legislation Amendment Act (No 1) 2014

106 of 2014

24 Sep 2014

© 2016 THOMSON REUTERS

Date of commencement Schs 1, 4 and 6: 30 Jun 2013; Sch 2 items 1, 2, 5 and 6: 23 Nov 2013 ( F2013L01915); Sch 5 items 1–5: 29 Jun 2013; Sch 5 items 6–11: 1 Oct 2014 Sch 1, Sch 2 items 1–3 and Sch 3 items 1, 2, 4 and 6: 28 May 2014 Sch 1 items 49 and 50, Sch 4 items 27–47 and Sch 8 items 26–28: 24 Jun 2014 Sch 1 items 1–5, Sch 2 items 1 and 2, Sch 3 items 1–3, Sch 4 items 1–16, Sch 5 item 2 and Sch 6 item 4: 25 Sep 2014; Sch 6 items 1 and 2: 1 Jan 2015 (F2014L01722)

47

Migration Act 1958

Principal legislation

Number

Migration Act 1958

62 of 1958

Date of gazettal/assent/ registration 8 Oct 1958

Date of commencement Pt III ss 59–64: 10 Nov 1958; remainder: 1 Jun 1959

This legislation has been amended as follows:

Amending legislation Number Counter-Terrorism Legislation 116 of 2014 Amendment (Foreign Fighters) Act 2014 (am by Statute Law Revision Act (No 2) 2015)

Migration Amendment (Character 129 of 2014 and General Visa Cancellation) Act 2014 Migration and Maritime Powers 135 of 2014 Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014

Statute Law Revision Act (No 1) 2015

48

5 of 2015

Date of gazettal/assent/ registration 3 Nov 2014

10 Dec 2014

15 Dec 2014

25 Feb 2015

Date of commencement Sch 4 items 1–4, Sch 5 items 1–60 and Sch 7 items 1–4: 4 Nov 2014; Sch 7 item 5: 18 Apr 2015; Sch 6: 1 Jul 2015 Schs 1 and 2: 11 Dec 2014 Sch 1 items 36–38, Sch 2 items 1–12, 20 and 22–24, Sch 2A item 1, Sch 3 items 1–7, Sch 5 items 1, 2 and 18–22, Sch 6 items 1–9 and Sch 7 items 1–15: 16 Dec 2014; Sch 2 items 13–18A and 18F, Sch 4 items 1–10 and 14–26, Sch 5 items 4–17: 18 Apr 2015 (F2015L00543) Sch 3 items 117–121: 25 Mar 2015

Migration Law

Table of Amending Legislation

Principal legislation

Number

Migration Act 1958

62 of 1958

Date of gazettal/assent/ registration 8 Oct 1958

Date of commencement Pt III ss 59–64: 10 Nov 1958; remainder: 1 Jun 1959

This legislation has been amended as follows:

Amending legislation Migration Amendment (Protection and Other Measures) Act 2015

Number 35 of 2015

Date of gazettal/assent/ registration 13 Apr 2015

Customs and Other Legislation Amendment (Australian Border Force) Act 2015

41 of 2015

20 May 2015

Tribunals Amalgamation Act 2015

60 of 2015

26 May 2015

Migration Amendment (Regional Processing Arrangements) Act 2015 Migration Amendment (Strengthening Biometrics Integrity) Act 2015

104 of 2015

30 Jun 2015

115 of 2015

26 Aug 2015

Acts and Instruments (Framework 126 of 2015 Reform) (Consequential Provisions) Act 2015 Migration Amendment (Charging 161 of 2015 for a Migration Outcome) Act 2015

10 Sep 2015

© 2016 THOMSON REUTERS

30 Nov 2015

Date of commencement Sch 1 item 1: 14 Apr 2015; Sch 1 items 2–14, Sch 3 items 1–13 and Sch 4 items 1–33: 18 Apr 2015 (F2015L00541) Sch 3, Sch 5 items 100 and 101 and Sch 8 items 8 and 9: 1 Jul 2015 Sch 2 items 1–143, 148–154, 172–184, 186 and 189–192: 1 Jul 2015 Sch 1 item 1: 18 Aug 2012 Sch 1 items 1–54: 16 Feb 2016 (F2015L02005) Sch 1 items 380–385: 5 Mar 2016 Sch 1 items 1–17: 14 Dec 2015 (F2015L01959)

49

Migration Act 1958

Principal legislation

Number

Migration Act 1958

62 of 1958

Date of gazettal/assent/ registration 8 Oct 1958

Date of commencement Pt III ss 59–64: 10 Nov 1958; remainder: 1 Jun 1959

This legislation has been amended as follows:

Amending legislation Statute Law Revision Act (No 1) 2016

Number 4 of 2016

Date of gazettal/assent/ registration 11 Feb 2016

Migration Legislation Amendment (Cessation of Visa Labels) Act 2016

34 of 2016

23 Mar 2016

50

Date of commencement Sch 1 item 22, Sch 4 items 207–211 and 402–407: 10 Mar 2016 Sch 1 items 2–6: 24 Mar 2016

Migration Law

TABLE OF ANNOTATIONS Part 1 ............................................................................................................................................ Preliminaries 5AAA ................................................................ Non-citizen’s responsibility in relation to protection claims 5AA .............................................................................................. Meaning of unauthorised maritime arrival 5CB ......................................................................................................................................... De facto partner 5H ...................................................................................................................................... Meaning of refugee 5J .............................................................................................. Meaning of well-founded fear of persecution 5K .................................................................. Membership of a particular social group consisting of family 5L ....................................................................... Membership of a particular social group other than family 9A ..................................................................................... Migration zone etc.– offshore resources activities Part 2 .................................................................................... Control of arrival and presence of non-citizens Division 1 ........................................................................................................................... Immigration status 13 ...................................................................................................................................... Lawful non-citizens 14 ................................................................................................................................... Unlawful non-citizens Division 3 ........................................................................................................................ Visa for non-citizens Subdivision A .................................................................................................. General provisions about visas 29 .............................................................................................................................................................. Visas 30 ............................................................................................................................................... Kinds of visas 31 ............................................................................................................................................. Classes of visas 32 ................................................................................................................................... Special category visas 33 .................................................................................................................................... Special purpose visas 34 .................................................................................................................................. Absorbed person visas 35 ............................................................................................................................................. Ex-citizen visas 35A ............................................................................................................. Protection visas—classes of visas 36 ..................................................................................... Protection visas—criteria provided for by this Act 37 ............................................................................................................................................... Bridging visas 37A ...................................................................................................................... Temporary safe haven visas 38 .................................................................................................................................... Criminal justice visas 38A ...................................................................................................................................... Enforcement visas 38B ................................................................................................................................... Maritime crew visas 39 ............................................................................................................... Criterion limiting number of visas 40 ................................................................................................................. Circumstances for granting visas 41 ....................................................................................................................................... Conditions on visas 42 ................................................................................................................................ Visa essential for travel 43 .................................................................................................... Visa holders must usually enter at a port Subdivision AA ............................................................................................................. Applications for visas 45 ...................................................................................................................................... Application for visa 45A .............................................................................................................................. Visa application charge 45B ............................................................................................................ Amount of visa application charge 46 .................................................................................................................................... Valid visa application 46A ................................................................................ Visa applications by unauthorised maritime arrivals 46B ..................................................................................................... Visa applications by transitory persons 47 ........................................................................................................ Consideration of valid visa application 48 ......................... Non-citizen refused a visa or whose visa cancelled may only apply for particular visas 48A ................................................. No further applications for protection visa after refusal or cancellation 48B ................................................ Minister may determine that section 48A does not apply to non-citizen Subdivision AB .......... Code of procedure for dealing fairly, efficiently and quickly with visa applications 51A ................................................................................ Exhaustive statement of natural justice hearing rule 54 ...................................................................... Minister must have regard to all information in application © 2016 THOMSON REUTERS

51

Migration Act 1994

55 ............................................................................................................... Further information may be given 56 .............................................................................................................. Further information may be sought 57 .......................................................................................... Certain information must be given to applicant 58 .................................................................................... Invitation to give further information or comments Subdivision AC .......................................................................................................................... Grant of visas 65 ..................................................................................................... Decision to grant or refuse to grant visa 66 ................................................................................................................................ Notification of decision 67 .................................................................................................. Grant and refusal of visa—how and when 68 ................................................................................................................................... When visa is in effect 69 ..................................................................................................... Effect of compliance or non-compliance Subdivision AF .......................................................................................................................... Bridging visas 73 ............................................................................................................................................... Bridging visas Subdivision AH ......................................................................................................................... Limit on visas 85 ............................................................................................................................................... Limit on visas 86 ................................................................................................................................................ Effect of limit 87 ........................................................................................ Limit does not prevent visas for certain persons 87A ............ Limit does not prevent the grant of visas to certain people who are unable to meet health or character requirements before the limit applies because of circumstances beyond their control 88 ......................................................................................... Limit does not affect processing of applications 89 ................................................................................. Determination of limit not to mean failure to decide 90 ............................................................................................................. Order of dealing with limited visas 91 .......................................................................................................................... Order of dealing with visas Subdivision AI .................................................................................................................. Safe third countries 91F ................................................. Minister may determine that section 91E does not apply to non-citizen Subdivision AJ ..................................................................................................... Temporary safe haven visas 91L ............................................. Minister may determine that section 91K does not apply to a non-citizen Subdivision AK ................................................ Non-citizens with access to protection from third countries 91Q ............................................. Minister may determine that section 91P does not apply to a non-citizen Subdivision C .......................................................... Visas based on incorrect information may be cancelled 97A ................................................................................ Exhaustive statement of natural justice hearing rule 98 .................................................................................................................... Completion of visa application 107 ................................................................................................................. Notice of incorrect applications 108 ................................................................................................................. Decision about non-compliance 109 ............................................................................................. Cancellation of visa if information incorrect Subdivision D ............................................................................. Visas may be cancelled on certain grounds 116 ........................................................................................................................................... Power to cancel Subdivision E .......................... Procedure for cancelling visas under Subdivision D in or outside Australia 118A .............................................................................. Exhaustive statement of natural justice hearing rule 119 ................................................................................................................. Notice of proposed cancellation 120 ..................................................................................... Certain information must be given to visa holder 121 ................................................................................................................ Invitation to give comments etc. 127 .............................................................................................................................. Notification of decision Subdivision F ......................... Other procedure for cancelling visas under Subdivision D outside Australia 127A .............................................................................. Exhaustive statement of natural justice hearing rule 128 ..................................................................................... Cancellation of visas of people outside Australia 129 ................................................................................................................................. Notice of cancellation 131 ................................................................................................. Decision about revocation of cancellation Subdivision G .................................................................................................. Cancellation of business visas 134 .................................................................................................................... Cancellation of business visas 135 ........................................................................ Representations concerning cancellation of business visa Subdivision GB ................................................................................ Automatic cancellation of student visas 137J ................................................. Non-complying students may have their visas automatically cancelled 137K ................................................................................................. Applying for revocation of cancellation 137L .................................................................................................................... Dealing with the application Division 4 ................................................................................................................... Criminal justice visitors 52

Migration Law

Table of Annotations

Subdivision E ............................. Cancellation etc of criminal justice certificates and criminal justice visas 162 .............................................................................................. Criminal justice certificates to be cancelled Division 7 ................................................................................................. Detention of unlawful non-citizens Subdivision A ..................................................................................................................... General provisions 189 ............................................................................................................ Detention of unlawful non-citizens 194 ..................................................................................... Detainee to be told of consequences of detention 195A ........................................................ Minister may grant detainee visa (whether or not on application) Division 8 ........................................................................................... Removal of unlawful non-citizens etc. Subdivision A ..................................................................................................................................... Removal 198 .................................................................................... Removal from Australia of unlawful non-citizens Division 12 ............................................ Offences etc. in relation to entry into, and remaining in, Australia Subdivision A ..................................................................................... People smuggling and related offences 233A .................................................................................................................. Offence of people smuggling 233B ................................ Aggravated offence of people smuggling (danger of death or serious harm etc.) 233C ................................................................. Aggravated offence of people smuggling (at least 5 people) 233D .......................................................................................... Supporting the offence of people smuggling 235 ....................................................................................................................... Offences in relation to work 236B ............................................................................... Mandatory minimum penalties for certain offences Division 13 ............................................................................................... Examination, search and detention 251 ........................................................................................................................ Powers of entry and search 252AA ............................................................................................. Power to conduct a screening procedure 252A .............................................................................................................. Power to conduct a strip search 252B ......................................................................................................... Rules for conducting a strip search 252C ...... Possession and retention of certain things obtained during a screening procedure or strip search 252G ....................................................................................... Powers concerning entry to a detention centre 256 ................................ Person in immigration detention may have access to certain advice, facilities etc. Division 13AA ................................................................................... Identification of immigration detainees Subdivision A ................................................................................................ Provision of personal identifiers 261AA .................................................................... Immigration detainees must provide personal identifiers 261AB ..................................................... Authorised officers must require and carry out identification tests 261AC .................................................... Information to be provided before carrying out identification tests Subdivision B .................................................................................... How identification tests are carried out Division 13A ............................................................ Automatic forfeiture of things used in certain offences Subdivision A .................................................................................................................. Automatic forfeiture 261A .......................................................................................... Forfeiture of things used in certain offences Division 14 ........................................................................................ Recovery of costs from certain persons 262 .... Liability to the Commonwealth for the cost of keeping, maintaining and removing certain persons Division 14A ................................................................ Monitoring compliance with student visa conditions 269 ..................................................................................................................................................... Securities 271 .............................................................................................................................. Proof of certain matters 273 ........................................................................................................................................ Detention centres 274 ..... Secretary or Australian Border Forse Commissioner may issue documents containing information concerning certain persons Part 3 ...................................................................................... Migration Agents and Immigration Assistance Division 1 ....................................................................................................................................... Preliminary 276 ................................................................................................................................ Immigration assistance Division 3 ..................................................................................................... Registration of migration agents 290 ................................ Applicant must not be registered if not a person of integrity or not fit and proper 290A ........... Applicant for repeat registration must not be registered if he or she has not done continuing professional development 300 ...................................................................................................... Automatic continuation of registration 303 .................................................................................................... Disciplining registered migration agents Division 3AA .......................... Disciplining registered migration agents for engaging in vexatious activity Division 3A .... Documents relating to clients of inactive migration agents and deceased migration agents Division 4 ................. Investigations and decision-making by the Migration Agents Registration Authority © 2016 THOMSON REUTERS

53

Migration Act 1994

308 ...................................................................... Requiring registered migration agents to give information 309 ................................................................................................................. Persons may make submissions Division 4A ......................................................................... Disciplining former registered migration agents Division 5 ..................................................................................... Obligations of registered migration agents 313 ................................................. Persons charged for services to be given detailed statement of services 314 ...................................................................................................... Code of Conduct for migration agents Part 5 .................................................................................................. Review of Part-5 reviewable decisions Division 2 ............................................................................................................. Part-5 reviewable decisions 338 ................................................................................................... Definition of Part-5 reviewable decision 339 ................................................................................................................................ Conclusive certificates Division 3 .................................................................................. Part-5 reviewable decisions: tribunal review 347 ............................................................................. Application for review of Part-5 reviewable decisions 348 ........................................................................................ Tribunal to review Part-5 reviewable decisions 349 ...................................................................... Tribunal powers on review of Part-5 reviewable decisions 351 .................................................................................... Minister may substitute more favourable decision 352 .......................... Tribunal to notify Secretary of application for review by Migration Review Tribunal Division 4 ................................................................................ Part 5–reviewable decisions: tribunal powers 353 ....................................................................................................................... Tribunal’s way of operating Division 5 ............................................................................. Part-5 reviewable decisions: conduct of review 357A .............................................................................. Exhaustive statement of natural justice hearing rule 358 ..................................................................................................... Documents to be given to the Tribunal 359 .................................................................................................................. Tribunal may seek information 359AA ................................ Information and invitation given orally by Tribunal while applicant appearing 359A ....................................................................... Information and invitation given in writing by Tribunal 359B .................................................................................................. Requirements for written invitation etc. 359C .......................... Failure to give information, comments or response in response to written invitation 360 ................................................................................................... Tribunal must invite applicant to appear 360A .................................................................................................................. Notice of invitation to appear 361 ........................................... Applicant may request Tribunal to call witness and obtain written material 362 ..................................................................................... Applicant may request Tribunal to call witnesses 362A .................................................. Applicant entitled to have access to written material before Tribunal 362B ....................................................................................... Failure of applicant to appear before Tribunal 363 ........................................................................................................................ Powers of the Tribunal etc. 363A .... Tribunal does not have power to permit a person to do something he or she is not entitled to do 364 ............................................................................................................. Tribunal’s power to take evidence 365 ............................................................................................................................... Review to be in public 366 ................................................................................................................. Oral evidence by telephone etc. 366A ................................... Applicant may be assisted by another person while appearing before Tribunal 366C ................................................................................................................................................ Interpreters 366D ................................................................................. Examination and cross-examination not permitted 367 ................................................ Certain bridging visa decisions — to be made within prescribed period Division 6 .............................................................................. Part-5 reviewable decisions: tribunal decisions 368 ................................................................................................. Tribunal’s decision and written statement 368A ..................................................... Notifying parties of Tribunal’s decision (decision not given orally) 368D .............................................................................................................. Tribunal’s decision given orally Division 7 ............................................................................................. Part-5 reviewable decisions: offences 371 ....................................................................................... Refusal to be sworn or to answer questions etc. Division 8 .................................................................................... Part-5 reviewable decisions: miscellaneous 373 .............................................................. Protection of members and persons giving evidence [repealed] 374 ............................................................................................. Fees for persons giving evidence [repealed] 375 ............................................................................... Restrictions on disclosure of certain information etc. 375A ............................................................................ Certain information only to be disclosed to Tribunal 376 ............................................... Tribunal’s discretion in relation to disclosure of certain information etc. Division 8A ................................................... Part-5 reviewable decisions: giving and receiving documents 54

Migration Law

Table of Annotations

379AA ............... Giving documents by Tribunal where no requirement to do so by section 379A or 379B method 379A ............................ Methods by which Tribunal gives documents to a person other than the Secretary 379B ............................................................. Methods by which Tribunal gives documents to the Secretary 379C .... When a person other than the Secretary is taken to have received a document from the Tribunal 379D ..................................... When the Secretary is taken to have received a document from the Tribunal 379G ................................................................................................................................. Authorised recipient Part 6 ................................................................................................... Migration Review Tribunal [repealed] Part 7 .................................................................................................. Review of Part 7-reviewable decisions Division 2 ............................................................................................................. Part 7-reviewable decisions 411 .................................................................................................. Definition of Part 7-reviewable decisions 412 ............................................................................. Application for review of Part 7-reviewable decisions 414 ........................................................................................ Tribunal to review Part 7-reviewable decisions 415 ...................................................................... Tribunal powers on review of Part 7-reviewable decisions 417 .................................................................................... Minister may substitute more favourable decision 418 .......................... Tribunal to notify Secretary of application for review of Part 7–reviewable decisions Division 3 ................................................................................. Part 7-reviewable decisions: tribunal powers 420 ........................................................................................... Refugee Review Tribunal’s way of operating 421 ........................................................... Constitution of Refugee Review Tribunal for exercise of powers Division 4 ............................................................................................................. Part 7-reviewable decisions 422B .............................................................................. Exhaustive statement of natural justice hearing rule 423 ......................................................................... Documents to be given to the Refugee Review Tribunal 423A .......................................................................... How Tribunal is to deal with new claims or evidence 424 .................................................................................................................. Tribunal may seek information 424AA ................................ Information and invitation given orally by Tribunal while applicant appearing 424A ....................................................................... Information and invitation given in writing by Tribunal 424B .................................................................................................. Requirements for written invitation etc. 424C .......................... Failure to give information, comments or response in response to written invitation 425 ................................................................................................... Tribunal must invite applicant to appear 425A .................................................................................................................. Notice of invitation to appear 426 ......................................................... Applicant may request Refugee Review Tribunal to call witnesses 426A ....................................................................................... Failure of applicant to appear before Tribunal 426B ...................... Failure to appear–Tribunal’s decisions, written statements and notifying the applicant 427 ........................................................................................................................ Powers of the Tribunal etc. 428 ............................................................................................................. Tribunal’s power to take evidence 429 .............................................................................................................................. Review to be in private 429A .............................................................................................................. Oral evidence by telephone etc. Division 5 .............................................................................. Part 7-reviewable decisions: tribunal decisions 430 ................................................................................................. Tribunal’s decision and written statement 430A ..................................................... Notifying parties of Tribunal’s decision (decision not given orally) 430D .............................................................................................................. Tribunal’s decision given orally Division 6 ............................................................................................. Part 7-reviewable decisions: offences 433 .............................................................................................. Refusal to be sworn or to answer questions Division 7 .................................................................................... Part 7-reviewable decisions: miscellaneous 435 .............................................................. Protection of members and persons giving evidence [repealed] 436 ............................................................................................. Fees for persons giving evidence [repealed] 437 ............................................................................... Restrictions on disclosure of certain information etc. 438 ............................................... Tribunal’s discretion in relation to disclosure of certain information etc. Division 7A ....................................... Part 7-reviewable decisions: giving and receiving review documents 441AA ............... Giving documents by Tribunal where no requirement to do so by section 441A or 441B method 441A ............................ Methods by which Tribunal gives documents to a person other than the Secretary 441B ............................................................. Methods by which Tribunal gives documents to the Secretary 441C .... When a person other than the Secretary is taken to have received a document from the Tribunal 441D ..................................... When the Secretary is taken to have received a document from the Tribunal © 2016 THOMSON REUTERS

55

Migration Act 1994

Division 9 ................................................. Establishment and membership of the Refugee Review Tribunal 457 ........................................................................................ Establishment of the Refugee Review Tribunal 458 ................................................................................................. Membership of Refugee Review Tribunal 460 ........................................................................................................................................ Principal Member 462 ............................................................................................... Remuneration and allowances of members Part 7AA ...................................... Fast track review process in relation to certain protection visa decisions Division 1 ...................................................................................................................................... Introduction 473BC ............................ Minister may determine that certain decisions are to be reviewed under this Part 473BD .......................................... Minister may issue conclusive certificate in relation to certain decisions Division 2 ...................... Referral of fast track reviewable decisions to Immigration Assessment Authority 473CA .......................................................................................... Referral of fast track reviewable decisions 473CB .......................................................... Material to be provided to Immigration Assessment Authority 473CC ................................................................................................................................ Review of decision Division 3 ........................................................................................................................... Conduct of review Subdivision A ...................................................................................................... Natural justice requirements 473DA ........................................................................... Exhaustive statement of natural justice hearing rule Subdivision B ................................................................................................................ Review on the papers 473DB .............................................. Immigration Assessment Authority to review decisions on the papers Subdivision C .............................................................................................................. Additional information 473DC ....................................................................................................................... Getting new information 473DD ............................................................... Considering new information in exceptional circumstances 473DE ............................................................. Certain new information must be given to referred applicant Division 4 .......................................................................................................................................................... 473EA ................................................. Immigration Assessment Authority’s decision and written statement 473EB ............................................................ Notification of Immigration Assessment Authority’s decision Division 5 ...................... Exercise of powers and functions by the Immigration and Assessment Authority 473FA .................................................. How Immigration Assessment Authority is to exercise its functions Division 6 ................................................................................................................ Disclosure of information 473GB .......................... Immigration Assessment Authority’s discretion in relation to disclosure of certain information etc. Division 7 ................................................................................. Giving and receiving review documents etc. 473HA ......... Giving documents by Immigration Assessment Authority where no requirement to do so by s 473HB or s 473HC method 473HB ..... Methods by which Immigration Assessment Authority gives documents to a person other than the Secretary 473HD ................ When a person other than the Secretary is taken to have received a document from the Immigration Assessment Authority 473HG .............................................................................................................................. Authorised recipient Part 8 ....................................................................................................................................... Judicial Review Division 1 ................................................................................................................................ Privative clause 474 ..................................................................................................................... Decisions under Act are final Division 2 ............................................................................................... Jurisdiction and procedure of courts 476 ................................................................................................... Jurisdiction of the Federal Circuit Court 476A ............................................................................................... Limited jurisdiction of the Federal Court 476B ..................................................................................................................... Remittal by the High Court 477 ......................................................................... Time limits on applications to the Federal Circuit Court 477A ................................................................................... Time limits on applications to the Federal Court Part 8A ........................................................................................................ Restrictions on court proceedings 486A ......................................................... Time limit on applications to the High Court for judicial review 486B ................................................................................................... Multiple parties in migration litigation 486C ................ Persons who may commence or continue proceedings in the Federal Circuit Court or the Federal Court 486D ......................................................................................... Disclosing other judicial review proceedings Part 9 .......................................................................................................................................... Miscellaneous Division 2 ................................................................................................................................................. Other 56

Migration Law

Table of Annotations

494AA ..................................... Bar on certain legal proceedings relating to unauthorised maritime arrivals 494AB .......................................................... Bar on certain legal proceedings relating to transitory persons 494A ................... Giving documents by Minister where no requirement to do so by section 494B method 494B ..................................................................... Methods by which Minister gives documents to a person 494C ............................................. When a person is taken to have received a document from the Minister 494D ................................................................................................................................. Authorised recipient 499 ...................................................................................................................... Minister may give directions 500 ..................................................................................................................................... Review of decision 500A .......................................................................... Refusal or cancellation of temporary safe haven visas 501 ............................................................................... Refusal or cancellation of visa on character grounds 501A .......... Refusal or cancellation of visa—setting aside and substitution of non-adverse decision under subsection 501(1) or (2) 501B .................. Refusal or cancellation of visa—setting aside and substitution of adverse decision under subsection 501(1) or (2) 501C ............ Refusal or cancellation of visa—revocation of decision under subsection 501(3) or 501A(3) 501D ...... Refusal or cancellation of visa—method of satisfying Minister that person passes the character test 501E ............................................. Refusal or cancellation of visa—prohibition on applying for other visas 501F .... Refusal or cancellation of visa—refusal of other visa applications and cancellation of other visas 501G ...................................................................... Refusal or cancellation of visa—notification of decision 501J ........... Refusal or cancellation of protection visa—Minister may substitute more favourable decision 502 ............... Minister may decide in the national interest that certain persons are to be excluded persons 503A ................. Protection of information supplied by law enforcement agencies or intelligence agencies 504 .................................................................................................................................................. Regulations

© 2016 THOMSON REUTERS

57

PART 1 – PRELIMINARY (SS 1–12) [Former Pt I renum Act 59 of 1989, s 35]

1

Short title This Act may be cited as the Migration Act 1958.

2

Commencement The several Parts of this Act shall come into operation on such dates as are respectively fixed by Proclamation. 3

Repeal and savings (1) The Acts specified in the Schedule to this Act are repealed. (2) Section 9 of the War Precautions Act Repeal Act 1920-1955 and the heading to that section, and the Schedule to that Act, are repealed. [Subs (2) am Act 112 of 1983, s 37 and Sch]

(3) The War Precautions Act Repeal Act 1920-1955, as amended by this section, may be cited as the War Precautions Act Repeal Act 1920-1958. (4) Notwithstanding the repeals effected by this section: (a) a certificate of exemption in force under the Immigration Act 1901-1949 immediately before the date of commencement of this Part shall, for all purposes of this Act, be deemed to be a temporary visa granted under this Act to the person specified in the certificate and authorizing that person to remain in Australia for a period ending on the date on which the certificate would have expired if this Act had not been passed. (b) [Repealed] (c) [Repealed] (d) [Repealed] [Subs (4) am Act 184 of 1992, s 38 and Sch, with effect from 1 Sep 1994; Act 216 of 1973, s 3 and Sch 1]

(5) For the purposes of paragraph (4)(a), where, before the commencement of this Part, a person who had previously entered Australia re-entered Australia and, upon or after the re-entry, a certificate of exemption purported to be issued to the person, the certificate shall be deemed to have been as validly issued as if the person had not previously entered Australia. [Subs (5) am Act 59 of 1989, s 34 and Sch 2; Act 112 of 1983, s 37 and Sch] [S 3 am Act 184 of 1992; former s 4 renum Act 59 of 1989, s 35; am Act 59 of 1989; Act 112 of 1983; Act 216 of 1973]

3A Act not to apply so as to exceed Commonwealth power (1) Unless the contrary intention appears, if a provision of this Act: (a) would, apart from this section, have an invalid application; but (b) also has at least one valid application; it is the Parliament’s intention that the provision is not to have the invalid application, but is to have every valid application. (2) Despite subsection (1), the provision is not to have a particular valid application if: © 2016 THOMSON REUTERS

59

s 3A

Migration Act 1958

(a)

apart from this section, it is clear, taking into account the provision’s context and the purpose or object underlying this Act, that the provision was intended to have that valid application only if every invalid application, or a particular invalid application, of the provision had also been within the Commonwealth’s legislative power; or (b) the provision’s operation in relation to that valid application would be different in a substantial respect from what would have been its operation in relation to that valid application if every invalid application of the provision had been within the Commonwealth’s legislative power. (3) Subsection (2) does not limit the cases where a contrary intention may be taken to appear for the purposes of subsection (1). (4) This section applies to a provision of this Act, whether enacted before, at or after the commencement of this section. (5) In this section: application means an application in relation to: (a) one or more particular persons, things, matters, places, circumstances or cases; or (b) one or more classes (however defined or determined) of persons, things, matters, places, circumstances or cases. invalid application, in relation to a provision, means an application because of which the provision exceeds the Commonwealth’s legislative power. valid application, in relation to a provision, means an application that, if it were the provision’s only application, would be within the Commonwealth’s legislative power. [S 3A insrt Act 102 of 1995, s 5; former s 3AA renum Act 60 of 1994, s 83; former s 4A renum Act 59 of 1989, s 35]

3B Compensation for acquisition of property (1) If: (a) this Act would result in an acquisition of property; and (b) any provision of this Act would not be valid, apart from this section, because a particular person has not been compensated; the Commonwealth must pay that person: (c) a reasonable amount of compensation agreed on between the person and the Commonwealth; or (d) failing agreement—a reasonable amount of compensation determined by a court of competent jurisdiction. (2) Any damages or compensation recovered, or other remedy given, in a proceeding begun otherwise than under this section must be taken into account in assessing compensation payable in a proceeding begun under this section and arising out of the same event or transaction. (3) In this section: acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution. [S 3B insrt Act 160 of 1999, s 3 and Sch 1 item 1, with effect from 16 Dec 1999]

4

Object of Act (1) The object of this Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.

60

Migration Law

Part 1 - Preliminary (ss 1-12)

s5

(2) To advance its object, this Act provides for visas permitting non-citizens to enter or remain in Australia and the Parliament intends that this Act be the only source of the right of non-citizens to so enter or remain. (3) To advance its object, this Act provides for non-citizens and citizens to be required to provide personal identifiers for the purposes of this Act or the regulations. [Subs (3) subst Act 115 of 2015, s 3 and Sch 1 item 1, with effect from 16 Feb 2016; am Act 60 of 1994, s 82 and Sch 1 item 1]

(4) To advance its object, this Act provides for the removal or deportation from Australia of non-citizens whose presence in Australia is not permitted by this Act. (5) To advance its object, this Act provides for the taking of unauthorised maritime arrivals from Australia to a regional processing country. [Subs (5) am Act 35 of 2013, s 3 and Sch 1 item 1, with effect from 1 Jun 2013; insrt Act 113 of 2012, s 3 and Sch 1 item 1, with effect from 18 Aug 2012] [S 4 am Act 115 of 2015; Act 35 of 2013; Act 113 of 2012; former s 3A renum Act 60 of 1994, s 83; am Act 60 of 1994; insrt Act 184 of 1992, s 3, with effect from 1 Sep 1994]

4AA Detention of minors a last resort (1) The Parliament affirms as a principle that a minor shall only be detained as a measure of last resort. (2) For the purposes of subsection (1), the reference to a minor being detained does not include a reference to a minor residing at a place in accordance with a residence determination. [S 4AA insrt Act 79 of 2005, s 3 and Sch 1 item 1, with effect from 29 Jun 2005]

4A Application of the Criminal Code Chapter 2 of the Criminal Code (except Part 2.5) applies to all offences against this Act. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. [S 4A insrt Act 97 of 2001, s 3 and Sch 1 item 1, with effect from 19 Sep 2001]

5

Interpretation (1) In this Act, unless the contrary intention appears: AAT Act migration decision: see section 474A.

[Def insrt Act 60 of 2015, s 3 and Sch 2 item 1, with effect from 1 Jul 2015]

absorbed person visa has the meaning given by section 34. [Def insrt Act 60 of 1994, s 4(k), with effect from 1 Sep 1994]

accompanying child [Repealed] [Def rep Act 184 of 1992, s 4(a), with effect from 1 Sep 1994; insrt Act 59 of 1989, s 4(b), with effect from 19 Dec 1989]

accompanying spouse [Repealed] [Def rep Act 184 of 1992, s 4(a), with effect from 1 Sep 1994; insrt Act 59 of 1989, s 4(b), with effect from 19 Dec 1989]

adjacent area means an adjacent area in respect of a State, of the Northern Territory, of the Territory of Ashmore and Cartier Islands, of the Territory of Cocos (Keeling) Islands or of the Territory of Christmas Island, as determined in accordance with section 5 of the Sea Installations Act. [Def insrt Act 104 of 1987, s 32(a), with effect from 6 Nov 1987]

adoption has the same meaning as in the regulations. [Def insrt Act 144 of 2008, s 3 and Sch 10 item 12A, with effect from 1 Jul 2009]

© 2016 THOMSON REUTERS

61

s5

Migration Act 1958

aged parent [Repealed] [Def rep Act 27 of 1997, s 3 and Sch 2 item 1, with effect from 1 May 1997; am Act 70 of 1991, s 6 and Sch 3, with effect from 1 Jul 1991; insrt Act 59 of 1989, s 4(b), with effect from 19 Dec 1989]

alien [Repealed] [Def rep Act 112 of 1983, s 4(a), with effect from 2 Apr 1984]

allowed inhabitant of the Protected Zone means an inhabitant of the Protected Zone, other than an inhabitant to whom a declaration under section 16 (presence declared undesirable) applies. [Def subst Act 60 of 1994, s 4(i), with effect from 1 Sep 1994; insrt Act 184 of 1992, s 4(c), with effect from 1 Sep 1994]

applicable pass mark, in relation to a visa of a particular class, means the number of points specified as the pass mark for that class in a notice, under section 96, in force at the time concerned. [Def subst Act 60 of 1994, s 4(i), with effect from 1 Sep 1994; Act 14 of 1994, s 4(b), with effect from 19 Jan 1994; insrt Act 59 of 1989, s 4(b), with effect from 19 Dec 1989]

applicable pool entrance mark [Repealed] [Def rep Act 14 of 1994, s 4(a), with effect from 19 Jan 1994; insrt Act 59 of 1989, s 4(b), with effect from 19 Dec 1989]

applicable pool mark, in relation to a visa of a particular class, means the number of points specified as the pool mark for that class in a notice under section 96 in force at the time concerned. [Def insrt Act 14 of 1994, s 4(c), with effect from 19 Jan 1994]

applicable priority mark [Repealed] [Def rep Act 14 of 1994, s 4(a), with effect from 19 Jan 1994; insrt Act 59 of 1989, s 4(b), with effect from 19 Dec 1989]

appointed inspector has the meaning given by section 140V. [Def insrt Act 122 of 2013, s 3 and Sch 6 item 1, with effect from 30 Jun 2013]

approve [Repealed] [Def rep Act 60 of 1994, s 4(j), with effect from 1 Sep 1994; insrt Act 184 of 1992, s 4(c), with effect from 1 Sep 1994]

approved form, when used in a provision of this Act, means a form approved by the Minister in writing for the purposes of that provision. [Def insrt Act 59 of 1989, s 4(b), with effect from 19 Dec 1989]

approved sponsor means: (a) a person: (i) who has been approved by the Minister under section 140E in relation to a class prescribed by the regulations for the purpose of subsection 140E(2); and (ii) whose approval has not been cancelled under section 140M, or otherwise ceased to have effect under section 140G, in relation to that class; or (b) a person (other than a Minister) who is a party to a work agreement. Note: A partnership or an unincorporated association may be an approved sponsor: see subsections 140ZB(1) and 140ZE(1) respectively. [Def subst Act 159 of 2008, s 3 and Sch 1 item 1, with effect from 14 Sep 2009; insrt Act 99 of 2003, s 3 and Sch 1 item 1, with effect from 14 Oct 2003]

62

Migration Law

Part 1 - Preliminary (ss 1-12)

s5

Area A of the Zone of Cooperation [Repealed] [Def rep Act 10 of 2003, s 3 and Sch 1 item 54, with effect from 20 May 2002; am Act 25 of 2000, s 3 and Sch 2 item 36, with effect from 26 Oct 1999; insrt Act 37 of 1990, s 18(b), with effect from 18 Feb 1991]

area in the vicinity of the Protected Zone means an area in respect of which a notice is in force under subsection (8). [Def insrt Act 22 of 1984, s 18(a), with effect from 15 Feb 1985]

ASIO means the Australian Security Intelligence Organisation. [Def insrt Act 116 of 2014, s 3 and Sch 4 item 1, with effect from 4 Nov 2014]

ASIO Act means the Australian Security Intelligence Organisation Act 1979. [Def insrt Act 116 of 2014, s 3 and Sch 4 item 1, with effect from 4 Nov 2014]

assessed score, in relation to an applicant for a visa, means the total number of points given to the applicant in an assessment under section 93. [Def subst Act 60 of 1994, s 4(i), with effect from 1 Sep 1994; insrt Act 14 of 1994, s 4(c), with effect from 19 Jan 1994]

assessment, in relation to ASIO, has the same meaning as in subsection 35(1) of the ASIO Act. [Def insrt Act 116 of 2014, s 3 and Sch 4 item 1, with effect from 4 Nov 2014]

Australian Border Force Commissioner has the same meaning as in the Australian Border Force Act 2015. [Def insrt Act 41 of 2015, s 3 and Sch 3 item 1, with effect from 1 Jul 2015]

Australian passport means a passport issued under the Australian Passports Act 2005. [Def am Act 7 of 2005, s 3 and Sch 1 item 7, with effect from 1 Jul 2005; insrt Act 59 of 1989, s 4(b), with effect from 19 Dec 1989]

Australian resources installation means a resources installation that is deemed to be part of Australia because of the operation of section 8. [Def subst Act 104 of 1987, s 32(b), with effect from 6 Nov 1987; insrt Act 51 of 1982, s 43(a), with effect from 14 Jul 1982]

Australian seabed means so much of the seabed adjacent to Australia (other than the seabed within the Joint Petroleum Development Area) as is: (a) within the area comprising: (i) the areas described in Schedule 1 to the Offshore Petroleum and Greenhouse Gas Storage Act 2006; and (ii) the Coral Sea area; and (b) part of: (i) the continental shelf of Australia; (ii) the seabed beneath the territorial sea of Australia (including the territorial sea adjacent to any island forming part of Australia); or (iii) the seabed beneath waters of the sea that are on the landward side of the territorial sea of Australia and are not within the limits of a State or Territory. [Def am Act 117 of 2008, s 3 and Sch 3 item 19, with effect from 22 Nov 2008; Act 17 of 2006, s 3 and Sch 2 item 46, with effect from 1 Jul 2008; Act 10 of 2003, s 3 and Sch 1 item 55, with effect from 20 May 2002; Act 37 of 1990, s 18(a), with effect from 18 Feb 1991; insrt Act 51 of 1982, s 43(a), with effect from 14 Jul 1982]

Australian sea installation means a sea installation that is deemed to be part of Australia because of the operation of section 9. [Def insrt Act 104 of 1987, s 32(c), with effect from 6 Nov 1987]

© 2016 THOMSON REUTERS

63

s5

Migration Act 1958

Australian waters means: (a) in relation to a resources installation—waters above the Australian seabed; and (b) in relation to a sea installation—waters comprising all of the adjacent areas and the coastal area. [Def subst Act 104 of 1987, s 32(c), with effect from 6 Nov 1987; insrt Act 51 of 1982, s 43(a), with effect from 14 Jul 1982]

authorised officer, when used in a provision of this Act, means an officer authorised in writing by the Minister, the Secretary or the Australian Border Force Commissioner for the purposes of that provision. Note: Section 5D can affect the meaning of this term for the purposes of carrying out identification tests. [Def am Act 41 of 2015, s 3 and Sch 3 item 2, with effect from 1 Jul 2015; Act 2 of 2004, s 3 and Sch 1 item 1, with effect from 27 Aug 2004; subst Act 59 of 1989, s 4(a), with effect from 19 Dec 1989; am Act 118 of 1979, s 3, with effect from 1 Nov 1979]

authorised system, when used in a provision of this Act, means an automated system authorised in writing by the Minister or the Secretary for the purposes of that provision. [Def insrt Act 62 of 2007, s 3 and Sch 2 item 1, with effect from 1 Jul 2007]

behaviour concern non-citizen means a non-citizen who: (a) has been convicted of a crime and sentenced to death or to imprisonment, for at least one year; or (b) has been convicted of 2 or more crimes and sentenced to imprisonment, for periods that add up to at least one year if: (i) any period concurrent with part of a longer period is disregarded; and (ii) any periods not disregarded that are concurrent with each other are treated as one period; whether or not: (iii) the crimes were of the same kind; or (iv) the crimes were committed at the same time; or (v) the convictions were at the same time; or (vi) the sentencings were at the same time; or (vii) the periods were consecutive; or (c) has been charged with a crime and either: (i) found guilty of having committed the crime while of unsound mind; or (ii) acquitted on the ground that the crime was committed while the person was of unsound mind; (d) has been removed or deported from Australia or removed or deported from another country; or (e) has been excluded from another country in prescribed circumstances; where sentenced to imprisonment includes ordered to be confined in a corrective institution. [Def insrt Act 184 of 1992, s 4(c), with effect from 1 Sep 1994]

bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that: (a) purports to have been, but was not, issued in respect of the person; or (b) is counterfeit or has been altered by a person who does not have authority to do so; or

64

Migration Law

Part 1 - Preliminary (ss 1-12)

(c)

s5

was obtained because of a false or misleading statement, whether or not made knowingly.

[Def insrt Act 35 of 2015, s 3 and Sch 1 item 2, with effect from 18 Apr 2015]

bridging visa has the meaning given by section 37. [Def insrt Act 184 of 1992, s 4(c), with effect from 1 Sep 1994]

brought into physical contact has the same meaning as in the Sea Installations Act. [Def insrt Act 104 of 1987, s 32(d), with effect from 6 Nov 1987]

bypass immigration clearance has the meaning given by subsection 172(4). [Def insrt Act 184 of 1992, s 4(c), with effect from 1 Sep 1994]

certified printout means a printout certified by an authorised officer to be a printout of information kept in the movement records. [Def insrt Act 151 of 1988, s 3(2)(b), with effect from 1 Jul 1989]

character concern has the meaning given by section 5C. [Def insrt Act 2 of 2004, s 3 and Sch 1 item 2, with effect from 27 Aug 2004]

child of a person has a meaning affected by section 5CA. [Def insrt Act 144 of 2008, s 3 and Sch 10 item 13, with effect from 1 Jul 2009]

civil penalty order has the meaning given by subsection 486R(4). [Def insrt Act 10 of 2013, s 3 and Sch 1 item 1, with effect from 1 Jun 2013]

civil penalty provision means a subsection, or a section that is not divided into subsections, that has set out at its foot the words “civil penalty” and one or more amounts in penalty units. [Def insrt Act 159 of 2008, s 3 and Sch 1 item 2, with effect from 14 Sep 2009]

clearance authority has the meaning given by section 165. [Def insrt Act 62 of 2007, s 3 and Sch 2 item 2, with effect from 1 Jul 2007]

clearance officer has the meaning given by section 165. [Def insrt Act 62 of 2007, s 3 and Sch 2 item 3, with effect from 1 Jul 2007]

coastal area has the same meaning as in the Customs Act 1901. [Def insrt Act 104 of 1987, s 32(d), with effect from 6 Nov 1987]

committee of management of an unincorporated association means a body (however described) that governs, manages or conducts the affairs of the association. [Def insrt Act 159 of 2008, s 3 and Sch 1 item 3, with effect from 14 Sep 2009]

continental shelf [Repealed] [Def rep Act 46 of 2011, s 3 and Sch 2 item 761, with effect from 27 Dec 2011; subst Act 20 of 1994, s 15 and Sch 1, with effect from 1 Aug 1994; insrt Act 51 of 1982, s 43(b), with effect from 14 Jul 1982]

Convention Against Torture means the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment done at New York on 10 December 1984. Note: The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment is in Australian Treaty Series 1989 No. 21 ([1989] ATS 21) and could in 2014 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au). [Def insrt Act 135 of 2014, s 3 and Sch 5 item 1, with effect from 16 Dec 2014]

© 2016 THOMSON REUTERS

65

s5

Migration Act 1958

Coral Sea area has the same meaning as in section 7 of the Offshore Petroleum and Greenhouse Gas Storage Act 2006. [Def am Act 117 of 2008, s 3 and Sch 3 item 20, with effect from 22 Nov 2008; Act 17 of 2006, s 3 and Sch 2 item 47, with effect from 1 Jul 2008; insrt Act 51 of 1982, s 43(b), with effect from 14 Jul 1982]

Covenant means the International Covenant on Civil and Political Rights, a copy of the English text of which is set out in Schedule 2 to the Australian Human Rights Commission Act 1986. [Def insrt Act 121 of 2011, s 3 and Sch 1 item 1, with effect from 24 Mar 2012]

crime includes any offence. criminal justice visa has the meaning given by section 38. [Def insrt Act 184 of 1992, s 4(c), with effect from 1 Sep 1994]

cruel or inhuman treatment or punishment means an act or omission by which: (a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or (b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature; but does not include an act or omission: (c) that is not inconsistent with Article 7 of the Covenant; or (d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant. [Def insrt Act 121 of 2011, s 3 and Sch 1 item 2, with effect from 24 Mar 2012]

data base (except in Part 4A) means a discrete body of information stored by means of a computer. Note: Section 336A defines this term differently for the purposes of Part 4A. [Def am Act 2 of 2004, s 3 and Sch 1 items 3 and 4, with effect from 27 Aug 2004; insrt Act 151 of 1988, s 3(2)(b), with effect from 1 Jul 1989]

de facto partner has the meaning given by section 5CB. [Def insrt Act 144 of 2008, s 3 and Sch 10 item 14, with effect from 1 Jul 2009]

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission: (a) that is not inconsistent with Article 7 of the Covenant; or (b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant. [Def insrt Act 121 of 2011, s 3 and Sch 1 item 3, with effect from 24 Mar 2012]

departure prohibition order means an order under subsection 14S(1) of the Taxation Administration Act 1953. [Def insrt Act 123 of 1984, s 172, with effect from 14 Dec 1984]

deportation means deportation from Australia. deportation order means an order for the deportation of a person made under, or continued in force by, this Act. deportee means a person in respect of whom a deportation order is in force. detain means:

66

Migration Law

Part 1 - Preliminary (ss 1-12)

s5

(a) take into immigration detention; or (b) keep, or cause to be kept, in immigration detention; and includes taking such action and using such force as are reasonably necessary to do so. Note: This definition extends to persons covered by residence determinations (see section 197AC). [Def am Act 79 of 2005, s 3 and Sch 1 item 2, with effect from 29 Jun 2005; insrt Act 184 of 1992, s 4(c), with effect from 1 Sep 1994]

detainee means a person detained. Note: This definition extends to persons covered by residence determinations (see section 197AC). [Def am Act 79 of 2005, s 3 and Sch 1 item 3, with effect from 29 Jun 2005; insrt Act 184 of 1992, s 4(c), with effect from 1 Sep 1994]

diplomatic or consular representative, in relation to a country other than Australia, means a person who has been appointed to, or is the holder of, a post or position in a diplomatic or consular mission of that country in Australia, not being a person who was ordinarily resident in Australia when he or she was appointed to be a member of the mission. [Def insrt Act 59 of 1989, s 4(b), with effect from 19 Dec 1989]

eligible (a) (b) (c) (d) (e)

court means: the Federal Court; or the Federal Circuit Court; or a District, County or Local Court; or a magistrates court; or any other State or Territory court that is prescribed by the regulations.

[Def am Act 13 of 2013, s 3 and Sch 2 item 1, with effect from 12 Apr 2013; insrt Act 159 of 2008, s 3 and Sch 1 item 4, with effect from 14 Sep 2009]

enforcement visa has the meaning given by section 38A. [Def insrt Act 160 of 1999, s 3 and Sch 1 item 14, with effect from 16 Dec 1999]

enter includes re-enter. enter Australia, in relation to a person, means enter the migration zone. Note: See also section 9A, which concerns offshore resources activities. [Def am Act 117 of 2013, s 3 and Sch 1 item 1, with effect from 29 Jun 2014; insrt Act 184 of 1992, s 4(c), with effect from 1 Sep 1994]

entered includes re-entered. entry includes re-entry. entry permit [Repealed] [Def rep Act 184 of 1992, s 4(b), with effect from 1 Sep 1994; subst Act 59 of 1989, s 4(a), with effect from 19 Dec 1989; Act 151 of 1988, s 3(1), with effect from 26 Dec 1988]

entry visa [Repealed] [Def rep Act 184 of 1992, s 4(b), with effect from 1 Sep 1994; insrt Act 86 of 1991, s 3(e), with effect from 26 Dec 1991]

environment detention offence means: (a) an offence against the Environment Protection and Biodiversity Conservation Act 1999, or against regulations made for the purposes of that Act; or (b) an offence against section 6 of the Crimes Act 1914 relating to an offence described in paragraph (a). [Def insrt Act 165 of 2006, s 3 and Sch 1, with effect from 19 Feb 2007]

© 2016 THOMSON REUTERS

67

s5

Migration Act 1958

environment officer means an authorised officer, within the meaning of the Environment Protection and Biodiversity Conservation Act 1999, but does not include a person who is an authorised officer because of subsection 397(3) of that Act. [Def insrt Act 165 of 2006, s 3 and Sch 1, with effect from 19 Feb 2007]

environment related activity has the same meaning as in the Sea Installations Act. [Def insrt Act 104 of 1987, s 32(e), with effect from 6 Nov 1987]

evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist. [Def insrt Act 10 of 2013, s 3 and Sch 1 item 2, with effect from 1 Jun 2013]

offshore place means any of the following: the Territory of Christmas Island; the Territory of Ashmore and Cartier Islands; the Territory of Cocos (Keeling) Islands; any other external Territory that is prescribed by the regulations for the purposes of this paragraph; (e) any island that forms part of a State or Territory and is prescribed for the purposes of this paragraph; (f) an Australian sea installation; (g) an Australian resources installation.

excised (a) (b) (c) (d)

[Def am Act 35 of 2013, s 3 and Sch 1 item 2, with effect from 1 Jun 2013; insrt Act 127 of 2001, s 3 and Sch 1 item 1, with effect from 27 Sep 2001]

excision time, for an excised offshore place, means: (a) for the Territory of Christmas Island—2 pm on 8 September 2001 by legal time in the Australian Capital Territory; or (b) for the Territory of Ashmore and Cartier Islands—2 pm on 8 September 2001 by legal time in the Australian Capital Territory; or (c) for the Territory of Cocos (Keeling) Islands—12 noon on 17 September 2001 by legal time in the Australian Capital Territory; or (d) for any other external Territory that is prescribed by the regulations for the purposes of the definition of excised offshore place—the time when the regulations commence; or (e) for any island that forms part of a State or Territory and is prescribed by the regulations for the purposes of the definition of excised offshore place—the time when the regulations commence; or (f) for an Australian sea installation—the commencement of the Migration Amendment (Excision from Migration Zone) Act 2001; or (g) for an Australian resources installation—the commencement of the Migration Amendment (Excision from Migration Zone) Act 2001. [Def insrt Act 127 of 2001, s 3 and Sch 1 item 2, with effect from 27 Sep 2001]

ex-citizen visa has the meaning given by section 35. [Def insrt Act 60 of 1994, s 4(k), with effect from 1 Sep 1994]

excluded fast track review applicant means a fast track applicant: (a) who, in the opinion of the Minister: (i) is covered by section 91C or 91N; or

68

Migration Law

Part 1 - Preliminary (ss 1-12)

s5

(ii)

has previously entered Australia and who, while in Australia, made a claim for protection relying on a criterion mentioned in subsection 36(2) in an application that was refused or withdrawn; or (iii) has made a claim for protection in a country other than Australia that was refused by that country; or (iv) has made a claim for protection in a country other than Australia that was refused by the Office of the United Nations High Commissioner for Refugees in that country; or (vi) without reasonable explanation provides, gives or presents a bogus document to an officer of the Department or to the Minister (or causes such a document to be so provided, given or presented) in support of his or her application; or (aa) who makes a claim for protection relying on a criterion mentioned in subsection 36(2) in, or in connection with, his or her application, if, in the opinion of the Minister, the claim is manifestly unfounded because, without limiting what is a manifestly unfounded claim, the claim: (i) has no plausible or credible basis; or (ii) if the claim is based on conditions, events or circumstances in a particular country—is not able to be substantiated by any objective evidence; or (iii) is made for the sole purpose of delaying or frustrating the fast track applicant’s removal from Australia; or (b) who is, or who is included in a class of persons who are, specified by legislative instrument made under paragraph (1AA)(a). [Def insrt Act 135 of 2014, s 3 and Sch 4 item 1, with effect from 18 Apr 2015]

exempt non-citizen [Repealed] [Def rep Act 184 of 1992, s 4(b), with effect from 1 Sep 1994; insrt Act 59 of 1989, s 4(b), with effect from 19 Dec 1989]

Fair Work Inspector has the same meaning as in the Fair Work Act 2009. [Def insrt Act 122 of 2013, s 3 and Sch 6 item 1, with effect from 30 Jun 2013]

fast track applicant means: (a) a person: (i) who is an unauthorised maritime arrival and who entered Australia on or after 13 August 2012, but before 1 January 2014, and who has not been taken to a regional processing country; and (ii) to whom the Minister has given a written notice under subsection 46A(2) determining that subsection 46A(1) does not apply to an application by the person for a protection visa; and (iii) who has made a valid application for a protection visa in accordance with the determination; or (b) a person who is, or who is included in a class of persons who are, specified by legislative instrument made under paragraph (1AA)(b). Note: Some unauthorised maritime arrivals born in Australia on or after 13 August 2012 may not be fast track applicants even if paragraph (a) applies: see subsection (1AC) [Def insrt Act 135 of 2014, s 3 and Sch 4 item 1, with effect from 18 Apr 2015]

fast track decision means a decision to refuse to grant a protection visa to a fast track applicant, other than a decision to refuse to grant such a visa:

© 2016 THOMSON REUTERS

69

s5

Migration Act 1958

(a)

because the Minister or a delegate of the Minister is not satisfied that the applicant passes the character test under section 501; or (b) relying on: (i) subsection 5H(2); or (ii) subsection 36(1B) or (1C); or (iii) paragraph 36(2C)(a) or (b). Note: Some decisions made in the circumstances mentioned in paragraph (a), or subparagraph (b)(i) or (iii), of the definition of fast track decision are reviewable by the Administrative Appeals Tribunal in accordance with section 500. [Def insrt Act 135 of 2014, s 3 and Sch 4 item 1, with effect from 18 Apr 2015]

fast track reviewable decision has the meaning given by section 473BB. [Def insrt Act 135 of 2014, s 3 and Sch 4 item 1, with effect from 18 Apr 2015]

fast track review applicant means a fast track applicant who is not an excluded fast track review applicant. [Def insrt Act 135 of 2014, s 3 and Sch 4 item 1, with effect from 18 Apr 2015]

Federal Circuit Court means the Federal Circuit Court of Australia. [Def insrt Act 13 of 2013, s 3 and Sch 1 item 331, with effect from 12 Apr 2013]

Federal Court means the Federal Court of Australia. [Def insrt Act 59 of 1989, s 4(b), with effect from 19 Dec 1989]

finally determined: for when an application under this Act is finally determined, see subsections (9) and (9A). [Def insrt Act 30 of 2014, s 3 and Sch 1 item 1, with effect from 28 May 2014]

fisheries detention offence means: (a) an offence against section 99, 100, 100A, 100B, 101, 101A, 101AA, 101B, 105E, 105EA, 105H or 105I of the Fisheries Management Act 1991; or (b) an offence against section 45, 46A, 46B, 46C, 46D, 48, 49, 49A, 51 or 51A of the Torres Strait Fisheries Act 1984; or (c) an offence against section 6 of the Crimes Act 1914 relating to an offence described in paragraph (a) or (b). [Def am Act 36 of 2008, s 3 and Sch 3 item 67, with effect from 24 Jun 2009; Act 63 of 2007, s 3 and Sch 3 items 1 and 2, with effect from 15 Apr 2007; subst Act 103 of 2005, s 3 and Sch 2 item 1, with effect from 24 Aug 2005; insrt Act 160 of 1999, s 3 and Sch 1 item 15, with effect from 16 Dec 1999]

fisheries officer means an officer as defined in the Fisheries Management Act 1991 or the Torres Strait Fisheries Act 1984. [Def subst Act 103 of 2005, s 3 and Sch 2 item 2, with effect from 24 Aug 2005; insrt Act 160 of 1999, s 3 and Sch 1 item 16, with effect from 16 Dec 1999]

foreign aircraft (environment matters) means an aircraft, within the meaning of the Environment Protection and Biodiversity Conservation Act 1999, that is not an Australian aircraft (within the meaning of that Act). [Def insrt Act 165 of 2006, s 3 and Sch 1, with effect from 19 Feb 2007]

foreign boat [Repealed] [Def rep Act 16 of 2013, s 3 and Sch 4 item 1, with effect from 27 Mar 2014; insrt Act 160 of 1999, s 3 and Sch 1 item 17, with effect from 16 Dec 1999]

foreign vessel has the same meaning as in the Maritime Powers Act 2013. [Def insrt Act 16 of 2013, s 3 and Sch 4 item 2, with effect from 27 Mar 2014]

70

Migration Law

Part 1 - Preliminary (ss 1-12)

s5

health concern non-citizen means a non-citizen who is suffering from a prescribed disease or a prescribed physical or mental condition. [Def insrt Act 184 of 1992, s 4(c), with effect from 1 Sep 1994]

health criterion, in relation to a visa, means a prescribed criterion for the visa that: (a) relates to the applicant for the visa, or the members of the family unit of that applicant; and (b) deals with: (i) a prescribed disease; or (ii) a prescribed kind of disease; or (iii) a prescribed physical or mental condition; or (iv) a prescribed kind of physical or mental condition; or (v) a prescribed kind of examination; or (vi) a prescribed kind of treatment. [Def am Act 144 of 2008, s 3 and Sch 10 item 15, with effect from 1 Jul 2009; subst Act 60 of 1994, s 4(i), with effect from 1 Sep 1994; insrt Act 184 of 1992, s 4(c), with effect from 1 Sep 1994]

holder, in relation to a visa, means, subject to section 77 (visas held during visa period) the person to whom it was granted or a person included in it. [Def am Act 60 of 1994, s 4(a), with effect from 1 Sep 1994; subst Act 184 of 1992, s 4(a), with effect from 1 Sep 1994; insrt Act 151 of 1988, s 3(2)(b), with effect from 1 Jul 1989]

identification test means a test carried out in order to obtain a personal identifier. [Def insrt Act 2 of 2004, s 3 and Sch 1 item 5, with effect from 27 Aug 2004]

identity document, in relation to a member of the crew of a vessel, means: (a) an identification card, in accordance with a form approved by the Minister, in respect of the member signed by the master of the vessel; or (b) a document, of a kind approved by the Minister as an identity document for the purposes of this Act, in respect of the member. [Def insrt Act 10 of 1966, s 3(1), with effect from 6 May 1966]

immigrant [Repealed] [Def rep Act 112 of 1983, s 4(b), with effect from 2 Apr 1984]

Immigration Assessment Authority means the Authority established by section 473JA. [Def insrt Act 135 of 2014, s 3 and Sch 4 item 1, with effect from 18 Apr 2015]

immigration cleared has the meaning given by subsection 172(1). [Def insrt Act 184 of 1992, s 4(c), with effect from 1 Sep 1994]

immigration detention means: (a) being in the company of, and restrained by: (i) an officer; or (ii) in relation to a particular detainee—another person directed by the Secretary or Australian Border Force Commissioner to accompany and restrain the detainee; or (b) being held by, or on behalf of, an officer: (i) in a detention centre established under this Act; or (ii) in a prison or remand centre of the Commonwealth, a State or a Territory; or (iii) in a police station or watch house; or (iv) in relation to a non-citizen who is prevented, under section 249, from leaving a vessel—on that vessel; or

© 2016 THOMSON REUTERS

71

s5

Migration Act 1958

(v) in another place approved by the Minister in writing; but does not include being restrained as described in subsection 245F(8A), or being dealt with under paragraph 245F(9)(b). Note 1: Subsection 198AD(11) provides that being dealt with under subsection 198AD(3) does not amount to immigration detention. Note 2: This definition extends to persons covered by residence determinations (see section 197AC). [Def am Act 41 of 2015, s 3 and Sch 3 item 3, with effect from 1 Jul 2015; Act 113 of 2012, s 3 and Sch 1 item 2, with effect from 18 Aug 2012; Act 79 of 2005, s 3 and Sch 1 items 4 and 5, with effect from 29 Jun 2005; Act 128 of 2001, s 3 and Sch 1 item 1, with effect from 27 Sep 2001; Act 126 of 2001, s 3 and Sch 2 item 1, with effect from 27 Sep 2001; Act 60 of 1994, s 4(b), with effect from 1 Sep 1994; insrt Act 184 of 1992, s 4(c), with effect from 1 Sep 1994]

Immigration Review Tribunal [Repealed] [Def rep Act 113 of 1998, s 3 and Sch 2 item 1, with effect from 1 Jun 1999; insrt Act 184 of 1992, s 4(c), with effect from 1 Sep 1994]

incapable person means a person who is incapable of understanding the general nature and effect of, and purposes of, a requirement to provide a personal identifier. [Def insrt Act 2 of 2004, s 3 and Sch 1 item 6, with effect from 27 Aug 2004]

independent person means a person (other than an officer or an authorised officer) who: (a) is capable of representing the interests of a non-citizen who is providing, or is to provide, a personal identifier; and (b) as far as practicable, is acceptable to the non-citizen who is providing, or is to provide, the personal identifier; and (c) if the non-citizen is a minor—is capable of representing the minor’s best interests. [Def insrt Act 2 of 2004, s 3 and Sch 1 item 7, with effect from 27 Aug 2004]

inhabitant of the Protected Zone means a person who is a citizen of Papua New Guinea and who is a traditional inhabitant. [Def insrt Act 22 of 1984, s 18(b), with effect from 15 Feb 1985]

in immigration clearance has the meaning given by subsection 172(2). [Def insrt Act 184 of 1992, s 4(c), with effect from 1 Sep 1994]

inspector has the meaning given by section 140V. [Def insrt Act 122 of 2013, s 3 and Sch 6 item 1, with effect from 30 Jun 2013]

installation means: (a) a resources installation; or (b) a sea installation. [Def subst Act 104 of 1987, s 32(f), with effect from 6 Nov 1987; insrt Act 51 of 1982, s 43(c), with effect from 14 Jul 1982]

internally-reviewable decision [Repealed] [Def rep Act 113 of 1998, s 3 and Sch 1 item 1, with effect from 1 Jun 1999; insrt Act 184 of 1992, s 4(c), with effect from 1 Sep 1994]

IRT-reviewable decision [Repealed] [Def rep Act 113 of 1998, s 3 and Sch 1 item 2, with effect from 1 Jun 1999; insrt Act 184 of 1992, s 4(c), with effect from 1 Sep 1994]

judicially-reviewable decision [Repealed] [Def rep Act 134 of 2001, s 3 and Sch 1 item 2, with effect from 2 Oct 2001; insrt Act 184 of 1992, s 4(c), with effect from 1 Sep 1994]

72

Migration Law

Part 1 - Preliminary (ss 1-12)

s5

Joint Petroleum Development Area has the same meaning as in the Petroleum (Timor Sea Treaty) Act 2003. [Def insrt Act 10 of 2003, s 3 and Sch 1 item 56, with effect from 20 May 2002]

lawful non-citizen has the meaning given by section 13. [Def insrt Act 184 of 1992, s 4(c), with effect from 1 Sep 1994]

lawyer means: (a) a barrister; or (b) a solicitor; or (c) a barrister and solicitor; or (d) a legal practitioner; of the High Court or of the Supreme Court of a State or Territory. [Def insrt Act 159 of 2008, s 3 and Sch 1 item 5, with effect from 14 Sep 2009]

leave Australia, in relation to a person, means, subject to section 80 (leaving without going to other country), leave the migration zone. Note: See also section 9A, which concerns offshore resources activities. [Def am Act 117 of 2013, s 3 and Sch 1 item 2, with effect from 29 Jun 2014; insrt Act 184 of 1992, s 4(c), with effect from 1 Sep 1994]

maritime crew visa has the meaning given by section 38B. [Def insrt Act 73 of 2007, s 3 and Sch 1 item 1, with effect from 1 Jul 2007]

maritime officer has the same meaning as in the Maritime Powers Act 2013. [Def insrt Act 16 of 2013, s 3 and Sch 4 item 3, with effect from 27 Mar 2014]

master, in relation to a vessel, means the person in charge or command of the vessel. [Def am Act 60 of 1994, s 4(c), with effect from 1 Sep 1994; Act 51 of 1982, s 43(d), with effect from 14 Jul 1982]

member [Repealed] [Def rep Act 184 of 1992, s 4(b), with effect from 1 Sep 1994; insrt Act 59 of 1989, s 4(b), with effect from 19 Dec 1989]

member of the crew means: (a) in relation to a vessel other than an aircraft—the master of the vessel, or a person whose name is on the articles of the vessel as a member of the crew; or (b) in relation to an aircraft—the master of the aircraft, or a person employed by the operator of the aircraft and whose name is included in a list of members of the crew of the aircraft furnished by the master as prescribed. member of the family unit of a person has the meaning given by the regulations made for the purposes of this definition. [Def insrt Act 144 of 2008, s 3 and Sch 10 item 16, with effect from 1 Jul 2009]

member of the same family unit: one person is a member of the same family unit as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. [Def insrt Act 144 of 2008, s 3 and Sch 10 item 17, with effect from 1 Jul 2009]

migration (a) a (b) a (c) a

decision means: privative clause decision; or purported privative clause decision; or non-privative clause decision; or

© 2016 THOMSON REUTERS

73

s5

Migration Act 1958

(d) an AAT Act migration decision. [Def am Act 60 of 2015, s 3 and Sch 2 item 2, with effect from 1 Jul 2015; insrt Act 137 of 2005, s 3 and Sch 1 item 11, with effect from 1 Dec 2005]

Migration Review Tribunal [Repealed] [Def rep Act 60 of 2015, s 3 and Sch 2 item 3, with effect from 1 Jul 2015; insrt Act 113 of 1998, s 3 and Sch 2 item 2, with effect from 1 Jun 1999]

migration zone means the area consisting of the States, the Territories, Australian resource installations and Australian sea installations and, to avoid doubt, includes: (a) land that is part of a State or Territory at mean low water; and (b) sea within the limits of both a State or a Territory and a port; and (c) piers, or similar structures, any part of which is connected to such land or to ground under such sea; but does not include sea within the limits of a State or Territory but not in a port. Note: See also section 9A, which concerns offshore resources activities. [Def am Act 117 of 2013, s 3 and Sch 1 item 3, with effect from 29 Jun 2014; insrt Act 59 of 1993, s 22(1)(a), with effect from 1 Jul 1993]

minor means a person who is less than 18 years old. [Def insrt Act 2 of 2004, s 3 and Sch 1 item 8, with effect from 27 Aug 2004]

movement records means information stored in a notified data base. [Def insrt Act 151 of 1988, s 3(2)(b), with effect from 1 Jul 1989]

natural resources means the mineral and other non-living resources of the seabed and its subsoil. [Def insrt Act 51 of 1982, s 43(e), with effect from 14 Jul 1982]

non-citizen means a person who is not an Australian citizen. [Def insrt Act 112 of 1983, s 4(c), with effect from 2 Apr 1984]

non-disclosable information means information or matter: (a) whose disclosure would, in the Minister’s opinion, be contrary to the national interest because it would: (i) prejudice the security, defence or international relations of Australia; or (ii) involve the disclosure of deliberations or decisions of the Cabinet or of a committee of the Cabinet; or (b) whose disclosure would, in the Minister’s opinion, be contrary to the public interest for a reason which could form the basis of a claim by the Crown in right of the Commonwealth in judicial proceedings; or (c) whose disclosure would found an action by a person, other than the Commonwealth, for breach of confidence; and includes any document containing, or any record of, such information or matter. [Def am Act 60 of 1994, s 4(d) and (e), with effect from 1 Sep 1994; insrt Act 184 of 1992, s 4(c), with effect from 1 Sep 1994]

non-political crime: (a) subject to paragraph (b), means a crime where a person’s motives for committing the crime were wholly or mainly non-political in nature; and (b) includes an offence that, under paragraph (a), (b) or (c) of the definition of political offence in section 5 of the Extradition Act 1988, is not a political offence in relation to a country for the purposes of that Act. [Def am Act 7 of 2012, s 3 and Sch 4 item 1, with effect from 20 Sep 2012; insrt Act 121 of 2011, s 3 and Sch 1 item 4, with effect from 24 Mar 2012]

74

Migration Law

Part 1 - Preliminary (ss 1-12)

s5

non-privative clause decision has the meaning given by subsection 474(6). [Def insrt Act 137 of 2005, s 3 and Sch 1 item 12, with effect from 1 Dec 2005]

non-refoulement obligations includes, but is not limited to: (a) non-refoulement obligations that may arise because Australia is a party to: (i) the Refugees Convention; or (ii) the Covenant; or (iii) the Convention Against Torture; and (b) any obligations accorded by customary international law that are of a similar kind to those mentioned in paragraph (a). [Def insrt Act 135 of 2014, s 3 and Sch 5 item 1, with effect from 16 Dec 2014]

notified data base means a data base declared to be a notified data base under section 489. [Def insrt Act 151 of 1988, s 3(2)(b), with effect from 1 Jul 1989]

offence against this Act includes: (a) an offence against section 6 of the Crimes Act 1914 that relates to an offence against a provision of this Act; and (b) an ancillary offence (within the meaning of the Criminal Code) that is, or relates to, an offence against a provision of this Act. [Def subst Act 97 of 2001, s 3 and Sch 1 item 2, with effect from 19 Sep 2001; am Act 85 of 2001, s 3 and Sch 1 items 1 and 2, with effect from 27 Jul 2001; Act 137 of 2000, s 3 and Sch 2 item 276, with effect from 24 May 2001; Act 205 of 1997, s 3 and Sch 1 item 1, with effect from 21 Mar 1998; insrt Act 196 of 1991, s 2, with effect from 15 Jan 1992]

officer means: (a) an officer of the Department, other than an officer specified by the Minister in writing for the purposes of this paragraph; or (b) a person who is an officer for the purposes of the Customs Act 1901, other than such an officer specified by the Minister in writing for the purposes of this paragraph; or (c) a person who is a protective service officer for the purposes of the Australian Federal Police Act 1979, other than such a person specified by the Minister in writing for the purposes of this paragraph; or (d) a member of the Australian Federal Police or of the police force of a State or an internal Territory; or (e) a member of the police force of an external Territory; or (f) a person who is authorised in writing by the Minister to be an officer for the purposes of this Act; or (g) any person who is included in a class of persons authorised in writing by the Minister to be officers for the purposes of this Act, including a person who becomes a member of the class after the authorisation is given. [Def am Act 64 of 2004, s 3 and Sch 2 item 9, with effect from 1 Jul 2004; Act 28 of 2000, s 3 and Sch 3 item 1, with effect from 28 Apr 2000; Act 86 of 1991, s 3(c) and (d), with effect from 26 Jun 1991; subst Act 59 of 1989, s 4(a), with effect from 19 Dec 1989; am Act 49 of 1988, s 3, with effect from 1 Jul 1988; subst Act 175 of 1980, s 3(1), with effect from 14 Jan 1981; am Act 91 of 1976, s 3 and Sch, with effect from 22 Dec 1975]

offshore entry person [Repealed] [Def rep Act 35 of 2013, s 3 and Sch 1 item 3, with effect from 1 Jun 2013; am Act 113 of 2012, s 3 and Sch 1 item 3, with effect from 18 Aug 2012; insrt Act 127 of 2001, s 3 and Sch 1 item 3, with effect from 27 Sep 2001]

offshore resources activity has the meaning given by subsection 9A(5). [Def insrt Act 117 of 2013, s 3 and Sch 1 item 4, with effect from 29 Jun 2014]

© 2016 THOMSON REUTERS

75

s5

Migration Act 1958

old visa (a) (b) (c)

means a visa, document, or notation, that: permits a person to travel to Australia; and was issued before 1 September 1994; and has not been cancelled or otherwise stopped being in effect.

[Def am Act 60 of 1994, s 4(f), with effect from 1 Sep 1994; Act 59 of 1993, s 14, with effect from 1 Sep 1994; insrt Act 184 of 1992, s 4(c), with effect from 1 Sep 1994]

parent: without limiting who is a parent of a person for the purposes of this Act, someone is the parent of a person if the person is his or her child because of the definition of child in section 5CA. [Def insrt Act 144 of 2008, s 3 and Sch 10 item 18, with effect from 1 Jul 2009]

Part 5-reviewable decision: see section 338. [Def insrt Act 60 of 2015, s 3 and Sch 2 item 4, with effect from 1 Jul 2015]

Part 7-reviewable decision: see section 411. [Def insrt Act 60 of 2015, s 3 and Sch 2 item 5, with effect from 1 Jul 2015]

passport includes a document of identity issued from official sources, whether in or outside Australia, and having the characteristics of a passport, but does not include a document, which may be a document called or purporting to be a passport, that the regulations declare is not to be taken to be a passport. penalty unit [Repealed] [Def rep Act 31 of 2014, s 3 and Sch 8 item 26, with effect from 24 Jun 2014; insrt Act 159 of 2008, s 3 and Sch 1 item 6, with effect from 14 Sep 2009]

period of grace [Repealed] [Def rep Act 184 of 1992, s 4(b), with effect from 1 Sep 1994; insrt Act 59 of 1989, s 4(b), with effect from 19 Dec 1989]

permanent entry permit [Repealed] [Def rep Act 184 of 1992, s 4(b), with effect from 1 Sep 1994; insrt Act 59 of 1989, s 4(b), with effect from 19 Dec 1989]

permanent visa has the meaning given by subsection 30(1). [Def insrt Act 184 of 1992, s 4(c), with effect from 1 Sep 1994]

personal identifier has the meaning given by section 5A. [Def insrt Act 2 of 2004, s 3 and Sch 1 item 9, with effect from 27 Aug 2004]

personal information has the same meaning as in the Privacy Act 1988. [Def insrt Act 159 of 2008, s 3 and Sch 1 item 7, with effect from 14 Sep 2009]

port means: (a) a proclaimed port; or (b) a proclaimed airport. [Def subst Act 184 of 1992, s 4(a), with effect from 1 Sep 1994; am Act 104 of 1987, s 32(g), with effect from 6 Nov 1987; Act 51 of 1982, s 43(f), with effect from 14 Jul 1982]

pre-cleared flight means a flight declared under section 17 to be a pre-cleared flight. [Def insrt Act 151 of 1988, s 3(2)(b), with effect from 1 Jul 1989]

prescribed means prescribed by the regulations. [Def insrt Act 59 of 1989, s 4(b), with effect from 19 Dec 1989]

presiding member [Repealed] [Def rep Act 184 of 1992, s 4(b), with effect from 1 Sep 1994; insrt Act 59 of 1989, s 4(b), with effect from 19 Dec 1989]

76

Migration Law

Part 1 - Preliminary (ss 1-12)

s5

Principal Member [Repealed] [Def rep Act 184 of 1992, s 4(b), with effect from 1 Sep 1994; insrt Act 59 of 1989, s 4(b), with effect from 19 Dec 1989]

printout means a mechanically or electronically made reproduction of part or all of the movement records. [Def insrt Act 151 of 1988, s 3(2)(b), with effect from 1 Jul 1989]

privative clause decision has the meaning given by subsection 474(2). [Def insrt Act 134 of 2001, s 3 and Sch 1 item 3, with effect from 2 Oct 2001]

processing area [Repealed] [Def rep Act 184 of 1992, s 4(b), with effect from 1 Sep 1994; insrt Act 86 of 1991, s 3(e), with effect from 26 Dec 1991]

proclaimed airport means: (a) an airport appointed under section 15 of the Customs Act 1901; or (b) an airport appointed by the Minister under subsection (5). [Def subst Act 175 of 1980, s 3(2)(a), with effect from 23 Jan 1981; Act 89 of 1980, s 3, with effect from 1 Jul 1980]

proclaimed port means: (a) a port appointed under section 15 of the Customs Act 1901; or (b) a port appointed by the Minister under subsection (5). [Def subst Act 175 of 1980, s 3(2)(a), with effect from 23 Jan 1981; Act 89 of 1980, s 3, with effect from 1 Jul 1980]

prohibited person [Repealed] [Def rep Act 184 of 1992, s 4(b), with effect from 1 Sep 1994; insrt Act 86 of 1991, s 3(e), with effect from 26 Dec 1991]

properly endorsed valid entry permit [Repealed] [Def rep Act 184 of 1992, s 4(b), with effect from 1 Sep 1994; am Act 24 of 1992, s 7 and Sch 3, with effect from 6 Nov 1992; insrt Act 59 of 1989, s 4(b), with effect from 19 Dec 1989]

properly endorsed valid entry visa [Repealed] [Def rep Act 184 of 1992, s 4(b), with effect from 1 Sep 1994; am Act 24 of 1992, s 7 and Sch 3, with effect from 6 Nov 1992; insrt Act 59 of 1989, s 4(b) (am Act 159 of 1989), with effect from 19 Dec 1989]

protected area means an area that is: (a) part of the migration zone; and (b) in, or in an area in the vicinity of, the Protected Zone. [Def insrt Act 184 of 1992, s 4(c), with effect from 1 Sep 1994]

Protected Zone means the zone established under Article 10 of the Torres Strait Treaty, being the area bounded by the line described in Annex 9 to that treaty. [Def insrt Act 22 of 1984, s 18(c), with effect from 15 Feb 1985]

protection visa has the meaning given by section 35A. Note: Section 35A covers the following: (a) permanent protection visas (classified by the Migration Regulations 1994 as Protection (Class XA) visas when this definition commenced); (b) other protection visas formerly provided for by subsection 36(1); (ba) safe haven enterprise visas; (c) temporary protection visas (classified by the Migration Regulations 1994 as Temporary Protection (Class XD) visas when this definition commenced);

© 2016 THOMSON REUTERS

77

s5

Migration Act 1958

(d)

any additional classes of permanent or temporary visas that are prescribed as protection visas by the regulations. See also section 36 and Subdivision AL of Division 3 of Part 2. [Def am Act 135 of 2014, s 3 and Sch 2 item 13, with effect from 18 Apr 2015; insrt Act 135 of 2014, s 3 and Sch 2 item 1, with effect from 16 Dec 2014]

purported privative clause decision has the meaning given by section 5E. [Def insrt Act 137 of 2005, s 3 and Sch 1 item 13, with effect from 1 Dec 2005]

questioning detention means detention under section 192. [Def insrt Act 184 of 1992, s 4(c), with effect from 1 Sep 1994]

receiving country, in relation to a non-citizen, means: (a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or (b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country. [Def subst Act 135 of 2014, s 3 and Sch 5 item 18, with effect from 16 Dec 2014; insrt Act 121 of 2011, s 3 and Sch 1 item 5, with effect from 24 Mar 2012]

referred applicant has the meaning given by section 473BB. [Def insrt Act 135 of 2014, s 3 and Sch 4 item 1, with effect from 18 Apr 2015]

refugee has the meaning given by section 5H. [Def reinsrt Act 135 of 2014, s 3 and Sch 5 item 4, with effect from 18 Apr 2015; rep Act 184 of 1992, s 4(b), with effect from 1 Sep 1994; insrt Act 86 of 1991, s 3(e), with effect from 26 Dec 1991]

Refugee Review Tribunal [Repealed] [Def rep Act 60 of 2015, s 3 and Sch 2 item 6, with effect from 1 Jul 2015; insrt Act 59 of 1993, s 22(2), with effect from 1 Jul 1993]

Refugees Convention means the Convention relating to the Status of Refugees done at Geneva on 28 July 1951. [Def insrt Act 86 of 1991, s 3(e), with effect from 26 Dec 1991]

Refugees Protocol means the Protocol relating to the Status of Refugees done at New York on 31 January 1967. [Def insrt Act 86 of 1991, s 3(e), with effect from 26 Dec 1991]

refused immigration clearance has the meaning given by subsection 172(3). [Def insrt Act 184 of 1992, s 4(c), with effect from 1 Sep 1994]

regional processing country means a country designated by the Minister under subsection 198AB(1) as a regional processing country. [Def insrt Act 113 of 2012, s 3 and Sch 1 item 4, with effect from 18 Aug 2012]

Regulatory Powers Act means the Regulatory Powers (Standard Provisions) Act 2013. [Def insrt Act 122 of 2013, s 3 and Sch 5 item 6, with effect from 1 Oct 2014]

remain in Australia, in relation to a person, means remain in the migration zone. [Def insrt Act 184 of 1992, s 4(c), with effect from 1 Sep 1994]

remove means remove from Australia. [Def insrt Act 184 of 1992, s 4(c), with effect from 1 Sep 1994]

removee means an unlawful non-citizen removed, or to be removed, under Division 8 of Part 2. [Def insrt Act 184 of 1992, s 4(c), with effect from 1 Sep 1994]

78

Migration Law

Part 1 - Preliminary (ss 1-12)

s5

residence determination has the meaning given by subsection 197AB(1). [Def insrt Act 79 of 2005, s 3 and Sch 1 item 6, with effect from 29 Jun 2005]

resources installation means: (a) a resources industry fixed structure within the meaning of subsection (10); or (b) a resources industry mobile unit within the meaning of subsection (11). [Def insrt Act 104 of 1987, s 32(h), with effect from 6 Nov 1987]

return endorsement [Repealed] [Def rep Act 141 of 1987, s 3 and Sch 1, with effect from 1 Jan 1988; insrt Act 117 of 1979, s 3(2)(a), with effect from 1 Nov 1979]

reviewable decision [Repealed] [Def rep Act 184 of 1992, s 4(b), with effect from 1 Sep 1994; insrt Act 59 of 1989, s 4(b), with effect from 19 Dec 1989]

review authority [Repealed] [Def rep Act 184 of 1992, s 4(b), with effect from 1 Sep 1994; insrt Act 59 of 1989, s 4(b), with effect from 19 Dec 1989]

review officer [Repealed] [Def rep Act 184 of 1992, s 4(b), with effect from 1 Sep 1994; insrt Act 59 of 1989, s 4(b), with effect from 19 Dec 1989]

review under Part 3 [Repealed] [Def rep Act 184 of 1992, s 4(b), with effect from 1 Sep 1994; insrt Act 59 of 1989, s 4(b), with effect from 19 Dec 1989]

RRT-reviewable decision [Repealed] [Def rep Act 60 of 2015, s 3 and Sch 2 item 7, with effect from 1 Jul 2015; insrt Act 59 of 1993, s 22(2), with effect from 1 Jul 1993]

score, in relation to a visa applicant, means the total number of points given to the applicant under section 93 in the most recent assessment or re-assessment under Subdivision B of Division 3 of Part 2. [Def rep Act 14 of 1994, s 4(a), with effect from 19 Jan 1994; subst Act 184 of 1992, s 4(a), with effect from 1 Sep 1994; insrt Act 59 of 1989, s 4(b), with effect from 19 Dec 1989]

sea installation has the same meaning as in the Sea Installations Act. [Def insrt Act 104 of 1987, s 32(j), with effect from 6 Nov 1987]

Sea Installations Act means the Sea Installations Act 1987. [Def insrt Act 104 of 1987, s 32(j), with effect from 6 Nov 1987]

Secretary means the Secretary of the Department. [Def am Act 5 of 2011, s 3 and Sch 7 item 94, with effect from 19 Apr 2011; insrt Act 59 of 1989, s 4(b), with effect from 19 Dec 1989]

section 20 notice [Repealed] [Def rep Act 184 of 1992, s 4(b), with effect from 1 Sep 1994; insrt Act 59 of 1989, s 4(b), with effect from 19 Dec 1989]

Senior Member [Repealed] [Def rep Act 184 of 1992, s 4(b), with effect from 1 Sep 1994; insrt Act 59 of 1989, s 4(b), with effect from 19 Dec 1989]

serious Australian offence means an offence against a law in force in Australia, where: (a) the offence: (i) involves violence against a person; or (ii) is a serious drug offence; or

© 2016 THOMSON REUTERS

79

s5

Migration Act 1958

(iii) involves serious damage to property; or (iv) is an offence against section 197A or 197B (offences relating to immigration detention); and (b) the offence is punishable by: (i) imprisonment for life; or (ii) imprisonment for a fixed term of not less than 3 years; or (iii) imprisonment for a maximum term of not less than 3 years. [Def insrt Act 121 of 2011, s 3 and Sch 1 item 6, with effect from 24 Mar 2012]

serious foreign offence means an offence against a law in force in a foreign country, where: (a) the offence: (i) involves violence against a person; or (ii) is a serious drug offence; or (iii) involves serious damage to property; and (b) if it were assumed that the act or omission constituting the offence had taken place in the Australian Capital Territory, the act or omission would have constituted an offence (the Territory offence) against a law in force in that Territory, and the Territory offence would have been punishable by: (i) imprisonment for life; or (ii) imprisonment for a fixed term of not less than 3 years; or (iii) imprisonment for a maximum term of not less than 3 years. [Def insrt Act 121 of 2011, s 3 and Sch 1 item 7, with effect from 24 Mar 2012]

significant harm means harm of a kind mentioned in subsection 36(2A). [Def insrt Act 121 of 2011, s 3 and Sch 1 item 8, with effect from 24 Mar 2012]

special category visa has the meaning given by section 32. [Def insrt Act 184 of 1992, s 4(c), with effect from 1 Sep 1994]

special purpose visa has the meaning given by section 33. [Def insrt Act 60 of 1994, s 4(k), with effect from 1 Sep 1994]

spouse has the meaning given by section 5F. [Def insrt Act 144 of 2008, s 3 and Sch 10 item 19, with effect from 1 Jul 2009]

statutory visitor [Repealed] [Def rep Act 184 of 1992, s 4(b), with effect from 1 Sep 1994; insrt Act 86 of 1987, s 3 and Sch, with effect from 5 Jun 1987]

stowaway [Repealed] [Def rep Act 184 of 1992, s 4(b), with effect from 1 Sep 1994]

student visa has the meaning given by the regulations. [Def insrt Act 168 of 2000, s 3 and Sch 2 item 1, with effect from 1 Mar 2001]

substantive visa means a visa other than: (a) a bridging visa; or (b) a criminal justice visa; or (c) an enforcement visa. [Def subst Act 160 of 1999, s 3 and Sch 1 item 18, with effect from 16 Dec 1999; insrt Act 184 of 1992, s 4(c), with effect from 1 Sep 1994]

80

Migration Law

Part 1 - Preliminary (ss 1-12)

s5

temporary entry permit [Repealed] [Def rep Act 184 of 1992, s 4(b), with effect from 1 Sep 1994; subst Act 59 of 1989, s 4(a), with effect from 19 Dec 1989]

temporary visa has the meaning given by subsection 30(2). [Def insrt Act 184 of 1992, s 4(c), with effect from 1 Sep 1994]

Territory means: (a) an internal Territory; or (b) an external Territory to which this Act extends. [Def am Act 60 of 1994, s 4(g), with effect from 1 Sep 1994; subst Act 168 of 1986, s 3 and Sch 1, with effect from 11 May 1987; Act 175 of 1980, s 3(2)(b), with effect from 23 Jan 1981; am Act 216 of 1973, s 3 and Sch 1, with effect from 31 Dec 1973]

the holder [Repealed] [Def rep Act 151 of 1988, s 3(2)(a), with effect from 1 Jul 1989]

ticket includes a travel document in respect of the conveyance of a person from one place to another place. [Def insrt Act 117 of 1979, s 3(1), with effect from 29 Oct 1979]

Torres Strait Treaty means the Treaty between Australia and the Independent State of Papua New Guinea that was signed at Sydney on 18 December 1978. [Def insrt Act 22 of 1984, s 18(d), with effect from 15 Feb 1985]

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person: (a) for the purpose of obtaining from the person or from a third person information or a confession; or (b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or (c) for the purpose of intimidating or coercing the person or a third person; or (d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or (e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant; but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant. [Def insrt Act 121 of 2011, s 3 and Sch 1 item 9, with effect from 24 Mar 2012]

traditional activities has the same meaning as in the Torres Strait Treaty. [Def insrt Act 22 of 1984, s 18(d), with effect from 15 Feb 1985]

traditional inhabitants has the same meaning as in the Torres Strait Fisheries Act 1984. [Def insrt Act 22 of 1984, s 18(d), with effect from 15 Feb 1985]

transitory person means: (a) a person who was taken to another country under repealed section 198A; or (aa) a person who was taken to a regional processing country under section 198AD; or (b) a person who was taken to a place outside Australia under paragraph 245F(9)(b) of this Act, or under Division 7 or 8 of Part 3 of the Maritime Powers Act 2013; or (c) a person who, while a non-citizen and during the period from 27 August 2001 to 6 October 2001:

© 2016 THOMSON REUTERS

81

s5

Migration Act 1958

(i)

was transferred to the ship HMAS Manoora from the ship Aceng or the ship MV Tampa; and (ii) was then taken by HMAS Manoora to another country; and (iii) disembarked in that other country; or (d) the child of a transitory person mentioned in paragraph (aa) or (b), if: (i) the child was born in a regional processing country to which the parent was taken as mentioned in the relevant paragraph; and (ii) the child was not an Australian citizen at the time of birth; or (e) the child of a transitory person mentioned in paragraph (aa) or (b), if: (i) the child was born in the migration zone; and (ii) the child was not an Australian citizen at the time of birth. Note 1: For who is a child, see section 5CA. Note 2: A transitory person who entered Australia by sea before being taken to a place outside Australia may also be an unauthorised maritime arrival: see section 5AA. Note 3: Paragraphs (d) and (e) apply no matter when the child was born, whether before, on or after the commencement of those paragraphs. See the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014. [Def am Act 135 of 2014, s 3 and Sch 6 item 1, with effect from 16 Dec 2014; Act 135 of 2014, s 3 and Sch 1 item 36, with effect from 16 Dec 2014; Act 35 of 2013, s 3 and Sch 1 items 4–6, with effect from 1 Jun 2013; Act 16 of 2013, s 3 and Sch 4 item 4, with effect from 27 Mar 2014; Act 113 of 2012, s 3 and Sch 1 items 5 and 6, with effect from 18 Aug 2012; insrt Act 10 of 2002, s 3 and Sch 1 item 1, with effect from 12 Apr 2002]

travel-only visa [Repealed] [Def rep Act 184 of 1992, s 4(b), with effect from 1 Sep 1994; insrt Act 86 of 1991, s 3(e), with effect from 26 Dec 1991]

Tribunal means the Administrative Appeals Tribunal. [Def reinsrt Act 60 of 2015, s 3 and Sch 2 item 8, with effect from 1 Jul 2015; rep Act 184 of 1992, s 4(b), with effect from 1 Sep 1994; insrt Act 59 of 1989, s 4(b), with effect from 19 Dec 1989]

unauthorised maritime arrival has the meaning given by section 5AA. [Def insrt Act 35 of 2013, s 3 and Sch 1 item 7, with effect from 1 Jun 2013]

unlawful non-citizen has the meaning given by section 14. [Def insrt Act 184 of 1992, s 4(c), with effect from 1 Sep 1994]

unprocessed person [Repealed] [Def rep Act 184 of 1992, s 4(b), with effect from 1 Sep 1994; insrt Act 86 of 1991, s 3(e), with effect from 26 Dec 1991]

valid entry permit [Repealed] [Def rep Act 184 of 1992, s 4(b), with effect from 1 Sep 1994; insrt Act 59 of 1989, s 4(b) (am Act 159 of 1989), with effect from 19 Dec 1989]

valid permanent entry permit [Repealed] [Def insrt Act 59 of 1989, s 4(b), with effect from 19 Dec 1989]

valid temporary entry permit [Repealed] [Def rep Act 184 of 1992, s 4(b), with effect from 1 Sep 1994; insrt Act 59 of 1989, s 4(b), with effect from 19 Dec 1989]

valid visa [Repealed] [Def rep Act 184 of 1992, s 4(b), with effect from 1 Sep 1994; subst Act 86 of 1991, s 3(a), with effect from 26 Dec 1991; insrt Act 59 of 1989, s 4(b), with effect from 19 Dec 1989]

vessel includes an aircraft or an installation. [Def am Act 60 of 1994, s 4(h), with effect from 1 Sep 1994]

82

Migration Law

Part 1 - Preliminary (ss 1-12)

s5

vessel (environment matters) means a vessel, within the meaning of the Environment Protection and Biodiversity Conservation Act 1999. [Def insrt Act 165 of 2006, s 3 and Sch 1, with effect from 19 Feb 2007]

visa has the meaning given by section 29 and includes an old visa. [Def subst Act 184 of 1992, s 4(a), with effect from 1 Sep 1994; Act 86 of 1991, s 3(b), with effect from 26 Dec 1991; Act 59 of 1989, s 4(a), with effect from 19 Dec 1989; am Act 86 of 1987, s 3 and Sch, with effect from 5 Jun 1987; insrt Act 117 of 1979, s 3(2)(b), with effect from 1 Nov 1979]

visa [Repealed] [Def rep Act 60 of 1994, s 4(j), with effect from 1 Sep 1994; insrt Act 184 of 1992, s 4(c), with effect from 1 Sep 1994]

visa applicant means an applicant for a visa and, in relation to a visa, means the applicant for the visa. [Def insrt Act 184 of 1992, s 4(c), with effect from 1 Sep 1994]

visa application charge means the charge payable under section 45A. [Def insrt Act 27 of 1997, s 3 and Sch 1 item 20, with effect from 1 May 1997]

visa application charge limit is the amount determined under the Migration (Visa Application) Charge Act 1997. [Def am Act 5 of 2003, s 3 and Sch 1 item 1, with effect from 20 Mar 2003; insrt Act 27 of 1997, s 3 and Sch 1 item 20, with effect from 1 May 1997]

visa evidence charge [Repealed] [Def rep Act 34 of 2016, s 3 and Sch 1 item 2, with effect from 24 Mar 2016; insrt Act 125 of 2012, s 3 and Sch 1 item 1, with effect from 24 Nov 2012]

visa evidence charge limit [Repealed] [Def rep Act 34 of 2016, s 3 and Sch 1 item 2, with effect from 24 Mar 2016; insrt Act 125 of 2012, s 3 and Sch 1 item 2, with effect from 24 Nov 2012]

visa holder means the holder of a visa and, in relation to a visa, means the holder of the visa. [Def insrt Act 184 of 1992, s 4(c), with effect from 1 Sep 1994]

visa period, in relation to a visa, means the period: (a) beginning when the visa is granted; and (b) ending: (i) in the case of a visa other than a bridging visa—when the visa ceases to be in effect; or (ii) in the case of a bridging visa—when the visa ceases to be in effect otherwise than under subsection 82(3). [Def insrt Act 60 of 1994, s 4(k), with effect from 1 Sep 1994]

visa tax [Repealed] [Def rep Act 100 of 1995, s 3 and Sch 1 item 2, with effect from 1 Sep 1994; insrt Act 184 of 1992, s 4(c), with effect from 1 Sep 1994]

well-founded fear of persecution has the meaning given by section 5J. [Def insrt Act 135 of 2014, s 3 and Sch 5 item 4, with effect from 18 Apr 2015]

work agreement means an agreement that satisfies the requirements prescribed by the regulations for the purposes of this definition. [Def insrt Act 159 of 2008, s 3 and Sch 1 item 8, with effect from 14 Sep 2009]

© 2016 THOMSON REUTERS

83

s5

Migration Act 1958

working day, in relation to a place, means any day that is not a Saturday, a Sunday or a public holiday in that place. [Def insrt Act 59 of 1989, s 4(b), with effect from 19 Dec 1989]

work-related condition means a condition: (a) prohibiting the holder of a visa from working in Australia; or (b) restricting the work that the holder of a visa may do in Australia. [Def insrt Act 10 of 2013, s 3 and Sch 1 item 3, with effect from 1 Jun 2013] [Subs (1) am Act 165 of 2006, s 3 and Sch 1, with effect from 19 Feb 2007]

(1AA) The Minister may make a legislative instrument for the purposes of the following provisions: (a) paragraph (b) of the definition of excluded fast track review applicant in subsection (1); (b) paragraph (b) of the definition of fast track applicant in subsection (1). [Subs (1AA) insrt Act 135 of 2014, s 3 and Sch 4 item 2, with effect from 18 Apr 2015]

(1AB) A legislative instrument made under subsection (1AA) may apply, adopt or incorporate, with or without modification, the provisions of any other legislative instrument, whether or not the other legislative instrument is disallowable, as in force at a particular time or as in force from time to time. [Subs (1AB) insrt Act 135 of 2014, s 3 and Sch 4 item 2, with effect from 18 Apr 2015]

(1AC) A person is not a fast track applicant only because of paragraph (a) of the definition of fast track applicant in subsection (1) if: (a) the person is born in Australia on or after 13 August 2012; and (b) the person is the child of an unauthorised maritime arrival who entered Australia before 13 August 2012. [Subs (1AC) insrt Act 135 of 2014, s 3 and Sch 4 item 2, with effect from 18 Apr 2015]

(1AD) Despite subsection 44(2) of the Legislative Instruments Act 2003, section 42 (disallowance) of that Act applies to an instrument made under subsection (1AA). [Subs (1AD) insrt Act 135 of 2014, s 3 and Sch 4 item 2, with effect from 18 Apr 2015]

(1A) The Minister has power to give authorisations as provided by paragraphs (f) and (g) of the definition of “officer” in subsection (1) and, if such an authorisation is given: (a) the Minister is to cause notice of the authorisation to be published in the Gazette; but (b) without affecting the obligation of the Minister to cause a notice to be so published: (i) the authorisation takes effect when it is given; and (ii) the validity of the authorisation is not affected if such a notice is not published. [Subs (1A) insrt Act 28 of 2000, s 3 and Sch 3 item 2, with effect from 28 Apr 2000]

(1B) The Minister or the Secretary has the power to give authorisations as provided by the definition of authorised system. [Subs (1B) insrt Act 62 of 2007, s 3 and Sch 2 item 4, with effect from 1 Jul 2007]

(2) For the purposes of this Act, a person has functional English at a particular time if: (a) the person passes a test that: (i) is approved in writing by the Minister for the purposes of this subsection; and

84

Migration Law

Part 1 - Preliminary (ss 1-12)

s5

(ii)

is conducted by a person, or organisation, approved for the purposes of this subsection by the Minister by notice in the Gazette; or (b) the person provides the Minister with prescribed evidence of the person’s English language proficiency. (3) Any power that may be exercised by an authorized officer or by an officer under this Act may also be exercised by the Minister. (4) Where, in any provision of this Act, reference is made to the exercise of a power by an authorized officer or by an officer and that power is a power which, by virtue of subsection (3), may also be exercised by the Minister, that reference shall be construed as including a reference to the exercise of that power by the Minister. (4A) [Repealed] [Subs (4A) rep Act 115 of 2015, s 3 and Sch 1 item 2, with effect from 16 Feb 2016; insrt Act 2 of 2004, s 3 and Sch 1 item 10, with effect from 27 Aug 2004]

(5) The Minister may, by notice published in the Gazette: (a) appoint ports in an external Territory to which this Act extends as proclaimed ports for the purposes of this Act and fix the limits of those ports; and (b) appoint airports in an external Territory to which this Act extends as proclaimed airports for the purposes of this Act and fix the limits of those airports. (6) For the purposes of this Act, where a resources installation that has been brought into Australian waters from a place outside the outer limits of Australian waters becomes attached to the Australian seabed: (a) the installation shall be deemed to have entered Australia at the time when it becomes so attached; (b) any person on board the installation at the time when it becomes so attached shall be deemed to have travelled to Australia on board that installation, to have entered Australia at that time and to have been brought into Australia at that time. (7) For the purposes of this Act, where a sea installation that has been brought into Australian waters from a place outside the outer limits of Australian waters is installed in an adjacent area or in a coastal area: (a) the installation shall be deemed to have entered Australia at the time that it becomes so installed; and (b) any person on board the installation at the time that it becomes so installed shall be deemed to have travelled to Australia on board that installation, to have entered Australia at that time and to have been brought into Australia at that time. (8) The Minister may, by notice published in the Gazette, declare an area adjacent to the Protected Zone and to the south of the line described in Annex 5 to the Torres Strait Treaty to be an area in the vicinity of the Protected Zone for the purposes of this Act. (9) For the purposes of this Act, subject to subsection (9A), an application under this Act is finally determined when: (a) a decision that has been made in respect of the application is not, or is no longer, subject to any form of review under Part 5 or 7; or (b) a decision that has been made in respect of the application was subject to some form of review under Part 5 or 7, but the period within which such a review could be instituted has ended without a review having been instituted as prescribed; or

© 2016 THOMSON REUTERS

85

s5

Migration Act 1958

(c)

in relation to an application for a protection visa by an excluded fast track review applicant—a decision has been made in respect of the application.

[Subs (9) am Act 35 of 2015, s 3 and Sch 4 item 1, with effect from 18 Apr 2015; Act 135 of 2014, s 3 and Sch 4 items 3 and 4, with effect from 18 Apr 2015; Act 30 of 2014, s 3 and Sch 1 item 2, with effect from 28 May 2014]

(9A) If a review of a decision that has been made in respect of an application under this Act is instituted under Part 5, 7 or 7AA as prescribed, the application is finally determined when a decision on the review in respect of the application is taken to have been made as provided by any of the following provisions: (a) subsection 368(2) (written decisions about Part 5-reviewable decisions); (b) subsection 368D(1) (oral decisions about Part 5-reviewable decisions); (c) subsection 430(2) (written decisions about Part 7-reviewable decisions); (d) subsection 430D(1) (oral decisions about Part 7-reviewable decisions). (e) subsection 473EA(2) (Immigration Assessment Authority decisions). [Subs (9A) am Act 60 of 2015, s 3 and Sch 2 item 9, with effect from 1 Jul 2015; Act 35 of 2015, s 3 and Sch 4 item 2, with effect from 18 Apr 2015; Act 135 of 2014, s 3 and Sch 4 items 5 and 6, with effect from 18 Apr 2015; insrt Act 30 of 2014, s 3 and Sch 1 item 3, with effect from 28 May 2014]

(9B) However, subsection (9A) does not apply in relation to the following decisions: (a) a decision of the Tribunal to remit a Part 5-reviewable decision under paragraph 349(2)(c); (b) a decision of the Tribunal to remit a Part 7-reviewable decision under paragraph 415(2)(c); (c) a decision of the Immigration Assessment Authority under paragraph 473CC(2)(b). [Subs (9B) am Act 60 of 2015, s 3 and Sch 2 items 10 and 11, with effect from 1 Jul 2015; Act 135 of 2014, s 3 and Sch 4 items 7 and 8, with effect from 18 Apr 2015; insrt Act 30 of 2014, s 3 and Sch 1 item 3, with effect from 28 May 2014]

(10) A reference in this Act to a resources industry fixed structure shall be read as a reference to a structure (including a pipeline) that: (a) is not able to move or be moved as an entity from one place to another; and (b) is used or is to be used off-shore in, or in any operations or activities associated with, or incidental to, exploring or exploiting natural resources. (11) A reference in this Act to a resources industry mobile unit shall be read as a reference to: (a) a vessel that is used or is to be used wholly or principally in: (i) exploring or exploiting natural resources by drilling the seabed or its subsoil with equipment on or forming part of the vessel or by obtaining substantial quantities of material from the seabed or its subsoil with equipment of that kind; or (ii) operations or activities associated with, or incidental to, activities of the kind referred to in subparagraph (i); or (b) a structure (not being a vessel) that: (i) is able to float or be floated; (ii) is able to move or be moved as an entity from one place to another; and (iii) is used or is to be used off-shore wholly or principally in: (A) exploring or exploiting natural resources by drilling the seabed or its subsoil with equipment on or forming part of the structure or by obtaining substantial quantities of material from the seabed or its subsoil with equipment of that kind; or

86

Migration Law

Part 1 - Preliminary (ss 1-12)

s5

(B) operations or activities associated with, or incidental to, activities of the kind referred to in sub-subparagraph (A). (12) A vessel of a kind referred to in paragraph (11)(a) or a structure of a kind referred to in paragraph (11)(b) shall not be taken not to be a resources industry mobile unit by reason only that the vessel or structure is also used or to be used in, or in any operations or activities associated with, or incidental to, exploring or exploiting resources other than natural resources. (13) The reference in subparagraph (11)(a)(ii) to a vessel that is used or is to be used wholly or principally in operations or activities associated with, or incidental to, activities of the kind referred to in subparagraph (11)(a)(i) shall be read as not including a reference to a vessel that is used or is to be used wholly or principally in: (a) transporting persons or goods to or from a resources installation; or (b) manoeuvring a resources installation, or in operations relating to the attachment of a resources installation to the Australian seabed. (14) A resources installation shall be taken to be attached to the Australian seabed if: (a) the installation: (i) is in physical contact with, or is brought into physical contact with, a part of the Australian seabed; and (ii) is used or is to be used, at that part of the Australian seabed, wholly or principally in or in any operations or activities associated with, or incidental to, exploring or exploiting natural resources; or (b) the installation: (i) is in physical contact with, or is brought into physical contact with, another resources installation that is taken to be attached to the Australian seabed by virtue of the operation of paragraph (a); and (ii) is used or is to be used, at the place where it is brought into physical contact with the other installation, wholly or principally in or in any operations or activities associated with, or incidental to, exploring or exploiting natural resources. (15) Subject to subsection (17), for the purposes of this Act, a sea installation shall be taken to be installed in an adjacent area if: (a) the installation is in, or is brought into, physical contact with a part of the seabed in the adjacent area; or (b) the installation is in, or is brought into, physical contact with another sea installation that is to be taken to be installed in the adjacent area because of paragraph (a). (16) For the purposes of this Act, a sea installation shall be taken to be installed in an adjacent area at a particular time if the whole or part of the installation: (a) is in that adjacent area at that time; and (b) has been in a particular locality: (i) that is circular and has a radius of 20 nautical miles; and (ii) the whole or part of which is in that adjacent area; for: (iii) a continuous period, of at least 30 days, that immediately precedes that time; or (iv) one or more periods, during the 60 days that immediately precede that time, that in sum amount to at least 40 days. (17) Where a sea installation, being a ship or an aircraft:

© 2016 THOMSON REUTERS

87

s5

Migration Act 1958

(a) is brought into physical contact with a part of the seabed in an adjacent area; or (b) is in, or is brought into, physical contact with another sea installation that is to be taken to be installed in an adjacent area; for less than: (c) in the case of a ship, or an aircraft, registered under the law of a foreign country—30 days; or (d) in any other case—5 days; it shall not be taken to be installed in that adjacent area under subsection (15). (18) A sea installation shall not be taken to be installed in an adjacent area for the purposes of this Act unless it is to be taken to be so installed under this section. (19) Subject to subsection (21), for the purposes of this Act, a sea installation shall be taken to be installed in a coastal area if: (a) the installation is in, or is brought into, physical contact with a part of the seabed in the coastal area; or (b) the installation is in, or is brought into, physical contact with another sea installation that is to be taken to be installed in the coastal area because of paragraph (a). (20) For the purposes of this Act, a sea installation (other than an installation installed in an adjacent area) shall be taken to be installed at a particular time in a coastal area if the whole or part of the installation: (a) is in that coastal area at that time; and (b) has been in a particular locality: (i) that is circular and has a radius of 20 nautical miles; and (ii) the whole or part of which is in that coastal area; for: (iii) a continuous period, of at least 30 days, that immediately precedes that time; or (iv) one or more periods, during the 60 days that immediately precede that time, that in sum amount to at least 40 days. (21) Where a sea installation, being a ship or an aircraft: (a) is brought into physical contact with a part of the seabed in a coastal area; or (b) is in, or is brought into, physical contact with another sea installation that is to be taken to be installed in a coastal area; for less than: (c) in the case of a ship, or an aircraft, registered under the law of a foreign country—30 days; or (d) in any other case—5 days; it shall not be taken to be installed in that coastal area under subsection (19). (22) A sea installation shall not be taken to be installed in a coastal area for the purposes of this Act unless it is to be taken to be so installed under this section.

88

Migration Law

[5AAA.20]

Part 1 - Preliminary (ss 1-12)

s 5AAA

(23) To avoid doubt, in this Act is taken, when followed by the infinitive form of a verb, has the same force and effect as is deemed when followed by the infinitive form of that verb. [S 5 am Act 34 of 2016; Act 115 of 2015; Act 60 of 2015; Act 41 of 2015; Act 35 of 2015; Act 135 of 2014; Act 116 of 2014; Act 31 of 2014; Act 30 of 2014; Act 122 of 2013; Act 117 of 2013; Act 35 of 2013; Act 16 of 2013; Act 13 of 2013; Act 10 of 2013; Act 125 of 2012; Act 113 of 2012; Act 7 of 2012; Act 121 of 2011; Act 46 of 2011; Act 5 of 2011; Act 159 of 2008; Act 144 of 2008; Act 117 of 2008; Act 36 of 2008; Act 73 of 2007; Act 63 of 2007; Act 62 of 2007; Act 165 of 2006; Act 17 of 2006; Act 137 of 2005; Act 103 of 2005; Act 79 of 2005; Act 7 of 2005; Act 64 of 2004; Act 2 of 2004; Act 99 of 2003; Act 10 of 2003; Act 5 of 2003; Act 10 of 2002; Act 134 of 2001; Act 128 of 2001; Act 127 of 2001; Act 126 of 2001; Act 97 of 2001; Act 85 of 2001; Act 168 of 2000; Act 137 of 2000; Act 28 of 2000; Act 25 of 2000; Act 160 of 1999; Act 113 of 1998; Act 205 of 1997; Act 27 of 1997; Act 100 of 1995; Act 60 of 1994; Act 20 of 1994; Act 14 of 1994; Act 59 of 1993; Act 184 of 1992; Act 176 of 1992; Act 84 of 1992; Act 24 of 1992; Act 196 of 1991; Act 86 of 1991; Act 70 of 1991; Act 37 of 1990; Act 59 of 1989; Act 151 of 1988; Act 49 of 1988; Act 38 of 1988; Act 141 of 1987; Act 104 of 1987; Act 86 of 1987; Act 168 of 1986; Act 123 of 1984; Act 22 of 1984; Act 112 of 1983; Act 51 of 1982; Act 175 of 1980; Act 89 of 1980; Act 118 of 1979; Act 117 of 1979; Act 91 of 1976; Act 216 of 1973; Act 10 of 1966 Cross-reference: Legislative Instruments: IMMI 15/004 — Migration Regulations 1994 – Specification of Evidence of Functional English Language Proficiency 2015: This Instrument specifies the qualifications or experience necessary for the purposes of providing evidence of English language proficiency. This includes specifying educational experience and results obtained as a consequence of sitting specific English language tests including the International English Language Testing System (IELTS) test.]

5AAA Non-citizen’s responsibility in relation to protection claims (1) This section applies in relation to a non-citizen who claims to be a person in respect of whom Australia has protection obligations (however arising). (2) For the purposes of this Act, it is the responsibility of the non-citizen to specify all particulars of his or her claim to be such a person and to provide sufficient evidence to establish the claim. (3) The purposes of this Act include: (a) the purposes of a regulation or other instrument under this Act; and (b) the purposes of any administrative process that occurs in relation to: (i) this Act; or (ii) a regulation or instrument under this Act. (4) To remove doubt, the Minister does not have any responsibility or obligation to: (a) specify, or assist in specifying, any particulars of the non-citizen’s claim; or (b) establish, or assist in establishing, the claim. [S 5AAA insrt Act 35 of 2015, s 3 and Sch 1 item 1, with effect from 14 Apr 2015]

SECTION 5AAA COMMENTARY Scope ............................................................................................................................................... [5AAA.20] Practice point .................................................................................................................................. [5AAA.40]

[5AAA.20] Scope This provision was inserted by the Migration Amendment (Protection and Other Measures) Act 2015 (Cth), which commenced on 13 April 2015. The Explanatory Memorandum provides that the purpose of the provision is to “make clear that it is an asylum seeker’s responsibility to specify the particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish their claim”: p 1. For the avoidance of doubt, it is also made clear that “the Minister does not have any responsibility to make a case for protection on behalf of that asylum seeker”: p 7.

© 2016 THOMSON REUTERS

89

s 5AA

Migration Act 1958

[5AAA.40]

This provision has not yet been the subject of any judicial consideration. However, given the wording of the section, and subject to any subsequent consideration to the contrary, it is likely that this section will be found to be consistent with existing case law which provides: • that it is for the applicant to make out his or her own case: Abebe v Commonwealth of Australia (1999) 197 CLR 510; 55 ALD 1; 162 ALR 1; 73 ALJR 584; 7 Leg Rep 2; [1999] HCA 14 at [187] per Gummow and Hayne JJ; and • that a decision maker is only required to consider claims that are expressly made by an applicant or that clearly arise on the material before the decision maker: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; 219 ALR 27; [2004] FCAFC 263 (NABE) at [58], [60] – [61] per Black CJ, French and Selway JJ [5AAA.40] Practice point Section 5AAA applies to: • an application for a protection visa which was made: • on or after 13 April 2015; or • before 13 April 2015, but which have not yet been finally determined; and • an administrative processes which started: • on or after 13 April 2015; or • before 13 April 2015, but which have not yet been finally determined: s 15 of the Migration Amendment (Protection and Other Measures) Act 2015 (Cth). Section 5AAA supports s 423A (which came into effect on 18 April 2015), which provides that the Tribunal is to draw adverse credibility inferences where an applicant raises new claims and/or evidence in particular circumstances: Explanatory Memorandum to the Migration Amendment (Protection and Other Measures) Act 2015 ((Cth)) at [74]. 5AA Meaning of unauthorised maritime arrival (1) For the purposes of this Act, a person is an unauthorised maritime arrival if: (a) the person entered Australia by sea: (i) at an excised offshore place at any time after the excision time for that place; or (ii) at any other place at any time on or after the commencement of this section; and (b) the person became an unlawful non-citizen because of that entry; and (c) the person is not an excluded maritime arrival. (1A) For the purposes of this Act, a person is also an unauthorised maritime arrival if: (a) the person is born in the migration zone; and (b) a parent of the person is, at the time of the person’s birth, an unauthorised maritime arrival because of subsection (1) (no matter where that parent is at the time of the birth); and (c) the person is not an Australian citizen at the time of birth. Note 1: For who is a parent of a person, see the definition in subsection 5(1) and section 5CA. Note 2: A parent of the person may be an unauthorised maritime arrival even if the parent holds, or has held, a visa. Note 3: A person to whom this subsection applies is an unauthorised maritime arrival even if the person is taken to have been granted a visa because of section 78 (which deals with the birth in Australia of non-citizens).

90

Migration Law

Part 1 - Preliminary (ss 1-12)

s 5AA

Note 4: For when a person is an Australian citizen at the time of his or her birth, see section 12 of the Australian Citizenship Act 2007. Note 5: This subsection applies even if the person was born before the commencement of the subsection. See the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014. [Subs (1A) insrt Act 135 of 2014, s 3 and Sch 6 item 2, with effect from 16 Dec 2014]

(1AA) For the purposes of this Act, a person is also an unauthorised maritime arrival if: (a) the person is born in a regional processing country; and (b) a parent of the person is, at the time of the person’s birth, an unauthorised maritime arrival because of subsection (1) (no matter where that parent is at the time of the birth); and (c) the person is not an Australian citizen at the time of his or her birth. Note 1: A parent of the person may be an unauthorised maritime arrival even if the parent holds, or has held, a visa. Note 2: This Act may apply as mentioned in subsection (1AA) even if either or both parents of the person holds a visa, or is an Australian citizen or a citizen of the regional processing country, at the time of the person’s birth. Note 3: This subsection applies even if the person was born before the commencement of the subsection. See the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014. [Subs (1AA) insrt Act 135 of 2014, s 3 and Sch 6 item 2, with effect from 16 Dec 2014]

Entered Australia by sea (2) A person entered Australia by sea if: (a) the person entered the migration zone except on an aircraft that landed in the migration zone; or (b) the person entered the migration zone as a result of being found on a ship detained under section 245F (as in force before the commencement of section 69 of the Maritime Powers Act 2013) and being dealt with under paragraph 245F(9)(a) (as in force before that commencement); or (ba) the person entered the migration zone as a result of the exercise of powers under Division 7 or 8 of Part 3 of the Maritime Powers Act 2013; or (c) the person entered the migration zone after being rescued at sea. [Subs (2) am Act 135 of 2014, s 3 and Sch 1 item 37, with effect from 16 Dec 2014; Act 35 of 2013, s 3 and Sch 2 items 1–3, with effect from 27 Mar 2014]

Excluded maritime arrival (3) A person is an excluded maritime arrival if the person: (a) is a New Zealand citizen who holds and produces a New Zealand passport that is in force; or (b) is a non-citizen who holds and produces a passport that is in force and is endorsed with an authority to reside indefinitely on Norfolk Island; or (c) is included in a prescribed class of persons. Definitions (4) In this section: aircraft has the same meaning as in section 245A. ship has the meaning given by section 245A (as in force before the commencement of section 69 of the Maritime Powers Act 2013). [Def am Act 35 of 2013, s 3 and Sch 2 item 4, with effect from 27 Mar 2014]

vessel has the same meaning as in the Maritime Powers Act 2013. [Def insrt Act 35 of 2013, s 3 and Sch 2 item 5, with effect from 27 Mar 2014]

© 2016 THOMSON REUTERS

91

s 5AA

Migration Act 1958

[5AA.20]

Note: An unauthorised maritime arrival who has been taken to a place outside Australia may also be a transitory person: see the definition of transitory person in subsection 5(1). [S 5AA am Act 135 of 2014, s 3 and Sch 6 item 3, with effect from 16 Dec 2014; Act 35 of 2013; insrt Act 35 of 2013, s 3 and Sch 1 item 8, with effect from 1 Jun 2013]

SECTION 5AA COMMENTARY [5AA.20] Concepts A parent of the person: Where a person is born in the migration zone to a parent who is an unauthorised maritime arrival, and to a parent who is not, the person will be taken, by reason of s 5AA(1A) to also be an unauthorised maritime arrival. It is of no consequence that the other parent is not an unauthorised maritime arrival: see Plaintiff B15a v Minister for Immigration and Border Protection [2015] HCA 24 at [8]–[9] per Kiefel J. 5A Meaning of personal identifier (1) In this Act: personal identifier means any of the following (including any of the following in digital form): (a) fingerprints or handprints of a person (including those taken using paper and ink or digital livescanning technologies); (b) a measurement of a person’s height and weight; (c) a photograph or other image of a person’s face and shoulders; (d) an audio or a video recording of a person (other than a video recording under section 261AJ); (e) an iris scan; (f) a person’s signature; (g) any other identifier prescribed by the regulations, other than an identifier the obtaining of which would involve the carrying out of an intimate forensic procedure within the meaning of section 23WA of the Crimes Act 1914. (2) Before the Governor-General makes regulations for the purposes of paragraph (1)(g) prescribing an identifier, the Minister must be satisfied that: (a) obtaining the identifier would not involve the carrying out of an intimate forensic procedure within the meaning of section 23WA of the Crimes Act 1914; and (b) the identifier is an image of, or a measurement or recording of, an external part of the body; and (c) obtaining the identifier will promote one or more of the purposes referred to in subsection (3). (3) The purposes are: (a) to assist in the identification of, and to authenticate the identity of, any person who can be required under this Act to provide a personal identifier; and (b) to assist in identifying, in the future, any such person; and (c) to improve the integrity of entry programs; and (ca) to improve passenger processing at Australia’s border; and (d) to facilitate a visa-holder’s access to his or her rights under this Act or the regulations; and (e) to improve the procedures for determining visa applications; and

92

Migration Law

Part 1 - Preliminary (ss 1-12)

(f) (fa) (g) (ga) (h) (i) (j)

(k) (l)

s 5C

to improve the procedures for determining claims from people seeking protection as refugees; and to assist in determining whether a person is an unlawful non-citizen or a lawful non-citizen; and to enhance the Department’s ability to identify non-citizens who have a criminal history or who are of character concern; and to assist in identifying persons who may be a security concern to Australia or a foreign country; and to combat document and identity fraud in immigration matters; and to detect forum shopping by applicants for visas; and to ascertain whether: (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; had sufficient opportunity to avail himself or herself of protection before arriving in Australia; and to complement anti-people smuggling measures; and to inform the governments of foreign countries of the identity of non-citizens who are, or are to be, removed or deported from Australia.

[Subs (3) am Act 115 of 2015, s 3 and Sch 1 item 3, with effect from 16 Feb 2016; Act 135 of 2014, s 3 and Sch 5 items 5 and 6, with effect from 18 Apr 2015; Act 116 of 2014, s 3 and Sch 6 items 1 and 2, with effect from 1 Jul 2015; Act 116 of 2014, s 3 and Sch 5 item 1, with effect from 4 Nov 2014; Act 35 of 2013, s 3 and Sch 1 item 9; Act 121 of 2011, s 3 and Sch 1 items 10 and 11; Act 63 of 2007, s 3 and Sch 1 item 31] [S 5A am Act 115 of 2015; Act 135 of 2014; Act 116 of 2014; Act 35 of 2013; Act 121 of 2011; Act 63 of 2007; insrt Act 2 of 2004, s 3 and Sch 1 item 11]

5B When personal identifier taken not to have been provided A person is taken, for the purposes of section 257A, not to have provided a personal identifier if: (a) the personal identifier that is provided is unusable; or (b) the Minister, an authorised officer or an officer is not satisfied: (i) about the integrity or quality of the personal identifier that is provided; or (ii) about the procedure followed to obtain the personal identifier. [Para (b) am Act 115 of 2015, s 3 and Sch 1 items 5–7, with effect from 16 Feb 2016]

(c)

[Repealed]

[Para (c) rep Act 115 of 2015, s 3 and Sch 1 item 8, with effect from 16 Feb 2016] [S 5B am Act 115 of 2015, s 3 and Sch 1 item 4, with effect from 16 Feb 2016; Act 63 of 2007, s 3 and Sch 1 item 32; Act 62 of 2007; insrt Act 2 of 2004, s 3 and Sch 1 item 11]

5C Meaning of character concern (1) For the purposes of this Act, a non-citizen is of character concern if: (a) the non-citizen has a substantial criminal record (as defined by subsection (2)); or (b) the non-citizen has or has had an association with someone else, or with a group or organisation, who is reasonably suspected of having been or being involved in criminal conduct; or (c) having regard to either or both of the following: (i) the non-citizen’s past and present criminal conduct;

© 2016 THOMSON REUTERS

93

s 5C

Migration Act 1958

(d)

(2) For (a) (b) (c) (d) (e)

(ii) the non-citizen’s past and present general conduct; the non-citizen is not of good character; or in the event that the non-citizen were allowed to enter or to remain in Australia, there is a significant risk that the non-citizen would: (i) engage in criminal conduct in Australia; or (ii) harass, molest, intimidate or stalk another person in Australia; or (iii) vilify a segment of the Australian community; or (iv) incite discord in the Australian community or in a segment of that community; or (v) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way. the purposes of subsection (1), a non-citizen has a substantial criminal record if: the non-citizen has been sentenced to death; or the non-citizen has been sentenced to imprisonment for life; or the non-citizen has been sentenced to a term of imprisonment of 12 months or more; or the non-citizen has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or the non-citizen has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution.

[Subs (2) am Act 129 of 2014, s 3 and Sch 1 item 1, with effect from 11 Dec 2014] [S 5C am Act 129 of 2014; insrt Act 2 of 2004, s 3 and Sch 1 item 11]

5CA Child of a person (1) Without limiting who is a child of a person for the purposes of this Act, each of the following is the child of a person: (a) someone who is a child of the person within the meaning of the Family Law Act 1975 (other than someone who is an adopted child of the person within the meaning of that Act); (b) someone who is an adopted child of the person within the meaning of this Act. (2) The regulations may provide that, for the purposes of this Act, a person specified by the regulations is not a child of another person specified by the regulations in circumstances in which the person would, apart from this subsection, be the child of more than 2 persons for the purposes of this Act. (3) Subsection (2), and regulations made for the purposes of that subsection, have effect whether the person specified as not being a child of another person would, apart from that subsection and those regulations, be the child of the other person because of subsection (1) or otherwise. [S 5CA insrt Act 144 of 2008, s 3 and Sch 10 item 20]

5CB De facto partner De facto partners (1) For the purposes of this Act, a person is the de facto partner of another person (whether of the same sex or a different sex) if, under subsection (2), the person is in a de facto relationship with the other person.

94

Migration Law

[5CB.10]

Part 1 - Preliminary (ss 1-12)

s 5CB

De facto relationship (2) For the purposes of subsection (1), a person is in a de facto relationship with another person if they are not in a married relationship (for the purposes of section 5F) with each other but: (a) they have a mutual commitment to a shared life to the exclusion of all others; and (b) the relationship between them is genuine and continuing; and (c) they: (i) live together; or (ii) do not live separately and apart on a permanent basis; and (d) they are not related by family (see subsection (4)). (3) The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist. Definition (4) For the purposes of paragraph (2)(d), 2 persons are related by family if: (a) one is the child (including an adopted child) of the other; or (b) one is another descendant of the other (even if the relationship between them is traced through an adoptive parent); or (c) they have a parent in common (who may be an adoptive parent of either or both of them). For this purpose, disregard whether an adoption is declared void or has ceased to have effect. [S 5CB insrt Act 144 of 2008, s 3 and Sch 10 item 20]

SECTION 5CB COMMENTARY Concepts ............................................................................................................................................. [5CB.10]

[5CB.10] Concepts Living separately and apart: In SZOXP v Minister for Immigration and Border Protection [2015] FCAFC 69, Kenny, McKerracher and Edelman JJ held that it is not a requirement for parties to physically live together to be classified as being in a de facto relationship: at [65]. Their Honours held that this construction is supported by the plain meaning of the section, is consistent with other provisions of the Act (most notably the definition of spouse in s 5F), is consistent with the section’s legislative history, and is supported by the “well hallowed meaning” of the phrase “living separately and apart” as that phrase had been established at the time the section and its predecessors were enacted. The Full Court observed at [59] that the conclusions that can be drawn from the phrase “living separately and apart”, as used in s 5CB(2)(c)(ii), are that: (1) both the physical and mental elements of the phrase were concerned with a husband and wife who were living their lives separate and apart from each other as separate households; (2) the phrase therefore did not require that the parties live in different homes but rather focuses upon whether they lived their lives separately as separate households; (3) conversely the phrase “not living separately and apart on a permanent basis” focuses upon whether the parties will not live as separate households on a permanent basis; © 2016 THOMSON REUTERS

95

s 5D

Migration Act 1958

[5CB.10]

(4) even when legislation was enacted which included the requirement that it be “unlikely that cohabitation will be resumed”, the Full Court of the Supreme Court of New South Wales had held that living in a separate house was not required; (5) later legislation in 1975 that included the satisfaction requirement of no reasonable likelihood that cohabitation will be resumed also included an express provision that the “parties to a marriage may be held to have separated and to have lived separately and apart notwithstanding that they have continued to reside in the same residence”. 5D Limiting the types of identification tests that authorised officers may carry out (1) The Minister, Secretary or Australian Border Force Commissioner may, in an instrument authorising an officer as an authorised officer for the purposes of carrying out identification tests under this Act, specify the types of identification tests that the authorised officer may carry out. [Subs (1) am Act 41 of 2015, s 3 and Sch 3 item 4, with effect from 1 Jul 2015]

(2) Such an authorised officer is not an authorised officer in relation to carrying out an identification test that is not of a type so specified. [S 5D am Act 41 of 2015; insrt Act 2 of 2004, s 3 and Sch 1 item 11]

5E Meaning of purported privative clause decision (1) In this Act, purported privative clause decision means a decision purportedly made, proposed to be made, or required to be made, under this Act or under a regulation or other instrument made under this Act (whether in purported exercise of a discretion or not), that would be a privative clause decision if there were not: (a) a failure to exercise jurisdiction; or (b) an excess of jurisdiction; in the making of the decision. (2) In this section, decision includes anything listed in subsection 474(3). [S 5E insrt Act 137 of 2005, s 3 and Sch 1 item 14]

5F

Spouse (1) For the purposes of this Act, a person is the spouse of another person if, under subsection (2), the 2 persons are in a married relationship. (2) For the purposes of subsection (1), persons are in a married relationship if: (a) they are married to each other under a marriage that is valid for the purposes of this Act; and (b) they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and (c) the relationship between them is genuine and continuing; and (d) they: (i) live together; or (ii) do not live separately and apart on a permanent basis. (3) The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist. Note: Section 12 also affects the determination of whether the condition in paragraph (2)(a) of this section exists. [S 5F insrt Act 144 of 2008, s 3 and Sch 10 item 21]

96

Migration Law

[5H.10]

Part 1 - Preliminary (ss 1-12)

s 5H

5G Relationships and family members (1) For the purposes of this Act, if one person is the child of another person because of the definition of child in section 5CA, relationships traced to or through that person are to be determined on the basis that the person is the child of the other person. (2) For the purposes of this Act, the members of a person’s family and relatives of a person are taken to include the following: (a) a de facto partner of the person; (b) someone who is the child of the person, or of whom the person is the child, because of the definition of child in section 5CA; (c) anyone else who would be a member of the person’s family or a relative of the person if someone mentioned in paragraph (a) or (b) is taken to be a member of the person’s family or a relative of the person. This does not limit who is a member of a person’s family or relative of a person. [S 5G insrt Act 144 of 2008, s 3 and Sch 10 item 21]

5H Meaning of refugee (1) For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person: (a) in a case where the person has a nationality—is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or (b) in a case where the person does not have a nationality—is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it. Note: For the meaning of well-founded fear of persecution, see section 5J.

(2) Subsection (1) does not apply if the Minister has serious reasons for considering that: (a) the person has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or (b) the person committed a serious non-political crime before entering Australia; or (c) the person has been guilty of acts contrary to the purposes and principles of the United Nations. [S 5H insrt Act 135 of 2014, s 3 and Sch 5 item 7, with effect from 18 Apr 2015]

SECTION 5H COMMENTARY Scope ..................................................................................................................................................... [5H.10] Concepts ............................................................................................................................................... [5H.20] Practice points ...................................................................................................................................... [5H.30]

[5H.10] Scope Section 5H was introduced by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (the MMP Act). The provision embodies Parliament’s intention to define for itself Australia’s obligations under the Refugees Convention, as amended by the Refugees Protocol (Refugees Convention), rather than relying on the text of that document itself or, more to the point, relying on the judiciary’s interpretation of the Refugees Convention.

© 2016 THOMSON REUTERS

97

s 5H

Migration Act 1958

[5H.20]

As observed in the Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014, the MMP Act fundamentally changed Australia’s approach to managing asylum seekers by, among other things: • introducing temporary protection for those who engage Australia’s non-refoulement obligations and who arrived in Australia “illegally”; and • codifying in the Act, Australia’s interpretation of its protection obligations under the Refugees Convention. The codification of Australia’s obligations under the Refugees Convention represents a shift from entrusting to the courts the interpretation of those obligations, to a legislative regime designed to reassert Parliament’s interpretation of Australia’s international commitments. This is reflected in the language of the Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 at 10, where it is noted that the MMP Act: removes most references to the Refugees Convention from the Migration Act and instead creates a new, independent and self-contained statutory framework which articulates Australia’s interpretation of its protection obligations under the Refugees Convention. It is not the intention of the Government to resile from Australia’s protection obligations under the Refugees Convention but rather to codify Australia’s interpretation of these obligations with certain sections of the Migration Act…

This intention was expressed also by the Minister for Immigration and Border Protection, Scott Morrison, in the second reading speech on 25 September 2014: Schedule 5 of the bill [i.e., of the MMP Act] will also create a new, independent and self-contained statutory refugee framework which articulates Australia’s interpretation of its protection obligations under the refugees convention. The government remains committed to ensuring it abides by its obligations in respect to the refugees convention and this change does not in any way compromise this commitment. The new statutory framework will enable parliament to legislate its understanding of these obligations within certain sections of the Migration Act without referring directly to the refugees convention and therefore not being subject to the interpretations of foreign courts or judicial bodies which seek to expand the scope of the refugees convention well beyond what was ever intended by this country or this parliament. This parliament should decide what our obligations are under these conventions - not those who seek to direct us otherwise from places outside this country…

Perhaps the most obvious example of Parliament seeking to confine Australia’s obligations under the Refugees Convention was the removal of any reference to the Refugees Convention itself in s 36(2)(a), and inserting in its place the requirement that a person instead be a ’refugee’, as that word is defined under s 5H (also exclusive of any reference to the Refugees Convention). [5H.20] Concepts Refugee: Although direct references to the Refugees Convention have been removed from the Act, the Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 states at [1167] that s 5H(1) “is intended to codify Article 1A(2) of the Refugees Convention, as interpreted in Australian case law”. The meaning of the words “protection obligations”, in the context of Art 1A(2) of the Refugees Convention, has been the subject of significant judicial discourse. For instance, in NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 CLR 161; (2005) 213 ALR 668; (2005) 79 ALJR 609; [2005] HCA 6 (NAGV), Chief Justice Gleeson, McHugh, Gummow, Hayne, Callinan and Heydon JJ ultimately held at [42], that the reference to “protection obligations” describes no more than a person who is a refugee within the meaning of Art 1 of the Refugees Convention. Relevantly, Art 1A(2) of the Refugees Convention defines refugee as a person who: owing to [a] well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, 98

Migration Law

[5H.20]

Part 1 - Preliminary (ss 1-12)

s 5H

owing to such fear, is unwilling to avail himself of protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

In NAGV, Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ concisely explained the history of Australia’s obligations under the Refugees Convention in the context of s 36 and its legislative antecedents, at [34]–[40] [in-text references excluded]: Australia was the sixth state to ratify or accede to the Convention Relating to the Status of Refugees, doing so on 22 January 1954 with effect from 22 April 1954. It acceded to the Protocol Relating to the Status of Refugees on 13 December 1973, with effect from that date. Reservations by Australia to Art 28(1) and Art 32 were withdrawn in 1971 and 1967 respectively. However, in Simsek v McPhee (1982) 148 CLR 636; [1982] HCA 7, Stephen J applied the accepted general proposition that in the absence of legislation the Convention had no legal effect in Australian municipal law upon the rights and duties of individuals and of the Commonwealth. Before the addition to the Act of s 6A by the Migration Amendment Act (No 2) 1980 (Cth), the determination of whether a person had the status of a refugee was a matter within the discretion of the Executive; by administrative arrangements responsibility had been allotted to the Minister for Immigration and Ethnic Affairs assisted by an Interdepartmental Committee. Section 6A(1) provided that an entry permit was not to be granted to a non-citizen after entry into Australia unless one or more of the conditions then set out was fulfilled. One of those conditions, contained in s 6A(1)(c), was that the non-citizen ″is the holder of a temporary entry permit which is in force and the Minister has determined, by instrument in writing, that he has the status of refugee within the meaning of [the Convention]″. Mayer determined that s 6A impliedly conferred on the Minister the function of determining whether an applicant had the status of ″refugee″, with the result that the determination was made ″under an enactment″ as required by s 13(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth). Section 6A was repealed by the Migration Legislation Amendment Act 1989 (Cth), but the new provision was drawn in similar terms to s 6A(1)(c). Legislation in a form with no material differences to that of s 36 as it falls for consideration in this litigation was first introduced (as s 26B) by the Migration Reform Act 1992 (Cth) (″the Reform Act″). The Act as it stood immediately before the commencement of the relevant provisions of the Reform Act was considered in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225; (1997) 142 ALR 331; [1997] HCA 4. The Act at that stage still involved the two steps seen in the old s 6A considered in Mayer. These were the determination of status and the grant of a visa or permit. Thus, immediately before the commencement of the relevant provisions of the Reform Act, Div 1AA of Pt 2 (ss 22AA ̶ 22AD) was headed ″Refugees″ and s 22AA read: If the Minister is satisfied that a person is a refugee, the Minister may determine, in writing, that the person is a refugee. The term ″refugee″ was defined in s 4 as having ″the same meaning as it has in Article 1 of [the Convention]″. Regulations made under the Act operated by treating applications for determination of refugee status as also being applications for the grant of the necessary visa. This administrative system was changed by the Reform Act with the introduction of s 26B and s 26ZF, the predecessors of s 36 and s 65 respectively. The Reform Act also omitted the definition of ″refugee″ and repealed Div 1AA of Pt 2, which had contained s 22AA. The Explanatory Memorandum circulated to the House of Representatives with the introduction of the Bill for the Reform Act stated: The Reform Bill makes a technical change in the way applications for protection as a refugee are dealt with. In future claimants will not apply separately for recognition as a refugee and permission to stay in Australia. Both processes will be combined in an application for a protection visa.″ (emphasis added) The Explanatory Memorandum stated that a protection visa was ″intended to be the mechanism by which Australia offers protection to persons who fall under [the Convention]″, and continued: In the future persons seeking the protection of the Australian Government on the basis that they are refugees will not apply initially, as now, for recognition as a refugee, but directly for the protection © 2016 THOMSON REUTERS

99

s 5H

Migration Act 1958

[5H.20]

visa. This change is consistent with the general principle contained in the Reform Act that the visa should be the basis of a non-citizen’s right to remain in Australia lawfully. The change will end the present duplication of processing whereby separate applications are required for recognition of refugee status and grant of formal authority to remain (presently an entry permit).″ (emphasis added)

In Plaintiff M47-2012 v Director General of Security (2012) 251 CLR 1(2012) 292 ALR 243; (2012) 86 ALJR 1372; [2012] HCA 46 (Plaintiff M47), French CJ observed at [12] that the Act does not translate into Australian domestic law the obligations of the signatories to the Refugees Convention. Rather, his Honour cited at [14] with approval the following propositions that emerge from NAGV: • the obligations created by the Refugees Convention are owed by the contracting states to each other and not to refugees: see NAGV at [16]; • the Refugees Convention does not detract from the right of a contracting state to determine who should be allowed to enter into its territory: see NAGV at [16]; • the determination of the status of refugee is a function left by the Refugees Convention to the competent authorities of the contracting states which may select such procedures as they see fit for that purpose: see NAGV at [17]; • the Refugees Convention sets out the status and civil rights to be afforded within contracting states to those accorded the status of refugee: see NAGV at [19]. After discussing the above principles, French CJ in Plaintiff M47 also stated at [14] that [in-text references excluded]: It is also well settled that the [Refugees Convention] does not impose an obligation upon Contracting States to grant asylum to refugees arriving at their borders or a right to reside in those States. Nor may any individual assert a right under customary international law to enter or remain in the territory of a State of which that individual is not a national.

In Minister for Immigration and Multicultural Affairs v Ibrahim (2000) 204 CLR 1; 175 ALR 585; [2000] HCA 55, Gummow J (with whom Gleeson CJ, Hayne and Callinan JJ agreed), considered in particular non-citizens who do not qualify as a refugee, noting at [141] that: The definition does not encompass those fleeing generalized violence or internal turmoil and mass movements of persons fleeing civil war or other armed conflicts, military occupation, natural disasters and bad economic conditions are outside the Convention. For example, it appears that in 1986 the number of civilians fleeing their countries of origin by reasons of internal armed conflict exceeded the number of Convention refugees. In Applicant A v Minister for Immigration and Ethnic Affairs, Dawson J observed: No matter how devastating may be epidemic, natural disaster or famine, a person fleeing them is not a refugee within the terms of the Convention. It would therefore be wrong to depart from the demands of language and context by invoking the humanitarian objectives of the Convention without appreciating the limits which the Convention itself places on the achievement of them.

Interpretation of the meaning of the word “refugee”, as defined in s 5H, together with s 5J (which defines the words “well-founded fear of persecution”) is likely to be the subject of judicial scrutiny in the future. In this regard, the definition of “refugee” in Art 1A(2) of the Refugees Convention has in the past been the subject of significant judicial consideration in the context of s 36, as that provision appeared prior to the commencement of the MMP Act. For example, in Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559; (1997) 48 ALD 481; (1997) 144 ALR 567; (1997) 71 ALJR 743; [1997] 9 Leg Rep 2; [1997] HCA 22 (Guo), Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ stated at 570: The definition of ″refugee″ in Art 1A(2) of the Convention four key elements: (1) the applicant must be outside of his or her country of nationality; 100

Migration Law

[5H.30]

Part 1 - Preliminary (ss 1-12)

s 5J

(2) the applicant must fear “persecution”; (3) the applicant must fear such persecution “for reasons of race, religion, nationality, membership of a particular social group or political opinion”; and (4) the applicant must has a “well-founded” fear of persecution for one of the Convention reasons.

As was the intention of the MMP Act (see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 at [1167]), the definition of “refugee” under the Refugees Convention and as articulated in Guo, has largely been codified in ss 5H and 5J. Accordingly, established judicial authority interpreting the meaning of “refugee” under Art 1A(2) of the Refugees Convention, will continue to apply to the meaning of that word under s 5H. [5H.30] Practice points The definition of “refugee” is relevant to the assessment of whether a person satisfies the criteria for the grant of a protection visa under s 36. For further commentary regarding the provision of protection visas, see the commentary to ss 35A and 36. [Editor’s Note: There is no section 5I in this Act.] 5J

Meaning of well-founded fear of persecution (1) For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if: (a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and (b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and (c) the real chance of persecution relates to all areas of a receiving country. Note: For membership of a particular social group, see sections 5K and 5L.

(2) A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country. Note: For effective protection measures, see section 5LA.

(3) A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would: (a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or (b) conceal an innate or immutable characteristic of the person; or (c) without limiting paragraph (a) or (b), require the person to do any of the following: (i) alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith; (ii) conceal his or her true race, ethnicity, nationality or country of origin; (iii) alter his or her political beliefs or conceal his or her true political beliefs; (iv) conceal a physical, psychological or intellectual disability; (v) enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

© 2016 THOMSON REUTERS

101

s 5J

Migration Act 1958

[5J.10]

(vi) alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status. (4) If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a): (a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and (b) the persecution must involve serious harm to the person; and (c) the persecution must involve systematic and discriminatory conduct. (5) Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph: (a) a threat to the person’s life or liberty; (b) significant physical harassment of the person; (c) significant physical ill-treatment of the person; (d) significant economic hardship that threatens the person’s capacity to subsist; (e) denial of access to basic services, where the denial threatens the person’s capacity to subsist; (f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist. (6) In determining whether the person has a well-founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee. [S 5J insrt Act 135 of 2014, s 3 and Sch 5 item 7, with effect from 18 Apr 2015]

SECTION 5J COMMENTARY Scope ...................................................................................................................................................... [5J.10] Concepts ................................................................................................................................................. [5J.20] Key cases ............................................................................................................................................... [5J.30] Practice points ........................................................................................................................................ [5J.40]

[5J.10] Scope Section 5J was introduced by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (the MMP Act). This provision captures the effect of the former s 91R as part of an expanded legislative definition of “well-founded fear of persecution”. As the Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Explanatory Memorandum), observes at [1198], [1203] and [1208], it is intended that the requirements in the former s 91R form part of the new statutory framework introduced by the MMP Act relating to refugees and, more specifically, part of the definition of “well-founded fear of persecution” in s 5J. To the extent s 5J departs from the wording of the former s 91R, the Explanatory Memorandum states that it is not Parliament’s intention to change the meaning of the former provision, and any difference in text between the two sections is to ensure that s 5J does not contain grammatical errors in the new context of the statutory framework and to remove references to the Refugees Convention. Section 5J relevantly sets out the circumstances that must be satisfied for a person to have a “well-founded fear of persecution”. Specifically, the provision sets out the five grounds for refugee status, consistent with those listed in Article 1A(2) of the Refugees Convention. 102

Migration Law

[5J.20]

Part 1 - Preliminary (ss 1-12)

s 5J

Relevantly, a person will be assessed as to whether they have a “real chance” of being persecuted, consistent with the High Court’s decision in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; 87 ALR 412; 63 ALJR 561; [1989] HCA 62. Section 5J(1)(b) is intended to be a statutory implementation of this test: see the Explanatory Memorandum at p 10. Section 5J(1)(c) is intended to be a codification of the “relocation principle”, which provides that a person will have a well-founded fear of persecution only where, among other things, the real chance of persecution “relates to all areas of a receiving country”. According to the Explanatory Memorandum at pp 10 to 11, it is Parliament’s intention that the statutory implementation of the “relocation principle” not encompass a “reasonableness” test which would otherwise assess whether it is reasonable for an asylum seeker to relocate to another area of the receiving country. Section 5J(2) is intended to be a codification of the High Court’s decision in Minister for Immigration and Multicultural Affairs v S152/2003 (2004) 222 CLR 1; 77 ALD 296; 205 ALR 487; 78 ALJR 678; [2004] HCA 18, and the Federal Court’s decision in Siaw v Minister for Immigration and Multicultural Affairs [2001] FCA 953, in relation to the standard of effective state or non-state protection within a receiving country that is required in order to make a determination of whether a person has a well-founded fear of persecution: Explanatory Memorandum at p 11. Further, s 5J(3) is intended to make Parliament’s intention clear that a person should not be assessed as having a well-founded fear of persecution if they could objectively take reasonable steps to modify their behavior so as to avoid a real chance of persecution in the receiving country. According to the Explanatory Memorandum at p 11, the purpose of this subsection is to clarify that any assessment of whether a person has a well-founded fear of persecution is to take into account not only what a person would do but also what they could do upon returning to a receiving country to avoid the relevant persecution. However, it is not Parliament’s intention that a person should have to modify their behavior such that any modification conflicts with a characteristic that is fundamental to the person’s identity or conscience, or where the person is required to conceal an innate or immutable characteristic. [5J.20] Concepts Well-founded: Any determination as to whether a non-citizen has a well-founded fear involves both a subjective and objective assessment. In the Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 at [1180], the definition given under s 5J(1) to the meaning of the words “well-founded fear of persecution” is said to be in line with the High Court’s decision in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; 87 ALR 412; 63 ALJR 561; [1989] HCA 62. In that case, Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ defined the meaning of the expression “well-founded” by reference to both subjective and objective aspects: Subjective aspect

• in evaluating whether a non-citizen has a well-founded fear, it is necessary to evaluate the mental and emotional state (in addition to the objective circumstances): at [12] per Gaudron J; • the non-citizen must have a state of mind such that he or she is in fear of being persecuted: at [16] per Dawson J; Objective aspect

• in addition to the subjective element, it is necessary to evaluate the objective circumstances, so far as they are ascertainable, and give proper weight to any account of those circumstances given by the non-citizen: at [12] per Gaudron J; © 2016 THOMSON REUTERS

103

s 5J

Migration Act 1958

[5J.20]

• while the non-citizen must have a fear of being persecuted, the fear must also have a basis - that is, the requirement that it be “well-founded”: at [16] per Dawson J; • that is, while the non-citizen may fear persecution, that fear “must not all be in the mind” and there “must be a sufficient foundation for the fear”: at [16] per Dawson J and at [21] per Toohey J; • a fear of persecution is well founded if there is a “real chance” that the non-citizen will be persecuted if he or she returns to his or her country of nationality: at [12] per Mason CJ and at [26] per Toohey J and at [35] per McHugh J; • “a real chance is one that is not remote, regardless of whether it less than or more than fifty percent”: at [19] per Dawson J; • a non-citizen can have a fear of persecution even if there is less than fifty percent chance of the persecution occurring: at [12] per Mason CJ; and • a real chance excludes a far-fetched possibility of persecution, however as little as a ten per cent chance of persecution may constitute a well-founded fear: at [35] per McHugh J. Race: In Calado v Minister for Immigration and Multicultural Affairs (1997) 81 FCR 450, Tamberlin J described the concept of “race” as follows: When considering the meaning of the expression “race”…, it is appropriate to take into account the “popular” understanding of the term which accords importance to physical appearance, skin colour and ethnic origin. There can be no single test for the meaning of the expression “race” but the term connotes considerations such as whether the individuals or the group regard themselves and are regarded by others in the community as having a particular historical identity in terms of colour, and national or ethnic origins. Another consideration is whether the characteristics of members of the group are those with which a person is born and which he or she cannot change.

His Honour then proceeded to cite with approval the following comments of Brennan J in Commonwealth v Tasmania (1983) 158 CLR 1; 46 ALR 625; 57 ALJR 450; [1983] HCA 21 at CLR 243-244: As the people of a group identify themselves and are identified by others as a race by reference to their common history, religion, spiritual beliefs or culture as well as by reference to their biological origins and physical similarities, an indication is given of the scope and purpose of the power granted by para(xxvi) … Their genetic inheritance is fixed at birth; the historic, religious, spiritual and cultural heritage are acquired and are susceptible to influences for which a law may provide …

Religion: The courts have tended to apply a broad approach in relation to what constitutes the practice of religion: Wang v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 548; 179 ALR 1; [2000] FCA 1599 (Wang) per Merkel J at [69] (with whom Wilcox and Gray JJ agreed). Relevantly, in Wang, Merkel J (with whom Wilcox and Gray JJ agreed) held at [81]: … there are two elements to the concept of religion for the purposes of Art 1A(2): the first is as a manifestation or practice or personal faith or doctrine, and the second is the manifestation or practice of that faith or doctrine in a like-minded community is consistent with the commonly understood meaning of religion as including its practice in or with a like-minded community.

At [5] Wilcox J stated: … the concept of “religion”, in Article 1A(2) of the Convention on Refugees, anyway includes the element of manifestation or practice of a religious faith in community with others. This element is inherent in the ordinary meaning of the word. For example, the first two definitions of the word in the Macquarie Dictionary are: 1. The quest for the values of the ideal life, involving three phases, the ideal, the practices for attaining the values of the ideal, and the theology or world view relating the quest to the environing universe. 104

Migration Law

[5J.20]

Part 1 - Preliminary (ss 1-12)

s 5J

A particular system in which the quest for the ideal life has been embodied. [Emphasis added]

At [16] Gray J stated that “religion is a matter of conscientious belief, professed adherence and practice”. In addition, Merkel J (with whom Wilcox and Gray JJ agreed) also noted that: • persecution for religious reasons may occur indirectly through a government regulatory regime: at [70]; • “religious practice has not been treated as being confined to personal religious worship”: at [71]; and • “while religion is primarily a manifestation of a personal faith and of doctrine it also has a congregational or community aspect”: at [73]. Accordingly, whether or not an applicant is a follower of a particular religion is not to be determined by reference to an arbitrary test imposed by a third person (for instance, a member of the Tribunal): Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362; 117 ALD 259; 272 ALR 115; [2010] FCAFC 108 at [37]. Nationality: Whether a person is a national of a particular state is determined by the municipal laws of the state concerned: TJI v Minister for Immigration and Ethnic Affairs (1998) 55 ALD 508; 158 ALR 681 (TJI) at 513–514 per Finkelstein J. His Honour also observed at 689 that a person obtains nationality by one of two methods: original nationality or derivative acquisition of nationality. Original nationality is nationality acquired at birth on the basis that that a person is born to a national or within the territory of a particular state. Derivative acquisition of nationality is acquired by naturalization. In both instances however, local municipal law dictates whether or not a person is or becomes a national. Section 36(6) provides that, for the purposes of s 36(3), the question of whether a non-citizen is a national of a particular country must be determined solely by reference to the law of that country. However, strictly speaking, this qualification (which in any event accords with what was said by Finkelstein J in (TJI) is relevant only to the exclusionary provision of s 36(3) and not to the meaning of the word “national” in Art 1A(2) of the Refugees Convention and s 5J(1)(a). Particular Social Group: see the commentary to ss 5K and 5L. Political opinion: the expression “political opinion” is not limited to “membership of a particular political party or support for a particular party or leader”: C v Minister for Immigration and Multicultural Affairs (1999) 94 FCR 366; 59 ALD 643; [1999] FCA 1430 at [21] per Wilcox J. In V v Minister for Immigration and Ethnic Affairs (1999) 92 FCR 355; 55 ALD 629; [1999] FCA 428, Hill J stated at [33], in relation to a political opinion, that: It clearly is not limited to party politics in the sense that expression is understood in a parliamentary democracy. It is probably narrower that the usage of the word in connection with the science of politics, where it may extend to almost every aspect of society. It suffices here to say that the holding of an opinion inconsistent with that held by the government of a country explicitly by reference to views contained in a political platform or implicitly by acts … With respect, I agree with the view expressed by Davies J in Minister for Immigration and Ethnic Affairs v Y … that views antithetical to instrumentalities of government such as the Armed Forces, security institutions and the police can constitute political opinions for the purposes of the Convention. Whether they do so will depend upon the facts of the particular case.

In Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225; 142 ALR 331; 71 ALJR 381; [1997] 4 Leg Rep 9; [1997] HCA 4, Gummow J stated at 284, that “Political opinions … may be diverse, imprecise, and even idiosyncratic”. In addition, a person need not hold a particular political opinion in order to meet the definition of refugee under the Refugees Convention. It will be sufficient that the person is merely imputed with a political opinion by the persecutor: Minister for Immigration and Ethnic Affairs v Guo © 2016 THOMSON REUTERS

105

s 5J

Migration Act 1958

[5J.20]

Wei Rong (1997) 191 CLR 559; 48 ALD 481; 144 ALR 567; 71 ALJR 743; [1997] 9 Leg Rep 2; [1997] HCA 22 at 574-571 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ. Real chance: Section 5J(1)(b) requires that there be a “real chance” that, if the person is returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in s 5J(1)(a). In determining whether there is a “real chance” of persecution, usually evidence of past events of such persecution is the best evidence as to what is likely to occur in the future: Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559; 48 ALD 481; 144 ALR 567; 71 ALJR 743; [1997] 9 Leg Rep 2; [1997] HCA 22 at 574-575 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ. All areas of a receiving country - the relocation principle: A non-citizen may have a well-founded fear of persecution in a particular region of his or her country of nationality. However, that fear will not be well-founded if the non-citizen can relocate elsewhere in his or her country of nationality. Section 5J(1)(c) is intended to be a codification of the “relocation principle”. According to the Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 at pp 10-11, it is Parliament’s intention that the statutory implementation of the “relocation principle” not encompass a “reasonableness” test which would otherwise assess whether it is reasonable for an asylum seeker to relocate to another area of the receiving country. In considering whether a person can relocate to another area of a receiving country, a decision maker will be required to take into account whether the person can safely and legally access the area upon returning to the receiving country. Importantly, at [1183], the Explanatory Memorandum states that: While the Government will continue to adopt the internal relocation principle in the new statutory framework relating to refugees, it is the Government’s intention that the principle will no longer encompass the consideration of whether the relocation is “reasonable” in light of the individual circumstances of the person. The Government considers that in interpreting the “reasonableness” element into the internal relocation principle, Australian case law has broadened the scope of the principle to take into account the practical realities of relocation. For example, as a result of cases such as SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 and Randhawa v MILGEA (1994) 52 FCR 437, when assessing internal relocation options, decision makers are now required to consider aspects such as potential diminishment in quality of life or financial hardship which may result from the relocation. As such aspects fall short of the type of harm which amounts to persecution, the Government considers these to be irrelevant to the assessment of a well-founded fear of persecution. For these reasons, it is the Government’s intention that new paragraph 5J(1)(c) not be read down by reference to such notions of “reasonableness”. [emphasis in original]

Effective protection measures: Section 5J(2) provides that a person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country. According to the Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Explanatory Memorandum), this provision is a codification of the High Court’s decision in S152 and the Federal Court’s decision in Siaw v Minister for Immigration and Multicultural Affairs [2001] FCA 953 (Siaw). In Respondents S152, Gleeson CJ, Hayne and Heydon JJ cited with approval a passage from the House of Lords decision of Horvath v Secretary of State for the Home Department [2001] 1 AC 489 at 497, where Hale LJ commented, in relation to the sufficiency of state protection against the acts of non-state agents: [I]f it is sufficient, the applicant’s fear of persecution by others will not be “well founded”; if it is insufficient, it may turn the acts of others into persecution for a Convention reason; in particular it may 106

Migration Law

[5J.20]

Part 1 - Preliminary (ss 1-12)

s 5J

supply the discriminatory element in the persecution meted out by others; again if it is insufficient, it may be the reason why the applicant is unable, or if it amounts to persecution unwilling, to avail himself of the protection of his home state.

At [23] Gleeson CJ, Hayne and Heydon JJ noted that the conduct of the state could be relevant to whether a person meets the definition of refugee in circumstances where the harm feared is not inflicted by the state, but where the attitude of the state is such that, “it supports a conclusion of unwillingness to seek (external) protection based on a fear of persecution because of the state’s encouragement, condonation or tolerance of the persecution.” Chief Justice Gleeson, Hayne and Heydon JJ held that where the fear of harm emanates from a source which is not the state, nor an agent of the state, then the willingness and the ability of the state to provide protection to its national may be relevant to whether the conduct of the claimed persecutor giving rise to the fear is persecution: at [29]. In addition, at [26] Gleeson CJ, Hayne and Heydon JJ noted that no country can guarantee that its citizens at all times, and in all circumstances, will be safe from violence and that the obligation of the state is to, “[t]ake reasonable measures to protect the lives and safety of its citizens, and those measure would include an appropriate criminal law, and the provision of a reasonably effective and impartial police force and justice system.” Relevantly, in Siaw, the applicant claimed to be a refugee from Sierra Leone. The former Refugee Review Tribunal found that it was reasonable for him to relocate from his home area to “Freetown”, because peace and order had been restored at that particular location by the United Nations. However, the applicant argued that the “relocation principle” is only applicable where the protection is provided by an applicant’s own state and not by an armed international force. Sundberg J rejected this proposition however, and held at [7] that there is no difference between cases where adequate protection is provided entirely be government forces; or by a combination of government forces and friendly forces; or by forces from a neighbouring country or ally; or by mercenaries; or by the United Nations. The Explanatory Memorandum at [1189] notes that s 5J(2)(b) is intended to be read consistently with Sundberg’s J reasoning in Siaw. Section 5LA sets out limited circumstances in which effective protection measures will be taken to be available to a person in a receiving country by a relevant State, party or organisation. Reasonable steps to modify behaviour: Section 5J(3) makes it clear that a person should not be assessed as having a well-founded fear of persecution if they could objectively take reasonable steps to modify their behavior so as to avoid a real chance of persecution in the receiving country. This is provided that the modification of behavior required to avoid the persecution does not conflict with a characteristic that is fundamental to the person’s identity or conscience or conceal an innate or immutable characteristic of the person. Relevantly, in S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; 78 ALD 8; 203 ALR 112; 78 ALJR 180; [2003] HCA 71 (S395), McHugh and Kirby JJ observed at [43] (with whom Gummow and Hayne JJ agreed at [80]): …the well-founded fear of persecution held by the applicant is the fear that, unless that person acts to avoid the harmful conduct, he or she will suffer harm. It is the threat of serious harm with its menacing implications that constitutes the persecutory conduct. To determine the issue of real chance without determining whether the modified conduct was influenced by the threat of harm is to fail to consider that issue properly.

According to the Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 at [1194], s 5J(3) is said to be consistent with the principles enunciated in S395. Essential and significant reason: While s 5J(4)(a) requires that the reason for persecution be the “essential and significant reason”, it is not necessary that it be the sole, or even dominant, reason for the persecution: see, for example, Minister for Immigration and Multicultural Affairs v Singh © 2016 THOMSON REUTERS

107

s 5J

Migration Act 1958

[5J.20]

(2002) 209 CLR 533; 67 ALD 257; 186 ALR 393; 76 ALJR 514; 23(4) Leg Rep 18; [2002] HCA 7 at [44] per Gaudron J (in relation to the former s 91R). Thus, where a person fears serious harm for multiple reasons, in circumstances where only one reason is related to one of the protected attributes mentioned in s 5J(1)(a), it may still be the case that the protected attribute is the “essential and significant” reason: SZQNO v Minister for Immigration and Citizenship [2012] FCA 326 at [42] per Kenny J (in relation to the former s 91R). Serious harm: Persecution must involve “serious harm”. What constitutes serious harm is affected by both case law and s 5J(5) which provides the following non-exhaustive list of instances that will qualify as serious harm: • a threat to the person’s life or liberty: s 5J(5)(a); • significant physical harassment of the person: s 5J(5)(b); • significant physical ill-treatment of the person: s 5J(5)(c); • significant economic hardship that threatens the person’s capacity to subsist: s 5J(5)(d); • denial of access to basic services, where the denial threatens the person’s capacity to subsist: s 5J(5)(e); • denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist: s 5J(5)(f). In WZAPN v Minister for Immigration and Border Protection [2014] FCA 947, North J held at [30] that the conclusion to be drawn from the language and structure of the former s 91R(2)(a) (which is now reflected in s 5J(5)(a)), is that “serious harm” is constituted by any threat to life or liberty, without reference to the severity of the consequences to life or liberty. Accordingly, his Honour held that, by making a qualitative assessment of the nature and degree of the harm experienced by the applicant when asking whether the threat to the applicant’s liberty was sufficiently significant, the merits reviewer applied the wrong test in the application of s 91R(2)(a) (now s 5J(5)(a)) and thereby fell into jurisdictional error: at [45]. In other words, the effect of North’s J judgment is that, in assessing serious harm as a consequence of a threat to life or liberty, s 5J(5)(a) is not contingent on a qualitative or adjectival expression of the harm. However, unlike North J, a Full Court of the Federal Court in SZTEQ v Minister for Immigration and Border Protection (2015) 229 FCR 497; [2015] FCAFC 39 (SZTEQ) did not consider the absence of adjectival qualification in s 91R(2)(a) (hence, s 5J(5)(a)) to be of significance, given the context of the provision as a whole. Rather, Robertson, Griffiths and Mortimer JJ were of the view that the absence of an adjective indicates that a threat to “liberty” is not synonymous with the possibility of a person being held briefly on remand or detained for a short time for questioning. In this context, the Full Court held that “liberty” is a nuanced concept which takes its meaning from the context in which it appears, that is, the requirement that the persecution involve serious harm. Accordingly, their Honours did not consider that the structure of s 91R(2)(a) (hence s 5J(5)(a)) supports a construction of that provision to the effect that any threat to liberty constitutes serious harm without reference to the severity of the threat to liberty: at [59]–[60]. The High Court in Minister for Immigration and Border Protection v WZAPN [2015] HCA 22 held at [5] that the decision of the Full Court in SZTEQ was correct, and that North J’s construction of s 91R(2)(a) could not be sustained. Systematic and discriminatory conduct: In Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; 87 ALR 412; 63 ALJR 561; [1989] HCA 62 (Chan), McHugh J observed at [36] that “…the notion of persecution involves selective harassment.” Similarly, McHugh J (in dissent, but not on this point) observed at [99] in Minister for Immigration and Multicultural Affairs v Ibrahim (2000) 204 CLR 1; 62 ALD 1; (2000) 175 ALR 585; (2000) 74 ALJR 1556; 21(17) Leg Rep 2; [2000] HCA 55 (Ibrahim), that (in text references excluded): 108

Migration Law

[5J.30]

Part 1 - Preliminary (ss 1-12)

s 5J

…Selective harassment, which discriminates against a person for a Convention reason, is inherent in the notion of persecution. Unsystematic or random acts are non-selective. It is therefore not a prerequisite to obtaining refugee status that a person fears being persecuted on a number of occasions or “must show a series of coordinated acts directed at him or her which can be said to be not isolated but systematic.” The fear of a single act of harm done for a Convention reason will satisfy the Convention definition of persecution if it is so oppressive that the individual cannot be expected to tolerate it so that refusal to return to the country of the applicant’s nationality is the understandable choice of that person.

In Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225; 142 ALR 331; 71 ALJR 381; [1997] 4 Leg Rep 9; [1997] HCA 4 (Applicant A), a case which preceded the introduction of s 5J, Brennan CJ considered the requirement that persecution involve “discriminatory” conduct. His Honour observed at 233 (CLR) that, to constitute persecution, a person must be discriminated against on the basis of one of the reasons that are now mentioned in s 5J(1)(a) (being the same reasons that are mentioned in Art 1A(2) of the Refugees Convention: race, religion, nationality, membership of a particular social group or political opinion). His Honour noted that the discriminatory requirement is found in the words “for reasons of” one of the categories mentioned in s 5J(1)(a). Accordingly, indiscriminate persecution is excluded from the definition of persecution. As persecution must involve discriminatory conduct, enforcement of a law of general application will not ordinarily constitute persecution: Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293; 58 ALD 321; 170 ALR 553; 170 ALR 533; 74 ALJR 775; 21(7) Leg Rep 11; [2000] HCA 19 (Chen), per Gleeson CJ, Gaudron, Gummow and Hayne JJ at [18]-[21], citing the comments of McHugh J in Applicant A at 258. Persecution must have an “offıcial quality” / non-state actors and state protection: Although the paradigm case of persecution contemplated by the Refugees Convention is persecution by the state or agents of the state, persecution may also be inflicted by persons who are not agents of the state provided that the persecution is “official”, or “officially tolerated” by the authorities: see Applicant A at 233 per Brennan CJ; Minister for Immigration and Multicultural Affairs v S152/2003 (2004) 222 CLR 1; 77 ALD 296; 205 ALR 487; 78 ALJR 678; [2004] HCA 18 (S152) at [18]-[20] per Gleeson CJ, Hayne and Heydon JJ; Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1; 674 ALD 577; 187 ALR 574; 76 ALJR 667; 23(6) Leg Rep 11; [2002] HCA 14 at [21]-[22] per Gleeson CJ. [5J.30]

Key cases

Laws of general application The administration of a law of general application will not usually amount to persecution, unless it is applied in a discriminatory way. In Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225; 142 ALR 331; 71 ALJR 381; [1997] 4 Leg Rep 9; [1997] HCA 4, the applicants were citizens of the People’s Republic of China, married and had one child that was born in Australia. They applied for protection visas on the basis that they feared that China’s “One Child Policy” would be enforced against them by sterilisation if they returned to China. They claimed to have a fear of persecution on the basis of their membership of a particular social group, being citizens who had one child and who did not agree with the “One Child Policy” and who would be forced into being sterilized by reason of the policy. The applicants were not successful in the High Court, as the “One Child Policy” was a law of general application. At 244-245 Dawson J stated: … a country might have laws of general application which punish severely, perhaps even with the death penalty, conduct which would not be criminal at all in Australia. The enforcement of such laws would doubtless be persecution, but without more it would not be persecution for one of the reasons stated in the Convention. © 2016 THOMSON REUTERS

109

s 5J

Migration Act 1958

[5J.30]

Chief Justice Brennan stated at 233: … the feared persecution must be discriminatory … The persecution must be “for reasons of” one of those categories … The qualification also excludes persecution which is no more than punishment of a non-discriminatory kind for contravention of a criminal law of general application. Such laws are not discriminatory and punishment that is non-discriminatory cannot stamp the contravener with the mark of “refugee”.

Justice McHugh stated at 258: Conduct will not constitute persecution, however, if it is appropriate and adapted to achieving some legitimate object of the country of the refugee. A legitimate object will ordinarily be an object whose pursuit is required in order to protect or promote the general welfare of the State and its citizens. The enforcement of a generally applicable criminal law does not ordinarily constitute persecution.

In Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293; 58 ALD 321; 170 ALR 553; 74 ALJR 775; 21(7) Leg Rep 11; [2000] HCA 19, the applicant was a three and half year old child of Chinese parents born out of wedlock. The applicant applied for a protection visa on the basis of fearing persecution in China on the basis of his membership to a particular social group, colloquially known as “black children”. This referred to children that were born outside the parameters of China’s “One Child Policy”. The Tribunal found that the applicant would not be persecuted “for reasons of” his membership of the particular social group, rather the harm he would suffer was as a result of China’s intention to penalize those who have children outside its “One Child Policy”, which was a law of general application. Chief Justice Gleeson, Gaudron, Gummow and Hayne JJ held the applicant was a member of a particular social group and would be persecuted for reasons of that membership if he returned to China. This is because, “black children” were treated differently in China and this different treatment amounted to persecution. At [19], Gleeson CJ, Gaudron, Gummow and Hayne JJ stated: Laws or policies which target or apply only to a particular section of the population are not properly described as laws of general application. Certainly, laws which target or impact adversely upon a particular class or group – for example, “black children”, as distinct from children generally – cannot properly be described in that way.

At [21], Gleeson CJ, Gaudron, Gummow and Hayne JJ also stated: To say that, ordinarily, a law of general application is not discriminatory is not to deny that general laws, which are apparently non-discriminatory, may impact differently on different people and, thus, operate discriminatorily. Nor is it to overlook the possibility that selective enforcement of a law of general application may result in discrimination.

Well-founded fear and real chance test A non-citizen will have a well-founded fear of persecution for one or more of the grounds set out in s 5J(1)(a), if there is a “real chance of persecution”. In Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559; 48 ALD 481; 144 ALR 567; 71 ALJR 743; [1997] 9 Leg Rep 2; [1997] HCA 22, Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ considered the “real chance test” and at 575 stated: Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events. In the present case, for example, the Tribunal correctly relied on what it found had happened to Mr Guo and others to make a finding that he was not “differentially at risk for a Convention reason”. Without making findings about the policies of the Chinese authorities and the past relationship of 110

Migration Law

[5K.10]

Part 1 - Preliminary (ss 1-12)

s 5K

Mr Guo with those authorities, the Tribunal would have had no rational basis from which it could assess whether there was a real chance that he might be persecuted for a Convention reasons if he were to return to the PRC.

Relevantly, in Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505; 132 ALD 269; 296 ALR 525; [2013] FCAFC 33, a majority of the Full Court of the Federal Court confirmed that, although s 36(2)(aa) uses the words “real risk”, the relevant test in determining whether a non-citizen is entitled to Australia’s protection obligations under the Complimentary Protection Regime is according to the “real chance” test (being the same test applied under s 36(2)(a)): per Lander and Gordon JJ at [232]-[246]; per Besanko and Jagot JJ at [297] (Flick J agreeing). [5J.40] Practice points The non-exhaustive statutory definition of “persecution” is relevant to the assessment of whether a person satisfies the definition of “refugee” under s 5H, which is in turn relevant to the criteria for the grant of a protection visa under s 36. This provision is relevant only to visa applications made after the commencement of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth). 5K Membership of a particular social group consisting of family For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well-founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family: (a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and (b) disregard any fear of persecution, or any persecution, that: (i) the first person has ever experienced; or (ii) any other member or former member (whether alive or dead) of the family has ever experienced; where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed. Note: Section 5G may be relevant for determining family relationships for the purposes of this section. [S 5K insrt Act 135 of 2014, s 3 and Sch 5 item 7, with effect from 18 Apr 2015]

SECTION 5K COMMENTARY [5K.10] Scope Section 5K was introduced by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (the MMP Act). For the purposes of protection visa applications made before the commencement of the MMP Act, the former s 91S provides that certain matters must be disregarded in determining whether a particular person has a well-founded fear of persecution for the reason of membership of a particular social group that consists of the person’s family. For protection visa applications made after the commencement of the MMP Act, ss 5K and 5L, when read together, provide the definition of “particular social group” for the purposes of © 2016 THOMSON REUTERS

111

s 5L

Migration Act 1958

[5L.10]

s 5J(1)(a) (see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 at [1184]) Although s 5K largely replicates the former s 91S, s 5L seeks to clarify and limit the definition of “membership of a particular social group” in respect of non-family members. Section 5K and the former s 91S also (in relation to protection visa applications made prior to the commencement of the MMP Act) qualify the definition of particular social group in respect of families. Where a person claims to be a member of a particular social group on the basis of the person’s family, s 5K (and the former 91S) mandates that the following factors be disregarded: (i) any fear of persecution, or any persecution, that any other family member has experienced, where the fear for persecution is not for one of the reasons mentioned in s 5J(1)(a) (or, under s 91S, mentioned in the Refugees Convention); and (ii) any fear of persecution, or any persecution, that the first person or any other family member has experienced, where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (i) above had never existed. 5L

Membership of a particular social group other than family For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if: (a) a characteristic is shared by each member of the group; and (b) the person shares, or is perceived as sharing, the characteristic; and (c) any of the following apply: (i) the characteristic is an innate or immutable characteristic; (ii) the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it; (iii) the characteristic distinguishes the group from society; and (d) the characteristic is not a fear of persecution. [S 5L insrt Act 135 of 2014, s 3 and Sch 5 item 7, with effect from 18 Apr 2015]

SECTION 5L COMMENTARY Scope ..................................................................................................................................................... [5L.10] Concepts ................................................................................................................................................ [5L.20]

[5L.10] Scope Section 5L was introduced by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (the MMP Act). For the purposes of protection visa applications made before the commencement of the MMP Act, the former s 91S provides that certain matters must be disregarded in determining whether a particular person has a well-founded fear of persecution for the reason of membership of a particular social group that consists of the person’s family. For protection visa applications made after the commencement of the MMP Act, ss 5K and 5L, when read together, provide the definition of “particular social group” for the purposes of s 5J(1)(a) (see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 at [1184]). 112

Migration Law

[5L.20]

Part 1 - Preliminary (ss 1-12)

s 5LA

Although s 5K largely replicates the former s 91S, s 5L seeks to clarify and limit the definition of “membership of a particular social group” in respect of non-family members. According to the Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 at [1216]-[1217], s 5L is intended to provide additional legislative guidance to decision makers, and applies the test formulated by the High Court in S v Minister for Immigration and Multicultural Affairs (2003) 217 CLR 387; 77 ALD 541; 206 ALR 242; 78 ALJR 854; [2004] HCA 25 (S). However, s 5L(1)(b) also incorporates an additional requirement for “membership of a particular social group” that the defining characteristic of the group must be a characteristic that is either innate or immutable or so fundamental to the member’s identity or conscience that the member should not be forced to renounce it. Section 5L(1)(b) is said to draw from the approach taken in other jurisdictions including Canada, the United States of America, New Zealand and the European Union. Subject to qualification provided by s 5L, the meaning of “particular social group” is otherwise unconfined. [5L.20] Concepts Characteristic shared by each member of the group: In A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225; 142 ALR 331; 71 ALJR 381; [1997] 4 Leg Rep 9; [1997] HCA 4, Dawson J said at 241 (CLR) that (in text references excluded): …A particular social group … is a collection of persons who share a certain characteristic or element which unites them and enables them to be set apart from society at large. That is to say, not only must such persons exhibit some common element…the element must unite them, making those who share it a cognisable group within their society.

In S v Minister for Immigration and Multicultural Affairs (2003) 217 CLR 387; 77 ALD 541; 206 ALR 242; 78 ALJR 854; [2004] HCA 25, McHugh J expanded on this concept, stating at [69] that: … To qualify as a particular social group, it is enough that objectively there is an identifiable group of persons with a social presence in a country, set apart from other members of that society, and united by a common characteristic, attribute, activity, belief, interest, goal, aim or principle…

However, Gleeson CJ cautioned at [36] that the characteristic or attribute common to all members of the group cannot be the “shared fear of persecution”. Further, the possession of that characteristic or attribute must distinguish the group from society at large; otherwise the group will simply be a “social group” (and not a particular social group). 5LA Effective protection measures (1) For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if: (a) protection against persecution could be provided to the person by: (i) the relevant State; or (ii) a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and (b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection. (2) A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if: (a) the person can access the protection; and

© 2016 THOMSON REUTERS

113

s 5LA

Migration Act 1958

(b) the protection is durable; and (c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system. [S 5LA insrt Act 135 of 2014, s 3 and Sch 5 item 7, with effect from 18 Apr 2015]

5M Particularly serious crime For the purposes of the application of this Act and the regulations to a particular person, paragraph 36(1C)(b) has effect as if a reference in that paragraph to a particularly serious crime included a reference to a crime that consists of the commission of: (a) a serious Australian offence; or (b) a serious foreign offence. [S 5M insrt Act 135 of 2014, s 3 and Sch 5 item 7, with effect from 18 Apr 2015]

6

Effect of limited meaning of enter Australia etc. To avoid doubt, although subsection 5(1) limits, for the purposes of this Act, the meanings of enter Australia, leave Australia and remain in Australia and as well, because of section 18A of the Acts Interpretation Act 1901, the meaning of parts of speech and grammatical forms of those phrases, this does not mean: (a) that, for those purposes, the meaning of in Australia, to Australia or any other phrase is limited; or (b) that this Act does not extend to parts of Australia outside the migration zone; or (c) that this Act does not apply to persons in those parts. Note: See also subsection 9A(3), which deals with when a person is taken to be in Australia, to travel to Australia, to enter Australia or to leave Australia. Section 9A concerns offshore resources activities. [S 6 am Act 117 of 2013, s 3 and Sch 1 item 5, with effect from 29 Jun 2014; former s 4AA renum Act 60 of 1994, s 83; insrt Act 184 of 1992, s 5, with effect from 1 Sep 1994]

7

Act to extend to certain Territories (1) In this section, prescribed Territory means the Coral Sea Islands Territory, the Territory of Cocos (Keeling) Islands, the Territory of Christmas Island and the Territory of Ashmore and Cartier Islands. [Subs (1) am Act 118 of 1997, s 3 and Sch 1 item 48]

(2) This Act extends to a prescribed Territory. (3) Subject to this Act, a prescribed Territory: (a) shall be deemed to be part of Australia for the purposes of this Act; and (b) shall be deemed not to be a place outside Australia. [S 7 am Act 118 of 1997; former s 5 renum Act 60 of 1994, s 83; former s 5A renum Act 59 of 1989, s 35; subst Act 168 of 1986, s 3 and Sch 1; insrt Act 175 of 1980, s 4]

7A Effect on executive power to protect Australia’s borders The existence of statutory powers under this Act does not prevent the exercise of any executive power of the Commonwealth to protect Australia’s borders, including, where necessary, by ejecting persons who have crossed those borders. [S 7A insrt Act 126 of 2001, s 3 and Sch 2 item 2]

8

114

Certain resources installations to be part of Australia (1) For the purposes of this Act, a resources installation that: (a) becomes attached to the Australian seabed after the commencement of this subsection; or

Migration Law

Part 1 - Preliminary (ss 1-12)

s 9A

(b) at the commencement of this subsection, is attached to the Australian seabed; shall, subject to subsection (2), be deemed to be part of Australia and shall be deemed not to be a place outside Australia. [Subs (1) am Act 104 of 1987, s 33(a)]

(2) A resources installation that is deemed to be part of Australia by virtue of the operation of this section shall, for the purposes of this Act, cease to be part of Australia if: (a) the installation is detached from the Australian seabed, or from another resources installation that is attached to the Australian seabed, for the purpose of being taken to a place outside the outer limits of Australian waters (whether or not the installation is to be taken to a place in Australia before being taken outside those outer limits); or (b) after having been detached from the Australian seabed otherwise than for the purpose referred to in paragraph (a), the installation is moved for the purpose of being taken to a place outside the outer limits of Australian waters (whether or not the installation is to be taken to a place in Australia before being taken outside those outer limits). [Subs (2) am Act 104 of 1987, s 33(b) and (c)] [Former s 6 renum Act 60 of 1994, s 83; former s 5B renum Act 59 of 1989, s 35; am Act 104 of 1987; insrt Act 51 of 1982, s 44]

9

Certain sea installations to be part of Australia (1) For the purposes of this Act, a sea installation that: (a) becomes installed in an adjacent area or in a coastal area after the commencement of this subsection; or (b) at the commencement of this subsection, is installed in an adjacent area or in a coastal area; shall, subject to subsection (2), be deemed to be part of Australia and shall be deemed not to be a place outside Australia. (2) A sea installation that is deemed to be part of Australia because of the operation of this section shall, for the purposes of this Act, cease to be part of Australia if: (a) the installation is detached from its location for the purpose of being taken to a place outside the outer limits of Australian waters; or (b) after having been detached from its location otherwise than for the purpose referred to in paragraph (a), the installation is moved for the purpose of being taken to a place outside the outer limits of Australian waters. [Former s 7 renum Act 60 of 1994, s 83; former s 5C renum Act 59 of 1989, s 35; insrt Act 104 of 1987, s 34]

9A Migration zone etc.—offshore resources activities Migration zone etc. (1) For the purposes of this Act, a person is taken to be in the migration zone while he or she is in an area to participate in, or to support, an offshore resources activity in relation to that area. Example 1: A person is taken to be in the migration zone under this section if the person is on a vessel in an area to participate in an offshore resources activity under the Offshore Petroleum and Greenhouse Gas Storage Act 2006 in that area by exploring for, or recovering, petroleum.

© 2016 THOMSON REUTERS

115

s 9A

Migration Act 1958

Example 2: A person who is a member of the crew of the vessel is also taken to be in the migration zone under this section if the person is supporting the offshore resources activity.

Example 3: Neither a stowaway on the vessel, nor a person on the vessel because the person was rescued at sea, is taken to be in the migration zone, because neither is participating in, or supporting, the offshore resources activity.

(2) To avoid doubt, a person may be taken to be in the migration zone under subsection (1): (a) whether or not the person’s participation in, or support of, an offshore resources activity in the area concerned has started, is continuing or has concluded; and (b) whether or not the offshore resources activity concerned has started, is continuing or has concluded. (3) For the purposes of this Act: (a) a person is taken to be in Australia while he or she is taken to be in the migration zone because of subsection (1); and (b) a person is taken to travel to Australia if the person travels to an area in which the person is taken to be in the migration zone because of subsection (1); and (c) a person is taken to enter Australia when the person enters an area in which the person is taken to be in the migration zone because of subsection (1); and (d) subject to section 80—a person is taken to leave Australia when the person leaves an area in which the person is taken to be in the migration zone because of subsection (1). (4) Unless a provision of this Act, or another Act, expressly provides otherwise, this section does not have the effect of extending, for the purposes of another Act, the circumstances in which a person: (a) is in the migration zone or is taken to be in the migration zone; or (b) is in Australia or is taken to be in Australia; or (c) travels to Australia or is taken to travel to Australia; or (d) enters Australia or is taken to enter Australia; or (e) leaves Australia or is taken to leave Australia. Meaning of offshore resources activity (5) In this section: offshore resources activity, in relation to an area, means: (a) a regulated operation (within the meaning of section 7 of the Offshore Petroleum and Greenhouse Gas Storage Act 2006) that is being carried out, or is to be carried out, within the area, except an operation determined by the Minister under subsection (6); or (b) an activity performed under a licence or a special purpose consent (both within the meaning of section 4 of the Offshore Minerals Act 1994) that is being carried out, or is to be carried out, within the area, except an activity determined by the Minister under subsection (6); or (c) an activity, operation or undertaking (however described) that is being carried out, or is to be carried out: (i) under a law of the Commonwealth, a State or a Territory determined by the Minister under subsection (6); and (ii) within the area, as determined by the Minister under subsection (6).

116

Migration Law

[9A.20]

Part 1 - Preliminary (ss 1-12)

s 11

(6) The Minister may, in writing, make a determination for the purposes of the definition of offshore resources activity in subsection (5). (7) A determination made under subsection (6) is a legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 does not apply to the determination. [Subs (7) am Act 126 of 2015, s 3 and Sch 1 item 380, with effect from 5 Mar 2016]

(8) To avoid doubt, for the purposes of subsection (1), a person may participate in, or support, an offshore resources activity in relation to an area whether the person: (a) is on an Australian resources installation in the area; or (b) is otherwise in the area to participate in, or support, the activity. [S 9A am Act 126 of 2015; insrt Act 117 of 2013, s 3 and Sch 1 item 6, with effect from 29 Jun 2014 Cross-reference: Legislative Instruments: IMMI 15/140 — Migration Act 1958 – Determination 2015: This Determination operates so that a non-citizen who is on a vessel or structure that is used for operations or activities but that is not an Australian resources installation, is not taken to be in the migration zone.]

SECTION 9A COMMENTARY [9A.20] Practice point Pursuant to s 9A(6), the Minister may, in writing, make a determination for the purposes of the definition “offshore resources activity” in s 9A(5). On 17 July 2014 the legislative instrument IMMI 14/077 was registered in the Federal Registry of Legislative Instruments. On 26 March 2015, Gordon, Katzman and Griffiths JJ held that the instrument was invalid, because it was ultra vires: Australian Maritime Offıcers’ Union v Assistant Minister for Immigration and Border Protection [2015] FCAFC 45. 10

Certain children taken to enter Australia at birth A child who: (a) was born in the migration zone; and

[Para (a) am Act 184 of 1992, s 38 and Sch, with effect from 1 Sep 1994]

(b) was a non-citizen when he or she was born; shall be taken to have entered Australia when he or she was born. [Former s 8 renum Act 60 of 1994, s 83; am Act 184 of 1992; former s 5D renum Act 59 of 1989, s 35; insrt Act 59 of 1989, s 5]

11

Visa applicable to 2 or more persons Where: (a) 2 or more persons who are the holders of the same visa travel to Australia on board the same vessel; and (b) on entering Australia, one of those persons is in possession of evidence of that visa;

[Para (b) am Act 60 of 1994, s 82 and Sch 1 item 3; Act 184 of 1992, s 38 and Sch (am Act 60 of 1994), with effect from 1 Sep 1994]

each of them shall, for the purposes of this Act, be taken to be in possession of that evidence on entering Australia. [Former s 10 renum Act 60 of 1994, s 83; am Act 60 of 1994, s 82 and Sch 1 item 3; Act 184 of 1992, s 38 and Sch, with effect from 1 Sep 1994; former s 5F renum Act 59 of 1989, s 35; insrt Act 59 of 1989, s 5]

© 2016 THOMSON REUTERS

117

s 11

Migration Act 1958

12

Application of Part VA of the Marriage Act For the purpose of deciding whether a marriage is to be recognised as valid for the purposes of this Act, Part VA of the Marriage Act 1961 applies as if section 88E of that Act were omitted. [former s 5H renum Act 59 of 1989, s 35; insrt Act 59 of 1989, s 5]

118

Migration Law

PART 2 – ARRIVAL, PRESENCE AND DEPARTURE OF PERSONS (SS 13–274) [Pt 2 heading subst Act 116 of 2014, s 3 and Sch 5 item 2, with effect from 4 Nov 2014; Act 184 of 1992, s 7, with effect from 1 Sep 1994; Act 112 of 1983, s 5] [former Pt II renum Act 59 of 1989, s 35]

DIVISION 1 – IMMIGRATION STATUS (SS 13–17) [Div 1 heading subst Act 184 of 1992, s 7, with effect from 1 Sep 1994; am Act 151 of 1988, s 4] [Div 1 subst Act 59 of 1989, s 6]

13

Lawful non-citizens (1) A non-citizen in the migration zone who holds a visa that is in effect is a lawful non-citizen. [Subs (1) am Act 60 of 1994, s 5]

(2) An allowed inhabitant of the Protected Zone who is in a protected area in connection with the performance of traditional activities is a lawful non-citizen. (3) [Repealed] [Subs (3) rep Act 60 of 1994, s 5; am Act 59 of 1993, s 15] [Former s 14 renum Act 60 of 1994, s 83; am Act 60 of 1994; Act 59 of 1993; subst Act 184 of 1992, s 7, with effect from 1 Sep 1994; am Act 84 of 1992; former s 6 renum Act 59 of 1989, s 35; subst Act 59 of 1989, s 6 (am Act 159 of 1989); am Act 151 of 1988; Act 49 of 1988; Act 133 of 1987; Act 112 of 1983; Act 175 of 1980; Act 117 of 1979]

SECTION 13 COMMENTARY [13.20] Scope A non-citizen’s status as either a “lawful non-citizen” or “unlawful non-citizen” is of central relevance to several provisions throughout the Act. In Plaintiff M47-2012 v Director General of Security (2012) 292 ALR 243; 86 ALJR 1372; [2012] HCA 46 at [176] – [178], Hayne J explained in detail, in the context of the Act, the relevance of a non-citizen’s status as being either lawful or unlawful: Subject to some qualifications that are not immediately important, the Act has a binary structure in that its central provisions posit a choice between two outcomes. Non-citizens are divided into “lawful non-citizens” and “unlawful non-citizens” according to whether the non-citizen in question holds a valid visa … The Act spells out the consequences that follow from being a lawful non-citizen or an unlawful non-citizen. Generally, an officer is bound to detain a person whom the officer knows or reasonably suspects to be an unlawful non-citizen. Subject to the possibility of the Minister making a “residence determination” under s 197AB, s 196(1) requires that an unlawful non-citizen detained under s 189 of the Act “be kept in immigration detention until he or she is” removed from Australia, deported or granted a visa. An officer is bound to remove “as soon as reasonably practicable” an unlawful non-citizen who has been detained, has not subsequently been immigration cleared, and has no valid application for a visa that has not yet been finally determined. The Act provides no middle ground between being a lawful non-citizen (entitled to remain in Australia in accordance with any applicable visa requirements) and being an unlawful non-citizen, who may, © 2016 THOMSON REUTERS

119

s 14

Migration Act 1958

[14.20]

usually must, be detained and who (assuming there is no pending consideration of a valid visa application) must be removed from Australia as soon as reasonably practicable. These consequences remaining in Australia on the one hand and detention followed by removal from Australia on the other - follow once the central question has been answered: is the person a lawful non-citizen or an unlawful non-citizen? That question depends upon whether the Minister grants or refuses to grant a visa or, if a visa has previously been granted, whether that visa has since been cancelled.

14

Unlawful non-citizens (1) A non-citizen in the migration zone who is not a lawful non-citizen is an unlawful non-citizen. (2) To avoid doubt, a non-citizen in the migration zone who, immediately before 1 September 1994, was an illegal entrant within the meaning of the Migration Act as in force then became, on that date, an unlawful non-citizen. [Subs (2) am Act 59 of 1993, s 16] [Former s 15 renum Act 60 of 1994, s 83; am Act 59 of 1993; subst Act 184 of 1992, s 7, with effect from 1 Sep 1994; am Act 84 of 1992; former s 7 renum Act 59 of 1989, s 35; subst Act 59 of 1989, s 6; am Act 133 of 1987; Act 112 of 1983; Act 117 of 1979; Act 10 of 1966]

SECTION 14 COMMENTARY [14.20] Scope See the commentary to s 13, which equally applies to this provision. 15

Effect of cancellation of visa on status To avoid doubt, subject to subsection 13(2) (certain inhabitants of protected zone), if a visa is cancelled its former holder, if in the migration zone, becomes, on the cancellation, an unlawful non-citizen unless, immediately after the cancellation, the former holder holds another visa that is in effect. [Former s 16 renum Act 60 of 1994, s 83; am Act 60 of 1994, s 6; subst Act 184 of 1992, s 7, with effect from 1 Sep 1994; former s 8 renum Act 59 of 1989, s 35; subst Act 59 of 1989, s 6; am Act 22 of 1984; Act 112 of 1983; Act 61 of 1981; Act 117 of 1979; Act 10 of 1966; Act 87 of 1964]

16

Removal of immigration rights of inhabitant of Protected Zone The Minister may declare, in writing, that it is undesirable that a specified inhabitant of the Protected Zone continue to be permitted to enter or remain in Australia. [Former s 17 renum Act 60 of 1994, s 83; subst Act 184 of 1992, s 7, with effect from 1 Sep 1994; am Act 86 of 1991; former s 9 renum Act 59 of 1989, s 35; subst Act 59 of 1989, s 6; am Act 112 of 1983; Act 117 of 1979]

17

Pre-cleared flights (1) The Minister may, in writing, declare a specified flight by an aircraft on a specified day between a specified foreign country and Australia to be a pre-cleared flight for the purposes of this Act. [Subs (1) am Act 184 of 1992, s 8(a), with effect from 1 Sep 1994]

(2) The Minister may declare, in writing, a specified class of flights conducted by a specified air transport enterprise or by another specified person to be pre-cleared flights for the purposes of this Act. [Subs (2) insrt Act 184 of 1992, s 8(b), with effect from 1 Sep 1994]

120

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 2 – Power to obtain information and documents about unlawful non-citizens (ss 18–27)

s 21

(3) A particular flight to which a declaration under subsection (1) or (2) applies is not a pre-cleared flight if an authorised officer decides, before the passengers on it disembark in Australia, that it is inappropriate to treat it as such. [Subs (3) insrt Act 184 of 1992, s 8(b), with effect from 1 Sep 1994] [Former s 19 renum Act 60 of 1994, s 83; am Act 184 of 1992; former s 11 renum Act 59 of 1989, s 35; subst Act 59 of 1989, s 6; am Act 151 of 1988; Act 141 of 1987; subst Act 117 of 1979, s 8]

DIVISION 2 – POWER TO OBTAIN INFORMATION AND DOCUMENTS ABOUT UNLAWFUL NON-CITIZENS (SS 18–27) [Div 1A heading am Act 184 of 1992, s 38 and Sch, with effect from 1 Sep 1994; Act 141 of 1987, s 3 and Sch 1] [Former Div 1A renum Act 60 of 1994, s 83; insrt Act 196 of 1991, s 3]

18

Power to obtain information and documents about unlawful non-citizens (1) If the Minister has reason to believe that a person (in this subsection called the first person) is capable of giving information which the Minister has reason to believe is, or producing documents (including documents that are copies of other documents) which the Minister has reason to believe are, relevant to ascertaining the identity or whereabouts of another person whom the Minister has reason to believe is an unlawful non-citizen, the Minister may, by notice in writing served on the first person, require the first person: (a) to give to the Minister, within the period and in the manner specified in the notice, any such information; or (b) to produce to the Minister, within the period and in the manner specified in the notice, any such documents; or (c) to make copies of any such documents and to produce to the Minister, within the period and in the manner specified in the notice, those copies. [Subs (1) am Act 184 of 1992, s 38 and Sch, with effect from 1 Sep 1994]

(2) A notice under subsection (1) must set out the effects of section 21 of this Act and sections 137.1 and 137.2 of the Criminal Code. [Subs (2) am Act 137 of 2000, s 3 and Sch 2 item 277 (am Act 9 of 2006)] [S 18 am Act 137 of 2000; former s 22A renum Act 60 of 1994, s 83; am Act 184 of 1992, s 38 and Sch, with effect from 1 Sep 1994; insrt Act 196 of 1991, s 3]

19

Scales of expenses The regulations may prescribe scales of expenses to be allowed to persons required to give information or produce documents under this Division. [Former s 22B renum Act 60 of 1994, s 83; insrt Act 196 of 1991, s 3]

20

Reasonable compensation A person is entitled to be paid by the Commonwealth reasonable compensation for complying with a requirement covered by paragraph 18(1)(c). [Former s 22C renum Act 60 of 1994, s 83; insrt Act 196 of 1991, s 3]

21

Failure to comply with section 18 notice (1) A person must not refuse or fail to comply with a notice under subsection 18(1).

[Subs (1) am Act 97 of 2001, s 3 and Sch 1 items 3 and 4, with effect from 19 Sep 2001]

(1A) Subsection (1) does not apply: (a) to the extent that the person is not capable of complying with the notice; or (b) if the person has a reasonable excuse. Note: A defendant bears an evidential burden in relation to the matters in subsection (1A) (see subsection 13.3(3) of the Criminal Code). [Subs (1A) insrt Act 97 of 2001, s 3 and Sch 1 item 5, with effect from 19 Sep 2001]

© 2016 THOMSON REUTERS

121

s 21

Migration Act 1958

(2) The following are 2 of the reasonable excuses for refusing or failing to comply with a notice: (a) the person whom the Minister had reason to believe was an unlawful non-citizen was not an unlawful non-citizen at the time the notice was given; (b) the information or documents which the Minister had reason to believe were relevant to ascertaining the identity or whereabouts of a person were not relevant to ascertaining the identity or whereabouts of the person. [Subs (2) am Act 184 of 1992, s 38 and Sch]

(3) An offence against subsection (1) is an offence of strict liability. Penalty: Imprisonment for 6 months. Note: For strict liability, see section 6.1 of the Criminal Code. [Subs (3) insrt Act 97 of 2001, s 3 and Sch 1 item 6, with effect from 19 Sep 2001] [S 21 am Act 97 of 2001; former s 22D renum Act 60 of 1994, s 83; am Act 184 of 1992; insrt Act 196 of 1991, s 3]

[Editor’s Note: Sections 22 and 23 were repealed by Act 137 of 2000, s 3 and Sch 2 items 278 and 279, and have not been reproduced.] 24

Information and documents that incriminate a person A person is not excused from giving information or producing a document or a copy of a document under this Division on the ground that the information or the production of the document or copy might tend to incriminate the person, but: (a) giving the information or producing the document or copy; or (b) any information, document or thing obtained as a direct or indirect consequence of giving the information or producing the document or copy; is not admissible in evidence against the person in any criminal proceedings other than a prosecution for: (c) an offence against, or arising out of, this Division; or [Para (c) insrt Act 137 of 2000, s 3 and Sch 2 item 280]

(d) an offence against section 137.1 or 137.2 of the Criminal Code that relates to this Division. [Para (d) insrt Act 137 of 2000, s 3 and Sch 2 item 280] [S 24 am Act 137 of 2000, s 3 and Sch 2 item 280; former s 22G renum Act 60 of 1994, s 83; insrt Act 196 of 1991, s 3]

25

Copies of documents (1) The Minister may inspect a document or copy produced under this Division and may make and retain copies of, or take and retain extracts from, such a document or copy. (2) The Minister may retain possession of a copy of a document produced in accordance with a requirement covered by paragraph 18(1)(c). [Former s 22H renum Act 60 of 1994, s 83; insrt Act 196 of 1991, s 3]

26

Minister may retain documents (1) The Minister may, for the purposes of this Act, take, and retain for as long as is necessary for those purposes, possession of a document produced under this Division. (2) The person otherwise entitled to possession of the document is entitled to be supplied, as soon as practicable, with a copy certified by the Minister to be a true copy. (3) The certified copy must be received in all courts and tribunals as evidence as if it were the original.

122

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 29

(4) Until a certified copy is supplied, the Minister must, at such times and places as the Minister thinks appropriate, permit the person otherwise entitled to possession of the document, or a person authorised by that person, to inspect and make copies of, or take extracts from, the document. [Former s 22J renum Act 60 of 1994, s 83; insrt Act 196 of 1991, s 3]

27

Division binds 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) Nothing in this Division permits the Crown in right of the Commonwealth, of a State, of the Australian Capital Territory or of the Northern Territory to be prosecuted for an offence. [Former s 22K renum Act 60 of 1994, s 83; insrt Act 196 of 1991, s 3]

DIVISION 3 – VISA FOR NON-CITIZENS (SS 28–140) [Div 2 heading subst Act 184 of 1992, s 10] [Former Div 2 renum Act 60 of 1994, s 83; former Div 1A renum Act 59 of 1989, s 35; insrt Act 117 of 1979, s 9]

SUBDIVISION A – GENERAL PROVISIONS ABOUT VISAS (SS 28–43) [Subdiv A heading subst Act 184 of 1992, s 10]

28

Interpretation In this Division: specified period includes the period until a specified date.

[Former s 23 renum Act 60 of 1994, s 83; subst Act 184 of 1992, s 10; am Act 14 of 1994; Act 175 of 1992; Act 196 of 1991; Act 86 of 1991; former s 11D renum Act 59 of 1989, s 35; insrt Act 59 of 1989, s 6]

29

Visas (1) Subject to this Act, the Minister may grant a non-citizen permission, to be known as a visa, to do either or both of the following: (a) travel to and enter Australia; (b) remain in Australia. Note: A maritime crew visa is generally permission to travel to and enter Australia only by sea (as well as being permission to remain in Australia) (see section 38B). [Subs (1) am Act 73 of 2007, s 3 and Sch 1 item 2]

(2) Without limiting subsection (1), a visa to travel to, enter and remain in Australia may be one to: (a) travel to and enter Australia during a prescribed or specified period; and (b) if, and only if, the holder travels to and enters during that period, remain in Australia during a prescribed or specified period or indefinitely. [Subs (2) am Act 60 of 1994, s 82 and Sch 1 items 4–6]

(3) Without limiting subsection (1), a visa to travel to, enter and remain in Australia may be one to: (a) travel to and enter Australia during a prescribed or specified period; and (b) if, and only if, the holder travels to and enters during that period: (i) remain in it during a prescribed or specified period or indefinitely; and (ii) if the holder leaves Australia during a prescribed or specified period, travel to and re-enter it during a prescribed or specified period. [Subs (3) am Act 60 of 1994, s 82 and Sch 1 items 4 and 7–9]

© 2016 THOMSON REUTERS

123

s 29

Migration Act 1958

[29.20]

(4) Without limiting section 83 (person taken to be included in visa), the regulations may provide for a visa being held by 2 or more persons. [Subs (4) am Act 60 of 1994, s 82 and Sch 1 item 10; Act 14 of 1994, s 6(a)] [S 29 am Act 73 of 2007; former s 24 renum Act 60 of 1994, s 83; am Act 60 of 1994; subst Act 184 of 1992, s 10; am Act 14 of 1994; Act 176 of 1992; Act 175 of 1992; Act 198 of 1991; Act 86 of 1991; former s 11E renum Act 59 of 1989, s 35; insrt Act 59 of 1989, s 6 (am Act 159 of 1989)]

SECTION 29 COMMENTARY Scope ..................................................................................................................................................... [29.20] CONCEPTS

Visa ........................................................................................................................................................ [29.40] Lawful and unlawful non-citizens ........................................................................................................ [29.60] Obligation to detain unlawful non-citizens .......................................................................................... [29.80] Prescribed or specified period ............................................................................................................. [29.100] Visa period ........................................................................................................................................... [29.120] KEY CASES

General discussion regarding provisions about visas ........................................................................ [29.140]

[29.20] Scope This section sets out what a visa is and the kinds of authority a visa can confer on a person – that is, authority to travel to, enter and remain in Australia: see the Explanatory Memorandum to the Migration Reform Bill 1992 Migration (Delayed Visa Applications) Tax Bill 1992 (Cth) at [19].

CONCEPTS [29.40] Visa Section 5(1) provides that a “visa” has the meaning given by s 29. A visa also includes an “old visa” (defined separately in s 5(1)). A visa is an authority to enter, travel to and remain lawfully in Australia. In the absence of a visa, a non-citizen cannot lawfully enter or remain in Australia: SZ v Minister for Immigration and Multicultural Affairs (2000) 173 ALR 353; 101 FCR 342; [2000] FCA 836 at [32] per Branson J. In Plaintiff M79/2012 v Minister for Immigration and Citizenship (2013) 298 ALR 1; 133 ALD 221; [2013] HCA 24 at [44], Hayne J noted that the object of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens. To advance that object, his Honour noted that the Act provides for visas permitting non-citizens to enter or remain in Australia. Relevantly, this is the only source of the right of non-citizens to so enter or remain in Australia (see s 4). [29.60] Lawful and unlawful non-citizens If a non-citizen holds a visa that is in effect while they are in Australia’s migration zone, that person is a “lawful non-citizen”: see s 13(1). The definition of “lawful non-citizen” includes citizens of Papua New Guinea who are in the zone established under Art 10 of the Torres Strait Treaty [1985] ATS 4 (opened for signature 18 December 1978, entered into force 15 February 1985) (Torres Strait Treaty) and who are undertaking traditional activities: ss 5(1), 13(2). Subject to s 13(2), a non-citizen who does not hold a visa that is in effect while they are in Australia’s migration zone is an “unlawful non-citizen”: see s 14(1). 124

Migration Law

[29.140]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 29

[29.80] Obligation to detain unlawful non-citizens Section 189 of the Act places an obligation on every officer (as defined by s 5(1)) who knows, or reasonably suspects, that a person in the migration zone is an unlawful non-citizen, to detain that person. A person detained under s 189 must be kept in “immigration detention” (as defined in s 5(1)) until they are removed from Australia, deported or granted a visa (s 196(1)) (or their case is being dealt with under s 198AD): SZ v Minister for Immigration and Multicultural Affairs (2000) 173 ALR 353; 101 FCR 342; [2000] FCA 836 at [32] per Branson J; see also s 196(1)(aa) (inserted by Migration Legislation Amendment (Regional Processing and Other Measures) Act (No 113) 2012 (Cth)). The words “enter Australia”, “remain in Australia” and “migration zone” have the meanings given to them by s 5. [29.100] Prescribed or specified period A visa may be either for a “prescribed period” or a “specified period”. “Prescribed” means prescribed by the Migration Regulations 1994 (Cth) (Regulations): s 5(1). Accordingly, a visa is for a prescribed period if the Regulations mandate when the visa is in effect. For example, Sch 2 cl 457.511(a) of the Regulations provides that a subclass 457 Temporary Work (Skilled) visa granted to a person who is in Australia at the time of the grant, permits the visa holder to remain in Australia for a period of “not more than 4 years from the date of grant”. Where the Regulations do not prescribe the period that the visa is in effect, the visa will be for a “specified period” as provided for by the Act. This will be by operation of law, having regard to the following: • a visa has effect as soon as it is granted, or from the beginning of a day or event specified in the visa: s 68(1) and (2); and • a visa will cease to be in effect in circumstances prescribed by the Act. Section 82, for instance, contains a non-exhaustive list of circumstances in which a visa will cease to be in effect. Other provisions may also prescribe discrete circumstances in which a visa ceases to be in effect (such as ss 173 and 174). For example, an enforcement visa granted under s 164B(1) will be in effect from the time stipulated in subpara (a) or (b), until it ceases to have effect in accordance with the circumstances prescribed by s 164C (or as otherwise prescribed by the Act). [29.120] Visa period A visa can only be in effect during the visa period (s 68(3)). “Visa period” is defined in s 5(1).

KEY CASES [29.140] General discussion regarding provisions about visas For a general discussion regarding the provisions about visas in the Act, see Plaintiff M47-2012 v Director General of Security (2012) 292 ALR 243; 86 ALJR 1372; [2012] HCA 46 at [176]–[178] (Plaintiff M47) per Hayne J; VHAF v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 122 FCR 270; [2002] FCA 1243 at [24], [28]–[31]. In Plaintiff M47, Hayne J observed at [176]: Subject to some qualifications that are not immediately important, the Act has a binary structure in that its central provisions posit a choice between two outcomes. Non-citizens are divided into “lawful non-citizens” and “unlawful non-citizens” according to whether the non-citizen in question holds a valid visa.

© 2016 THOMSON REUTERS

125

s 30

Migration Act 1958

[30.20]

30

Kinds of visas (1) A visa to remain in Australia (whether also a visa to travel to and enter Australia) may be a visa, to be known as a permanent visa, to remain indefinitely. (2) A visa to remain in Australia (whether also a visa to travel to and enter Australia) may be a visa, to be known as a temporary visa, to remain: (a) during a specified period; or (b) until a specified event happens; or (c) while the holder has a specified status. [Former s 25 renum Act 60 of 1994, s 83; subst Act 184 of 1992, s 10; former s 11F renum Act 59 of 1989, s 35; insrt Act 59 of 1989, s 6]

SECTION 30 COMMENTARY [30.20] Scope This provision states that all visas are divided into two kinds – temporary and permanent. The actual authority conferred by the visa, however, will depend on the particular conditions that attach. For instance, a permanent visa does not necessarily entitle the holder to leave and re-enter Australia’s migration zone. The “absorbed person visa” created by s 34, for example, permits a person to remain in, but not re-enter Australia. Pursuant to s 82(8), where a holder of an absorbed person visa leaves Australia’s migration zone, the visa will immediately cease to be in effect. 31

Classes of visas (1) There are to be prescribed classes of visas.

Note: See also subsection 35A(4), which allows additional classes of permanent and temporary visas to be prescribed as protection visas by regulations made for the purposes of this subsection. [Subs (1) am Act 135 of 2014, s 3 and Sch 2 item 2, with effect from 16 Dec 2014]

(2) As well as the prescribed classes, there are the classes provided for by the following provisions: (a) section 32 (special category visas); (b) section 33 (special purpose visas); (c) section 34 (absorbed person visas); (d) section 35 (ex-citizen visas); (e) subsection 35A(2) (permanent protection visas); (f) subsection 35A(3) (temporary protection visas); (fa) subsection 35A(3A) (safe haven enterprise visas); (g) section 37 (bridging visas); (h) section 37A (temporary safe haven visas); (i) section 38 (criminal justice visas); (j) section 38A (enforcement visas); (k) section 38B (maritime crew visas). [Subs (2) am Act 135 of 2014, s 3 and Sch 2 item 14, with effect from 18 Apr 2015; Act 135 of 2014, s 3 and Sch 2 item 3, with effect from 16 Dec 2014; Act 85 of 2008, s 3 and Sch 2 item 21; Act 73 of 2007, s 3 and Sch 1 item 3; Act 34 of 1999, s 3 and Sch 1 item 1; am Act 60 of 1994, s 7(a)]

126

Migration Law

[30.20]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 31

(3) The regulations may prescribe criteria for a visa or visas of a specified class (which, without limiting the generality of this subsection, may be a class provided for by section 32, 35A, 37, 37A or 38B but not by section 33, 34, 35, 38 or 38A). [Subs (3) am Act 135 of 2014, s 3 and Sch 2 item 4, with effect from 16 Dec 2014; Act 85 of 2008, s 3 and Sch 2 item 22; Act 73 of 2007, s 3 and Sch 1 item 4; Act 34 of 1999, s 3 and Sch 1 item 2; am Act 60 of 1994, s 7(b) and (c)]

(3A) To avoid doubt, subsection (3) does not require criteria to be prescribed for a visa or visas including, without limitation, visas of the following classes: (a) special category visas (see section 32); (b) permanent protection visas (see subsection 35A(2)); (c) temporary protection visas (see subsection 35A(3)); (ca) safe haven enterprise visas (see subsection 35A(3A)); (d) bridging visas (see section 37); (e) temporary safe haven visas (see section 37A); (f) maritime crew visas (see section 38B). Note 1: An application for any of these visas is invalid if criteria relating to both the application and the grant of the visa have not been prescribed (see subsection 46AA(2)). Note 2: If criteria are prescribed by the regulations for any of these visas, the visa cannot be granted unless any criteria prescribed by this Act, as well as any prescribed by regulation, are satisfied (see subsection 46AA(4)). [Subs (3A) am Act 135 of 2014, s 3 and Sch 2 item 15, with effect from 18 Apr 2015; insrt Act 135 of 2014, s 3 and Sch 3 item 1, with effect from 16 Dec 2014]

(4) The regulations may prescribe whether visas of a class are visas to travel to and enter Australia, or to remain in Australia, or both. [Subs (4) insrt Act 60 of 1994, s 7(d)]

(5) A visa is a visa of a particular class if this Act or the regulations specify that it is a visa of that class. [Subs (5) insrt Act 60 of 1994, s 7(d)] [S 31 am Act 135 of 2014; Act 85 of 2008; Act 73 of 2007; Act 34 of 1999; former s 26 renum Act 60 of 1994, s 83; am Act 60 of 1994; subst Act 184 of 1992, s 10; former s 11G renum Act 59 of 1989, s 35; insrt Act 59 of 1989, s 6]

SECTION 31 COMMENTARY Scope ..................................................................................................................................................... [31.20] CONCEPTS

Classes of visa ....................................................................................................................................... [31.40] Prescribed classes of visas .................................................................................................................... [31.60] Subclasses of visa ................................................................................................................................. [31.80] Visa criteria ......................................................................................................................................... [31.100] Parts of Schedule 2 ............................................................................................................................. [31.120] Transitional (permanent) and transitional (temporary) visas ............................................................. [31.140] Circumstances for granting visas and visa conditions ....................................................................... [31.160] KEY CASES

A person may hold more than one visa simultaneously .................................................................... [31.180] PRACTICE POINTS

Interpretation of visa criteria .............................................................................................................. [31.200]

© 2016 THOMSON REUTERS

127

s 31

Migration Act 1958

[31.20]

[31.20] Scope Since the commencement of the Migration Reform Act 1992 (Cth) (1992 Reform Act) and the Migration Legislation Amendment Act 1994 (Cth) (1994 Amendment Act), the central provision in the Act concerning classes of visas, and the link to the Regulations regarding the criteria for the grant of visas, has been s 31. Prior to the amendments made by the 1992 Reform Act and the 1994 Amendment Act , the Migration Legislation Amendment Act 1989 (Cth) (1989 Amendment Act) had created a dual system whereby permission to enter and remain in Australia depended upon a non-citizen holding either a “valid entry permit” or an “entry visa” (which was treated as an entry permit). The commencement of the 1992 Reform Act and the 1994 Amendment Act replaced this dual system with a simplified regime where the right to enter and remain in Australia depended upon the possession of a visa: see Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566; 230 ALR 370; [2006] HCA 50 at [13]–[15] per Gleeson CJ.

CONCEPTS [31.40] Classes of visa Every visa is a visa of a particular “class”. Each class of visa is either prescribed by the Regulations (s 31(1)), or created by ss 32 – 38B: s 31(2). For those visas that have criteria prescribed by the Regulations, each class of visa is further divided into a separate “subclass”: reg 2.02(1). [31.60] Prescribed classes of visas The prescribed classes of visas are those that are set out in Sch 1 of the Regulations: reg 2.01(a). In addition, reg 2.01(b) prescribes a “transitional (permanent)” and a “transitional (temporary)” class of visa. [31.80] Subclasses of visa Visas which have criteria prescribed by the Regulations are divided into “subclasses”. Regulation 2.02(1) provides that each Part of Sch 2 pertains to a particular “subclass” of visa. A three-digit number and an individual title identify each subclass. [31.100] Visa criteria The necessary prerequisites for the grant of a visa are referred to throughout the Act and Regulations as visa “criteria”. Pursuant to s 31(3), the Regulations may prescribe the necessary criteria for each class of visa, with the exception of those visas created by ss 33 – 35 and 38 – 38A. The criteria for these visas are contained in the Act only. Regulation 2.03(1) provides that, for the purposes of s 31(3), the prescribed “criteria” for the grant of a visa of a particular class are the “primary criteria” or, if relevant, the “secondary criteria” set out in the relevant Part of Sch 2. In other words, a visa applicant need only satisfy either the primary or the secondary criteria (provided the secondary criteria is relevant), but not both: Kim v Minister for Immigration and Multicultural Affairs [2001] FCA 1063 at [9] per Lindgren J. The criteria in Sch 2 also incorporate, by numerical reference to the relevant class of visa, further criteria contained in Schs 3 – 5: reg 2.03(2); see also Plaintiff M47-2012 v Director General of Security (2012) 292 ALR 243; 86 ALJR 1372; [2012] HCA 46 at [57] per French CJ. [31.120] “Parts” of Schedule 2 In Hughes v Minister for Immigration and Multicultural Affairs (1998) 53 ALD 607; [1998] FCA 1155, Lee J observed that Sch 2 of the Regulations has no division described as a Part, but 128

Migration Law

[31.180]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 31

is divided into provisions with respect to the grant of subclasses of visas. The relevant Part, in this sense, is the provision set out in Sch 2 that relates to the particular subclass of visa. [31.140] Transitional (permanent) and transitional (temporary) visas The 1992 Reform Act and the 1994 Amendment Act created a regime by which all non-citizens within Australia who did not hold an entry permit or entry visa as at 1 September 1994 became unlawful non-citizens. Transitional arrangements were therefore necessary to prevent the reforms from operating so as to make large numbers of non-citizens unlawful. Sections 40 and 42 of the 1992 Reform Act enabled the making of regulations for this purpose. Consequently, the Migration Reform (Transitional Provisions) Regulations 1994 (Cth) (Transitional Regulations) were enacted to take effect from 1 September 1994. According to the Explanatory Statement to the Transitional Regulations, they are “designed to ensure that, from 1 September 1994, all visas and entry permits held immediately before that date are converted into one of two transitional visa classes by operation of law”: Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566; 230 ALR 370; [2006] HCA 50 at [23]–[28] per Gleeson CJ. Regulation 4(1) of the Transitional Regulations dealt with transitional (permanent) visas and stated that: Subject to regulation 5, if, immediately before 1 September 1994, a non-citizen was in Australia as the holder of a permanent entry permit, that entry permit continues in effect on and after 1 September 1994 as a transitional (permanent) visa that permits the holder to remain indefinitely in Australia.

Regulation 4(2) of the Transitional Regulations dealt with transitional (temporary) visas and stated: If, immediately before 1 September 1994, a non-citizen was in Australia as the holder of a temporary entry permit, that entry permit continues in effect on and after 1 September 1994 as a transitional (temporary) visa that: (a) permits the holder to remain in Australia; and (b) is subject to the conditions (if any) to which the entry permit was subject; and (c) has a visa period ending on the day on which the entry permit would have stopped being in force.

[31.160] Circumstances for granting visas and visa conditions In addition to visa criteria, ss 40 and 41 state that the Regulations may provide that visas of a specified class may only be granted in specified circumstances, and be subject to specified conditions.

KEY CASES [31.180] A person may hold more than one visa simultaneously In Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566; 230 ALR 370; [2006] HCA 50, the respondent’s parents had migrated to Australia in 1966 from Sweden. While the respondent’s mother was visiting Sweden in 1973, she gave birth to the respondent. The respondent and his mother returned to Australia in 1974. On 12 August 2004, the Minister cancelled the respondent’s transitional (permanent) visa on character grounds due to a “substantial criminal record”. The respondent contended that he did not have a transitional (permanent) visa but an absorbed person visa granted under s 34, and that therefore the Minister had cancelled a visa that the respondent did not have. In support of this contention, the respondent argued that the Act does not permit a person to hold two or more substantive visas concurrently and, furthermore, that visas provided by the Act prevail over any visa prescribed by the Regulations. The High Court rejected these arguments and held that the © 2016 THOMSON REUTERS

129

s 32

Migration Act 1958

[31.200]

respondent simultaneously held both visas. This meant that, in the circumstances of this case, where one was cancelled, so was the other. Gleeson CJ held at [28], [35] and [36] respectively: Subject to the respondent’s argument that it is not possible as a matter of construction of the legislation for the respondent to hold the two visas concurrently, it must be accepted that he did hold both the absorbed person visa and the transitional (permanent) visa … The respondent contends that it was an anomalous result for him to receive both an absorbed person visa and a transitional (permanent) visa. However, that state of affairs is not surprising when regard is had to the fundamentally transitional nature of both those visa classes. It is not to the point that there may be no other circumstances in which a person may be granted two visas. If that be so (and it is not necessary in this case to decide), it would merely indicate that the legislative drafting succeeded in minimising overlap, but did not completely eliminate it. The first and second issues must therefore be resolved by concluding that, on 1 September 1994, the respondent received both an absorbed person visa and a transitional (permanent) visa, and that this was by operation of law. The consequence is that, if valid, the Minister’s decision to cancel the transitional (permanent) visa also took effect, by reason of s 501F(3), as a decision to cancel the absorbed person visa.

Similarly, Heydon and Crennan JJ observed at [117]–[119]: There is nothing in the terms of s 34(2) or reg 4(1), or in the legislative history of either, which supports [the respondent’s] contentions that s 34(2) covers the field or should prevail over reg 4(1), or that reg 4(1) is of doubtful validity or has no application to [the Respondent] … Section 82(2) has no application to the situation here where two visas were granted simultaneously. Sections 15, 82(2), 82(3) and 501F(3) of the Act all recognise the potential for a person to hold multiple visas under the Act. As s 34 covers absorbed persons, whether or not they had entry permits, provided they satisfied the criteria in s 34(2), and reg 4(1) covers persons who held an entry permit of the kind which [the respondent] held, he qualified for and acquired simultaneously each of the deemed visas under s 34(2) and reg 4(1). Accordingly, in deciding to cancel [the respondent’s] Transitional (Permanent) Visa, the Minister was not relying on a visa which [the respondent] did not have, as contended by [the respondent] …

By reason of the criteria applicable to most visas, the circumstances in which a person will be able to hold two visas simultaneously will be extremely rare. Nevertheless, there is no rule or legislative proscription against holding multiple visas.

PRACTICE POINTS [31.200] Interpretation of visa criteria For commentary in relation to the interpretation of visa criteria, see [MR0.100]. In addition to a person having to satisfy the visa criteria, an application for a visa must be a valid application: s 47(3). 32

Special category visas (1) There is a class of temporary visas to be known as special category visas. (2) A criterion for a special category visa is that the Minister is satisfied the applicant is: (a) a non-citizen: (i) who is a New Zealand citizen and holds, and has presented to an officer or an authorised system, a New Zealand passport that is in force; and (ii) is neither a behaviour concern non-citizen nor a health concern non-citizen; or (b) a person declared by the regulations, to be a person for whom a visa of another class would be inappropriate; or

130

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

[32.20]

(c)

s 32

a person in a class of persons declared by the regulations, to be persons for whom a visa of another class would be inappropriate.

[Subs (2) am Act 62 of 2007, s 3 and Sch 3 item 1; Act 134 of 2001, s 3 and Sch 1 item 4; Act 60 of 1994, s 82 and Sch 1 item 11]

(3) A person may comply with subparagraph (2)(a)(i) by presenting a New Zealand passport to an authorised system only if: (a) the New Zealand passport is of a kind determined under section 175A to be an eligible passport for the purposes of Division 5 of Part 2; and (c) before the person is granted a special category visa, neither the system nor an officer requires the person to present the passport to an officer. [Subs (3) insrt Act 62 of 2007, s 3 and Sch 3 item 2] [S 32 am Act 62 of 2007; Act 134 of 2001; former s 26A renum Act 60 of 1994, s 83; am Act 60 of 1994; insrt Act 184 of 1992, s 10]

SECTION 32 COMMENTARY Scope ..................................................................................................................................................... [32.20] CONCEPTS

Definitions ............................................................................................................................................. [32.40] A person declared by the regulations ................................................................................................... [32.60] A person in a class of persons declared by the regulations ................................................................ [32.80] KEY CASES

Section 32 is not exhaustive of the criteria relating to character upon which a New Zealand citizen may be refused the grant of a special category visa .............................................................................. [32.100] PRACTICE POINTS

Special category visas ......................................................................................................................... [32.120]

[32.20] Scope This section was inserted by the Migration Reform Act 1992 to deal with those persons who, prior to 1 September 1994, were not required to hold a visa or an entry permit. These persons were previously referred to as “exempt non-citizens” and, in general, were the subject of either bilateral or international agreements that provided for facilitation of entry to Australia and limits upon immigration controls. As the wording of the provision makes clear, the special category visa is created primarily for New Zealand citizens. The Migration Reform Bill 1992 (Cth) states at [13]–[14]: The Reform Bill therefore provides for the creation of a “special category visa” which may be electronically issued on arrival in Australia. This will be applicable to persons who were previously exempt non-citizens, including New Zealand citizens. As far as New Zealand citizens are concerned, the new arrangements will preserve the traditional travel facilitation provided under the Trans-Tasman Travel Arrangements. No prior authorisation for travel will be required and the electronic record of entry will be the visa. The benefit of this change is that exempt non-citizens will be brought within the simplified single visa system. They may also be able to be issued with a visa label prior to travel, where this would facilitate their travel arrangements. Finally, and most importantly, the holders of special category visas will be subject to the same controls as all other non-citizens in Australia and their obligations will be clearly set out in the Principal Act. The only group of exempt [non-citizens] who have not been brought within the special category visa scheme are traditional inhabitants of the Protected Zone (ie, Torres Strait). The Bill contains a special provision permitting their free travel within the Protected Zone. © 2016 THOMSON REUTERS

131

s 32

[32.40]

Migration Act 1958

Citizens of Papua New Guinea, who are “traditional inhabitants” of the zone established under Art 10 of the Torres Strait Treaty, are defined as “inhabitants of the Protected Zone” under s 5(1). Provided no declaration has been made in respect of such persons under s 16, they are “lawful non-citizens” who are not required to have a visa while in the Protected Zone in connection with “traditional activities”, as defined under the Torres Strait Treaty: ss 13(2), 42(2).

CONCEPTS [32.40] Definitions The words “officer”, “authorised system”, “passport”, “behaviour concern non-citizen” and “health concern non-citizen” have the meanings given to them by s 5(1). The definition of “behaviour concern non-citizen” includes a person who has been excluded from another country in the circumstances set out in reg 5.15. Prescribed diseases in respect of a health concern non-citizen are set out in reg 5.16. [32.60] A person declared by the regulations The Regulations do not currently make any declarations for the purposes of s 32(2)(b). [32.80] A person in a class of persons declared by the regulations Section 32(2)(c) allows other classes of persons to be declared by the Regulations to be classes of persons for whom a visa of another class would be appropriate. Regulation 5.15A declares a class of persons for the purposes of s 32(2)(c), each of whom is: • a New Zealand citizen who holds, and has presented to an officer, a New Zealand passport that is in force; • not a health concern non-citizen; • a behaviour concern non-citizen only because they have been excluded from another country in circumstances that, in the Minister’s opinion, do not warrant exclusion from Australia.

KEY CASES [32.100]

Section 32 is not exhaustive of the criteria relating to character upon which a New Zealand citizen may be refused the grant of a special category visa In Hicks v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 146 FCR 427; [2005] FCAFC 84, the visa applicant argued that the definition of “behaviour concern non-citizen” in s 5 covered the character concerns relating to citizens of New Zealand applying for special category visas to the exclusion of the character test found in s 501(1). In a joint judgment, a Full Court of the Federal Court rejected this argument, noting at [14]: This argument may be disposed of shortly. Satisfaction of the criterion, set out in s 32, read with s 5, relating to a behaviour concern non-citizen is a necessary condition of the grant of a special category visa. The definition of “behaviour concern non-citizen” is in precise terms which do not allow for any evaluative judgments. It is applied by reference to matters essentially of public record. On the other hand the character test set out in s 501(6) does not inform any criterion which is a necessary condition for the grant or refusal of a visa. Rather, it defines circumstances under which the Minister’s power to refuse or cancel a visa, as a matter of discretion, is enlivened. Although the term “substantial criminal record” involves, like the concept of “behaviour concern non-citizen”, matters of public record, the “character test” as a whole covers a much broader range of considerations. These considerations include, as in the present case, the existence of an association with a group or organisation reasonably suspected of being involved in criminal conduct. It also attracts consideration of a range of other matters and risks of adverse behaviours by persons who may never have been convicted of any offence. 132

Migration Law

[32.120]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 33

The proposition may be tested this way. Were Mr Hicks’ argument to be correct then the grant of a special category visa would be mandated to any New Zealand citizen without criminal convictions notwithstanding the existence of a significant risk that such a person would engage in criminal conduct in Australia or represent a danger to the Australian community in the ways set out in s 501(6)(d)(v).

PRACTICE POINTS [32.120] Special category visas Subject to satisfaction of the relevant criteria, a New Zealand citizen will be automatically granted a Special Category Visa upon travel to Australia, if they do not hold any other visa. Alternatively, a New Zealand citizen may apply for a Special Category Visa after entering Australia on a different visa. Part 444 of Sch 2 to the Regulations contains the criteria for the grant of a Special Category Visa. The Note to the Primary Criteria states that the only criteria is that which is set out in s 32(2)(a) and in reg 5.15A. If a person is refused a Special Category Visa while in immigration clearance, or if a person has been refused immigration clearance and is not subsequently immigration cleared, then merits review of the decision to refuse the grant of the visa will not be available: see ss 172, 338(2). The 1973 Trans-Tasman Travel Arrangement permits Australian and New Zealand citizens to visit, live and work in both countries without the need to apply for authority to enter either country. 33

Special purpose visas (1) There is a class of temporary visas to travel to, enter and remain in Australia, to be known as special purpose visas. (2) Subject to subsection (3), a non-citizen is taken to have been granted a special purpose visa if: (a) the non-citizen: (i) has a prescribed status; or (ii) is a member of a class of persons that has a prescribed status; or (b) the Minister declares, in writing, that: (i) the non-citizen is taken to have been granted a special purpose visa; or (ii) persons of a class, of which the non-citizen is a member, are taken to have been granted special purpose visas. (3) A non-citizen is not taken to have been granted a special purpose visa if a declaration under subsection (9) is in force in relation to the non-citizen or a class of persons of which the non-citizen is a member. (4) A special purpose visa granted under subsection (2) is granted at the beginning of the later or latest of the following days: (a) if paragraph (2)(a) applies: (i) the day the non-citizen commences to have the prescribed status; (ii) the day the class of persons, of which the non-citizen is a member, commences to have the prescribed status; (iii) the day the non-citizen commences to be a member of the class of persons that has a prescribed status; (b) if paragraph (2)(b) applies: (i) the day the declaration is made;

© 2016 THOMSON REUTERS

133

s 33

Migration Act 1958

(ii)

if a day is specified in the declaration as the day the visa comes into effect—that day; (iii) the day the non-citizen commences to be a member of the class of persons specified in the declaration. (5) A special purpose visa ceases to be in effect at the earliest of the following times: (a) if paragraph (2)(a) applies: (i) if the non-citizen ceases to have a prescribed status—the end of the day on which the non-citizen so ceases; or (ii) if the non-citizen ceases to be a member of a class of persons that has a prescribed status—the end of the day on which the non-citizen so ceases; or (iii) if the Minister makes a declaration under subsection (9) in relation to the non-citizen, or a class of persons of which the non-citizen is a member—the time when that declaration takes effect; (b) if paragraph (2)(b) applies: (i) if a day is specified in the declaration as the day the visa ceases to be in effect—the end of that day; or (ii) if an event is specified in the declaration as the event that causes the visa to cease to be in effect—the end of the day on which the event happens; or (iii) if the non-citizen ceases to be a member of a class of persons specified in the declaration—the end of the day on which the non-citizen so ceases; or (iv) if the declaration is revoked—the end of the day of the revocation; or (v) if the Minister makes a declaration under subsection (9) in relation to the non-citizen, or a class of persons of which the non-citizen is a member—the time when that declaration takes effect. [Subs (5) am Act 85 of 2008, s 3 and Sch 2 items 1–3; Act 62 of 2007, s 3 and Sch 1 items 1 and 2]

(5A) For the purposes of subsection (5), the time when a declaration made by the Minister under subsection (9) takes effect is: (a) if the Minister specifies a time in the declaration (which must be after the time when the declaration is made) as the time the declaration takes effect—the time so specified; or (b) if the Minister does not specify such a time in the declaration—the end of the day on which the declaration is made. [Subs (5A) insrt Act 62 of 2007, s 3 and Sch 1 item 3]

(6) If the Minister makes a declaration under paragraph (2)(b), he or she is to cause to be laid before each House of the Parliament a statement that: (a) sets out the contents of the declaration; and (b) sets out the Minister’s reasons for the declaration. (7) A statement under subsection (6) is not to include: (a) the name of the non-citizen; 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. (8) A statement under subsection (6) is to be laid before each House of the Parliament within 15 sitting days of that House after: (a) if the declaration is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or

134

Migration Law

[33.60]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 33

(b) if the declaration is made between 1 July and 31 December (inclusive) in a year—1 January in the following year. (9) The Minister may make a written declaration, for the purposes of this section, that it is undesirable that a person, or any persons in a class of persons, travel to and enter Australia or remain in Australia. (10) Section 43 and Subdivisions AA, AB, AC (other than section 68), AG, AH, C, D, E, F, FA, FB and H do not apply in relation to special purpose visas. [Subs (10) am Act 34 of 2016, s 3 and Sch 1 item 3, with effect from 24 Mar 2016; Act 129 of 2014, s 3 and Sch 2 item 1, with effect from 11 Dec 2014; Act 116 of 2014, s 3 and Sch 4 item 2, with effect from 4 Nov 2014] [S 33 am Act 34 of 2016; Act 129 of 2014; Act 116 of 2014; Act 85 of 2008; Act 62 of 2007; former s 26AA renum Act 60 of 1994, s 83; insrt Act 60 of 1994, s 8]

SECTION 33 COMMENTARY Scope ..................................................................................................................................................... [33.20] CONCEPTS

Visa taken to have been granted ........................................................................................................... [33.40] Prescribed status .................................................................................................................................... [33.60] Minister’s declaration ............................................................................................................................ [33.80] PRACTICE POINTS

Special purpose visa ............................................................................................................................ [33.100]

[33.20] Scope This section provides for certain prescribed or declared non-citizens to obtain temporary visas (as defined in s 30(2)), called “special purpose visas”, to travel to, enter and remain in Australia.

CONCEPTS [33.40] Visa taken to have been granted A non-citizen does not make an application for a special purpose visa. A special purpose visa will be granted by operation of law. Pursuant to s 33(2), a non-citizen is taken to have been granted a special purpose visa if the non-citizen has a prescribed status, is a member of a class of persons that have a prescribed status, or the Minister declares in writing that the non-citizen, or a class of which the non-citizen is a member, is taken to have been granted such a visa. [33.60] Prescribed status Regulation 2.40 sets out the non-citizens and/or members of a class of persons who have a prescribed status for the purpose of a special purpose visa. The non-citizens in the following classes of persons have a prescribed status for the purpose of s 33: • members of the Royal Family, as defined in reg 1.03; • members of the Royal party, as defined in reg 1.03; • guests of the Government, as defined in reg 1.03; • Status of Forces Agreement (SOFA) forces member, as defined in reg 1.03; • SOFA forces civilian component member, as defined in reg 1.03; • Asia-Pacific forces members, as defined in reg 1.03; • Commonwealth forces members, as defined in reg 1.03; • foreign armed forces dependants, as defined in reg 1.03; © 2016 THOMSON REUTERS

135

s 34

Migration Act 1958

[33.80]

• • • •

foreign naval forces members, as defined in reg 1.03; airline positioning crew members, as defined in reg 1.03; airline crew members, as defined in reg 1.03; transit passengers who belong to a class of persons specified in a Gazette notice (ordinarily, the class of persons will be specified in a legislative instrument. For the relevant instrument, see the commentary to the Regulations); • persons visiting Macquarie Island; • children born in Australia whose mother or both parents hold a special purpose visa and are in Australia at the time of the birth; and • Indonesian traditional fishermen visiting the Territory of Ashmore and Cartier Islands. [33.80] Minister’s declaration The Minister has a discretionary power to make a declaration that a non-citizen, or a person of a class of which the non-citizen is a member, is taken to have been granted a special purpose. The Minister is under no duty to make a declaration under s 33(2)(b): Illukkumbura v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1715 at [8] per Edmonds J. The Minister’s power under this section is not delegated and must be exercised by the Minister alone. The purpose of the Minister’s power to make such a declaration is to enable a non-citizen to travel to, enter and remain in Australia in unusual or unanticipated situations. For example, a declaration may need to be made in situations that require an immediate humanitarian response by Australia, such as in times of war: Explanatory Memorandum to the Migration Legislation Amendment Bill 1994 (Cth) at [17]. Pursuant to s 33(9), the Minister may make a written declaration that it is undesirable that a person, or any persons in a class of persons, travel to, enter and remain in Australia. If such a declaration is made, pursuant to s 33(3), the non-citizen cannot be granted a special purpose visa. However, if a non-citizen was previously granted a special purpose visa, the visa ceases to be in force once the declaration is made: Explanatory Memorandum to the Migration Legislation Amendment Bill 1994 (Cth) at [19]. The term “undesirable” is not defined in either the Act or Regulations, nor has it been the subject of any judicial consideration.

PRACTICE POINTS [33.100] Special purpose visa Since a special purpose visa comes into existence by operation of law, it is not possible for a non-citizen to make an application for this type of visa. As a special purpose visa is granted by operation of law, a non-citizen does not have any judicial review rights in relation to this visa, as there is no decision to grant or refuse the visa. A special purpose visa is not cancelled. The visa either ends in the time period specified in s 33(5) or when the Minister makes a declaration under s 33(9). 34

Absorbed person visas (1) There is a class of permanent visas to remain in, but not re-enter, Australia, to be known as absorbed person visas. (2) A non-citizen in the migration zone who: (a) on 2 April 1984 was in Australia; and (b) before that date, had ceased to be an immigrant; and 136

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

[34.20]

s 34

(c)

on or after that date, has not left Australia, where left Australia has the meaning it had in this Act before 1 September 1994; and (d) immediately before 1 September 1994, was not a person to whom section 20 of this Act as in force then applied; is taken to have been granted an absorbed person visa on 1 September 1994. (3) Subdivisions AA, AB, AC (other than section 68) and AH do not apply in relation to absorbed person visas. [Subs (3) am Act 34 of 2016, s 3 and Sch 1 item 4, with effect from 24 Mar 2016] [S 34 am Act 34 of 2016; Former s 26AB renum Act 60 of 1994, s 83; insrt Act 60 of 1994, s 8]

SECTION 34 COMMENTARY Scope ..................................................................................................................................................... [34.20] CONCEPTS

Ceased to be an immigrant ................................................................................................................... [34.40] Section 20 of the Act as in force immediately before 1 September 1994 ......................................... [34.50] KEY CASES

Factors which indicate whether a person has been absorbed into the community ............................ [34.60] PRACTICE POINTS

Absorbed person visas .......................................................................................................................... [34.80] FURTHER READING

Deportation, the immigration power and absorption into the Australian community ...................... [34.100]

[34.20] Scope This section was introduced by the Migration Legislation Amendment Act 1994 to deal with those persons who, prior to 1 September 1994, fell within the purview of the constitutional concept of “absorption”. According to this doctrine, certain persons who were otherwise classified as “immigrants” or “aliens” were absorbed into the Australian community such that these classifications no longer applied. One consequence of this was that the immigration and emigration power in the Commonwealth of Australia Constitution Act 1900 (Cth) (Constitution) could not be relied upon to legislate for such persons. This meant, for example, that people who had been absorbed could not be ejected from Australia under the deportation provisions of the Act. Accordingly, the Migration Amendment Act 1983 (Cth) (1983 Amendment Act) was introduced to, among other things, shift the constitutional basis of the Act from placitum 51(xxvii) (the immigration and emigration power) to placitum 51(xix) (the naturalisation and aliens power). The purpose of the change was to avoid the perceived problems in the administration of the Act caused by the absorption doctrine which had been developed by the High Court. A number of amendments introduced by the 1983 Amendment Act reflect the change in constitutional basis. For instance, the definitions of “alien” and “immigrant” were deleted, and the definition of “non-citizen” was introduced. References to “alien” and “immigrant” were also substituted for “non-citizen”: Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566; 230 ALR 370; [2006] HCA 50 at [101]–[102] per Heydon and Crennan JJ. However, the 1983 Amendment Act also had the undesired consequence of rendering many absorbed persons as unlawful. Accordingly, this class of visa (the absorbed person visa) was introduced to remedy the problem. © 2016 THOMSON REUTERS

137

s 34

Migration Act 1958

[34.40]

The Migration Laws Amendment Bill (No 2) 1992 (Cth) explains at [35]–[36] the rationale for the creation of this class of visa (cited by Heydon and Crennan JJ in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566; 230 ALR 370; [2006] HCA 50 at [105]): 35. … Previously the view was taken that absorbed persons who were present in Australia on 2 April 1984 and had not left since were lawfully present here as permanent residents … 36. Before 2 April 1984, only “immigrants” needed entry permits to enter and remain lawfully in Australia. If a person was absorbed, that is, ceased to be an immigrant, he or she did not need an entry permit to enter and remain lawfully in Australia. However, from 2 April 1984 the obligation to hold an entry permit applied to all non-citizens, rather than only immigrants. The effect of the amendments was that absorbed persons who did not hold entry permits lost their lawful resident status from the commencement of section 8(2) of the Migration Amendment Act 1983 … [This clause] has the effect of restoring their lawful status from that date.

Before the amendments proposed by the Migration Reform Act 1992 in relation to the creation of this class of visa took effect, the 1994 Amendment Act overtook those amendments with its own changes. The Explanatory Memorandum to the Migration Legislation Amendment Bill 1994 (Cth) further explains the impetus for the creation of this class of visa at [23]–[27]: 23 Absorption is a constitutional doctrine developed by the High Court in the interpretation of placitum 51(xxvii) of the constitution (the “immigration and emigration” power). The doctrine holds that a person who arrives in Australia as an immigrant does not remain an immigrant for all time. At some point the immigrant will be “absorbed” into the Australian community and will cease to be an immigrant. When this occurs, the person will have moved beyond the scope of legislation which depends on the immigration power in the Constitution. 24 Because of problems caused by the absorption doctrine for the administration of the Migration Act, the constitutional basis of the Act was altered, with effect from 2 April 1984 (see the Migration Amendment Act 1983), so that it henceforth rested on placitum 51(xix) (the “naturalazation and aliens” power). An alien only ceases to be an alien by becoming an Australian citizen. 25 There remains a small number of absorbed persons, who are lawfully in Australia as permanent residents despite not holding an entry permit. The Reform Act provided that these persons were an exception to the universal visa requirement introduced by that Act … 26 This section takes the further step of bringing absorbed persons within the visa system by deeming them to hold a permanent visa. They are thereby placed in the same position as all other permanent visa holders, eg their visas will be subject to the exercise of the cancellation power … 27 The absorbed person visa is a visa to remain in, but not re-enter, Australia. However a person holding an absorbed person visa would be eligible to apply for a resident return visa on the same basis as other permanent residents.

CONCEPTS [34.40] Ceased to be an immigrant This is a reference to the doctrine of absorption. To satisfy this criterion, a person must have been absorbed into the Australian community prior to 2 April 1984 (being the date that the 1983 Amendment Act took effect). The issue of whether a non-citizen ceased to be an immigrant before 2 April 1984 is a question of constitutional fact: Re Patterson; Ex parte Taylor (2001) 207 CLR 391; (2001) 64 ALD 545; (2001) 182 ALR 657; (2001) 75 ALJR 1439; [2001] HCA 51 at 472 (CLR) per Gummow and Hayne JJ. In Potter v Minahan (1908) 7 CLR 277; 14 ALR 635; [1908] HCA 63 at 308 (CLR), Isaacs J, in a dissenting judgment, observed the test as to when an immigrant is absorbed: The ultimate fact to be reached as a test whether a given person is an immigrant or not is whether he is or is not at that time a constituent part of the community known as the Australian people. 138

Migration Law

[34.50]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 34

This test has been cited with approval by subsequent decisions of the High Court. [34.50]

Section 20 of the Act as in force immediately before 1 September 1994

Immediately prior to 1 September 1994, s 20 of the Act provided as follows: (1) This subsection applies to a person, being a non-citizen, who has entered Australia, whether before or after the commencement of this section, if: (a) the person evaded an officer for the purpose of entering Australia; (b) when, or before, the person entered Australia, he or she: (i) produced, or caused to be produced, to an officer or a person exercising powers or performing functions under this Act, in respect of that entry: (A) a bogus document; or (B) a passenger card containing information that was false or misleading in a material particular; or (ii) made, or caused to be made, to an officer or a person exercising powers or performing functions under this Act, in respect of that entry, a statement that was false or misleading in a material particular; (c) when, or before, a visa was granted or issued in respect of the person, he or she: (i) produced, or caused to be produced, to an officer or a person exercising powers or performing functions under this Act, in respect of the grant of that visa, a bogus document; or (ii) made, or caused to be made, to an officer or a person exercising powers or performing functions under this Act, in respect of the grant of that visa, a statement that was false or misleading in a material particular; or (d) when the person entered Australia, the person was: (i) suffering from a prescribed disease or a prescribed physical or mental condition; (ii) a person who had been convicted of a crime and sentenced to death, to imprisonment for life or to imprisonment for a period of at least one year; (iii) a person who had been convicted of 2 or more crimes and sentenced to imprisonment for a period totaling at least one year; (iv) a person who had been charged with a crime and either: (A) found guilty of having committed the crime while of unsound mind; or (B) acquitted on the ground that the crime was committed while the person was of unsound mind; (v) a person who has been deported from Australia or another country; or (vi) a person who has been excluded from another country in prescribed circumstances. (2) This subsection applies to a person, being a non-citizen, who has entered Australia, whether before or after the commencement of this section, if: (a) after entry, an entry permit has been granted to the person authorizing the person to remain in Australia; and (b) in respect of the grant of that entry permit: (i) the person produced a bogus document, or caused a bogus document to be produced, to an officer or a person exercising powers or performing functions under this Act; or © 2016 THOMSON REUTERS

139

s 34

Migration Act 1958

[34.50]

(ii) the person made, or caused to be made, to an officer or a person exercising powers or performing functions under this Act, a statement that was false or misleading in a material particular. (3) A person: (a) to whom subsection (1) would apply if the person entered Australia; or (b) to whom subsection (1) or (2) applies; may give to the Secretary a notice in the prescribed form stating that the person is, for reasons specified in the notice, a person to whom the subsection concerned would apply, or applies, as the case requires. (4) Where: (a) a person has given the Secretary a section 20 notice; and (b) a visa is granted to the person; the person granting the visa must endorse the visa with a statement that he or she recognises the holder of the visa to be a person to whom subsection 20(1) applies or would apply for the reasons set out in the section 20 notice. (5) Where: (a) a person gives the Secretary a section 20 notice; and (b) an entry permit is granted to the person; the person granting the entry permit shall endorse the entry permit with a statement that he or she recognises the holder of the entry permit to be a person to whom subsection 20(1) or (2), as the case requires, applies for the reasons set out in the section 20 notice. (6) Without limiting the generality of section 181, the regulations may make provision for visas and entry permits to be endorsed for the purposes of subsections (4) and (5) using codes or abbreviations. (7) For the purposes of this section, the circumstances in which a person shall be taken to have evaded an officer include, but are not limited to, the circumstances set out in subsections (8) and (9). (8) For the purposes of this section, a person shall be taken to have evaded an officer for the purpose of entering Australia if: (a) the person entered Australia before 1 June 1959 while he or she was a member of the crew of, or a person included in the complement of, a vessel; and (b) at the time of entering Australia, or at any time afterwards, the person deserted the vessel or became absent without leave. (9) For the purposes of this section, a person shall be taken to have evaded an officer for the purpose of entering Australia if the person entered Australia (whether before or after the commencement of this section) at a place (other than an Australian resources installation or an Australian sea installation) where no officer (other than a member of a police force) was stationed. (10) A reference in this section to a person producing, or causing to be produced, a bogus document is a reference to a person producing, or causing to be produced, a bogus document whether or not the person knew that the document was a bogus document. (11) A reference in this section to a person producing, or causing to be produced, a passenger card containing information that was false or misleading in a material particular is a reference to a person producing, or causing to be produced, such a passenger card, whether or not the person knew that the information contained in it was false or misleading in a material particular. (12) A reference in this section to a person making, or causing to be made, a statement that was false or misleading in a material particular is a reference to a person making, or causing to be made, such a statement, whether or not the person knew that the statement was false or misleading in a material particular. 140

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

[34.60]

s 34

(13) A person who has been convicted of a crime and ordered to be confined in a corrective institution other than a prison shall for the purposes of this section be taken to have been convicted of that crime and sentenced to imprisonment for the period equal to the period during which he or she was so confined. (14) For the purpose of ordering the deportation of a person on the ground that the person is an illegal entrant because of subsection 14(2), the reference in this section to a prescribed disease shall be read as a reference to a disease, or a physical or mental condition, that is prescribed for the purposes of this section by regulations in force at the time when the person is ordered to be deported. (15) In this section: “bogus document”, in relation to a person, means an entry permit, certificate, passport, visa, identification card or any other document that: (a) was not issued to the person; (b) was forged or fraudulently altered; or (c) was obtained by the making of a false or misleading representation; “crime” means an offence punishable: (a) by death; (b) by imprisonment for life; or (c) by imprisonment for a maximum period of at least 6 months; “offıcer” includes a person who was an officer for the purposes of the Immigration Restriction Act 1901; “visa” includes: (a) a visa or similar notation, or a form of provisional authority to enter Australia, that was issued on behalf of the Commonwealth before 1 November 1979; and (b) a document or notation that was issued on behalf of the Commonwealth before 1 November 1979 in respect of the return of a person to Australia.

KEY CASES [34.60]

Factors which indicate whether a person has been absorbed into the community In Johnson v Minister for Immigration and Multicultural and Indigenous Affairs (No 3) (2004) 136 FCR 494; [2004] FCA 137 at [46], French J noted various factors which may be of assistance in the determination of whether a person has been absorbed into the Australian community: [46] Having regard to the primary question, factors relevant to whether a person has become a member of the Australian community in the way that that concept was discussed in Potter v Minahan might be thought to include the following: 1. The time that has elapsed since the person’s entry into Australia. 2. The existence and timing of the formation of an intention to settle permanently in Australia. 3. The number and duration of absences. 4. Family or other close personal ties in Australia. 5. The presence of family members in Australia or the commitment of family members to come to Australia to join the person. 6. Employment history. 7. Economic ties including property ownership. 8. Contribution to, and participation in, community activities. 9. Any criminal record. © 2016 THOMSON REUTERS

141

s 35

Migration Act 1958

[34.80]

This list of factors is plainly not exhaustive. Rather, it illustrates the multi-dimensional character of the judgment involved. It is also necessary in making that judgment to avoid narrow mono-cultural assumptions about what constitutes membership of the Australian community. This may not always make the judgment an easy one – see generally D Wood, “Deportation, The Immigration Power and Absorption into the Australian Community” (1986) 16 Fed Law Rev 288.

PRACTICE POINTS [34.80] Absorbed person visas As an absorbed person visa arises by operation of law, it is not possible for a person to apply for this visa. Because the visa does not permit a person to re-enter Australia, a person wishing to re-enter the migration zone will need to apply for a new visa.

FURTHER READING [34.100]

Deportation, the immigration power and absorption into the Australian community The following article may be of assistance on this topic: • Wood D, “Deportation, The Immigration Power and Absorption into the Australian Community” (1986) 16 Federal Law Review 288. 35

Ex-citizen visas (1) There is a class of permanent visas to remain in, but not re-enter, Australia, to be known as ex-citizen visas. (2) A person who: (a) before 1 September 1994, ceased to be an Australian citizen while in the migration zone; and (b) did not leave Australia after ceasing to be a citizen and before that date; is taken to have been granted an ex-citizen visa on that date. (3) A person who, on or after 1 September 1994, ceases to be an Australian citizen while in the migration zone is taken to have been granted an ex-citizen visa when that citizenship ceases. (4) Subdivisions AA, AB, AC (other than section 68) and AH do not apply in relation to ex-citizen visas. [Subs (4) am Act 34 of 2016, s 3 and Sch 1 item 4, with effect from 24 Mar 2016] [S 35 am Act 34 of 2016; Former s 26AC renum Act 60 of 1994, s 83; insrt Act 60 of 1994, s 8]

SECTION 35 COMMENTARY Scope ..................................................................................................................................................... [35.20] CONCEPTS

Visa taken to have been granted ........................................................................................................... [35.40] PRACTICE POINTS

Ex-citizens visas .................................................................................................................................... [35.60]

142

Migration Law

[35.60]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 35A

[35.20] Scope This section makes provision for certain individuals who used to be Australian citizens to obtain a permanent visa to remain in Australia, but not to re-enter Australia. To be entitled to an ex-citizen visa, the individuals need to have ceased to be Australian citizens while in the migration zone (as defined in s 5(1)) due to, for example, renunciation or deprivation. The purpose of the visa is to ensure that certain individuals who used to be Australian citizens are able to remain in Australia lawfully, without being detained under s 189: see Explanatory Memorandum to the Migration Legislation Amendment Bill 1994 (Cth) at [28]–[29].

CONCEPTS [35.40] Visa taken to have been granted An individual does not apply for an ex-citizen visa. The visa will automatically be granted if an individual meets the criteria in s 35. The criteria will be met if the individual is in the migration zone and: • before 1 September 1994, the individual ceased to be an Australian citizen (for example, by renunciation or deprivation) and the individual did not leave Australia after ceasing to be an Australian citizen; or • on or after 1 September 1994, the individual ceased to be an Australian citizen (for example, by renunciation or deprivation).

PRACTICE POINTS [35.60] Ex-citizen visas An individual does not make an application, as set out in the Act, for an ex-citizen visa. An ex-citizen visa will cease to operate when either the ex-citizen leaves Australia pursuant to s 82(8) and/or the ex-citizen visa is cancelled pursuant to s 501. 35A Protection visas—classes of visas (1) A protection visa is a visa of a class provided for by this section. (2) There is a class of permanent visas to be known as permanent protection visas. Note: These visas were classified by the Migration Regulations 1994 as Protection (Class XA) visas when this section commenced.

(3) There is a class of temporary visas to be known as temporary protection visas. Note: These visas were classified by the Migration Regulations 1994 as Temporary Protection (Class XD) visas when this section commenced.

(3A) There is a class of temporary visas to be known as safe haven enterprise visas. [Subs (3A) insrt Act 135 of 2014, s 3 and Sch 2 item 16, with effect from 18 Apr 2015]

(3B) The purpose of safe haven enterprise visas is both to provide protection and to encourage enterprise through earning and learning while strengthening regional Australia. Note: If a person satisfies the requirements for working, study and accessing social security prescribed for the purposes of paragraph 46A(1A)(c), section 46A will not bar the person from making a valid application for any of the onshore visas prescribed for the purposes of paragraph 46A(1A)(b). This does not include permanent protection visas. [Subs (3B) insrt Act 135 of 2014, s 3 and Sch 2 item 16, with effect from 18 Apr 2015]

(4) Regulations made for the purposes of subsection 31(1) may prescribe additional classes of permanent and temporary visas as protection visas.

© 2016 THOMSON REUTERS

143

s 35A

Migration Act 1958

[35A.10]

(5) A class of visas that was formerly provided for by subsection 36(1), as that subsection was in force before the commencement of this section, is also a class of protection visas for the purposes of this Act and the regulations. Example: An example of a class of visas for subsection (5) is the class of visas formerly classified by the Migration Regulations 1994 as Protection (Class AZ) visas. These visas can no longer be granted. Note: This section commenced, and subsection 36(1) was repealed, on the commencement of Part 1 of Schedule 2 to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014.

(6) The criteria for a class of protection visas are: (a) the criteria set out in section 36; and (b) any other relevant criteria prescribed by regulation for the purposes of section 31. Note: See also Subdivision AL. [S 35A insrt Act 135 of 2014, s 3 and Sch 2 item 5, with effect from 16 Dec 2014]

SECTION 35A COMMENTARY Scope ................................................................................................................................................... [35A.10] Concepts ............................................................................................................................................. [35A.20] Practice points .................................................................................................................................... [35A.30]

[35A.10] Scope Section 35A was inserted by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (the MMP Act) and came into effect on 16 December 2014. Among other things, the amending legislation expanded the classes of protection visas available, which had otherwise been characterised by a single class of a permanent protection visa under the former s 36(1). Section 35A now provides for multiple classes of protection visas, both temporary and permanent. As observed in the Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment Bill 2014 (Resolving the Asylum Legacy Caseload, the MMP Act fundamentally changes Australia’s approach to managing asylum seekers by, among other things: • introducing temporary protection for those who engage Australia’s non-refoulement obligations and who arrived in Australia “illegally”; and • from 18 April 2015 (being the date from which Pt 2 of Sch 5 of the MMP Act takes effect) it codifies in the Act Australia’s interpretation of its protection obligations under the Refugees Convention as amended by the Refugees Protocol (Refugees Convention). The codification of Australia’s obligations under the Refugees Convention represents a major shift from entrusting to the courts the interpretation of those obligations, to a legislative regime designed to reassert Parliament’s interpretation of Australia’s international commitments. This is reflected in the language of the Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (resolving the Asylum Legacy Caseload) Bill 2014 at 10, where it is noted that the MMP Act: removes most references to the Refugees Convention from the Migration Act and instead creates a new, independent and self-contained statutory framework which articulates Australia’s interpretation of its protection obligations under the Refugees Convention. It is not the intention of the Government to resile from Australia’s protection obligations sunder the Refugees Convention but rather to codify Australia’s interpretation of these obligations with certain sections of the Migration Act…

This intention was expressed also by the Minister for Immigration and Border Protection, the Hon Scott Morrison MP, in the second reading speech on 25 September 2014: Schedule 5 of the bill [ie, of the MMP Act] will also create a new independent and self-contained statutory refugee framework which articulates Australia’s interpretation of its protection obligation 144

Migration Law

[35A.20]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 35A

sunder the refugees convention. The government remains committed to ensuring it abides by its obligations in respect to the refugees convention and this change does not in any way compromise this commitment. The new statutory framework will enable parliament to legislate its understanding of these obligations within certain sections of the Migration Act without referring directly to the refugees convention and therefore not being subject to the interpretations of foreign courts or judicial bodies which seek to expand the scope of the refugees convention well beyond what was ever intend by this country or this parliament. This parliament should decide what our obligations are under these conventions - not those who seek to direct us otherwise from places outside this country…

Perhaps the most obvious example of Parliament seeking to confine Australia’s obligations under the Refugees Convention was the removal of any reference to the Refugees Convention itself in s 36(2)(a), and inserting in its place the requirement that a person instead be a “refugee”, as that word is defined under s 5H (also exclusive of any reference to the Refugees Convention): see item 10 of Pt 2 of 5 of the MMP Act. As stated in the Explanatory Memorandum to the, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 at 7, from the commencement of the MMP Act protection visas include the Protection (Class XA) visa, the Temporary Protection (Class XD) visa and the Safe Haven Enterprise (Class XE) visa. The criteria to be satisfied for the grant of these visas are contained in s 36 and in the Regulations. Notwithstanding that legislative references to the Refugees Convention in the Act have been largely supplanted by Parliament’s own interpretation of Article 1A(2), the class of protection visas previously created by s 36(1) as that subsection was in force immediately before the commencement of s 35A, is preserved by s 35A(5). Although the intent of s 35A(5) is not immediately apparent, it will not provide prospective applicants with a right to apply for a protection visa according to the criteria which previously existed, as s 35A(6) makes clear that the relevant criteria for a protection visa is as presently set out under s 36 and any other criteria prescribed by the Regulations. As a consequence of amendments made by the MMP Act to items 1401 and 1403 of Schedule 1 to the Regulations, an applicant who is eligible to apply for a Protection (Class XA) visa will not be eligible to apply for a Temporary Protection (Class XD) visa, and vice versa. This reflects the intention of the MMP Act to prevent the following people from being eligible to apply for, or being granted, a permanent protection visa, being any person who: • is an “unauthorised maritime arrival” as defined in s 5AA; or • otherwise arrived in Australia without a visa; or • was not immigration cleared on their last arrival in Australia, or is the member of the same family unit as a person mentioned above; and that person has been granted a temporary protection visa; or • already holds, or has ever held, a Temporary Protection (Class XD) visa. [35A.20] Concepts Protection visas: Section 5 and r 1.03 make clear that any reference to a “protection visa” is a reference to the classes of visa provided for by s 35A. Permanent Protection Visas: Having regard to s 35A(6), the criteria for the grant of a permanent protection visa are set out in s 36 and, as the notation to r 2.01 directs, item 1401 of Schedule 1 and Part 866 of Schedule 2 to the Regulations (in respect of a Protection (Class XA) visa and the corresponding Subclass 866 (Protection) visa). Temporary Protection Visas: Having regard to s 35A(6), the criteria for the grant of a temporary protection visa are set out in s 36 and, as the notation to r 2.01 directs, item 1403 of Schedule 1 and Part 785 of Schedule 2 to the Regulations (in respect of a Temporary Protection (Class XD) visa and the corresponding Subclass 785 (Temporary Protection) visa). © 2016 THOMSON REUTERS

145

s 36

Migration Act 1958

[35A.30]

Additional classes of permanent and temporary visas: Section 35A(4) provides that, for the purposes of s 31(1), the Regulations may prescribe additional classes of permanent and temporary visas as protection visas. Such an additional class is the temporary Safe Haven Enterprise (Class XE) visa and the corresponding Subclass 790 (Safe Haven Enterprise) visa: see item 1404 of Sch 1 and Pt 790 of Sch 2 to the Regulations. [35A.30] Practice points A non-citizen’s eligibility for a protection visa may be qualified by ss 46A and 46B, which, subject to certain exceptions, prohibit unlawful non-citizens who are also, respectively, unauthorised maritime arrivals or transitory persons, from making a valid application for a visa (including protection visas). The Minister may however “lift the bar” imposed by these sections, pursuant to the power granted under ss 46A(2) and 46B(2), respectively. Similarly, a non-citizen’s eligibility for a permanent protection visa (s 35A(2)) or a temporary protection visa (s 35A(3)) may be qualified by s 46AA. Under s 45AA and r 2.08F, certain applications for Protection (Class XA) visas made before the commencement of the MMP Act (that is, before 16 December 2014) will be taken to be applications for Temporary Protection (Class XD) visas. Pursuant to s 411(2)(c), “fast track decisions” (as defined in s 5(1)) in relation to certain protection visa applications are not reviewable by the Tribunal. Fast track decisions are instead reviewable by the Immigration Assessment Authority in accordance with Part 7AA. 36

Protection visas—criteria provided for by this Act (1) [Repealed]

[Subs (1) rep Act 135 of 2014, s 3 and Sch 2 item 7, with effect from 16 Dec 2014; am Act 131 of 2001, s 3 and Sch 1 item 1; Act 60 of 1994, s 9]

(1A) An applicant for a protection visa must satisfy: (a) both of the criteria in subsections (1B) and (1C); and (b) at least one of the criteria in subsection (2). [Subs (1A) am Act 135 of 2014, s 3 and Sch 5 item 8, with effect from 18 Apr 2015; insrt Act 30 of 2014, s 3 and Sch 3 item 1, with effect from 28 May 2014]

(1B) A criterion for a protection visa is that the applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979). [Subs (1B) insrt Act 30 of 2014, s 3 and Sch 3 item 1, with effect from 28 May 2014]

(1C) A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds: (a) is a danger to Australia’s security; or (b) having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community. Note: For paragraph (b), see section 5M. [Subs (1C) insrt Act 135 of 2014, s 3 and Sch 5 item 9, with effect from 18 Apr 2015]

(2) A criterion for a protection visa is that the applicant for the visa is: (a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

146

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 36

(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or (b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who: (i) is mentioned in paragraph (a); and (ii) holds a protection visa of the same class as that applied for by the applicant; or (c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who: (i) is mentioned in paragraph (aa); and (ii) holds a protection visa of the same class as that applied for by the applicant. [Subs (2) am Act 135 of 2014, s 3 and Sch 5 item 10, with effect from 18 Apr 2015; Act 135 of 2014, s 3 and Sch 2 items 8 and 9, with effect from 16 Dec 2014; Act 113 of 2012, s 3 and Sch 1 item 7; Act 121 of 2011, s 3 and Sch 1 items 12 and 13; Act 144 of 2008, s 3 and Sch 10 item 22; Act 134 of 2001, s 3 and Sch 1 item 5; subst Act 131 of 2001, s 3 and Sch 1 item 2]

(2A) A non-citizen will suffer significant harm if: (a) the non-citizen will be arbitrarily deprived of his or her life; or (b) the death penalty will be carried out on the non-citizen; or (c) the non-citizen will be subjected to torture; or (d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or (e) the non-citizen will be subjected to degrading treatment or punishment. [Subs (2A) insrt Act 121 of 2011, s 3 and Sch 1 item 14]

(2B) However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that: (a) it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or (b) the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or (c) the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally. [Subs (2B) insrt Act 121 of 2011, s 3 and Sch 1 item 14]

Ineligibility for grant of a protection visa (2C) A non-citizen is taken not to satisfy the criterion mentioned in paragraph (2)(aa) if: (a) the Minister has serious reasons for considering that: (i) the non-citizen has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or (ii) the non-citizen committed a serious non-political crime before entering Australia; or (iii) the non-citizen has been guilty of acts contrary to the purposes and principles of the United Nations; or (b) the Minister considers, on reasonable grounds, that:

© 2016 THOMSON REUTERS

147

s 36

Migration Act 1958

(i) the non-citizen is a danger to Australia’s security; or (ii) the non-citizen, 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. [Subs (2C) insrt Act 121 of 2011, s 3 and Sch 1 item 14]

Protection obligations (3) Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national. [Subs (3) am Act 113 of 2012, s 3 and Sch 1 item 8; insrt Act 160 of 1999, s 3 and Sch 1 item 65]

(4) However, subsection (3) does not apply in relation to a country in respect of which: (a) the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or (b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country. [Subs (4) subst Act 121 of 2011, s 3 and Sch 1 item 15; insrt Act 160 of 1999, s 3 and Sch 1 item 65]

(5) Subsection (3) does not apply in relation to a country if the non-citizen has a well-founded fear that: (a) the country will return the non-citizen to another country; and (b) the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion. [Subs (5) subst Act 121 of 2011, s 3 and Sch 1 item 15; insrt Act 160 of 1999, s 3 and Sch 1 item 65]

(5A) Also, subsection (3) does not apply in relation to a country if: (a) the non-citizen has a well-founded fear that the country will return the non-citizen to another country; and (b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the other country. [Subs (5A) insrt Act 121 of 2011, s 3 and Sch 1 item 15]

Determining nationality (6) For the purposes of subsection (3), the question of whether a non-citizen is a national of a particular country must be determined solely by reference to the law of that country. [Subs (6) insrt Act 160 of 1999, s 3 and Sch 1 item 65]

148

Migration Law

[36.10]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 36

(7) Subsection (6) does not, by implication, affect the interpretation of any other provision of this Act. [Subs (7) insrt Act 160 of 1999, s 3 and Sch 1 item 65] [S 36 am Act 135 of 2014, s 3 and Sch 2 item 6, with effect from 16 Dec 2014; Act 30 of 2014; Act 113 of 2012; Act 121 of 2011; Act 144 of 2008; Act 134 of 2001; Act 131 of 2001; Act 160 of 1999; former s 26B renum Act 60 of 1994, s 83; am Act 60 of 1994; insrt Act 184 of 1992, s 10 Cross-reference: Ministerial Directions: Consideration of Protection Visa applications (Direction No. 56): The purpose of this Direction is to guide decision-makers performing functions or exercising powers under ss 65, 414 or 415 when considering an application for the grant of a Protection Visa and when reviewing a decision to refuse to grant a Protection Visa.]

SECTION 36 COMMENTARY Scope ..................................................................................................................................................... Concepts ................................................................................................................................................ Key cases ............................................................................................................................................... Further reading ......................................................................................................................................

[36.10] [36.20] [36.30] [36.50]

[36.10] Scope This provision, together with any criteria prescribed by the Regulations for the purposes of s 31, sets out the requirements for the classes of visas known as “protection visas” that are created by s 35A. Previously, the class of visas known as “protection visas” were created by s 36(1), which was repealed by item 7 of Schedule 2 to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (the MMP Act). Section 36(1) had stated, “There is a class of visas to be known as protection visas”. The fundamental criterion for the grant of a protection visa is contained in s 36(2)(a), which provides that the applicant be: a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

A “refugee” is relevantly defined under s 5H. Importantly however, for protection visa applications made before the commencement of the MMP Act, eligibility for a protection visa will continue to be determined by s 36(2)(a), as that provision existed prior to its amendment by that Act: see MMP Act, Pt 4, item 28. The MMP Act codified in the Act Australia’s interpretation of its protection obligations under the Refugees Convention as amended by the Refugees Protocol (Refugees Convention). Prior to the enactment of the MMP Act, s 36(2)(a) had provided that a criterion for a protection visa was that the applicant for the visa is: a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. [emphasis added]

The words in emphasis were repealed by item 10 of Pt 2 of 5 of the MMP Act, and replaced with the words, “because the person is a refugee”. The codification of Australia’s obligations under the Refugees Convention represents a major shift from entrusting to the courts the interpretation of those obligations, to a legislative regime designed to reassert Parliament’s interpretation of Australia’s international commitments. This is reflected in the language of the Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 at 10, where it is noted that the MMP Act: © 2016 THOMSON REUTERS

149

s 36

Migration Act 1958

[36.10]

removes most references to the Refugees Convention from the Migration Act and instead creates a new, independent and self-contained statutory framework which articulates Australia’s interpretation of its protection obligations under the Refugees Convention. It is not the intention of the Government to resile from Australia’s protection obligations under the Refugees Convention but rather to codify Australia’s interpretation of these obligations with certain sections of the Migration Act…

This intention was expressed also by the Minister for Immigration and Border Protection, the Hon Scott Morrison MP, in the second reading speech on 25 September 2014: Schedule 5 of the bill [ie, of the MMP Act] will also create a new, independent and self-contained statutory refugee framework which articulates Australia’s interpretation of its protection obligations under the refugees convention. The government remains committed to ensuring it abides by its obligations in respect to the refugees convention and this change does not in any way compromise this commitment. The new statutory framework will enable parliament to legislate its understanding of these obligations within certain sections of the Migration Act without referring directly to the refugees convention and therefore not being subject to the interpretations of foreign courts or judicial bodies which seek to expand the scope of the refugees convention well beyond what was ever intended by this country or this parliament. This parliament should decide what our obligations are under these conventions – not those who seek to direct us otherwise from places outside this country…

Perhaps the most obvious example of Parliament seeking to confine Australia’s obligations under the Refugees Convention was the removal of any reference to the Refugees Convention itself in s 36(2)(a), and inserting in its place the requirement that a person instead be a “refugee”, as that word is defined under s 5H (also exclusive of any reference to the Refugees Convention): see 5 Pt 2, item 10 of the MMP Act. Alternatively, a person is eligible for a protection visa where they meet the criteria contained in s 36(2)(aa) which, together with ss 36(2A), 36(2B) and 36(2C), are commonly referred to as the “Complementary Protection Regime”. This regime took effect on 24 March 2012 pursuant to the Migration Amendment (Complementary Protection) Act 2011 (Cth). These provisions engage Australia’s express and implied non-refoulement obligations under the International Covenant on Civil and Political Rights, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the Convention on the Rights of the Child. Although direct references to the Refugees Convention have been removed from s 36, the Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 states at [1167] that s 5H(1) (which defines “refugee”) “is intended to codify Article 1A(2) of the Refugees Convention, as interpreted in Australian case law”. Relevantly, s 36(2)(a) maintains the reference to “protection obligations”. These words are not specifically defined in the Act, but their genesis in Art 1A(2) of the Refugees Convention is of no doubt. These words have been the subject of significant judicial discourse in this context. For instance, in NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 CLR 161; 213 ALR 668; 79 ALJR 609; [2005] HCA 6 (NAGV), Chief Justice Gleeson, McHugh, Gummow, Hayne, Callinan and Heydon JJ ultimately held at [42], that the reference to “protection obligations” describes no more than a person who is a refugee within the meaning of Art 1 of the Refugees Convention. Relevantly, Art 1A(2) of the Refugees Convention defines refugee as a person who: owing to [a] well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it. 150

Migration Law

[36.10]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 36

In NAGV, Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ concisely explained the history of Australia’s obligations under the Refugees Convention in the context of s 36 and its legislative antecedents, at [34]–[40] [in-text references excluded]: Australia was the sixth state to ratify or accede to the Convention Relating to the Status of Refugees, doing so on 22 January 1954 with effect from 22 April 1954. It acceded to the Protocol Relating to the Status of Refugees on 13 December 1973, with effect from that date. Reservations by Australia to Art 28(1) and Art 32 were withdrawn in 1971 and 1967 respectively. However, in Simsek, Stephen J applied the accepted general proposition that in the absence of legislation the Convention had no legal effect in Australian municipal law upon the rights and duties of individuals and of the Commonwealth. Before the addition to the Act of s 6A by the Migration Amendment Act (No 2) 1980 (Cth), the determination of whether a person had the status of a refugee was a matter within the discretion of the Executive; by administrative arrangements responsibility had been allotted to the Minister for Immigration and Ethnic Affairs assisted by an Interdepartmental Committee. Section 6A(1) provided that an entry permit was not to be granted to a non-citizen after entry into Australia unless one or more of the conditions then set out was fulfilled. One of those conditions, contained in par (c), was that the non-citizen “is the holder of a temporary entry permit which is in force and the Minister has determined, by instrument in writing, that he has the status of refugee within the meaning of [the Convention]”. Mayer determined that s 6A impliedly conferred on the Minister the function of determining whether an applicant had the status of “refugee”, with the result that the determination was made “under an enactment” as required by s 13(1) of the (Cth). Section 6A was repealed by the (Cth), but the new provision was drawn in similar terms to s 6A(1)(c). Legislation in a form with no material differences to that of s 36 as it falls for consideration in this litigation was first introduced (as s 26B) by the Migration Reform Act 1992 (Cth) (“the Reform Act”). The Act as it stood immediately before the commencement of the relevant provisions of the Reform Act was considered in Applicant A v Minister for Immigration and Ethnic Affairs. The Act at that stage still involved the two steps seen in the old s 6A considered in Mayer. These were the determination of status and the grant of a visa or permit. Thus, immediately before the commencement of the relevant provisions of the Reform Act, Div 1AA of Pt 2 (ss 22AA-22AD) was headed “Refugees” and s 22AA read: If the Minister is satisfied that a person is a refugee, the Minister may determine, in writing, that the person is a refugee. The term “refugee” was defined in s 4 as having “the same meaning as it has in Article 1 of [the Convention]”. Regulations made under the Act operated by treating applications for determination of refugee status as also being applications for the grant of the necessary visa. This administrative system was changed by the Reform Act with the introduction of s 26B and s 26ZF, the predecessors of s 36 and s 65 respectively. The Reform Act also omitted the definition of “refugee” and repealed Div 1AA of Pt 2, which had contained s 22AA. The Explanatory Memorandum circulated to the House of Representatives with the introduction of the Bill for the Reform Act stated: The Reform Bill makes a technical change in the way applications for protection as a refugee are dealt with. In future claimants will not apply separately for recognition as a refugee and permission to stay in Australia. Both processes will be combined in an application for a protection visa. (emphasis added) The Explanatory Memorandum stated that a protection visa was “intended to be the mechanism by which Australia offers protection to persons who fall under [the Convention]”, and continued: In the future persons seeking the protection of the Australian Government on the basis that they are refugees will not apply initially, as now, for recognition as a refugee, but directly for the protection visa. This change is consistent with the general principle contained in the Reform Act that the visa should be the basis of a non-citizen’s right to remain in Australia lawfully. The change will end the present duplication of processing whereby separate applications are required for recognition of refugee status and grant of formal authority to remain (presently an entry permit). (emphasis added) © 2016 THOMSON REUTERS

151

s 36

Migration Act 1958

[36.10]

In Plaintiff M47-2012 v Director General of Security (2012) 292 ALR 243; 86 ALJR 1372; [2012] HCA 46 (Plaintiff M47), French CJ observed at [12] that the Act does not translate into Australian domestic law the obligations of the signatories to the Refugees Convention. Rather, his Honour cited at [14] with approval the following propositions that emerge from NAGV: • the obligations created by the Refugees Convention are owed by the contracting states to each other and not to refugees: see NAGV at [16]; • the Refugees Convention does not detract from the right of a contracting state to determine who should be allowed to enter into its territory: see NAGV at [16]; • the determination of the status of refugee is a function left by the Refugees Convention to the competent authorities of the contracting states which may select such procedures as they see fit for that purpose: see NAGV at [17]; • the Refugees Convention sets out the status and civil rights to be afforded within contracting states to those accorded the status of refugee: see NAGV at [19]. After discussing the above principles, French CJ in Plaintiff M47 also stated at [14] that [in-text references excluded]: It is also well settled that the [Refugees Convention] does not impose an obligation upon Contracting States to grant asylum to refugees arriving at their borders or a right to reside in those States. Nor may any individual assert a right under customary international law to enter or remain in the territory of a State of which that individual is not a national.

In Minister for Immigration and Multicultural Affairs v Ibrahim (2000) 204 CLR 1; 175 ALR 585; [2000] HCA 55, Gummow J (with whom Gleeson CJ, Hayne and Callinan JJ agreed), considered in particular non-citizens who do not qualify as a refugee, noting at [141] that: The definition does not encompass those fleeing generalized violence or internal turmoil and mass movements of persons fleeing civil war or other armed conflicts, military occupation, natural disasters and bad economic conditions are outside the Convention. For example, it appears that in 1986 the number of civilians fleeing their countries of origin by reasons of internal armed conflict exceeded the number of Convention refugees. In Applicant A v Minister for Immigration and Ethnic Affairs, Dawson J observed: No matter how devastating may be epidemic, natural disaster or famine, a person fleeing them is not a refugee within the terms of the Convention. It would therefore be wrong to depart from the demands of language and context by invoking the humanitarian objectives of the Convention without appreciating the limits which the Convention itself places on the achievement of them.

Interpretation of the meaning of the word “refugee”, as defined in s 5H, together with s 5J (which defines the words “well-founded fear of persecution”) is likely to be the subject of judicial scrutiny in the future. In this regard, the definition of “refugee” in Art 1A(2) of the Refugees Convention has in the past been the subject of significant judicial consideration in the context of s 36, as that provision appeared prior to the commencement of the MMP Act. For example, in Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559; 48 ALD 481; 144 ALR 567; 71 ALJR 743; [1997] 9 Leg Rep 2; [1997] HCA 22 (Guo), Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ stated at 570 (CLR): The definition of “refugee” in Art 1A(2) of the Convention four key elements: (1) the applicant must be outside of his or her country of nationality; (2) the applicant must fear “persecution”; (3) the applicant must fear such persecution “for reasons of race, religion, nationality, membership of a particular social group or political opinion”; and (4) the applicant must has a “well-founded” fear of persecution for one of the Convention reasons. 152

Migration Law

[36.20]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 36

As was the intention of the MMP Act (see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 at [1167]), the definition of “refugee” under the Refugees Convention and as articulated in Guo, has largely been codified in ss 5H and 5J. [36.20] Concepts The relevant concepts that emerge from s 36 extend beyond the text of the provision itself, having their roots in the text of Art 1 of the Refugees Convention. Although references to the Refugees Convention in s 36 have been removed, the significant body of case law that had developed around Art 1A(2) in particular is likely to inform how s 36, together with ss 5H and 5J, will be read in the future. Importantly, for protection visa applications made before the commencement of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014(Cth) (MMP Act), eligibility for a protection visa will continue to be determined by s 36(2)(a), as that provision existed prior to its amendment by that Act: see item 28 of Pt 4 of Sch 5MMP Act. Relevant to protection visa applications made before the commencement of the MMP Act, Gleeson CJ, McHugh, Gummow, Hayne, Callinan and Heydon JJ observed in NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 CLR 161; 213 ALR 668; 79 ALJR 609; [2005] HCA 6 (NAGV) at [42] that the reference to “protection obligations” in s 36(2)(a) (as that provision then appeared) describes no more than a person who is a refugee within the meaning of Art 1 of the Refugees Convention. Concepts relevant to the “Complimentary Protection Regime” under s 36(2)(aa) also derive from various Covenants and Conventions explained below. To properly understand the concepts however, one must comprehend how they interact with one another. For ease of reference, the following constitute the requisite elements and sub-elements that an applicant for a protection visa must satisfy (each of which are separately explained further below): 1. the applicant is a non-citizen in Australia; 2. the person is a refugee; (a) the applicant must fear persecution: (i) a non-exhaustive definition of “persecution” is provided by ss 5J(4) to 5J(6); (ii) the persecution must have an “official quality”; (b) the fear of persecution must be well-founded: (i) ss 5J(1) to 5J(3) define the meaning of the words “well-founded fear of persecution”; (ii) the fear must be held subjectively; (iii) the fear must be held objectively, which includes there being a “real chance” that the applicant will be persecuted; and (iv) the fear will not be well-founded if the non-citizen can relocate within their country of origin; (c) the persecution feared must be for reasons of one or more of the protected attributes referred to in Art 1A(2) of the Refugees Convention; and (d) the protected attributes are race, religion, nationality, membership of a particular social group or political opinion © 2016 THOMSON REUTERS

153

s 36

Migration Act 1958

[36.20]

3. the applicant must not be excluded from eligibility by reason of s 36(3), which provides that Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail themselves of a right to enter and reside in any country apart from Australia, including countries of which the non-citizen is a national; 4. alternatively, a person is eligible for a protection visa where they meet the criteria contained in s 36(2)(aa) which, together with ss 36(2A), 36(2B) and 36(2C), are commonly referred to as the “Complementary Protection Regime”. Non-citizen in Australia Section 36(2)(a) requires that, to be eligible for a protection visa, a person must be “a non-citizen in Australia”. However, this is qualified by ss 46A(1) and 46B(1), which prohibit unlawful non-citizens who are also, respectively, unauthorised maritime arrivals or transitory persons, from making a valid application for a visa (including protection visas). The Minister may however “lift the bar” imposed by these sections, pursuant to the power granted under ss 46A(2) and 46B(2), respectively. To whom Australia has protection obligations because the person is a refugee (in respect of protection visa applications made after the commencement of the MMP Act) Item 10 of Pt 2 of Sch 5 of the MMP Act omitted from s 36 the words’ under the Refugees Convention as amended by the Refugees Protocol’, and substituted the words “because the person is a refugee”. “Refugee” is defined by s 5H (which omits any reference to the Refugees Convention), which should be read together with s 5J in particular. Relevantly, s 36(2)(a) maintains the reference to “protection obligations”. These words are not specifically defined in the Act, but their genesis in Art 1A(2) of the Refugees Convention is of no doubt. These words have been the subject of significant judicial discourse in this context. For instance, in NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 CLR 161; 213 ALR 668; 79 ALJR 609; [2005] HCA 6 (NAGV), Chief Justice Gleeson, McHugh, Gummow, Hayne, Callinan and Heydon JJ ultimately held at [42], that the reference to “protection obligations” describes no more than a person who is a refugee within the meaning of Art 1 of the Refugees Convention. However, the meaning to be ascribed to those words in the new statutory context remains to be seen and is likely to be the subject of judicial scrutiny. The non-citizen must fear “persecution” Section 5J(4) provides, in effect, that a person will not have been persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion unless: (a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and (b) the persecution involves serious harm to the person; and (c) the persecution involves systematic and discriminatory conduct [which, in most instances, will therefore exclude laws of general application]. In addition to these statutory requirements, persecution must have an “official quality”. Each of these concepts are explained below. Essential and significant reason: While the reason for persecution must be the “essential and significant reason”, it is not necessary that it be the sole, or even dominant, reason for the persecution: see, for example, Minister for Immigration and Multicultural Affairs v Singh (2002) 209 CLR 533; 67 ALD 257; 186 ALR 393; 76 ALJR 514; 23(4) Leg Rep 18; [2002] HCA 7 at [44] per Gaudron J. Thus, where a person fears serious harm for multiple reasons, in 154

Migration Law

[36.20]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 36

circumstances where only one reason is related to the Refugees Convention, it may still be the case that the Convention reason is the “essential and significant” reason: SZQNO v Minister for Immigration and Citizenship [2012] FCA 326 at [42] per Kenny J. Serious harm: Persecution must involve “serious harm”. What constitutes serious harm is affected by both case law and statute which provides the following non-exhaustive list of instances that will qualify as serious harm: • a threat to the person’s life or liberty: s 5J(5)(a); • significant physical harassment of the person: s 5J(5)(b); • significant physical ill-treatment of the person: s 5J(5)(C); • significant economic hardship that threatens the person’s capacity to subsist: s 5J(5)(d); • denial of access to basic services, where the denial threatens the person’s capacity to subsist: s 5J(5)(e); • denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist: s 5J(5)(f). However, persecution does not cease to be persecution simply because those persecuted can eliminate the serious harm by modifying their conduct. In S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; 78 ALD 8; 203 ALR 112; 78 ALJR 180; [2003] HCA 71 (Appellant S395), McHugh and Kirby JJ observed at [43] (with whom Gummow and Hayne JJ agreed at [80]): …the well-founded fear of persecution held by the applicant is the fear that, unless that person acts to avoid the harmful conduct, he or she will suffer harm. It is the threat of serious harm with its menacing implications that constitutes the persecutory conduct. To determine the issue of real chance without determining whether the modified conduct was influenced by the threat of harm is to fail to consider that issue properly.

This authority should be weighed against s 5J(3), which relevantly provides that a person will not have a well-founded fear of persecution if the person could take “reasonable steps” to modify his or her behavior so as to avoid a “real chance of persecution”, other than a modification that would: • conflict with a characteristic that is fundamental to the person’s identity or conscience; or • conceal an innate or immutable characteristic of the person. In the Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 at [1194], s 5J(3) of the Act is said to not be inconsistent with the principles enunciated by the majority of the High Court’s finding in Appellant S395. Systematic and discriminatory conduct: In Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; 87 ALR 412; 63 ALJR 561; [1989] HCA 62 (Chan), McHugh J observed at [36] that “…the notion of persecution involves selective harassment.” Similarly, McHugh J (in dissent, but not on this point) observed at [99] in Minister for Immigration and Multicultural Affairs v Ibrahim (2000) 204 CLR 1; 62 ALD 1; 175 ALR 585; 74 ALJR 1556; 21(17) Leg Rep 2; [2000] HCA 55 (Ibrahim), that (in text references excluded): …Selective harassment, which discriminates against a person for a Convention reason, is inherent in the notion of persecution. Unsystematic or random acts are non-selective. It is therefore not a prerequisite to obtaining refugee status that a person fears being persecuted on a number of occasions or “must show a series of coordinated acts directed at him or her which can be said to be not isolated but systematic.” The fear of a single act of harm done for a Convention reason will satisfy the Convention definition of persecution if it is so oppressive that the individual cannot be expected to tolerate it so that refusal to return to the country of the applicant’s nationality is the understandable choice of that person. © 2016 THOMSON REUTERS

155

s 36

Migration Act 1958

[36.20]

In relation to the requirement that persecution involve “discriminatory” conduct, Brennan CJ in A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225; 142 ALR 331; 71 ALJR 381; [1997] 4 Leg Rep 9; [1997] HCA 4 (A) observed at 233 (CLR) that, to constitute persecution, a person must be discriminated against on the basis of one of the reasons mentioned in Art 1A(2) of the Refugees Convention (race, religion, nationality, membership of a particular social group or political opinion). His Honour noted that the discriminatory requirement is found in the words of Art 1A(2) itself, which requires that the persecution be “for reasons of” one of the categories mentioned in that Article. Accordingly, indiscriminate persecution is excluded from the definition of persecution. Laws of general application do not constitute persecution: As persecution must involve discriminatory conduct, enforcement of a law of general application will not ordinarily constitute persecution: Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293; 58 ALD 321; 170 ALR 553; 74 ALJR 775; 21(7) Leg Rep 11; [2000] HCA 19 (Chen), per Gleeson CJ, Gaudron, Gummow and Hayne JJ at [18]–[21], citing the comments of McHugh J in A at 258 (CLR). Relevantly, although Chan, Ibrahim, A and Chen predated the introduction of s 91R and later s 54 of the Act (which was introduced in 2001 and 2014, repectively), those cases remain good law and inform how the former s 91R, and now s 5J ought to be interpreted. Persecution must have an “offıcial quality” / non-state actors and state protection: Although the paradigm case of persecution contemplated by the Refugees Convention is persecution by the state or agents of the state, persecution may also be inflicted by persons who are not agents of the state provided that the persecution is “official”, or “officially tolerated” by the authorities: see A at 233 per Brennan CJ; Minister for Immigration and Multicultural Affairs v S152/2003 (2004) 222 CLR 1; 77 ALD 296; 205 ALR 487; 78 ALJR 678; [2004] HCA 18 (S152) at [18]–[20] per Gleeson CJ, Hayne and Heydon JJ; Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1; 187 ALR 574; [2002] HCA 14 at [21]–[22] per Gleeson CJ. Thus, in S152, Gleeson CJ, Hayne and Heydon JJ cited with approval a passage from the House of Lords decision of Horvath v Secretary of State for the Home Department [2001] 1 AC 489 at [497], where Hale LJ commented, in relation to the sufficiency of state protection against the acts of non-state agents: [I]f it is sufficient, the applicant’s fear of persecution by others will not be “well founded”; if it is insufficient, it may turn the acts of others into persecution for a Convention reason; in particular it may supply the discriminatory element in the persecution meted out by others; again if it is insufficient, it may be the reason why the applicant is unable, or if it amounts to persecution unwilling, to avail himself of the protection of his home state.

At [23] Gleeson CJ, Hayne and Heydon JJ noted that the conduct of the state could be relevant to whether a person meets the definition of refugee in circumstances where the harm feared is not inflicted by the state, but where the attitude of the state is such that, “it supports a conclusion of unwillingness to seek (external) protection based on a fear of persecution because of the state’s encouragement, condonation or tolerance of the persecution”. Chief Justice Gleeson, Hayne and Heydon JJ held that where the fear of harm emanates from a source which is not the state, nor an agent of the state, then the willingness and the ability of the state to provide protection to its national may be relevant to whether the conduct of the claimed persecutor giving rise to the fear constitutes persecution: at [29]. In addition, at [26] Gleeson CJ, Hayne and Heydon JJ noted that no country can guarantee that its citizens at all times, and in all circumstances, will be safe from violence and that the obligation of the state is to, “[t]ake reasonable measures to protect the lives and safety of its citizens, and those measure would include an appropriate criminal law, and the provision of a reasonably effective and impartial police force and justice system”. 156

Migration Law

[36.20]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 36

In relation to protection visa applications made after the commencement of the MMP Act, s 5J(2) provides that a person will not have a well-founded fear of persecution if either or both of the following are available to the person in a receiving country: • an appropriate criminal law, a reasonably effective police force and an impartial judicial system provided by the relevant State; • adequate and effective protection measures provided by a source other than the relevant state. The fear of persecution must be “well-founded” Prior to the commencement of the MMP Act, the term “well-founded” was not defined in the Act, and guidance was derived from case law only (which continues to be the case for protection visa applications made prior to that date). However, in relation to protection visa applications made after the commencement of the MMP Act, s 5J(1) provides that a person has a well-founded fear of persecution if: (a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and (b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and (c) the real chance of persecution relates to all areas of a receiving country. The above statutory definition is consistent with previous authorities which made it clear that any determination as to whether a non-citizen has a well-founded fear involves both a subjective and objective assessment. In the Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 at [1180], the definition given under s 5J(1) to the meaning of the words “well-founded fear of persecution” is said to be in line with the High Court’s decision in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; 87 ALR 412; 63 ALJR 561; [1989] HCA 62. In that case, Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ defined the meaning of the expression “well-founded” by reference to both subjective and objective aspects: Subjective aspect • in evaluating whether a non-citizen has a well-founded fear, it is necessary to evaluate the mental and emotional state (in addition to the objective circumstances): at [12] per Gaudron J; • the non-citizen must have a state of mind such that he or she is in fear of being persecuted: at [16] per Dawson J; Objective aspect • in addition to the subjective element, it is necessary to evaluate the objective circumstances, so far as they are ascertainable, and give proper weight to any account of those circumstances given by the non-citizen: at [12] per Gaudron J; • while the non-citizen must have a fear of being persecuted, the fear must also have a basis - that is, the requirement that it be “well-founded”: at [16] per Dawson J; • that is, while the non-citizen may fear persecution, that fear “must not all be in the mind” and there “must be a sufficient foundation for the fear”: at [16] per Dawson J and at [21] per Toohey J; • a fear of persecution is well founded if there is a “real chance” that the non-citizen will be persecuted if he or she returns to his or her country of nationality: at [12] per Mason CJ and at [26] per Toohey J and at [35] per McHugh J; © 2016 THOMSON REUTERS

157

s 36

Migration Act 1958

[36.20]

• “a real chance is one that is not remote, regardless of whether it is less than or more than fifty percent”: at [19] per Dawson J; • a non-citizen can have a fear of persecution even if there is less than fifty percent chance of the persecution occurring: at [12] per Mason CJ; and • a real chance excludes a far-fetched possibility of persecution, however as little as a ten percent chance of persecution may constitute a well-founded fear: at [35] per McHugh J. In determining whether there is a “real chance” of persecution, usually evidence of past events of such persecution is the best evidence as to what is likely to occur in the future: Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559; 48 ALD 481; 144 ALR 567; 71 ALJR 743; [1997] 9 Leg Rep 2; [1997] HCA 22 at 574–575 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ. If a non-citizen can relocate, he or she will not have a well-founded fear:A non-citizen may have a well-founded fear of persecution in a particular region of his or her country of nationality. However, that fear will not be well-founded if the non-citizen can relocate elsewhere in his or her country of nationality. Prior to the introduction of s 5J(1)(c) of the MMP Act, the “relocation” principle was not provided for in the Act, Regulations or Refugees Convention. Parliament has now sought to codify the relocation principle in s 5J(1)(c), which states that a person will have a well-founded fear of persecution only where, among other things, the real chance of persecution “relates to all areas of a receiving country”. According to the Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 at [1181], in considering whether a person can relocate to another area of a receiving country, a decision maker will be required to take into account whether the person can safely and legally access the area upon returning to the receiving country. Importantly, at [1183], the Explanatory Memorandum states that: While the Government will continue to adopt the internal relocation principle in the new statutory framework relating to refugees, it is the Government’s intention that the principle will no longer encompass the consideration of whether the relocation is “reasonable” in light of the individual circumstances of the person. The Government considers that in interpreting the “reasonableness” element into the internal relocation principle, Australian case law has broadened the scope of the principle to take into account the practical realities of relocation. For example, as a result of cases such as [SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18] and Randhawa v MILGEA (1994) 52 FCR 437, when assessing internal relocation options, decision makers are now required to consider aspects such as potential diminishment in quality of life or financial hardship which may result from the relocation. As such aspects fall short of the type of harm which amounts to persecution, the Government considers these to be irrelevant to the assessment of a well-founded fear of persecution. For these reasons, it is the Government’s intention that new paragraph 5J(1)(c) not be read down by reference to such notions of “reasonableness”. [emphasis in original]

In relation to protection visa applications made before the commencement of the MMP Act, the relocation principle as articulated in SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18; 97 ALD 1; 237 ALR 634; 81 ALJR 1659; [2007] HCA 40, will continue to apply. The court held in that case that a non-citizen will not meet the definition of refugee if he or she can relocate to another region in his or her home country. In considering whether a non-citizen can relocate, it is necessary to consider whether it is “reasonable, in the sense of practicable” for the non-citizen to “relocate to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution”. Whether it is “reasonable, in the sense of practicable” will depend on the “particular circumstances” of the non-citizen per Gummow, Hayne and Crennan JJ at [23]–[24]. 158

Migration Law

[36.20]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 36

The persecution must be “for reasons of” one or more of the protected attributes Section 5J(1)(a) (for protection visa applications made after the commencement of the MMP Act) uses the words “for reasons of” in the sense that the persecution feared must be “for reasons” of the non-citizen’s race, religion, nationality, membership of a particular social group or political opinion. As stated by Dawson J in A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225; 142 ALR 331; 71 ALJR 381; [1997] 4 Leg Rep 9; [1997] HCA 4 (A) at 240 (CLR) “the words ‘for reasons of’ require a causal nexus between actual or perceived attribute and the well-founded fear of persecution.” The persecution feared must be because of the non-citizen’s attribute or perceived attribute. Chief Justice Brennan in A also stated at 233 (CLR) that the words “for reasons of” are a “qualification” and exclude: • “indiscriminate persecution which is the product either of inhumane cruelty or of unreasoned antipathy by the persecutor towards the victim”; and • “persecution which is no more than punishment of a non-discriminatory kind for contravention of a criminal law of general application”. In A both Dawson J, at 242 (CLR), and Gummow J, at 284 (CLR), cited and approved the following passage by Burchett J in Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565; 130 ALR 314 at 568 (CLR): The well-founded fear of which it speaks is a fear of “being persecuted”. Persecution involves the infliction of harm, but it implies something more: an element of an attitude on the part of those who persecute which leads to the infliction of harm, or an element of motivation (however twisted) for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors. Not every isolated act of harm to a person is an act of persecution. Consistently with the use of the word “persecuted”, the motivation envisaged by the definition (apart from race, religion, nationality and political opinion) is “membership of a particular social group”. If harmful acts are done purely on an individual basis, because of what the individual has done or may do or possesses, the application of the Convention is not attracted, so far as it depends upon “membership of a particular social group”. The link between the key word “persecuted” and the phrase descriptive of the position of the refugee, “membership of a particular social group”, is provided by the words “for reasons of” – the membership of the social group must provide the reason. There is thus a common thread which links the expressions “persecuted”, “for reasons of”, and “membership of a particular social group”. That common thread is a motivation which is implicit in the very idea of persecution, is expressed in the phrase “for reasons of”, and fastens upon the victim’s membership of a particular social group. He is persecuted because he belongs to that group.

The words “for reasons of” make it clear that protection is to be afforded to non-citizens who experience harm “for reasons of” their possession of a particular attribute and is not intended to protect all non-citizens who experience harm for any other reason. In addition, without anything more, a law of general application which is enforced in a non-discriminatory way, but which may result in harm, will not usually be persecution for one of the reasons in the Refugees Convention: A at 233 (CLR) per Brennan CJ, at 244–245 (CLR) per Dawson J and at 258 (CLR) per McHugh J. In addition, harm inflicted by private individuals, such as domestic violence, will not usually amount to persecution because the harm is usually not “for reasons of” one of the protected attributes. However, if the State denies protection to the individual experiencing the private harm, for one of the reasons in the Refugees Convention, then this will amount to persecution: Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1; 187 ALR 574; [2002] HCA 14. The protected attributes Race: In Calado v Minister for Immigration and Multicultural Affairs (1997) 81 FCR 450, Tamberlin J described the concept of “race” as follows at 455 (FCR): When considering the meaning of the expression “race”…, it is appropriate to take into account the “popular” understanding of the term which accords importance to physical appearance, skin colour and © 2016 THOMSON REUTERS

159

s 36

Migration Act 1958

[36.20]

ethnic origin. There can be no single test for the meaning of the expression “race” but the term connotes considerations such as whether the individuals or the group regard themselves and are regarded by others in the community as having a particular historical identity in terms of colour, and national or ethnic origins. Another consideration is whether the characteristics of members of the group are those with which a person is born and which he or she cannot change.

His Honour then proceeded at 455 (CLR) to cite with approval the following comments of Brennan J in Commonwealth v Tasmania (1983) 158 CLR 1; 46 ALR 625; 57 ALJR 450; [1983] HCA 21 at 243-244 (CLR): As the people of a group identify themselves and are identified by others as a race by reference to their common history, religion, spiritual beliefs or culture as well as by reference to their biological origins and physical similarities, an indication is given of the scope and purpose of the power granted by para(xxvi) … Their genetic inheritance is fixed at birth; the historic, religious, spiritual and cultural heritage are acquired and are susceptible to influences for which a law may provide …

Religion: The courts have tended to apply a broad approach in relation to what constitutes the practice of religion: Wang v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 548; 179 ALR 1; [2000] FCA 1599 (Wang) per Merkel J at [69] (with whom Wilcox and Gray JJ agreed). Relevantly, in Wang, Merkel J (with whom Wilcox and Gray JJ agreed) held at [81]: … there are two elements to the concept of religion for the purposes of Art 1A(2): the first is as a manifestation or practice or personal faith or doctrine, and the second is the manifestation or practice of that faith or doctrine in a like-minded community is consistent with the commonly understood meaning of religion as including its practice in or with a like-minded community.

At [5] Wilcox J stated: … the concept of “religion”, in Article 1A(2) of the Convention on Refugees, anyway includes the element of manifestation or practice of a religious faith in community with others. This element is inherent in the ordinary meaning of the word. For example, the first two definitions of the word in the Macquarie Dictionary are: 1. The quest for the values of the ideal life, involving three phases, the ideal, the practices for attaining the values of the ideal, and the theology or world view relating the quest to the environing universe. A particular system in which the quest for the ideal life has been embodied. [Emphasis added]

At [16] Gray J stated that “religion is a matter of conscientious belief, professed adherence and practice”. In addition, Merkel J (with whom Wilcox and Gray JJ agreed) also noted that: • persecution for religious reasons may occur indirectly through a government regulatory regime: at [70]; • “religious practice has not been treated as being confined to personal religious worship”: at [71]; and • “while religion is primarily a manifestation of a personal faith and of doctrine it also has a congregational or community aspect”: at [73]. Accordingly, whether or not an applicant is a follower of a particular religion is not to be determined by reference to an arbitrary test imposed by a third person (for instance, a member of the Tribunal): Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362; 117 ALD 259; 272 ALR 115; [2010] FCAFC 108 at [37]. Nationality: Whether a person is a national of a particular state is determined by the municipal laws of the state concerned: TJI v Minister for Immigration and Ethnic Affairs (1998) 55 ALD 508; 158 ALR 681 (TJI) at 513–514 (ALD) per Finkelstein J. His Honour also observed at 689 that a person obtains nationality by one of two methods: original nationality or derivative acquisition of nationality. Original nationality is nationality acquired at birth on the basis that that a person is born to a national or within the territory of a particular state. Derivative 160

Migration Law

[36.20]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 36

acquisition of nationality is acquired by naturalization. In both instances however, local municipal law dictates whether or not a person is or becomes a national. Section 36(6) provides that, for the purposes of s 36(3), the question of whether a non-citizen is a national of a particular country must be determined solely by reference to the law of that country. However, strictly speaking, this qualification (which in any event accords with what was said by Finkelstein J in TJI) is relevant only to the exclusionary provision of s 36(3) and not to the meaning of the word “national” in Art 1A(2) of the Refugees Convention. Particular Social Group: For the purposes of protection visa applications made before the commencement of the MMP Act, the former s 91S provided that certain matters must be disregarded in determining whether a particular person has a well-founded fear of persecution for the reason of membership of a particular social group that consists of the person’s family. For protection visa applications made after the commencement of the MMP Act, ss 5K and 5L, when read together, provide the definition of “particular social group” for the purposes of s 5J(1)(a) (see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 at [1184]) Although s 5K largely replicates the former s 91S, s 5L seeks to clarify and limit the definition of “membership of a particular social group” in respect of non-family members. According to the Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 at [1216]–[1217], s 5L is intended to provide additional legislative guidance to decision makers, and applies the test formulated by the High Court in Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387; 77 ALD 541; 206 ALR 242; 78 ALJR 854; [2004] HCA 25 (Applicant S). However, s 5L(1)(b) also incorporates an additional requirement for “membership of a particular social group” that the defining characteristic of the group must be a characteristic that is either innate or immutable or so fundamental to the member’s identity or conscience that the member should not be forced to renounce it. Section 5L(1)(b) is said to draw from the approach taken in other jurisdictions including Canada, the United States of America, New Zealand and the European Union. Subject to the qualification provided by s 5L, the meaning of “particular social group” is otherwise unconfined. In A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225; 142 ALR 331; 71 ALJR 381; [1997] 4 Leg Rep 9; [1997] HCA 4, Dawson J said at 241 (CLR) that (in text references excluded): …A particular social group … is a collection of persons who share a certain characteristic or element which unites them and enables them to be set apart from society at large. That is to say, not only must such persons exhibit some common element…the element must unite them, making those who share it a cognisable group within their society.

In S, McHugh J expanded on this concept, stating at [69] that: … To qualify as a particular social group, it is enough that objectively there is an identifiable group of persons with a social presence in a country, set apart from other members of that society, and united by a common characteristic, attribute, activity, belief, interest, goal, aim or principle…

However, Gleeson CJ cautioned in S at [36] that the characteristic or attribute common to all members of the group cannot be the “shared fear of persecution”. Further, the possession of that characteristic or attribute must distinguish the group from society at large, otherwise the group will simply be a “social group” (and not a “particular” social group). Section s 5K also qualifies the definition of particular social group in respect of families. Where a person claims to be a member of a particular social group on the basis of the person’s family, s 5K) mandates that the following factors be disregarded: © 2016 THOMSON REUTERS

161

s 36

Migration Act 1958

[36.20]

(i) any fear of persecution, or any persecution, that any other family member has experienced, where the fear for persecution is not for one of the reasons mentioned in 5J(1)(a); and (ii) any fear of persecution, or any persecution, that the first person or any other family member has experienced, where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (i) above had never existed. Political opinion: the expression “political opinion” is not limited to “membership of a particular political party or support for a particular party or leader”: C v Minister for Immigration and Multicultural Affairs (1999) 94 FCR 366; 59 ALD 643; [1999] FCA 1430 at [21] per Wilcox J. In Voitenko v Minister for Immigration and Ethnic Affairs (1999) 92 FCR 355; 55 ALD 629; [1999] FCA 428, Hill J stated at [33], in relation to a political opinion, that: It clearly is not limited to party politics in the sense that expression is understood in a parliamentary democracy. It is probably narrower that the usage of the word in connection with the science of politics, where it may extend to almost every aspect of society. It suffices here to say that the holding of an opinion inconsistent with that held by the government of a country explicitly by reference to views contained in a political platform or implicitly by acts … With respect, I agree with the view expressed by Davies J in Minister for Immigration and Ethnic Affairs v Y … that views antithetical to instrumentalities of government such as the Armed Forces, security institutions and the police can constitute political opinions for the purposes of the Convention. Whether they do so will depend upon the facts of the particular case.

In A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225; 142 ALR 331; 71 ALJR 381; [1997] 4 Leg Rep 9; [1997] HCA 4, Gummow J stated at 284 (CLR), that “Political opinions … may be diverse, imprecise, and even idiosyncratic”. In addition, a person need not hold a particular political opinion in order to meet the definition of refugee under the Refugees Convention. It will be sufficient that the person is merely imputed with a political opinion by the persecutor: Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559; 48 ALD 481; 144 ALR 567; 71 ALJR 743; [1997] 9 Leg Rep 2; [1997] HCA 22 at 574–571 (CLR) per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ. Section 36(3): exclusion of eligibility for a protection visa where a non-citizen has not availed themselves of a right to enter and reside in a third country Section 36 contains a cascading series of qualifications. Section 36(3) operates as a qualification on s 36(2), while ss 36(4), 36(5) and 36(5A) operate as qualifications on s 36(3): SZRTC v Minister for Immigration and Border Protection [2014] FCAFC 43 at [24] per Tracey and Griffiths JJ (Flick J agreeing). As their Honours observed at [25]: The correct approach is, therefore, for the decision-maker to determine whether an applicant satisfies one or more of the criteria for a protection visa prescribed by s 36(2). If the answer to that question is in the affirmative it is necessary for the decision-maker then to turn to s 36(3) and determine whether or not the applicant is a person to whom that sub-section applies. If it does not, the “gateway”, created by s 36(2) to the granting of a visa remains open and there is no occasion to consider whether one or more of the qualifications to s 36(3) applies. If s 36(3) is found to apply, the decision-maker must then determine whether one or more of the qualifications contained in sub-sections (4), (5) and (5A), which ensure that Australia’s international obligations under the Refugee Convention are met, limit the operation of s 36(3) and keep the “gateway” open.

Justices Tracey and Griffith went on to explain at [27]–[28] how s 36(3) is to be applied, balanced against ss 36(4), 36(5) and 36(5A): By s 36(3) Australia is deemed not to have protection obligations to a non-citizen “who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or 162

Migration Law

[36.20]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 36

permanently” any third country. The relevant question posed by the subsection is whether it can be said, having regard to all of the circumstances, that an applicant for a protection visa has a right (in the broad sense recognised by the Court in Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU [2013] FCAFC 91, (2013) 215 FCR 35) to “reside …. temporarily” in the third country. There is an obvious tension between the stability which is suggested by the word “reside” and the transience implied by the word “temporarily”. That, however, is a tension which must be resolved on the facts in each case. It is not a warrant for extending the meaning of “temporarily” such that it covers the whole of the period (which may or may not be able to be ascertained at the time at which the relevant decision is made) during which the applicant remains subject to persecution in his or her country of origin. In the context of s 36(3) the word “temporarily” does not introduce any temporal limitation. Such a limitation may be inherent in the word “reside” because residence in a place suggests something more than a short or passing visit. Any such inherent temporal limitation is not, however, linked with protection obligations owed to an applicant. Such protection is provided by the qualifications which are to be found in sub-sections (4), (5) and (5A) of s 36. These provisions may well be otiose or of marginal utility were the period of residence contemplated by s 36(3) to be held to be co-extensive with the period during which the applicant stood in need of protection under the Refugee Convention.

In SZTOX v Minister for Immigration and Border Protection [2015] FCAFC 77 (SZTOX), the Full Court of the Federal Court considered the differences between the discredited doctrine of effective protection, which had previously been read into s 36(2), and the right to enter and reside in a third country as expressed in s 36(3). In particular, the Full Court rejected the test applied by the Tribunal on merits review that, whether or not an applicant has a right under s 36(3), may be assessed as a matter of “practical reality”. Rather, Allsop CJ and Jagot and Griffiths JJ approved of the comprehensive analysis of the relevant case law, and appropriate test to be applied, as expounded by Buchanan J in Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU [2013] FCAFC 91; (2013) 215 FCR 35 (SZRHU) (Tracey, Robertson and Griffiths JJ agreeing). Speaking with specific reference to the Treaty of Friendship between India and Nepal, the Full Court at [31]–[38] adopted and enumerated the salient points emanating from Buchanan’s J reasons: First, the test which lay at the heart of the now discredited doctrine of effective protection (as opposed to s 36(3)) was one concerned with “practical reality and fact” ([41], [42] and [47]). Secondly, the doctrine of “effective protection” which had been read into s 36(2) of the Act in various decisions of the Court was rejected by the High Court in NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 6; (2005) 222 CLR 161 at [27] and [42] ([68]–[70]) Thirdly, the “right” referred to in s 36(3) does not mean only a legally enforceable right under domestic law, but also includes a “liberty, permission or privilege lawfully given”, as Allsop J had held in V856/00A ([56]). Fourthly, the “right to enter and reside” as referred to in s 36(3) is not confined to a right which is consonant with nationality or citizenship. As noted above, it can include a “liberty, permission or privilege lawfully given”, which does not mean that the “right” under s 36(3) must be capable of being vindicated in the courts and under the domestic law of the receiving country ([76], [78] and [89). Fifthly, the phrase in s 36(3) referring to a right “however that right arose or is expressed” suggests a less stringent and broader test than a legally enforceable right arising under domestic law, as also does the notion in s 36(3) of temporary residence ([35]). Sixthly, the [Treaty of Peace and Friendship between India and Nepal] itself does not appear to give Nepalese citizens a right of entry to India ([88]). Seventhly, the evidence in SZRHU indicated that there were “administrative arrangements for entry” which may have been intended to facilitate the operation of the Treaty, but that was an issue which should not be determined in SZHRU. Rather, the evaluation should be made by the Tribunal which could, if it wished, seek further information which was relevant in applying the correct test ([88]). Eighthly, the Tribunal was in error in SZRHU to consider that the terms of the Treaty established a legally enforceable right to enter and reside in India. The Tribunal should heed the actual terms of the © 2016 THOMSON REUTERS

163

s 36

Migration Act 1958

[36.20]

Treaty and consider whether those terms, together with any administrative or other arrangements established by the evidence considering the entry by Nepalese citizens at the Indian border, and consider whether they satisfy the correct test as established in V856/OOA, and approved in SZRHU ([90]).

After reciting the relevant points from SZRHU, the Full Court in SZTOX went on to emphasise at [41]–[42]: For completeness, lest there be any doubt, we should also state that the “right to enter and reside” for the purpose of s 36(3) is not confined to a right which is sourced in domestic law, such as a statute or regulation or other legislative instrument. The right might also be sourced in an executive act, such as a Treaty, executive policy or statement or other executive instrument. These examples are not intended to be exhaustive. The proper construction of s 36(3) must accommodate the potentially wide range of laws and executive acts which could create a right or entitlement in the relevant sense for a person to enter and reside in another country. IT necessarily follows from what we have said immediately above that we respectfully disagree with those parts of the decisions of the FCCA in SZTOG at [34] and [37] and SZTQN at [25] and [26], which suggest that the right or entitlement under s 36(3) is confined to one which is provided by or allowed under the domestic law of the receiving country. The right or entitlement might be of that character, but it might also arise under an executive or administrative act involving that receiving country. The existence and source of the right will be a matter of evidence.

The Complementary Protection Regime Alternatively, a person is eligible for a protection visa where they meet the criteria contained in s 36(2)(aa) which, together with ss 36(2A), 36(2B) and 36(2C), are commonly referred to as the “Complementary Protection Regime”. This regime took effect on 24 March 2012 pursuant to the Migration Amendment (Complementary Protection) Act 2011 (Cth). These provisions engage Australia’s express and implied non-refoulement obligations under the International Covenant on Civil and Political Rights, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the Convention on the Rights of the Child. In Minister for Immigration and Citizenship v MZYYL (2012) 207 FCR 211; (2012) 133 ALD 465; [2012] FCAFC 147, Lander, Jessup and Gordon JJ explained how the Complementary Protection Regime has been incorporated into s 36, at [18]–[20]: The Complementary Protection Regime provides criteria for the grant of a protection visa in circumstances where the Minister is not satisfied that Australia has protection obligations to that non-citizen under the Refugees Convention. The regime establishes criteria “that engage” Australia’s express and implied non-refoulement obligations under the International Covenant on Civil and Political Rights (ICCPR), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and the Convention on the Rights of the Child (CROC) (collectively the International Human Rights Treaties): Commonwealth, Parliamentary Debates, House of Representatives, 24 February 2011, 1357 (Chris Bowen, Minister for Immigration and Citizenship). The Complementary Protection Regime is a code in the sense that the relevant criteria and obligations are defined in it and it contains its own definitions: see, by way of example, the definitions in s 5 of the Act of “torture” and “cruel or inhuman treatment or punishment”. Unlike s 36(2)(a), the criteria and obligations are not defined by reference to a relevant international law. Moreover, the Complementary Protection Regime uses definitions and tests different from those referred to in the International Human Rights Treaties and the commentaries on those International Human Rights Treaties. For example, the definition of “torture” in the Complementary Protection Regime is different from that in the CAT: see s 5(1) of the Act, Art 1 of the CAT and the Explanatory Memorandum in relation to the Bill at [52]. Further, the International Human Rights Treaties do not require the non-citizen to establish that the non-citizen could not avail himself or herself of the protection of the receiving country or that the non-citizen could not relocate within that country. Section 36(2B)(a) and (b) have adopted a different and contrary position. Section 36(2B)(a) and (b) relieve Australia from its protection obligations in s 36(2)(aa) if those two particular circumstances are satisfied. 164

Migration Law

[36.30]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 36

Further, the test adopted in s 36(2)(aa), (2A) and (2B) is significant harm, not irreparable harm, being the test referred to in the General Comment No 31 on the ICCPR (Human Rights Committee, General Comment No 31: The Nature of the General Legal Obligations Imposed on State Parties to the Covenant, 80th sess, UN Doc CCPR/C/21/Rev.1/Add.13 (26 May 2004) at [12]), or serious harm, being the standard referred to and defined in s 91R of the Act. It is therefore neither necessary nor useful to ask how the CAT or any of the International Law Treaties would apply to the circumstances of this case. The circumstances of this case are governed by the applicable provisions of the Act, namely s 36(2)(aa) and 36(2B), construed in the way that has been indicated.

Relevantly, in Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505; 132 ALD 269; 296 ALR 525; [2013] FCAFC 33, a majority of the Full Court of the Federal Court confirmed that, although s 36(2)(aa) uses the words “real risk”, the relevant test in determining whether a non-citizen is entitled to Australia’s protection obligations under the Complimentary Protection Regime is according to the “real chance” test (being the same test applied under s 36(2)(a)): per Lander and Gordon JJ at [232]–[246]; per Besanko and Jagot JJ at [297] (Flick J agreeing). [36.30] Key cases Laws of general application The administration of a law of general application will not usually amount to persecution, unless it is applied in a discriminatory way. In A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225; 142 ALR 331; 71 ALJR 381; [1997] 4 Leg Rep 9; [1997] HCA 4, the applicants were citizens of the People’s Republic of China (China), married and had one child that was born in Australia. They applied for protection visas on the basis that they feared that China’s “One Child Policy” would be enforced against them by sterilisation if they returned to China. They claimed to have a fear of persecution on the basis of their membership of a particular social group, being citizens who had one child and who did not agree with the “One Child Policy” and who would be forced into being sterilized by reason of the policy. The applicants were not successful in the High Court, as the “One Child Policy” was a law of general application. At 244–245 (CLR) Dawson J stated: … a country might have laws of general application which punish severely, perhaps even with the death penalty, conduct which would not be criminal at all in Australia. The enforcement of such laws would doubtless be persecution, but without more it would not be persecution for one of the reasons stated in the Convention.

Chief Justice Brennan stated at 233 (CLR): … the feared persecution must be discriminatory … The persecution must be “for reasons of” one of those categories … The qualification also excludes persecution which is no more than punishment of a non-discriminatory kind for contravention of a criminal law of general application. Such laws are not discriminatory and punishment that is non-discriminatory cannot stamp the contravener with the mark of “refugee”.

Justice McHugh stated at 258 (CLR): Conduct will not constitute persecution, however, if it is appropriate and adapted to achieving some legitimate object of the country of the refugee. A legitimate object will ordinarily be an object whose pursuit is required in order to protect or promote the general welfare of the State and its citizens. The enforcement of a generally applicable criminal law does not ordinarily constitute persecution.

In Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293; 58 ALD 321; 170 ALR 553; 74 ALJR 775; 21(7) Leg Rep 11; [2000] HCA 19, the applicant was a three and half year old child of Chinese parents born out of wedlock. The applicant applied for a protection visa on the basis of fearing persecution in China on the basis of his membership to © 2016 THOMSON REUTERS

165

s 36

Migration Act 1958

[36.30]

a particular social group, colloquially known as “black children”. This referred to children that were born outside the parameters of China’s “One Child Policy”. The Tribunal found that the applicant would not be persecuted “for reasons of” his membership of the particular social group, rather the harm he would suffer was as a result of China’s intention to penalize those who have children outside its “One Child Policy”, which was a law of general application. Chief Justice Gleeson, Gaudron, Gummow and Hayne JJ held the applicant was a member of a particular social and would be persecuted for reasons of that membership if he returned to China. This is because, “black children” were treated differently in China and this different treatment amounted to persecution. At [19], Gleeson CJ, Gaudron, Gummow and Hayne JJ stated: Laws or policies which target or apply only to a particular section of the population are not properly described as laws of general application. Certainly, laws which target or impact adversely upon a particular class or group – for example, “black children”, as distinct from children generally – cannot properly be described in that way.

At [21], Gleeson CJ, Gaudron, Gummow and Hayne JJ also stated: To say that, ordinarily, a law of general application is not discriminatory is not to deny that general laws, which are apparently non-discriminatory, may impact differently on different people and, thus, operate discriminatorily. Nor is it to overlook the possibility that selective enforcement of a law of general application may result in discrimination.

Well-founded fear and real chance test A non-citizen will have a well-founded fear of persecution for one or more of the grounds set out in the s 5J(1)(a) (for visa applications made after the commencement of the MMP Act) there is a “real chance of persecution”. In Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559; 48 ALD 481; 144 ALR 567; 71 ALJR 743; [1997] 9 Leg Rep 2; [1997] HCA 22, Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ considered the “real chance test” and at 575 (CLR) stated: Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events. In the present case, for example, the Tribunal correctly relied on what it found had happened to Mr Guo and others to make a finding that he was not “differentially at risk for a Convention reason”. Without making findings about the policies of the Chinese authorities and the past relationship of Mr Guo with those authorities, the Tribunal would have had no rational basis from which it could assess whether there was a real chance that he might be persecuted for a Convention reasons if he were to return to the PRC.

Relevantly, in Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505; 132 ALD 269; 296 ALR 525; [2013] FCAFC 33, a majority of the Full Court of the Federal Court confirmed that, although s 36(2)(aa) uses the words “real risk”, the relevant test in determining whether a non-citizen is entitled to Australia’s protection obligations under the Complimentary Protection Regime is according to the “real chance” test (being the same test applied under s 36(2)(a)): per Lander and Gordon JJ at [232]–[246]; per Besanko and Jagot JJ at [297] (Flick J agreeing). National interest criterion and being an unauthorised maritime arrival Under cl 866.226, a criterion for the grant of a protection visa (subclass 866) is that the Minister is satisfied that the grant of the visa is in the national interest. Also, pursuant to s 46A(1), an authorised maritime arrival may not make a valid application for a visa. In Plaintiff S297/2015 v 166

Migration Law

[36.50]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 37

Minister for Immigration and Border Protection (2015) 143 ALD 553; 316 ALR 161; [2015] HCA 3 the Minister lifted the bar, pursuant to s 46A(2), for the plaintiff, who was an unauthorised maritime arrival, to apply for a Protection (Class XA) visa. The Minister then subsequently determined pursuant to cl 866.226 that he was not satisfied that it was in the national interest to grant the plaintiff the protection visa on the basis that the plaintiff was an unauthorised maritime arrival. In these circumstances, French CJ, Hayne, Kiefel, Bell, Gageler and Keane JJ held at [5] that “cl 866.226 criterion does not permit the Minister to attach an additional consequence to being an unauthorised maritime arrival beyond those fixed by the Act”. This is because it would be “inconsistent with the Act and invalid” if the Minister could attach “adverse significance to the plaintiff’s status as an aunauthorised maritime arrival” where the Act has already set out the consequences of this status under s 46A: at [20]–[21] per French CJ, Hayne, Kiefel, Bell, Gageler and Keane JJ. [36.40] Practice points Part 2 of Schedule 5 of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth), commenced on 18 April 2015, making the following amendments, among others: • s 5H was introduced, which defines word “refugee” for the purposes of the purposes of the Act • s 5J was introduced which defines the words ’well-founded fear of persecution’, codifies the law regarding the “relocation” and “modification of behaviour” principles, and captures the effect of the former s 91R (which previously provided a non-exhaustive list of instances of “serious harm”); • ss 5K to 5L was introduced, which define the words “particular social group”; and • the word “refugee” was inserted into s 36(2)(a), in place of references to the Refugees Convention. Pursuant to s 2 and item 28 of Pt 2 of Sch 5 of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth), the above amendments apply only to applications for protection visas made on or after 18 April 2015. For applications made before that date, the law as it previously applied continues in effect (for the online edition of this commentary, see “Repealed Sections”). [36.50] Further reading For a detailed discussion on Australia’s obligations under the Refugees Convention, and the interpretation of s 36, see John Vrachnas, Kim Boyd, Mirko Bagaric, Penny Dimopoulos, Migration and Refugee Law, Principles and Practice in Australia (Cambridge University Press, 2nd Ed, 2008). 37

Bridging visas There are classes of temporary visas, to be known as bridging visas, to be granted under Subdivision AF. [Former s 26C renum Act 60 of 1994, s 83; am Act 60 of 1994, s 10; insrt Act 184 of 1992, s 10]

SECTION 37 COMMENTARY Scope ..................................................................................................................................................... [37.20]

© 2016 THOMSON REUTERS

167

s 37A

Migration Act 1958

[37.20]

CONCEPTS

Temporary visa ...................................................................................................................................... [37.40] Grant of visa .......................................................................................................................................... [37.60] Types of bridging visas ......................................................................................................................... [37.80]

[37.20] Scope Generally, the purpose of a bridging visa is to ensure the lawfulness of a non-citizen’s presence in Australia, while the non-citizen’s application for a substantive visa is being processed or while the non-citizen is making arrangements to depart Australia: Minister of State for Immigration and Multicultural Affairs v Harjanto [1981] FCA 703 at p 10 per Branson J; see also Explanatory Memorandum to the Migration Reform Bill 1992 Migration (Delayed Visa Applications) Tax Bill 1992 (Cth) at [28]–[29].

CONCEPTS [37.40] Temporary visa As defined in s 30(2). Pursuant to s 5(1), a substantive visa does not include a bridging visa. [37.60] Grant of visa Subdivision AF of the Act and Div 2.5 and Sch 1 Pt 3 of the Regulations set out the provisions for the grant of a bridging visa. Subclasses 010 – 070 in Sch 2 of the Regulations contain the criteria for the various bridging visas. [37.80] Types of bridging visas The types of bridging visas are as follow: • Bridging R (Class WR) visa – subclass 070; • Bridging F (Class WF) visa – subclass 060; • Bridging B (Class WB) visa – subclass 020; • Bridging A (Class WA) visa – subclass 010; • Bridging C (Class WC) visa - subclass 030 • Bridging D (Class WD) visa – subclasses 040 and 041; and • Bridging E (Class WE) visa – subclasses 050 and 051. 37A Temporary safe haven visas (1) There is a class of temporary visas to travel to, enter and remain in Australia, to be known as temporary safe haven visas. Note: A temporary safe haven visa is granted to a person to give the person temporary safe haven in Australia.

(2) The Minister may, by notice in the Gazette, extend the visa period of a temporary safe haven visa so that the visa ceases to be in effect on the day specified in the notice. (3) The Minister may, by notice in the Gazette, shorten the visa period of a temporary safe haven visa so that the visa ceases to be in effect on the day specified in the notice if, in the Minister’s opinion, temporary safe haven in Australia is no longer necessary for the holder of the visa because of changes of a fundamental, durable and stable nature in the country concerned. (4) If a notice under subsection (3) is published in the Gazette, the Minister must cause a copy of the notice to be laid before each House of the Parliament within 3 sitting days of that House after the publication of the notice, together with a statement that sets out the reasons for

168

Migration Law

[37A.10]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 37A

the notice, referring in particular to the Minister’s reasons for thinking that changes of a fundamental, durable and stable nature have occurred in the country concerned. (5) If a notice under subsection (2) or (3) is published in the Gazette and has not been revoked, then the visa ceases to be in effect on the day specified in the notice, despite any other provision of this Act. (6) The Minister does not have a duty to consider whether to exercise the power under subsection (2) in respect of any non-citizen, whether he or she is requested to do so by the non-citizen or by any other person, or in any other circumstances. (7) In this section: country concerned means the country or countries in which the circumstances exist that give rise to the grant of temporary safe haven visas. [S 37A insrt Act 34 of 1999, s 3 and Sch 1 item 3]

SECTION 37A COMMENTARY Scope ................................................................................................................................................... [37A.10] Key concepts ...................................................................................................................................... [37A.20] Practice points .................................................................................................................................... [37A.30]

[37A.10] Scope Section 37A was introduced by the Migration Legislation Amendment (Temporary Safe Haven Visas) Act 1999 (Cth), in response to the Prime Minister’s announcement that the Government would provide temporary safe haven to 4,000 persons displaced from the Kosovo region of the Republic of Yugoslavia: see second reading speech, Senator Ian Campbell, 21 April 1999. In Plaintiff M79/2012 v Minister for Immigration and Citizenship (2013) 133 ALD 221; 298 ALR 1; 87 ALJR 682; [2013] HCA 24 (Plaintiff M79), French CJ, Crennan and Bell JJ explained the purpose of this class of visa at [26]–[27]: Section 347A identifies the purpose of the class of temporary safe haven visas which it creates. The evidence purpose, not confined by any criteria specified in the Act, is to provide a temporary refuge for non-citizens who would be at risk of some form of harm if returned to another country. The kinds of harm are not specified in the Act. They could reasonably be expected to include the risk of persecution, the risk of death or injury arising out of ongoing civil disorder or armed conflict and perhaps the risk of starvation or disease arising out of natural disasters. The wide range of circumstances which might give rise to a need for such a visa means that the minister, subject to any constraints imposed by the regulations, has a broad discretion in determining circumstances under which it is appropriate to grant it. The purpose of the temporary safe haven visa is also made clear by its legislative history. The provisions of the Act relating to temporary safe haven visas were inserted by the Migration Legislation Amendment (Temporary Safe Haven Visas) Act 1999 (Cth). Their initial purpose was to provide temporary safe haven to Kosavars displaced in the Balkan conflict of the late 1990s. The then minister described the amendment as a “short-term humanitarian measure” to “Assist in alleviating the massive suffering and human tragedy that has developed in Kosovo”. It was not to become a means of obtaining permanent residence in Australia. As temporary safe haven was to be provided at short notice in circumstances where extensive character checking was not possible, it was necessary to have effective powers to withdraw temporary safe have visas. The purpose of the temporary safe haven visa, derived from that history and the text of s 37A, is not confined to the provision of temporary safe haven to Kosovars. It is a class of visa which, as defined by the Act, could be granted to anyone in need of temporary safe haven. © 2016 THOMSON REUTERS

169

s 38

Migration Act 1958

[37A.20]

[37A.20] Key concepts Travel to, enter and remain in Australia: These words, when used in s 37A(1), do not mean that an applicant for a temporary safe visa must be outside Australia at the time of application. Accordingly, the visa can be granted to a person who is already in Australia: Plaintiff M79/2012 v Minister for Immigration and Citizenship (2013) 133 ALD 221; 298 ALR 1; 87 ALJR 682; [2013] HCA 24 at [28] per French CJ, Crennan and Bell JJ. [37A.30] Practice points Regulation 2.07AC creates the Temporary Safe Haven (Class UJ) class of visa, which is reflected in item 1223B of Schedule 1 and Part 449 of Schedule 2 to the Regulations. Relevantly, the subclass 448 visa was repealed by the Migration Amendment (Redundant and Other Provisions) Regulation 2014 effective from 22 March 2014. Relevantly, a person who has been validly granted a temporary safe haven visa is barred by s 91K from making an application for a protection visa: see also Plaintiff M79/2012 v Minister for Immigration and Citizenship (2013) 133 ALD 221; 298 ALR 1; 87 ALJR 682; [2013] HCA 24 at [42] per French CJ, Crennan and Bell JJ. 38

Criminal justice visas There is a class of temporary visas, to be known as criminal justice visas, to be granted under Subdivision D of Division 4. [Former s 26D renum Act 60 of 1994, s 83; insrt Act 184 of 1992, s 10]

SECTION 38 COMMENTARY Scope ..................................................................................................................................................... [38.20] CONCEPTS

Temporary visa ...................................................................................................................................... [38.40] Administration of criminal justice ........................................................................................................ [38.60] Grant of visa .......................................................................................................................................... [38.80] Types of criminal justice visas ........................................................................................................... [38.100]

[38.20] Scope This section provides for temporary visas called “criminal justice visas” to be granted by the Minister under Pt 2 Div 4 subdiv D of the Act. The purpose of a criminal justice visa is to allow an individual entry into Australia and/or to allow an individual to continue to stay in Australia for the administration of criminal justice.

CONCEPTS [38.40] Temporary visa As defined in s 30(2). Pursuant to s 5(1), a substantive visa does not include a criminal justice visa. [38.60] Administration of criminal justice The administration of criminal justice is defined in s 142. [38.80] Grant of visa Division 4 subdiv D of the Act deals with the grant of a criminal justice visa. An individual is not able to make an application for a criminal justice visa. The granting of a criminal justice visa involves two stages. First, the Attorney-General needs to issue a criminal justice stay certificate, 170

Migration Law

[38A.40]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 38B

then the Minister has the discretion whether or not to grant a criminal justice visa: Minister for Immigration and Citizenship v Zhang (2009) 179 FCR 135; 111 ALD 531; [2009] FCAFC 129 at [2] per Stone, Jacobson and Foster JJ. [38.100] Types of criminal justice visas There are two types of criminal justice visas: • a criminal justice entry visa, permitting a non-citizen to travel to, enter and remain temporarily in Australia: see s 155(1); and • a criminal justice stay visa, permitting a non-citizen to remain temporarily in Australia: see s 155(2). 38A Enforcement visas There is a class of temporary visas to travel to, enter and remain in Australia, to be known as enforcement visas. Note: Division 4A deals with these visas. [S 38A insrt Act 160 of 1999, s 3 and Sch 1 item 19]

SECTION 38A COMMENTARY Scope ................................................................................................................................................... [38A.20] CONCEPTS

Temporary visa ................................................................................................................................... [38A.40]

[38A.20] Scope Temporary visas called “enforcement visas” may be granted by the Minister under Pt 2 subdiv 4A. The purpose of an enforcement visa is to provide a scheme by which non-citizens on a “foreign boat” or on a “vessel” are granted a visa upon enforcement action being taken either by fisheries officers or environment officers.

CONCEPTS [38A.40] Temporary visa As defined in s 30(2). Pursuant to s 5(1) a substantive visa does not include a criminal justice visa. The criteria and circumstances applicable to this class of visa are contained in Pt 2 subdiv 4A. 38B Maritime crew visas (1) There is a class of temporary visas to travel to and enter Australia by sea, and to remain in Australia, to be known as maritime crew visas. (2) Subject to subsection 43(1B), a maritime crew visa held by a non-citizen does not grant the non-citizen permission to travel to or enter Australia by air. Note: However, a non-citizen might also hold another class of visa that allows the non-citizen to travel to and enter Australia by air.

(3) The Minister may make a written declaration, for the purposes of this section, that it is undesirable that a person, or any persons in a class of persons, travel to and enter Australia, or remain in Australia.

© 2016 THOMSON REUTERS

171

s 38B

Migration Act 1958

[38B.20]

(4) If the Minister makes a declaration under subsection (3) in relation to a person, or a class of persons of which a person is a member, a maritime crew visa held by that person ceases to be in effect: (a) if the Minister specifies a time in the declaration (which must be after the time when the declaration is made) as the time the declaration takes effect—at the time so specified; or (b) if the Minister does not specify such a time in the declaration—at the end of the day on which the declaration is made. Note: A maritime crew visa can also cease to be in effect under other sections (see for example section 82).

(5) If the Minister revokes a declaration made under subsection (4), the Minister is taken never to have made the declaration. Note: Under subsection 33(3) of the Acts Interpretation Act 1901, the Minister may revoke a declaration made under subsection (4).

(6) Despite subsection (5), any detention of the non-citizen that occurred during any part of the period: (a) beginning when the Minister made the declaration; and (b) ending at the time of the revocation of the declaration; is lawful and the non-citizen is not entitled to make any claim against the Commonwealth, an officer or any other person because of the detention. [S 38B insrt Act 73 of 2007, s 3 and Sch 1 item 5]

SECTION 38B COMMENTARY Scope ................................................................................................................................................... [38B.20] CONCEPTS

Grant of visa ....................................................................................................................................... [38B.40] Enter Australia by sea ........................................................................................................................ [38B.60] Enter Australia by air ......................................................................................................................... [38B.80] Minister’s declaration ....................................................................................................................... [38B.100] Revocation of Minister’s declaration ............................................................................................... [38B.120] Cessation of visa ............................................................................................................................... [38B.140]

[38B.20] Scope Under this section certain non-citizens may obtain a temporary visa (as defined in s 30(2)), called a “maritime crew visa”, to travel to and enter Australia by sea and remain in Australia. The maritime crew visa enables foreign crew of non-military ships, foreign crew of ships being imported into Australia, foreign supernumerary crew and the spouses and dependent children accompanying the crew to travel to and enter Australia by sea: see the Explanatory Memorandum to the Migration Amendment (Maritime Crew) Bill 2007 (Cth) at [2].

CONCEPTS [38B.40] Grant of visa A non-citizen must apply for a maritime crew visa. Schedule 2 cl 988 of the Regulations sets out the criteria for the grant of a maritime crew visa. [38B.60] Enter Australia by sea Pursuant to s 38B(1), the holder of a maritime crew visa usually must travel to and enter Australia by sea. The entry by sea must usually be at a proclaimed port (as defined in s 5(1)): s 43(1A)(a). However, the holder of a maritime crew visa may enter Australia by other means if 172

Migration Law

[38B.140]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 39

authorised by an authorised officer under s 43(1A)(c), or if the health or safety of a person (or if a prescribed reason (as set out in reg 2.06AA of the Regulations)) makes it necessary to enter another way under s 43(1A)(b). [38B.80] Enter Australia by air According to s 38B(2), travel to and entry into Australia by air is usually not permitted. However, s 43(1A) and (1B) permit the holder of a maritime crew visa to enter Australia by air in certain circumstances, as outlined in those sections. Further, if the holder of a maritime crew visa is the holder of another visa that allows the non-citizen to travel to and enter Australia by air, then the non-citizen may travel to and enter Australia by air. Section 82(2AA) allows maritime crew visas to be held at the same time as certain other visas. [38B.100] Minister’s declaration Pursuant to s 38B(3), the Minister has the discretion to declare in writing that it is undesirable that a person, or any persons in a class of persons, travel to, enter and remain in Australia. The term “undesirable” is not defined in the Act or Regulations, nor has it been the subject of any judicial consideration. This provision replicates the Minister’s power in s 33(9) of the Act in relation to special purpose visas: see Explanatory Memorandum to the Migration Amendment (Maritime Crew) Bill 2007 (Cth) at item 5. If a Minister makes a declaration under this subsection, the maritime crew visa will cease to be in effect at the time specified in s 38B(4). [38B.120] Revocation of Minister’s declaration According to s 33(3) of the Acts Interpretation Act 1901 (Cth), the Minister has the power to revoke a written declaration made under s 38B(3). If the Minister makes a declaration under s 38B(3) and then later revokes it, pursuant to s 38B(6), a non-citizen is not entitled to make any claim against the Commonwealth due to being in detention is a result of such circumstances. [38B.140] Cessation of visa A maritime crew visa will cease to be in effect if: • the Minister makes a declaration under s 38B(3); • the circumstances in other sections of the Act apply – for example under s 82 – such as the cancellation of the visa; or • the circumstances under s 172 apply – that is, the holder enters Australia in a way that contravenes s 43. 39

Criterion limiting number of visas (1) In spite of section 14 of the Legislation Act 2003, a prescribed criterion for visas of a class, other than protection visas, may be the criterion that the grant of the visa would not cause the number of visas of that class granted in a particular financial year to exceed whatever number is fixed by the Minister, by legislative instrument, as the maximum number of such visas that may be granted in that year (however the criterion is expressed). [Subs (1) am Act 126 of 2015, s 3 and Sch 1 item 380, with effect from 5 Mar 2016; Act 141 of 2005, s 3 and Sch 4 items 1 and 2; Act 60 of 1994, s 82 and Sch 1 item 12]

© 2016 THOMSON REUTERS

173

s 39

Migration Act 1958

[39.20]

(2) For the purposes of this Act, when a criterion allowed by subsection (1) prevents the grant in a financial year of any more visas of a particular class, any outstanding applications for the grant in that year of visas of that class are taken not to have been made. [Subs (2) am Act 60 of 1994, s 82 and Sch 1 item 13] [S 39 am Act 126 of 2015; Act 141 of 2005; former s 26E renum Act 60 of 1994, s 83; am Act 60 of 1994; insrt Act 184 of 1992, s 10]

SECTION 39 COMMENTARY SCOPE

Introduction ........................................................................................................................................... [39.20] Capped classes of visa .......................................................................................................................... [39.40] CONCEPTS

Outstanding applications taken not to have been made ...................................................................... [39.60] Practice point ......................................................................................................................................... [39.80]

SCOPE [39.20] Introduction This provision gives the Minister the power to “cap” the number of visas that will be granted within a certain class of visa, other than protection visas, within any financial year. [39.40] Capped classes of visa This section has not been regularly used by the Minister to cap visas. When the Minister caps visas, this is usually done through an instrument. For example, the Minister capped the number of visas that may be granted in the financial year 1 July 2009 to 30 June 2010 for certain skilled visas (relevantly, the Skill Matching (Migrant) (Class BR) visa, including subclass 134 (Skill Matching) visas; Skilled-Independent (Migrant) (Class BN) visas, including subclass 136 (Skilled – Independent) and subclass 137 (Skilled – State/Territory-nominated Independent visas; and Designated Area-sponsored)) through the instrument Minister for Immigration and Citizenship (Cth), No IMMI 10/023 – Determination of the Maximum Number of Certain Skilled Visas that may be granted in the 2009-10 Financial Year (paragraphs 134.228(b), 136.231(b), 137.230(b), 138.233(b) and 139.234(b) of Schedule 2), 23 June 2010

CONCEPTS [39.60] Outstanding applications taken not to have been made Once the cap is reached within a specified financial year, no more visas for the capped class will be granted in that financial year. Pursuant to s 39(2), any visa application made for a class of visa for which the cap has been reached, will not be taken to have been made. [39.80] Practice point There is no right to merits review (or judicial review) in relation to a visa application that has been deemed not to be granted because the quota has been reached. This is because no “migration decision” or any type of “decision” can be the subject of a review. Section 39 should be read together with subdivision AH of Division 3 of Part 2.

174

Migration Law

[39.80]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 40

39A Minimum annual numbers of Protection (Class XA) visas and Refugee and Humanitarian (Class XB) visas (1) Despite any legislative instrument made for the purposes of section 39, the Minister must take all reasonably practicable measures to ensure the grant in a financial year of at least the minimum total number of Protection (Class XA) visas and Refugee and Humanitarian (Class XB) visas that is determined by the Minister under subsection (3) of this section for that year. (2) Subsection (1) applies subject to this Act, and to any regulation or instrument made under or for the purposes of this Act (other than section 39 of this Act). (3) The Minister may, by legislative instrument, determine a minimum total number of Protection (Class XA) visas and Refugee and Humanitarian (Class XB) visas for a financial year specified in the determination. (4) Despite regulations made for the purposes of paragraph 44(2)(b) of the Legislation Act 2003, section 42 (disallowance) of that Act applies to a legislative instrument made under subsection (3) of this section. [Subs (4) am Act 126 of 2015, s 3 and Sch 1 item 381, with effect from 5 Mar 2016]

(5) In this section: Protection (Class XA) visas means visas classified by regulation as Protection (Class XA) visas. Note: For this class of visas, see clause 1401 of Schedule 1 to the Migration Regulations 1994.

Refugee and Humanitarian (Class XB) visas means visas classified by regulation as Refugee and Humanitarian (Class XB) visas. Note: For this class of visas, see clause 1402 of Schedule 1 to the Migration Regulations 1994. [S 39A am Act 126 of 2015; insrt Act 135 of 2014, s 3 and Sch 2A item 1, with effect from 16 Dec 2014 Cross-reference: Legislative Instruments: IMMI 14/117 — Migration Act 1958 – Determination of Protection (Class XA) and Refugee Humanitarian (Class XB) Visas 2014: This determination specifies the Minister’s determination of at least the minimum total combined number of Protection (Class XA) visas and Refugee and Humanitarian (Class XB) visas that the Minister must take all reasonable practicable measures to ensure are granted for, the financial years commencing 2015, 2016, 2017 and 2018.]

40

Circumstances for granting visas (1) The regulations may provide that visas or visas of a specified class may only be granted in specified circumstances. [Subs (1) am Act 60 of 1994, s 11(a)]

(2) Without limiting subsection (1), the circumstances may be, or may include, that, when the person is granted the visa, the person: (a) is outside Australia; or (b) is in immigration clearance; or (c) has been refused immigration clearance and has not subsequently been immigration cleared; or (d) is in the migration zone and, on last entering Australia: (i) was immigration cleared; or (ii) bypassed immigration clearance and had not subsequently been immigration cleared. [Subs (2) am Act 2 of 2004, s 3 and Sch 1 item 12; Act 60 of 1994, s 11(b)–(c)]

© 2016 THOMSON REUTERS

175

s 40

Migration Act 1958

[40.20]

(3) Without limiting subsection (1), the circumstances may be, or may include, that a person has complied with any requirement to provide one or more personal identifiers made under section 257A. [Subs (3) subst Act 115 of 2015, s 3 and Sch 1 item 9, with effect from 16 Feb 2016; insrt Act 2 of 2004, s 3 and Sch 1 item 13]

(3A) [Repealed] [Subs (3A) rep Act 115 of 2015, s 3 and Sch 1 item 9, with effect from 16 Feb 2016; insrt Act 2 of 2004, s 3 and Sch 1 item 13]

(3B) [Repealed] [Subs (3B) rep Act 115 of 2015, s 3 and Sch 1 item 9, with effect from 16 Feb 2016; insrt Act 2 of 2004, s 3 and Sch 1 item 13]

(3C) [Repealed] [Subs (3C) rep Act 115 of 2015, s 3 and Sch 1 item 9, with effect from 16 Feb 2016; insrt Act 2 of 2004, s 3 and Sch 1 item 13]

(4) [Repealed] [Subs (4) rep Act 115 of 2015, s 3 and Sch 1 item 9, with effect from 16 Feb 2016; insrt Act 2 of 2004, s 3 and Sch 1 item 13]

(5) [Repealed] [Subs (5) rep Act 115 of 2015, s 3 and Sch 1 item 9, with effect from 16 Feb 2016; insrt Act 2 of 2004, s 3 and Sch 1 item 13] [S 40 am Act 115 of 2015; Act 2 of 2004; former s 26F renum Act 60 of 1994, s 83; am Act 60 of 1994; insrt Act 184 of 1992, s 10]

SECTION 40 COMMENTARY Scope ..................................................................................................................................................... [40.20] CONCEPTS

Specified circumstances ........................................................................................................................ [40.40] Prescribed circumstances ...................................................................................................................... [40.60] Personal identifier .................................................................................................................................. [40.80]

[40.20] Scope This section allows for regulations to be made to provide for certain circumstances to exist before a visa or a visa in a specified class may be granted. The purpose of the provision is to ensure that certain visas are only granted to persons in certain places – for example, some classes of visas are to be granted to persons who are not yet in Australia: Explanatory Memorandum to the Migration Reform Bill 1992 Migration (Delayed Visa Applications) Tax Bill 1992 (Cth) at [33].

CONCEPTS [40.40] Specified circumstances For the purposes of s 40(1), reg 2.04(1) sets out the specified circumstances for granting a visa. Section 40(2) provides that the circumstances may be that the person is outside Australia, in immigration clearance (as defined in s 172), has not been immigration cleared, or is in the migration zone (as defined in s 5). [40.60] Prescribed circumstances The prescribed circumstances and the regulations in which those circumstances are specified are as follows: 176

Migration Law

[40.80]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 41

• section 40(3)(a) – specified in reg. 2.04(2) and (3); • section 40(3C)(a) – specified in reg 2.04(4); and • section 40(5) – specified in reg 2.04(2), (3), (5) and (6). [40.80] Personal identifier The expression “personal identifiers” is defined in s 5A while s 5B sets out the circumstances under which personal identifiers are taken not to have been provided. The following sections also deal with “personal identifiers”: • section 258 – Minister may determine that personal identifiers are not required; • section 258A – when non-citizens cannot be required to provide personal identifiers; • section 258B – information to be provided (authorised officers carrying out identification tests); • section 258C – information to be provided (authorised officers not carrying out identification tests); • section 258D – Regulations may prescribe the manner in which identification tests are to be carried out; • section 258E – general rules for carrying out identification tests; • section 258F – identification tests not to be carried out in cruel, inhuman or degrading manner etc; • section 258G – authorised officer may get help to carry out identification tests; and • Division 13AA – identification of immigration detainees. 41

Conditions on visas (1) The regulations may provide that visas, or visas of a specified class, are subject to specified conditions. [Subs (1) am Act 117 of 2013, s 3 and Sch 1 item 7, with effect from 29 Jun 2014; Act 60 of 1994, s 12(a)]

General rules about conditions (2) Without limiting subsection (1), the regulations may provide that a visa, or visas of a specified class, are subject to: (a) a condition that, despite anything else in this Act, the holder of the visa will not, after entering Australia, be entitled to be granted a substantive visa (other than a protection visa, or a temporary visa of a specified kind) while he or she remains in Australia; or (b) a condition imposing restrictions about the work that may be done in Australia by the holder, which, without limiting the generality of this paragraph, may be restrictions on doing: (i) any work; or (ii) work other than specified work; or (iii) work of a specified kind. [Subs (2) am Act 168 of 2000, s 3 and Sch 3 item 1; Act 60 of 1994, s 12(b) and (c)]

(2A) The Minister may, in prescribed circumstances, by writing, waive a condition of a kind described in paragraph (2)(a) to which a particular visa is subject under regulations made for the purposes of that paragraph or under subsection (3). [Subs (2A) insrt Act 113 of 1998, s 3 and Sch 4 item 1]

© 2016 THOMSON REUTERS

177

s 41

Migration Act 1958

[40.80]

Conditions about offshore resources activity (2B) In addition to any restrictions applying because of regulations made for the purposes of paragraph (2)(b), a condition of a visa that allows the holder of the visa to work is not taken to allow the holder to participate in, or support, an offshore resources activity in relation to any area unless the visa is: (a) a permanent visa; or (b) a visa prescribed by the regulations for the purposes of this subsection. Note: For offshore resources activity, see subsection 9A(5). [Subs (2B) insrt Act 117 of 2013, s 3 and Sch 1 item 8, with effect from 29 Jun 2014]

(2C) To avoid doubt, for the purposes of subsection (2B), a person may participate in, or support, an offshore resources activity in relation to an area whether the person: (a) is on an Australian resources installation in the area; or (b) is, under section 9A, otherwise in the area to participate in, or support, the activity. [Subs (2C) insrt Act 117 of 2013, s 3 and Sch 1 item 8, with effect from 29 Jun 2014]

Additional conditions (3) In addition to any conditions specified under subsection (1), or in subsection (2B), the Minister may specify that a visa is subject to such conditions as are permitted by the regulations for the purposes of this subsection. [Subs (3) am Act 117 of 2013, s 3 and Sch 1 item 9, with effect from 29 Jun 2014; insrt Act 60 of 1994, s 12(d)] [S 41 am Act 117 of 2013; Act 168 of 2000; Act 113 of 1998; former s 26G renum Act 60 of 1994, s 83; am Act 60 of 1994; insrt Act 184 of 1992, s 10]

SECTION 41 COMMENTARY Scope ..................................................................................................................................................... [41.20] CONCEPTS

Conditions .............................................................................................................................................. [41.40] Waiver of condition ............................................................................................................................... [41.60] KEY CASES

Act of imposing condition on visa ....................................................................................................... [41.80] Condition need not appear on the visa record or any labels ............................................................. [41.100] Application for waiver must be in writing ......................................................................................... [41.120] Minister’s and/or delegate’s decision need not be in writing ........................................................... [41.140] Natural justice when making a decision about waiver of condition ................................................. [41.160] Minister and/or delegate to address questions arising under reg 2.05(4)(a) ..................................... [41.180] Valid visa application .......................................................................................................................... [41.200] Breach of condition and cancellation ................................................................................................. [41.220] PRACTICE POINTS

Grant of visa ........................................................................................................................................ [41.240] Valid visa application .......................................................................................................................... [41.260] Request for waiver .............................................................................................................................. [41.280] Merits review ....................................................................................................................................... [41.300] Breach of condition generally ............................................................................................................. [41.320] Cancellation ......................................................................................................................................... [41.340] Breach of a condition in relation to a prescribed condition restricting work ................................... [41.360]

178

Migration Law

[41.60]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 41

[41.20] Scope This section permits the Minister to place conditions on certain visas. The types of conditions vary and may include restricting a non-citizen in relation to work or restricting a non-citizen from being granted further substantive visas: see s 40(2).

CONCEPTS [41.40] Conditions Conditions may be mandatory or discretionary. A mandatory condition is one that applies to every visa of the subclass in which that visa is included. A discretionary condition is one which may or may not be imposed by a decision-maker: Kosi v Minister for Immigration, Multicultural and Indigenous Affairs [2002] FCA 1467 at [15] per Moore J. Schedule 8 of the Regulations lists the various conditions. Section 41(1) provides that the Regulations may specify the conditions in relation to various visas or visas of a specific class. For the purposes of s 41(1), reg 2.05(1) specifies that the conditions to which a visa is subject are the conditions set out, or referred to, in the Part of Sch 2 that relates to visas of the subclass in which the visa is included. These are mandatory conditions. Section 41(2) is a subset of s 41(1), and therefore the conditions listed in s 41(2) may also be mandatory conditions: Trinh v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 945 at [19] per O’Dwyer FM. Section 41(3) provides that, in addition to s 41(1), the Minister may specify that a visa is subject to such conditions as are permitted by the Regulations. For the purposes of s 41(3), reg 2.05(2) specifies that the Minister may impose the conditions that may be imposed according to the Part of Sch 2 that relates to visas of the subclass in which the visa is included. These are discretionary conditions. A common condition imposed on a visa is the “no further stay condition”, which is included in condition 8503 (other than for student visas) in Sch 8. This condition provides that “the holder will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while the holder remains in Australia”. The same condition also appears in conditions 8534 and 8535 in relation to student visas. [41.60] Waiver of condition Pursuant to s 41(2A), the Minister may, in prescribed circumstances and in writing, waive a mandatory or discretionary condition. For the purposes of s 41(2A), the prescribed circumstances in which a condition may be waived for certain visas are set out in regs 2.05(4), (4AA), (5), (5A) and (6). Relevantly, the Minister may waive: • a mandatory condition if, since the person was granted the visa, compelling and compassionate circumstances have developed over which the person had no control and that resulted in a major change to the person’s circumstances: reg 2.05(4); • condition 8503 (that the holder will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while the holder remains in Australia) if the holder of the visa has a genuine intention to apply for the following visas: General Skilled Migration Visa, subclass 132 (Business Talent) visa, subclass 186 (Employer Nomination Scheme) visa, subclass 187 (Regional Sponsored Migration Scheme) or subclass 188 (Business Innovation and Investment (Provisional)) visa: reg 2.05(4AA); or • condition 8534 (that the holder will not be entitled to be granted a substantive visa (other than a protection visa, a student visa (application to be made on form 157P © 2016 THOMSON REUTERS

179

s 41

Migration Act 1958

[41.60]

(Internet), subclass 497 (Graduate – Skilled) visa or subclass 580 (Student Guardian) visa) while in Australia) if the holder of the visa to which condition 8534 applies: – has been granted either a subclass 497 (Graduate – Skilled) visa or a subclass 010 (Bridging A) or subclass 020 (Bridging B) visa associated with the subclass 497 (Graduate – Skilled) visa application and has not been granted a protection visa after holding the visa to which condition 8534 applies: reg 2.05(5); – has completed the course for which the visa was granted and has a genuine intention to apply for one of the following visas: General Skilled Migration visa, subclass 132 (Business Talent) visa, subclass 186 (Employer Nomination Scheme) visa, subclass 187 (Regional Sponsored Migration Scheme) visa, or subclass 188 (Business Innovation and Investment (Provisional)) visa: reg 2.05(5A); or – is a registered nurse, or satisfies the requirements for registration as a registered nurse in Australia: reg 2.05(6). The Minister’s power under s 41(2A) to waive a condition is discretionary and the circumstances in reg 2.05(4) must first exist before the Minister can exercise his discretion to waive a mandatory condition: Cheema v Minister for Immigration and Citizenship [2011] FCA 121 at [11]–[12] per Flick J; Re Vanstone; Ex parte Auva’a (2003) 134 FCR 379; [2003] FCA 1506 at [8] per Dowsett J; Verlicia v Minister for Immigration and Multicultural Affairs [2004] FCA 1529 at [7] per Moore J. The key circumstances that need to exist in reg 2.05(4) are that: • there are compelling and compassionate circumstances: reg 2.05(4)(a); • the compelling and compassionate circumstances developed after the person was granted the visa: reg 2.05(4)(a); • the person has no control over the compelling and compassionate circumstances: reg 2.05(4)(a)(i); and • the compelling and compassionate circumstances have resulted in a major change to the person’s circumstances: reg 2.05(4)(a)(ii). All of the above need to exist before the Minister’s power to waive is enlivened. The expression “compelling and compassionate” circumstance is not defined in the Act or Regulations. In Thongpraphai v Minister for Immigration and Multicultural Affairs [2000] FCA 1590 at [21], O’Loughlin J held that the words “compelling and compassionate” in reg 2.05(4)(a) “call for the occurrence of an event or events that are far-reaching and most heavily persuasive”. In relation to this description, in Terera v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 135 FCR 335; [2003] FCA 1570 at [26], Kenny J stated that: in a general sense, this is probably correct, although, for my part, I prefer not to put any exegetical gloss, by way of explanation, on the plain words of reg 2.05(4)(a). When a visa-holder requests the Minister, or Ministerial delegate, to waive a “no further stay” condition imposed on his or her visa, then the question for the decision-maker will be whether, in the particular case, compelling and compassionate circumstances have developed since the visa was granted, over which the visa-holder has no control and resulting in a major change to his or her circumstances. Whether the decision-maker finds that these circumstances exist will depend entirely upon the facts of the case under consideration, particularly the circumstances of the individual visa-holder.

This was illustrated in Nguyen v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 169; [2001] FCA 360, where the applicant, Mr Nguyen, had entered Australia on a business visa subject to condition 8503. Mr Nguyen married an Australia citizen and for that 180

Migration Law

[41.60]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 41

reason requested that condition 8503 be waived. Marshall J stated at [173] that “the fact of a marriage to an Australian citizen without more … can rarely if ever constitute an event which is a compelling or compassionate circumstance”. Whether the claimed circumstances amount to “compelling and compassionate” circumstances will be a decision for the Minister or his or her delegate: Kishore v Minister for Immigration and Multicultural Affairs (2002) 117 FCR 147; [2002] FCA 240 at [39] per Emmett J; Anani v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCCA 1140 at [29] and [34] per Barnes J. A finding about whether or not certain circumstances amount to “compelling and compassionate” circumstances will be a finding of fact and not open to review by the courts. Generally, a waiver of a condition, such as condition 8503, is sought in relation to instances that are personally unfortunate and/or which present distressing family circumstances: Cheema v Minister for Immigration and Citizenship [2011] FCA 121 at [9] per Flick J. Circumstances that the Minister or delegate has not found to be compelling and compassionate include: • a request for a waiver of condition 8503 on the basis that the applicant’s son, who had been born in Australia and was a Christian, would be harmed by her husband’s family and would not be accepted in Indonesia: Andrayani v Minister for Immigration and Citizenship [2011] HCASL 106 (8 June 2011); • a request for a waiver of condition 8503 on the basis that the applicant had formed a strong bond with his godson, an Australian citizen: Cheema v Minister for Immigration and Citizenship [2011] FCA 121; • a request for a waiver of condition 8503 on the basis that since having arrived in Australia, the applicant, an elderly lady, had become totally dependent on her family. The dependency occurred due to her incapacity as a result of an accident and the realisation that all her family who care for her were all in Australia: Mohamad v Minister for Immigration and Multicultural Affairs [2001] FCA 939; • an applicant who sought a waiver of condition 8503 due to her mother’s depression: Mafi v Minister for Immigration and Multicultural Affairs [2000] FCA 566; • a request for a waiver of condition 8503 on the basis that the applicant had married an Australian citizen: Nguyen v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 169; [2001] FCA 360; • a request for a waiver of condition 8503 on the basis that the applicant had formed a relationship with an Australia citizen who was undergoing IVF in order to have a child with the applicant: Dogolau v Minister for Immigration and Citizenship [2012] FMCA 529; and • a request for a waiver of condition 8503 on the basis that the applicant’s nephew had developed some mental health issues: Assad v Minister for Immigration and Citizenship [2009] FMCA 722. The compelling and compassionate circumstances must have developed after the grant of the visa. Where the circumstances existed prior to the grant of the visa, the requirements in reg 2.05(4) will not be satisfied: Mafi v Minister for Immigration and Multicultural Affairs [2000] FCA 566. For example, in Sese v Minister for Immigration and Multicultural Affairs (2000) 60 ALD 477; [2000] FCA 326, the applicant sought a waiver of condition 8503 on the basis that upon arriving in Australia he became aware of his mother’s depression and heart condition. His departure would exacerbate her condition and she therefore required his assistance. The delegate did not consider that the compelling and compassionate circumstances had developed since the grant of the visa because the applicant’s mother’s condition pre-dated the grant of the visa. In relation to the relationship of dependency, this had not developed since © 2016 THOMSON REUTERS

181

s 41

Migration Act 1958

[41.60]

the applicant’s arrival in Australia and the evidence showed that while the mother required the assistance of others, she did not specifically require care from her son. In Thongpraphai v Minister for Immigration and Multicultural Affairs [2000] FCA 1590, the applicant had married an Australian citizen and sought a waiver of condition 8503 on the basis that the migration officer who had imposed the condition did not explain the condition to her at the time she was granted the visa. The applicant’s lack of understanding about the condition did not develop after the grant of the visa. Rather, her lack of understanding occurred at the time she had applied for her visa. The compelling and compassionate circumstances must be outside the person’s control. Where the individual has control over the circumstances, reg 2.04(a)(i) will not be satisfied. For example, in Andrayani v Minister for Immigration and Citizenship [2011] FCA 117, the applicant sought a waiver of condition 8503 on the basis that her son, who had been born in Australia and was a Christian, would be harmed by her husband’s family and would not be accepted in Indonesia. The applicant’s change in circumstances were not outside her control because the marriage, pregnancy and subsequent birth of her child were naturally occurring events in a relationship between a man and a woman and therefore were in her control: at [19] per Foster J. In Cheema v Minister for Immigration and Citizenship [2011] FCA 121 the applicant sought a waiver of condition 8503 on the basis that he had formed a strong bond with his godson, an Australian citizen. The applicant had made a decision to become a godfather and that decision was completely in his control: at [17] per Flick J. In Gabay v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 485, Riethmuller FM considered whether the development of an emotional relationship between a husband and wife could be characterised as a circumstance out of the control of the applicant. His Honour found at [30]–[33] that: [t]he real question is whether or not the emotional attachment formed between the applicant and his wife was something capable of being outside of his control. Such esoteric questions are usually left for philosophers rather than lawyers, however a legal decision is required. An emotional relationship doesn’t occur instantly on meeting another person. Attraction can (and often does) occur at first meeting, however, an emotional relationship and attachment must be developed over time. Such a relationship must be pursued by the parties. The decision to pursue a relationship is a choice people make … … [T]he applicant made a choice to pursue this relationship which has developed into a significant attachment. I therefore find that the development of the relationship and attachment was not a circumstance outside the applicant’s control.

Lastly, the compelling and compassionate circumstance must result in a major change in the person’s circumstances. It is possible that compelling and compassionate circumstances may involve a combination of factors, which have led to the “major change”. Where there is a combination of factors, it is not necessary that each factor has caused the change, but that the major change results from the combined effect of these factors: Re Vanstone; Ex parte Auva’a (2003) 134 FCR 379; [2003] FCA 1506 (Auva’a). It is necessary that the compelling and compassionate circumstances result in a “major change” to the person’s “overall” circumstances and this may require a comparison of the person’s position prior to the issue of the visa with the person’s position as a result of the compelling and compassionate circumstances: Auva’a at [8] per Dowsett J. In Terera v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 135 FCR 335; [2003] FCA 1570, the applicant was a five-year-old child whose only parent was his mother, who had first entered Australia on a student visa, but who had married an Australian 182

Migration Law

[41.120]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 41

citizen while the applicant was in Australia. The applicant sought a waiver of condition 8503 on the basis that these circumstances could be considered a major change for the purpose of reg 2.05(4)(a)(ii). In Ofa v Minister for Immigration [2005] FMCA 1684, Ms Ofa was a 64-year-old mother, who sought a waiver of condition 8503 on the basis that she was suffering from short-term memory deterioration. The delegate refused the waiver on the basis that her medical condition did not prevent her from travelling. The delegate had applied the departmental policy contained in the Procedures Advice Manual 3 (PAM 3), which set out the types of circumstances that were envisaged to be compelling and compassionate. PAM 3 is a policy and has no legal force. The delegate was required to consider whether the compelling and compassionate circumstances resulted in a major change to the person’s overall circumstances, rather than restricting the words in the Regulation to mean “fitness to travel” and nothing more: Ofa v Minister for Immigration [2005] FMCA 1684 at [26] per Scarlett FM. Further, the “foreseeability” or “expectation” of any major change in a person’s circumstances, due to the compelling compassionate circumstance, was not a disqualifying factor: Massy v Minister for Immigration and Citizenship (2008) 216 FLR 59; [2008] FMCA 63 at [39]; Terera v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 135 FCR 335; [2003] FCA 1570. The Minister must not waive the following conditions: • condition 8540 (that the holder will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa or a subclass 462 (Work and Holiday) visa, while the holder remains in Australia) in relation to a subclass 020 (Bridging B) visa granted to a person who is an applicant for a subclass 462 (Work and Holiday) visa; and • conditions 8503 and 8540 in relation to a subclass 462 (Work and Holiday) visa: reg 2.05(4A).

KEY CASES [41.80] Act of imposing condition on visa A condition on a visa operates as a matter of law and there is no requirement for the Minister to “impose” the condition on the visa. For example, where a criterion of a visa has the words “must be imposed” (see cl 956.611), no act of imposition is actually required before the condition takes effect. The fact that subclass 956 is subject to a condition means that it applies automatically: Krummrey v Minister or Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 557; 227 ALR 562; [2005] FCAFC 258. [41.100] Condition need not appear on the visa record or any labels A mandatory condition of a visa need not be spelt out in the visa record or on any labels. The condition is imposed by law and operates regardless of whether it appears on the face of the visa record or on any other document: Trinh v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 706 (Trinh). The evidence of the visa follows the granting of it, and the evidence cannot alter the intrinsic nature of the visa and the mandatory conditions that attach to it on being granted: Trinh at [12] per O’Dwyer FM (as he was then known); VHAF v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 122 FCR 270; [2002] FCA 1243 at [57] per Gray J. [41.120] Application for waiver must be in writing A request for a condition of a visa to be waived must be in writing. However, a request for a condition to be waived at an interview with a delegate of the Minister, or at a tribunal hearing, in relation to the grant of the visa, does not amount to a request in writing for the purposes of © 2016 THOMSON REUTERS

183

s 41

Migration Act 1958

[41.140]

reg 2.05(4)(c): Sevim v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 126; [2001] FCA 1597 at [38] per Gray J. Where the request is not in writing, it has not been made in prescribed circumstances for the purposes of s 41(2A) and therefore is not a valid application for the condition to be waived. [41.140] Minister’s and/or delegate’s decision need not be in writing There is no requirement in the Act for the provision of written reasons for a decision not to waive a visa condition, nor that any such reasons should set out all the material that had been taken into account in making the decision: Salazar v Minister for Immigration and Multicultural Affairs [2001] FCA 899 at [25]–[26] per Allsop J; Anani v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCCA 1140 at [22] per Barnes J. [41.160] Natural justice when making a decision about waiver of condition Where a person has made a request to the Minister to waive a condition on a visa, the delegate of the Minister must afford the person natural justice when making a waiver decision: Moldrich v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1010; Re Vanstone; Ex parte Auva’a (2003) 134 FCR 379; [2003] FCA 1506. This includes giving the person the opportunity to comment on any adverse information and credibility concerns: Yuan v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 500. [41.180]

Minister and/or delegate to address questions arising under reg 2.05(4)(a) Where a person has requested that the Minister and/or delegate waive a condition pursuant to s 41(2A), the decision-maker is required to decide, pursuant to reg 2.05(4)(a), whether compelling and compassionate circumstances have developed since the grant of the visa, resulting in a major change in the person’s circumstances over which he or she had no control. In Terera v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 135 FCR 335; [2003] FCA 1570, the applicant was a five-year-old boy whose only parent was his mother, who had first entered Australia on a student visa, but who had married an Australian citizen while the applicant was in Australia. The applicant sought a waiver of condition 8503 on this basis. The delegate refused to waive the condition and did not consider that the applicant’s circumstances were compelling and compassionate, nor were they beyond his mother’s control. Kenny J found that the delegate failed to address the question arising under reg 2.05(4)(a), which constituted a jurisdictional error. The delegate had made a decision as if the applicant’s mother, and not her young son, were the applicant for the waiver. The delegate had found that the marriage was not beyond the applicant’s mother’s control. The applicant, a five-year-old boy, could not have any control over his mother’s decision to marry. The circumstances were not under the applicant’s control and therefore the delegate, by focusing on the applicant’s mother, rather than the applicant, had failed to address the question under reg 2.05(4)(a). [41.200] Valid visa application Pursuant to s 46(1A)(c), an application for a visa, in certain circumstances, will be invalid unless the Minister and/or delegate waives the condition under s 41(2A). In Vahaakolo v Minister for Immigration and Indigenous Affairs [2002] FCA 648, the applicant was granted a visa that was subject to condition 8503. Subsequently, the applicant applied for another substantive visa, a subclass 802 visa, without having condition 8503 waived by the Minister and/or delegate under s 41(2A). Pursuant to s 46(1A), the application for a subclass 802 visa was invalid because condition 8503 was not waived in relation to the applicant’s previous visa. The fact that the applicant may have impliedly requested a waiver of condition 8503 at the same time as he made the visa application was irrelevant, as the Minister had to have waived the condition prior to the lodgment of the application: Vahaakolo v Minister for Immigration and Indigenous Affairs [2002] FCA 648 at [11] per Hely J. 184

Migration Law

[41.360]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 41

[41.220] Breach of condition and cancellation Pursuant to s 116(1)(b) and (c), the Minister may cancel a visa where there has not been compliance with a condition on the visa. However, if that condition is uncertain and unreasonable, so as to make it impossible for a visa holder to comply with the condition, then the Minister is unable to be satisfied, for the purposes of s 116, that the holder had not complied with the condition. Therefore, the Minister’s power to cancel has not been enlivened: Dai v Minister for Immigration and Citizenship (2007) 165 FCR 458; 243 ALR 642; [2007] FCAFC 199; Minister for Immigration and Citizenship v Brar (2009) 175 FCR 432; 108 ALD 309; [2009] FCAFC 53. In addition, the power will not be enlivened under s 116 if a delegate misinterprets a term in the condition and therefore finds that the condition has been breached. For example, in Minister for Immigration and Multicultural and Indigenous Affairs v Alam (2005) 145 FCR 345; 219 ALR 629; [2005] FCAFC 132, the delegate cancelled Mr Alam’s visa because the delegate found that he had breached condition 8105 by engaging in work for more than 20 hours a week during any week. The Full Federal Court found that the delegate had erred in the meaning of the word “week” in condition 8105.

PRACTICE POINTS [41.240] Grant of visa Schedule 2 of the Regulations may list the condition (if any) that is imposed in relation to a specific visa. Depending on the criteria for the grant of a visa, if a holder has breached a condition of a previously held visa, this may be a basis for not granting the visa. [41.260] Valid visa application Depending on the visa condition, in order for an application to be considered valid, it may need to be waived prior to any further visa application being made: see s 46(1A). [41.280] Request for waiver Any request for the waiver of a condition must be in writing. [41.300] Merits review Merits review is not available in relation to a decision by a delegate of the Minister not to waive a condition under s 41(2A). However, if a jurisdictional error has occurred, judicial review is available in the Federal Circuit Court or the High Court in relation to a decision not to waive a condition under s 41(2A). [41.320] Breach of condition generally Failure to comply with a visa condition may result in the visa being cancelled – for example, under s 116 – and/or may result in any further visa (depending on the type of visa) not being granted due to there not being substantial compliance with a condition of a substantive visa being held. [41.340] Cancellation The breach of a condition of a visa may result in the visa being cancelled or may result in the refusal of the grant of any subsequent visa: see s 116(1)(b) and (c). [41.360]

Breach of a condition in relation to a prescribed condition restricting work Pursuant to s 235(1), a non-citizen may commit an offence if he or she breaches a prescribed condition on a visa restricting work. This is a strict liability offence and the penalty is a fine not exceeding $10,000.

© 2016 THOMSON REUTERS

185

s 42

Migration Act 1958

42

Visa essential for travel (1) Subject to subsections (2), (2A) and (3), a non-citizen must not travel to Australia without a visa that is in effect. Note: A maritime crew visa is generally permission to travel to Australia only by sea (see section 38B). [Subs (1) am Act 160 of 1999, s 3 and Sch 1 item 33, with effect from 16 Dec 1999; insrt Act 73 of 2007, s 3 and Sch 1 item 6]

(2) Subsection (1) does not apply to an allowed inhabitant of the Protected Zone travelling to a protected area in connection with traditional activities. (2A) Subsection (1) does not apply to a non-citizen in relation to travel to Australia: (a) if the travel is by a New Zealand citizen who holds and produces a New Zealand passport that is in force; or (b) if the travel is by a non-citizen who holds and produces a passport that is in force and is endorsed with an authority to reside indefinitely on Norfolk Island; or (c) if: (i) the non-citizen is brought to the migration zone under subsection 245F(9) of this Act or under Division 7 or 8 of Part 3 of the Maritime Powers Act 2013; and (ii) the non-citizen is a person who would, if in the migration zone, be an unlawful non-citizen; or (ca) the non-citizen is brought to Australia under section 198B; or (d) if: (i) the non-citizen has been removed under section 198 to another country but has been refused entry by that country; and (ii) the non-citizen travels to Australia as a direct result of that refusal; and (iii) the non-citizen is a person who would, if in the migration zone, be an unlawful non-citizen; or (e) if: (i) the non-citizen has been removed under section 198; and (ii) before the removal the High Court, the Federal Court or the Federal Circuit Court had made an order in relation to the non-citizen, or the Minister had given an undertaking to the High Court, the Federal Court or the Federal Circuit Court in relation to the non-citizen; and (iii) the non-citizen’s travel to Australia is required in order to give effect to the order or undertaking; and (iv) the Minister has made a declaration that this paragraph is to apply in relation to the non-citizen’s travel; and (v) the non-citizen is a person who would, if in the migration zone, be an unlawful non-citizen; or (f) if: (i) the travel is from Norfolk Island to Australia; and (ii) the Minister has made a declaration that this paragraph is to apply in relation to the non-citizen’s travel; and (iii) the non-citizen is a person who would, if in the migration zone, be an unlawful non-citizen. [Subs (2A) am Act 135 of 2014, s 3 and Sch 1 item 38, with effect from 16 Dec 2014; Act 16 of 2013, s 3 and Sch 4 item 5; Act 13 of 2013, s 3 and Sch 2 item 1; Act 10 of 2002, Sch 1(2); Act 157 of 2001, s 3 and Sch 1 item 1; insrt Act 160 of 1999, s 3 and Sch 1 item 34, with effect from 16 Dec 1999]

186

Migration Law

[42.80]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 42

(3) The regulations may permit a specified non-citizen or a non-citizen in a specified class to travel to Australia without a visa that is in effect. (4) Nothing in subsection (2A) or (3) is to be taken to affect the non-citizen’s status in the migration zone as an unlawful non-citizen. Note: Section 189 provides that an unlawful non-citizen in the migration zone must be detained. [Subs (4) insrt Act 160 of 1999, s 3 and Sch 1 item 35, with effect from 16 Dec 1999] [S 42 am Act 135 of 2014; Act 16 of 2013; Act 13 of 2013; Act 10 of 2002; Act 157 of 2001; Act 160 of 1999; former s 26H renum Act 60 of 1994 s 83; Act 60 of 1994; insrt Act 184 of 1992, s 10]

SECTION 42 COMMENTARY Scope ..................................................................................................................................................... [42.20] CONCEPTS

Visa in effect ......................................................................................................................................... [42.40] Travel to Australia ................................................................................................................................. [42.60] PRACTICE POINTS

Those to whom this section does not apply ......................................................................................... [42.80] Breach of s 42(1) ................................................................................................................................ [42.100]

[42.20] Scope This section provides that a non-citizen must not travel to Australia without a visa that is in effect, unless they fall within the categories described in the section.

CONCEPTS [42.40] Visa in effect The expression “in effect” is defined in s 68. A visa “that is in effect” requires that the visa is valid for travel to Australia, which is distinct from a visa “being in existence”. A visa is in existence once it is granted; however, it may be “in effect” at a later date: see Explanatory Memorandum to the Migration Legislation Amendment Bill 1994 (Cth) at [6] and [37]. [42.60] Travel to Australia The words “travel to Australia” in this section refer to travel to the territorial sea and coastal waters of Australia: Tran v Commonwealth (2010) 187 FCR 54; 271 ALR 1; [2010] FCAFC 80 at [219] per Besanko J.

PRACTICE POINTS [42.80] Those to whom this section does not apply Section 42(1) does not apply to: • an allowed inhabitant of the Protected Zone (as defined in s 5(1)) travelling to a protected area (as defined in s 5(1)) in connection with traditional activities (as defined in s 5(1)): s 42(2); • certain New Zealand citizens, certain non-citizens with authority to reside on Norfolk Island, certain non-citizens brought to Australia under s 198B, certain non-citizens removed under s 198 and those declared by the Minister in certain circumstances: s 42(2A); and • those listed in reg 2.06 – that is, certain New Zealand citizens and certain non-citizens with authority to reside on Norfolk Island: s 42(3). © 2016 THOMSON REUTERS

187

s 43

Migration Act 1958

[42.100]

[42.100] Breach of s 42(1) A breach of, or failure to comply with, s 42(1) is not a criminal offence, nor does it give rise to a civil penalty. Further, a contravention of s 261A(1) does not include a breach of s 42(1): Tran v Commonwealth (2010) 187 FCR 54; 271 ALR 1; [2010] FCAFC 80. 43

Visa holders must usually enter at a port (1) Subject to subsections (1A) and (3) and the regulations, a visa to travel to and enter Australia that is in effect is permission for the holder to enter Australia: (a) at a port; or (b) on a pre-cleared flight; or (c) if the holder travels to Australia on a vessel and the health or safety of a person or a prescribed reason, make it necessary to enter in another way, that way; or (d) in a way authorised in writing by an authorised officer. [Subs (1) am Act 73 of 2007, s 3 and Sch 1 item 7; Act 160 of 1999, s 3 and Sch 1 item 20; Act 60 of 1994, s 14(a) and (b)]

(1A) Subject to the regulations, a maritime crew visa that is in effect is permission for the holder to enter Australia: (a) at a proclaimed port; or (b) if the health or safety of a person, or a prescribed reason, make it necessary to enter Australia in another way, that way; or (c) in a way authorised by an authorised officer. [Subs (1A) insrt Act 73 of 2007, s 3 and Sch 1 item 8]

(1B) Despite subsections 38B(1) and (2): (a) the holder of a maritime crew visa may enter Australia as mentioned in paragraph (1A)(b) by air; and (b) the authorised officer may, for the purposes of paragraph (1A)(c), authorise the holder to enter Australia by air. [Subs (1B) insrt Act 73 of 2007, s 3 and Sch 1 item 8]

(2) For the purposes of subsection (1), a holder who travels to and enters Australia on an aircraft is taken to have entered Australia when that aircraft lands. [Subs (2) insrt Act 60 of 1994, s 14(c)]

(3) This section does not apply to: (a) the holder of an enforcement visa; or (b) an Australian resident entering Australia on a foreign vessel as a result of the exercise of powers under section 69 of the Maritime Powers Act 2013 in relation to a fisheries detention offence; or (c) an Australian resident entering Australia on a vessel (environment matters) as a result of an environment officer, maritime officer or other person in command of a Commonwealth ship or a Commonwealth aircraft: (i) exercising his or her power under paragraph 403(3)(a) of the Environment Protection and Biodiversity Conservation Act 1999 in relation to the vessel; or (ii) making a requirement of the person in charge of the vessel under paragraph 403(3)(b) of the Environment Protection and Biodiversity Conservation Act 1999; or

188

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

[43.20]

s 43

(iii)

exercising powers under section 69 of the Maritime Powers Act 2013 in relation to the vessel; because the environment officer, maritime officer or person in command had reasonable grounds to suspect that the vessel had been used or otherwise involved in the commission of an environment detention offence.

Note: Subsection 33(10) also disapplies this section. [Subs (3) am Act 16 of 2013, s 3 and Sch 4 item 6; Act 165 of 2006, s 3 and Sch 1 item 858; Act 103 of 2005, s 3 and Sch 2 items 3 and 4; insrt Act 160 of 1999, s 3 and Sch 1 item 21]

(4) In subsection (3): Australian resident has the same meaning as in the Fisheries Management Act 1991. Commonwealth aircraft has the same meaning as in the Environment Protection and Biodiversity Conservation Act 1999. [Def insrt Act 165 of 2006, s 3 and Sch 1 item 859]

Commonwealth ship has the same meaning as in the Environment Protection and Biodiversity Conservation Act 1999. [Def insrt Act 165 of 2006, s 3 and Sch 1 item 860]

master [Repealed] [Def rep Act 16 of 2013, s 3 and Sch 4 item 7] [Subs (4) insrt Act 160 of 1999, s 3 and Sch 1 item 21]

(5) [Repealed] [Subs (5) rep Act 16 of 2013, s 3 and Sch 4 item 8; am Act 36 of 2008, s 3 and Sch 4 item 7; Act 36 of 2008, s 3 and Sch 3 item 68; insrt Act 160 of 1999, s 3 and Sch 1 item 31] [S 43 am Act 16 of 2013; Act 36 of 2008; Act 73 of 2007; Act 165 of 2006; Act 103 of 2005; Act 160 of 1999; former s 26J renum Act 60 of 1994, s 83; am Act 60 of 1994; insrt Act 184 of 1992, s 10]

SECTION 43 COMMENTARY Scope ..................................................................................................................................................... [43.20] CONCEPTS

Visa in effect ......................................................................................................................................... [43.40] Maritime crew visa ............................................................................................................................... [43.60] Entry into Australia by aircraft ............................................................................................................. [43.80] PRACTICE POINTS

Non-application of section 43 ............................................................................................................. [43.100]

[43.20] Scope This section provides that, for reasons of border control, a visa holder must only enter Australia at the specified places permitted by the visa, and not wherever the holder of the visa chooses. Usually, the specified ways to enter Australia are at a port (as defined in s 5(1)) or on a pre-cleared flight (as defined in s 5(1)). The exception to this is if the visa holder’s health or safety is jeopardised, or if there is another good reason beyond the control of the master of the vessel which makes it necessary to enter Australia in another way: see Explanatory Memorandum to the Migration Reform Bill 1992 Migration (Delayed Visa Applications) Tax Bill 1992 (Cth) at [37].

© 2016 THOMSON REUTERS

189

s 44

Migration Act 1958

[43.40]

CONCEPTS [43.40] Visa in effect The expression “in effect” is defined in s 68. These words have been included in this section, in relation to the visa, to ensure that only those with visas which are in effect can enter Australia, not those who have just been granted a visa that has not yet come into effect: Explanatory Memorandum to the Migration Legislation Amendment Bill 1994 (Cth) at [6] and [39]. [43.60] Maritime crew visa Pursuant to s 43(1A)(a), the holder of a maritime crew visa will generally only enter at a proclaimed port (as defined in s 5(1)) unless authorised by an authorised officer to enter another way under s 43(1A)(c), or if the health or safety of a person, or a prescribed reason (as set out in reg 2.06AA of the Regulations) make it necessary to enter another way under s 43(1A)(b). [43.80] Entry into Australia by aircraft Section 43(2) provides that a visa holder who travels to and enters Australia by aircraft is taken to have entered Australia when that aircraft lands. The meaning of “enter Australia” is defined in s 5(1) to mean “enter the migration zone”. A visa holder travelling by aircraft may enter the migration zone hours before the aircraft lands. This provision has been included to overcome this situation and ensure that those travelling by aircraft “enter Australia” when the aircraft lands: Explanatory Memorandum to the Migration Legislation Amendment Bill 1994 (Cth) at [38].

PRACTICE POINTS [43.100] Non-application of section 43 Section 43 does not apply to: • those granted a special purpose visa: s 33(10); and • those listed in s 43(3).

SUBDIVISION AA – APPLICATIONS FOR VISAS (SS 44–51) [Subdiv AA heading insrt Act 184 of 1992, s 10]

44

Extent of following Subdivisions (1) This Subdivision and the later Subdivisions of this Division, other than this section, Subdivision AG and subsection 138(1), do not apply to criminal justice visas. (2) This Subdivision and the later Subdivisions of this Division, other than this section and Subdivision AG, do not apply to enforcement visas. [Subs (2) insrt Act 160 of 1999, s 3 and Sch 1 item 22] [S 44 am Act 160 of 1999; former s 26K renum Act 60 of 1994, s 83; insrt Act 184 of 1992, s 10]

45

Application for visa (1) Subject to this Act and the regulations, a non-citizen who wants a visa must apply for a visa of a particular class. [Subs (1) subst Act 60 of 1994, s 15(a)]

(2) [Repealed] [Subs (2) rep Act 28 of 2000, s 3 and Sch 2 item 1; am Act 60 of 1994, s 15(b)]

190

Migration Law

[45.20]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 45

(3) [Repealed] [Subs (3) rep Act 28 of 2000, s 3 and Sch 2 item 1; am Act 60 of 1994, s 15(c)–(f)] [S 45 am Act 28 of 2000; former s 26L renum Act 60 of 1994, s 83; am Act 60 of 1994; insrt Act 184 of 1992, s 10]

SECTION 45 COMMENTARY Scope ..................................................................................................................................................... [45.10] Concepts ................................................................................................................................................ [45.20]

[45.10] Scope Section 45 requires that a non-citizen “must” apply for a visa of a particular class. Although s 45(1) is not directly linked to the notion of a “valid application” for a visa, its directory language is closely related to the wording of s 46(1)(a) and, in that sense, reflects one of the several constituent elements that comprise a valid application. Whether an application for a visa is a valid application is a question of jurisdictional fact. That is because the Minister is obliged by s 47(1) to “consider a valid application for a visa”, while s 47(3) directs the Minister “not to consider an application that is not a valid application”. Accordingly, complying with the statutory requirements for the making of a visa application is of central importance in initiating the decision making process. While several provisions of the Act and the Regulations are relevant to the making of visa applications, the following provisions in particular should be read together for the purposes of assessing the validity of a visa application, and the consequences which flow (for visa applications by unauthorised “maritime arrivals” and “transitory persons”, see ss 46A and 46B, respectively): • section 45, which establishes that a non-citizen “must” apply for a visa of a particular “class” (as opposed to “sub-class”); • section 46, which delineates the circumstances in which a visa application is “valid” or “invalid”, as the case may be; • section 47, which sets out the obligations of the Minister to consider a valid visa application, or not to consider an application that is not valid; • regulation 2.07 of the Regulations which prescribe additional criteria that must be satisfied for an application for a visa of a specified class to be a valid application; • regulation 2.10, which, among other things, requires an application for a visa to be made with any requirements in the relevant item in Schedule 1 of the Regulations that relate to the class of visa applied for; and • Schedule 1 of the Regulations which sets out the specific ways in which a non-citizen is to apply for a visa of a particular class, including the approved form (if any) to be completed, the visa application charge (if any) that is payable, and any other matters relating to the application. [45.20] Concepts Visa of a particular class: Regulation 2.01 states that, for the purposes of s 31 of the Act, the prescribed classes of visas (other than those created by the Act itself) are such classes that are set out in the respective items in Schedule 1 to the Regulations.

© 2016 THOMSON REUTERS

191

s 45AA

Migration Act 1958

[45.20]

45AA Application for one visa taken to be an application for a different visa Situation in which conversion regulation can be made (1) This section applies if: (a) a person has made a valid application (a pre-conversion application) for a visa (a pre-conversion visa) of a particular class; and (b) the pre-conversion visa has not been granted to the person, whether or not a migration decision has been made in relation to the pre-conversion application; and (c) since the application was made, one or more of the following events has occurred: (i) the requirements for making a valid application for that class of visa change; (ii) the criteria for the grant of that class of visa change; (iii) that class of visa ceases to exist; and (d) had the application been made after the event (or events) occurred, because of that event (or those events): (i) the application would not have been valid; or (ii) that class of visa could not have been granted to the person. (2) To avoid doubt, under subsection (1) this section may apply in relation to: (a) classes of visas, including protection visas and any other classes of visas provided for by this Act or the regulations; and (b) classes of applicants, including applicants having a particular status; and (c) applicants for a visa who are taken to have applied for the visa by the operation of this Act or the regulations. Example: If a non-citizen applies for a visa, and then, before the application is decided, gives birth to a child, in some circumstances the child is taken, by the operation of the regulations, to have applied for a visa of the same class at the time the child is born (see regulation 2.08).

Conversion regulation (3) For the purposes of this Act, a regulation (a conversion regulation) may provide that, despite anything else in this Act, the pre-conversion application for the pre-conversion visa: (a) is taken not to be, and never to have been, a valid application for the pre-conversion visa; and (b) is taken to be, and always to have been, a valid application (a converted application) for a visa of a different class (specified by the conversion regulation) made by the applicant for the pre-conversion visa. Note: This section may apply in relation to a pre-conversion application made before the commencement of the section (see the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014). For example, a conversion regulation (made after the commencement of this section) could have the effect that a pre-conversion application for a particular type of visa made on 1 August 2014 (before that commencement): (a) is taken not to have been made on 1 August 2014 (or ever); and (b) is taken to be, and always to have been, a converted application for another type of visa made on 1 August 2014.

(4) Without limiting subsection (3), a conversion regulation may: (a) prescribe a class or classes of pre-conversion visas; and (b) prescribe a class of applicants for pre-conversion visas; and (c) prescribe a time (the conversion time) when the regulation is to start to apply in relation to a pre-conversion application, including different conversion times depending on the occurrence of different events.

192

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 45AA

Visa application charge (5) If an amount has been paid as the first instalment of the visa application charge for a pre-conversion application, then, at and after the conversion time in relation to the application: (a) that payment is taken not to have been paid as the first instalment of the visa application charge for the pre-conversion application; and (b) that payment is taken to be payment of the first instalment of the visa application charge for the converted application, even if the first instalment of the visa application charge that would otherwise be payable for the converted application is greater than the actual amount paid for the first instalment of the visa application charge for the pre-conversion application; and (c) in a case in which the first instalment of the visa application charge payable for the converted application is less than the actual amount paid for the first instalment of the visa application charge for the pre-conversion application, no refund is payable in respect of the difference only for that reason. Note: For the visa application charge, see sections 45A, 45B and 45C.

Effect on bridging visas (6) For the purposes of this Act, if, immediately before the conversion time for a pre-conversion application, a person held a bridging visa because the pre-conversion application had not been finally determined, then, at and after the conversion time, the bridging visa has effect as if it had been granted because of the converted application. (7) For the purposes of this Act, if, immediately before the conversion time for a pre-conversion application, a person had made an application for a bridging visa because of the pre-conversion application, but the bridging visa application had not been finally determined, then, at and after the conversion time: (a) the bridging visa application is taken to have been applied for because of the converted application; and (b) the bridging visa (if granted) has effect as if it were granted because of the converted application. Note: This Act and the regulations would apply to a bridging visa to which subsection (6) or (7) applies, and to when the bridging visa would cease to have effect, in the same way as this Act and the regulations would apply in relation to any bridging visa. For example, such a bridging visa would generally cease to be in effect under section 82 if and when the substantive visa is granted because of the converted application.

Conversion regulation may affect accrued rights etc. (8) To avoid doubt: (a) subsection 12(2) (retrospective application of legislative instruments) of the Legislation Act 2003 does not apply in relation to the effect of a conversion regulation (including a conversion regulation enacted by the Parliament); and (b) subsection 7(2) of the Acts Interpretation Act 1901, including that subsection as applied by section 13 of the Legislation Act 2003, does not apply in relation to the enactment of this section or the making of a conversion regulation (including a conversion regulation enacted by the Parliament). [Subs (8) subst Act 126 of 2015, s 3 and Sch 1 item 382, with effect from 5 Mar 2016] [S 45AA am Act 126 of 2015; insrt Act 135 of 2014, s 3 and Sch 2 item 20, with effect from 16 Dec 2014]

© 2016 THOMSON REUTERS

193

s 45AA

Migration Act 1958

[45A.10]

45A Visa application charge A non-citizen who makes an application for a visa is liable to pay visa application charge if, assuming the charge were paid, the application would be a valid visa application. [S 45A insrt Act 27 of 1997, s 3 and Sch 1 item 21]

SECTION 45A COMMENTARY [45A.10] Scope This section, when read with s 5(1), defines the meaning of the words “visa application charge” when used in the Act. Relevantly, s 46(1)(ba) establishes that an application for a visa is “valid if, and only if”, among other things, any visa application charge required to be paid by the Regulations, has been paid. 45B Amount of visa application charge (1) The amount of visa application charge is the amount, not exceeding the visa application charge limit, prescribed in relation to the application. Note: The visa application charge limit is determined under the Migration (Visa Application) Charge Act 1997. [Subs (1) am Act 5 of 2003, s 3 and Sch 1 item 2]

(2) The amount prescribed in relation to an application may be nil. (3) The Minister must publish the Contributory Parent Visa Composite Index (within the meaning of the Migration (Visa Application) Charge Act 1997) for a financial year in the Gazette before the start of the financial year. Note: The Contributory Parent Visa Composite Index affects the visa application charge limit in relation to contributory parent visas (within the meaning of the Migration (Visa Application) Charge Act 1997). [Subs (3) insrt Act 5 of 2003, s 3 and Sch 1 item 3]

(4) If the Contributory Parent Visa Composite Index for a financial year is not published as required by subsection (3), it is not to be taken, merely because of that fact, to be invalid or to be a figure other than that published by the Australian Government Actuary for the financial year. [Subs (4) insrt Act 5 of 2003, s 3 and Sch 1 item 3] [S 45B am Act 5 of 2003; insrt Act 27 of 1997, s 3 and Sch 1 item 21]

SECTION 45B COMMENTARY [45B.10] Scope Section 46(1)(ba) relevantly establishes that an application for a visa is “valid if, and only if”, among other things, any visa application charge required to be paid by the Regulations, has been paid. Section 45B(1) limits the quantum of the visa application charge prescribed by the Regulations so that it does not exceed the sum prescribed by the Migration (Visa Application) Charge Act 1997 (Cth).

194

Migration Law

[45B.10]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 46

45C Regulations about visa application charge (1) The regulations may: (a) provide that visa application charge may be payable in instalments; and (b) specify how those instalments are to be calculated; and (c) specify when instalments are payable. (2) The regulations may also: (a) make provision for and in relation to: (i) the recovery of visa application charge in relation to visa applications; or (ii) the way, including the currency, in which visa application charge is to be paid; or (iii) working out how much visa application charge is to be paid; or (iv) the time when visa application charge is to be paid; or (v) the persons who may be paid visa application charge on behalf of the Commonwealth; or (b) make provision for the remission, refund or waiver of visa application charge or an amount of visa application charge; or (c) make provision for exempting persons from the payment of visa application charge or an amount of visa application charge; or (d) make provision for crediting visa application charge, or an amount of visa application charge, paid in respect of one application against visa application charge payable in respect of another application. [S 45C insrt Act 27 of 1997, s 3 and Sch 1 item 21]

46 Valid visa application Validity—general (1) Subject to subsections (1A), (2) and (2A), an application for a visa is valid if, and only if: (a) it is for a visa of a class specified in the application; and (b) it satisfies the criteria and requirements prescribed under this section; and (ba) subject to the regulations providing otherwise, any visa application charge that the regulations require to be paid at the time when the application is made, has been paid; and (c) any fees payable in respect of it under the regulations have been paid; and (d) it is not prevented by any provision of this Act, or of any other law of the Commonwealth, including, without limitation, the following provisions of this Act: (i) section 48 (visa refused or cancelled earlier); (ii) section 48A (protection visa refused or cancelled earlier); (iii) section 161 (criminal justice visa holders); (iv) section 164D (enforcement visa holders); (v) section 195 (detainee applying out of time); (vi) section 501E (earlier refusal or cancellation on character grounds); and (e) it is not invalid under any provision of this Act, or of any other law of the Commonwealth, including, without limitation, the following provisions of this Act: (i) section 46AA (visa applications, and the grant of visas, for some Act-based visas); (ii) section 46A (visa applications by unauthorised maritime arrivals);

© 2016 THOMSON REUTERS

195

s 46

Migration Act 1958

(iii) section 46B (visa applications by transitory persons); (iv) section 91E or 91G (CPA and safe third countries); (v) section 91K (temporary safe haven visas); (vi) section 91P (non-citizens with access to protection from third countries). [Subs (1) am Act 135 of 2014, s 3 and Sch 3 items 2 and 3, with effect from 16 Dec 2014; Act 2 of 2004, s 3 and Sch 1 item 14; Act 168 of 2000, s 3 and Sch 3 items 2–4; Act 28 of 2000, s 3 and Sch 2 item 2; Act 160 of 1999, s 3 and Sch 1 items 23 and 66; Act 34 of 1999, s 3 and Sch 1 item 4; Act 114 of 1998, s 3 and Sch 1 item 1; Act 113 of 1998, s 3 and Sch 4 item 2; Act 27 of 1997, s 3 and Sch 1 item 22; Act 102 of 1995, s 13; Act 60 of 1994, s 16(a) and (b)]

(1A) Subject to subsection (2), an application for a visa is invalid if: (a) the applicant is in the migration zone; and (b) since last entering Australia, the applicant has held a visa subject to a condition described in paragraph 41(2)(a); and (c) the Minister has not waived that condition under subsection 41(2A); and (d) the application is for a visa of a kind that, under that condition, the applicant is not or was not entitled to be granted. [Subs (1A) insrt Act 168 of 2000, s 3 and Sch 3 item 5]

(2) Subject to subsection (2A), an application for a visa is valid if: (a) it is an application for a visa of a class prescribed for the purposes of this subsection; and (b) under the regulations, the application is taken to have been validly made. [Subs (2) am Act 2 of 2004, s 3 and Sch 1 item 15; Act 168 of 2000, s 3 and Sch 3 item 6; insrt Act 60 of 1994, s 16(c)]

Provision of personal identifiers (2A) An application for a visa is invalid if: (a) [Repealed] (aa) the Minister has not waived the operation of this subsection in relation to the application for the visa; and (ab) the applicant has been required to provide one or more personal identifiers under section 257A for the purposes of this subsection; and (b) the applicant has not complied with the requirement. Note: An invalid application for a visa cannot give rise to an obligation under section 65 to grant a visa: see subsection 47(3). [Subs (2A) am Act 115 of 2015, s 3 and Sch 1 items 10 and 11, with effect from 16 Feb 2016; Act 135 of 2014, s 3 and Sch 3 item 4, with effect from 16 Dec 2014; insrt Act 2 of 2004, s 3 and Sch 1 item 16]

(2AA) [Repealed] [Subs (2AA) rep Act 115 of 2015, s 3 and Sch 1 item 12, with effect from 16 Feb 2016; insrt Act 2 of 2004, s 3 and Sch 1 item 16]

(2AB) [Repealed] [Subs (2AB) rep Act 115 of 2015, s 3 and Sch 1 item 12, with effect from 16 Feb 2016; insrt Act 2 of 2004, s 3 and Sch 1 item 16]

(2AC) [Repealed] [Subs (2AC) rep Act 115 of 2015, s 3 and Sch 1 item 12, with effect from 16 Feb 2016; insrt Act 2 of 2004, s 3 and Sch 1 item 16]

(2B) [Repealed] [Subs (2B) rep Act 115 of 2015, s 3 and Sch 1 item 12, with effect from 16 Feb 2016; insrt Act 2 of 2004, s 3 and Sch 1 item 16]

196

Migration Law

[46.10]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 46

(2C) [Repealed] [Subs (2C) rep Act 115 of 2015, s 3 and Sch 1 item 12, with effect from 16 Feb 2016; insrt Act 2 of 2004, s 3 and Sch 1 item 16]

Prescribed criteria for validity (3) The regulations may prescribe criteria that must be satisfied for an application for a visa of a specified class to be a valid application. [Subs (3) am Act 135 of 2014, s 3 and Sch 3 item 5, with effect from 16 Dec 2014; insrt Act 28 of 2000, s 3 and Sch 2 item 3]

(4) Without limiting subsection (3), the regulations may also prescribe: (a) the circumstances that must exist for an application for a visa of a specified class to be a valid application; and (b) how an application for a visa of a specified class must be made; and (c) where an application for a visa of a specified class must be made; and (d) where an applicant must be when an application for a visa of a specified class is made. [Subs (4) insrt Act 28 of 2000, s 3 and Sch 2 item 3]

(5) To avoid doubt, subsections (3) and (4) do not require criteria to be prescribed in relation to the validity of visa applications, including, without limitation, applications for visas of the following classes: (a) special category visas (see section 32); (b) permanent protection visas (see subsection 35A(2)); (c) temporary protection visas (see subsection 35A(3)); (ca) safe haven enterprise visas (see subsection 35A(3A)); (d) bridging visas (see section 37); (e) temporary safe haven visas (see section 37A); (f) maritime crew visas (see section 38B). [Subs (5) am Act 135 of 2014, s 3 and Sch 2 item 17, with effect from 18 Apr 2015; insrt Act 135 of 2014, s 3 and Sch 3 item 6, with effect from 16 Dec 2014] [S 46 am Act 115 of 2015; Act 135 of 2014; Act 2 of 2004; Act 168 of 2000; Act 28 of 2000; Act 160 of 1999; Act 34 of 1999; Act 114 of 1998; Act 113 of 1998; Act 27 of 1997; Act 102 of 1995; former s 26M renum Act 60 of 1994, s 83; am Act 60 of 1994; insrt Act 184 of 1992, s 10]

SECTION 46 COMMENTARY Scope ..................................................................................................................................................... Concepts ................................................................................................................................................ Key cases ............................................................................................................................................... Practice points .......................................................................................................................................

[46.10] [46.20] [46.30] [46.40]

[46.10] Scope The requirement for a visa application to comply with s 46 is a factual precondition to the Minister considering the application. If the application for the visa is not valid, the Minister is prohibited from consideration of it: see ss 47(1) and 47(3), respectively. Accordingly, whether an application for a visa is a valid application is a question of jurisdictional fact. Complying with the statutory requirements for the making of a visa application is therefore of central importance in initiating the decision making process. While several provisions of the Act and the Regulations are relevant to the making of visa applications, the following provisions in particular should be read together for the purposes of © 2016 THOMSON REUTERS

197

s 46

Migration Act 1958

[46.20]

assessing the validity of a visa application, and the consequences which flow (for visa applications by unauthorised “maritime arrivals” and “transitory persons”, see ss 46A and 46B, respectively): • section 45, which establishes that a non-citizen “must” apply for a visa of a particular “class” (as opposed to “sub-class”); • section 46, which delineates the circumstances in which a visa application is “valid” or “invalid”, as the case may be; • section 47, which sets out the obligations of the Minister to consider a valid visa application, or not to consider an application that is not valid; • regulation 2.07 of the Regulations which prescribe additional criteria that must be satisfied for an application for a visa of a specified class to be a valid application; • regulation 2.10, which provides for where an application for a visa must be made; and • Schedule 1 of the Regulations which sets out the specific ways in which a non-citizen is to apply for a visa of a particular class, including the approved form (if any) to be completed, the visa application charge (if any) that is payable, and any other matters relating to the application. [46.20] Concepts Visa of a class: Regulation 2.01 states that, for the purposes of s 31 of the Act, the prescribed classes of visas (other than those created by the Act itself) are such classes that are set out in the respective items in Schedule 1 to the Regulations. Criteria and requirements prescribed under s 46: Among other things, r 2.07 of the Regulations notes that the following matters are set out in the relevant Part of Schedule 1 for the purposes of s 46: • the approved form in respect of each class of visa: r 2.07(1)(a); • the visa application charge (if any) payable in relation to a visa application: r 2.07(1)(b)(i); • the components that may be applicable to a particular application for the visa: r 2.07(1)(b)(ii); • any other matters set out under the relevant item of Schedule 1 r 2.07(1)(c) (this may include, for example, the method by which an application must be lodged); • an application is required to complete the approved form in accordance with any directions on it: r 2.07(3); and • an application for a visa that is made using an approved form is not a valid application if the applicant does not set out his or her residential address in the form or in a separate document that accompanies the application: r 2.07(4). Further, for the purposes of s 46(4)(c), r 2.10 provides for where an application for a visa must be made. Visa application charge: See s 45A and the relevant item of Schedule 1 to the Regulations. [46.30]

Key cases

The requirement to use the prescribed application is strict; substantial compliance is insufficient (cf s 25C Acts Interpretation Act 1901 (Cth)) In Wu Yu Fang v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 245; 135 ALR 583 (Fang), a Full Court of the Federal Court considered an appeal brought by 117 non-citizens, almost all of whom were born in Vietnam and had been subsequently expelled and resettled in 198

Migration Law

[46.30]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 46

China in about 1979. In 1994, the appellants travelled to Australia unlawfully aboard two vessels. Shortly after the arrival of the appellant’s in Australia’s migration zone, amendments were made to the Act which provided that, if a non-citizen is covered by an agreement between Australia and a safe third country, the non-citizen would not be permitted to make an application for a protection visa under s 36 of the Act. On 27 January 1995, China was prescribed to be a safe third country which meant that, from that date, the appellants could not apply for a protection visa. None of the appellants lodged an application for a protection visa on Form 866, as was required by the Regulations, either before or after 27 January 1995. However, the appellants argued that a visa application did not need to strictly comply with the relevant provisions of the Act and the Regulations because s 25C of the Acts Interpretation Act 1901 (Cth) permitted substantial compliance. The appellants argued that, by reason of the circumstances in which they had arrived in Australia, and by reason of the conversations they had had with Australian officials prior to 27 January 1995, they had “engaged” Australia’s protection obligations such that, effectively, they had validly applied for protection visas. The Full Court of the Federal Court rejected the appellants’ contentions, finding that ss 45 and 46 of the Act disclose a clear intention on the part of the Parliament that, unless an application for a visa is made in the prescribed form and in the prescribed manner, no valid application exists and the Minister would thereby be enjoined from considering it: per Carr J at 599 (ALR); Nicholson J at 616–617 (ALR)(with whom Jenkinson J agreed) [note that the version of s 45 considered by the Full Court has since been amended, so that former ss 45(2) and 45(3) are now reflected in ss 46(3) and 46(4)]. Justice Nicholson remarked at 616 (ALR) that: …How much plainer could Parliament have made its intention that an application in the required manner is an essential precondition to the Minister, as the relevant decision-maker, exercising the power to consider and grant a visa? By linking the concept of validity to the use of Form 866, Parliament has spelt out that the use of that Form is of such importance to the general object of the legislation in this respect that it is incapable of partial compliance; to disregard it is to imperil validity of a ministerial act… Section 25C of the Acts Interpretation Act 1901 (Cth) provides that “where an act prescribes a form, then, unless the contrary intention appears, strict compliance with the form is not required and substantial compliance is sufficient”. The statutory provisions requiring an application form as a necessary precondition to the validity of an application and Ministerial power to resolve the application are, in my opinion, a manifestation of a relevant contrary intention. The legislature having mandated the use of an application as a pre-condition to the making of a valid application, if the applicant does not utilise the form the applicant does not commence on the path providing the pre-requisite entry to Ministerial consideration of the application…

Accordingly, his Honour held that the statutory provisions relating to the requirements of a valid visa application are such that, anything short of compliance would render an application invalid. Relevantly, there is “no room left by the statute for the concept of a constructive application or substantial compliance with the provisions for a form by conduct falling short of use of the form”: at 617 (ALR). In Onea v Minister for Immigration and Multicultural Affairs (1997) 80 FCR 254; [1997] FCA 1472, the applicant argued that he had substantially complied with the Regulations by using Form 147 (which was not the correct form), which was almost identical to the correct form, Form 1066. Justice Finkelstein rejected this contention, and applied the reasoning of Nicholson J in Fang at 616. His Honour held that, even if that were the case, “…On the proper construction of ss 46 and 47(1) and the regulations, the Minister is not required to consider any application for a visa unless that application is made on the appropriate form”. However, in Fang, Nicholson J held at 617 (ALR) that, in relation to the manner in which a visa application form is to be completed, there is room for the principle of substantial compliance (see further below). © 2016 THOMSON REUTERS

199

s 46

Migration Act 1958

[46.30]

The requirement to lodge a visa application by a prescribed method is strict In Muradzi v Minister for Immigration [2011] FMCA 342, the applicant had applied for a general skilled migration visa. Item 1229(3) of Schedule 1 to the Regulations provided at the relevant time that any application for this class of visa was required to be made by internet, post or by courier. However, the applicant sought to lodge the application by facsimile. The Department rejected the visa application on the basis that it was not valid. Federal Magistrate Riley agreed, and held at [10] that “…an examination of the legislation…indicates that the legislature very definitely intended that a visa application that was not lodged by the prescribed method would not be valid”. Her Honour added at [22] that the reasoning in Fang and Onea v Minister for Immigration and Multicultural Affairs (1997) 80 FCR 254; [1997] FCA 1472, applies with equal force to the method of lodgement. Her Honour said “…It is mandatory that, to be a valid application, the visa application must be lodged by one of the prescribed methods”. Substantial compliance with the directions on a visa application form may be sufficient in some circumstances The cases are clear that an application for a visa will be valid “if, and only if”, it complies with the requirements set out under s 46(1). Relevantly, s 46(1)(b) requires that a visa application satisfies the criteria and requirements that are prescribed. This includes r 2.07(3), which prescribes, for the purposes of s 46(1)(b), that an applicant for a visa must complete the approved visa application form in accordance with any directions on it. Although Nicholson J in Fang held that ss 45 and 46 require an application for a visa to be made in the prescribed form and in the prescribed manner, his Honour expressly left open the possibility, at 617 (ALR), that the principle of substantial compliance could apply in relation to how the application form (assuming the correct form is used) is completed. There, his Honour observed (Jenkinson J agreeing): …However, it appears to me that there is room for the application of the substantial compliance principle in relation to the manner in which Form 866 is completed by an applicant. That is, if a form had been inadequately completed in some way it would be open to argument that the inadequate use of the form satisfied the requirements of the legislation, because to hold otherwise would possibly occasion great injustice by precluding an application who has endeavored to properly embark upon an application from consideration…

Justice Nicholson’s reasoning has been followed in subsequent cases. Thus, in Shahabuddin v Minister for Immigration and Multicultural Affairs [2001] FCA 273 (Shahabuddin), Katz J said at [24] that, to require a non-citizen not only to set out on the application form his or her claims that he or she is a refugee, but to also answer each of the six questions, may impose a “burden on non-citizens in the latter category so heavy that many of them will be unable to shoulder it”. As to what constitutes “substantial compliance” in any given case, Katz J accepted the Minister’s submission in Shahabuddin that substantial compliance is to be assessed by reference to the purpose of the form in eliciting the applicant’s claim to be a refugee within the Convention and that the questions posed in the form were guidelines only that were directed to that end. Thus, it was held that, where a person applies for a protection visa using Form 866, it is not necessary to be able to distil from the applicant’s responses, answers to all questions on the form - rather, what is required, is that the applicant makes it clear that they claim to be a refugee under the Convention: at [18]–[23]. Justice Katz’s reasoning was accepted as correct by the Full Court of the Federal Court in Bal v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 189 ALR 566; 69 ALD 634; [2002] FCAFC 189 at [40], [42] per French, Lindgren and Stone JJ. Further, in SZGME v Minister for Immigration and Citizenship (2008) 168 FCR 487; 102 ALD 31; 247 ALR 467; [2008] FCAFC 91, it was said that the question of substantial compliance with a form 200

Migration Law

[46.30]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 46

is judged by reference to compliance with the form as a whole, not to its individual parts: at [79] per Black CJ and Allsop J (Moore J dissenting). It may therefore be surmised, relying on the above authorities, that a visa application will be valid where the prescribed form has been used, and where the form itself has been substantially complied with. Whether the form has been substantially complied with will depend upon the purpose of the form in eliciting necessary information for the grant of the visa in question, having regard to the form as a whole. An inchoate visa application may be validated by the subsequent provision of missing information For the purposes of s 46(1)(b), r 2.07(3) provides that an applicant for a visa must complete the approved visa application form in accordance with any directions on it. In Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495; 62 ALD 513; [2000] FCA 906 (Yilmaz), Gyles J (with whom Spender J agreed, Marshall J in dissent), the visa applicant lodged an incomplete visa application. It was therefore not a valid application for a visa. Although s 47(3) prohibits the Minister from considering an application for a visa that is not a valid application, a delegate of the Minister proceeded to consider the application and, subsequently, made a decision to refuse the grant of the visa. The visa applicant then applied to the Tribunal for merits review of the delegate’s decision. Before the Tribunal made its decision however, the visa applicant completed the visa application by providing the missing information to both the Department and the Tribunal. The Tribunal then made a decision, affirming the delegate’s decision. Relevantly, the Tribunal is only authorised to make a decision that is authorised by the Act: s 415(4). Because s 47(3) prohibits the Minister from considering a visa application that is not valid, and because s 65(1) presupposes that the Minister has considered a valid visa application only, the Tribunal is not able to make a valid decision in circumstances where no valid application has ever been lodged: see Minister for Immigration and Multicultural Affairs v Li (2000) 103 FCR 486; 178 ALR 523; 62 ALD 627; [2000] FCA 1456 (Li) at [81]–[82]. However, Gyles J (with whom Spender J agreed) held that, although a visa application may be invalid at the time it is made because of incompleteness (there being an absence of supporting material or information setting out the nature and basis of the claims for a protection visa, for instance), the application could nevertheless be rendered valid by the later provision of the additional and necessary material, subject to the material being provided in the manner required by s 46. The majority rejected the argument that, because the application before the delegate was invalid, there was no authority in the Tribunal to review a purported decision of the delegate. This argument was rejected for the following reasons: • section 69(1) preserves the validity of the delegate’s decision, at least to allow merits review, notwithstanding the clear terms of s 47: at [81], [83]; • the Tribunal has jurisdiction to conduct merits review of both valid and invalid decisions: at [85]–[88], relying on Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307; [1979] FCA 21 at [12] per Bowen CJ; • although s 415(4) prevents the Tribunal from making any decision that is not authorised by the Act, and therefore prevents the Tribunal from making a decision in relation to a visa application that is not valid, the deficiencies in the visa application in this case were cured before the Tribunal made its decision, rendering it valid: at [73]. On the other hand, in Li, a Full court of the Federal Court considered the circumstance of both the delegate and the Tribunal making a decision in respect of a visa application that is not valid. © 2016 THOMSON REUTERS

201

s 46AA

[46.40]

Migration Act 1958

In that case, the visa applicant did not cure the defect in the visa application, either before the delegate’s decision or before the Tribunal’s decision. Justices Ryan, Sackville and Emmett JJ held at [82] that: … Section 415(4) of the Migration Act makes it clear that the RRT cannot make a decision not authorised by the Migration Act or the regulations. A decision to refuse a visa where no valid application for a visa has been made is a decision not authorised by the Migration Act or the regs. The fact that the Migration Act preserves an unauthorised decision by a delegate, so as to make it subject to review by the RRT, does not confer on the RRT greater powers than a delegate could ever have properly exercised in relation to an invalid application.

Relevantly, the Court in Li distinguished Yilmaz as a case concerned, by the time the Tribunal made its decision, with a valid application. The Tribunal therefore rejected the suggestion that the Tribunal could refuse an invalid application for a visa on review and validly affirm the decision: at [81]–[82]. It has been said that that the majority judgment in Yilmaz is inconsistent with the decision in Li: see, for example, SZECD v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 53; 227 ALR 656; [2006] FCA 31. However, in SZGME v Minister for Immigration and Citizenship (2008) 168 FCR 487; 102 ALD 31; 247 ALR 467; [2008] FCAFC 91, Black CJ rejected this suggestion, and asserted that Yilmaz and Li are consistent: at [22]–[36] (Allsop J agreeing, Moore J in dissent). At [36], Black CJ observed that the essential difference between Yilmaz on the one hand (and other cases which followed that decision) and Li, on the other, is that as a matter of statutory construction, the defects in the primary decision in Yilmaz did not affect the power exercised by the Tribunal. That was because the defect had been cured by the time the Tribunal made its decision. In Li, on the other hand, the Full Court was of the view that “the persisting lack of validity of the application directly qualified the power of the Tribunal, through ss 47 and 415”. Accordingly, the Tribunal in Li could only set the delegate’s decision aside; it was not able to affirm the decision of the delegate and then positively grant or refuse the visa. [46.40] Practice points Other provisions of the Act that relate to the validity of a visa application include ss 46A, 46B, 47, 48, 91E, 91K, 91P, 161, 164D, 195 and 501E. Provisions of the Regulations that relate to the validity of a visa application include Divisions 2.2 and 2.3 of Part 2, and Schedule 1. For a summary of the process by which one would typically apply for a visa, in addition to a list of each class and subclass of visa and the associated visa application form, see the commentary to the Regulations. 46AA Visa applications, and the grant of visas, for some Act-based visas Visa classes covered by this section (1) The following classes of visas are covered by this section: (a) special category visas (see section 32); (b) permanent protection visas (see subsection 35A(2)); (c) temporary protection visas (see subsection 35A(3)); (ca) safe haven enterprise visas (see subsection 35A(3A)); (d) bridging visas (see section 37); (e) temporary safe haven visas (see section 37A); (f) maritime crew visas (see section 38B). [Subs (1) am Act 135 of 2014, s 3 and Sch 2 item 18, with effect from 18 Apr 2015]

202

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 46A

Applications invalid if no prescribed criteria (2) An application for a visa of any of the classes covered by this section is invalid if, when the application is made, both of the following conditions are satisfied: (a) there are no regulations in effect prescribing criteria that must be satisfied for a visa of that particular class to be a valid application; (b) there are no regulations in effect prescribing criteria that must be satisfied for a visa of that particular class to be granted. Note: This subsection does not apply if regulations are in effect prescribing criteria mentioned in paragraph (a) or (b) (or both) for a visa.

(3) The criteria mentioned in subsection (2) do not include prescribed criteria that apply generally to visa applications or the granting of visas. Example: The criteria mentioned in subsection (2) do not include the criteria set out in regulation 2.07 of the Migration Regulations 1994 (application for visa—general).

Criteria in the Act and the regulations (4) If regulations are in effect prescribing criteria mentioned in paragraph (2)(a) or (b) (or both) for a visa of a class covered by this section: (a) an application for the visa is invalid unless the application satisfies both: (i) any applicable criteria under this Act that relate to applications for visas of that class; and (ii) any applicable criteria prescribed by regulation that relate to applications for visas of that class; and (b) the visa must not be granted unless the application satisfies both: (i) any applicable criteria under this Act that relate to the grant of visas of that class; and (ii) any applicable criteria prescribed by regulation that relate to the grant of visas of that class. Note: For visa applications generally, see section 46. For the grant of a visa generally, see section 65. [S 46AA am Act 135 of 2014; insrt Act 135 of 2014, s 3 and Sch 3 item 7, with effect from 16 Dec 2014]

46A Visa applications by unauthorised maritime arrivals (1) An application for a visa is not a valid application if it is made by an unauthorised maritime arrival who: (a) is in Australia; and (b) either: (i) is an unlawful non-citizen; or (ii) holds a bridging visa or a temporary protection visa, or a temporary visa of a kind (however described) prescribed for the purposes of this subparagraph. Note: Temporary protection visas are provided for by subsection 35A(3). [Subs (1) am Act 35 of 2015, s 3 and Sch 3 item 1, with effect from 18 Apr 2015; Act 35 of 2013, s 3 and Sch 1 item 11]

(1A) Subsection (1) does not apply in relation to an application for a visa if: (a) either: (i) the applicant holds a safe haven enterprise visa (see subsection 35A(3A)); or (ii) the applicant is a lawful non-citizen who has ever held a safe haven enterprise visa; and (b) the application is for a visa prescribed for the purposes of this paragraph; and

© 2016 THOMSON REUTERS

203

s 46A

Migration Act 1958

(c)

the applicant satisfies any employment, educational or social security benefit requirements prescribed in relation to the safe haven enterprise visa for the purposes of this paragraph.

[Subs (1A) insrt Act 135 of 2014, s 3 and Sch 2 item 18F, with effect from 18 Apr 2015]

(2) If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to an unauthorised maritime arrival, determine that subsection (1) does not apply to an application by the unauthorised maritime arrival for a visa of a class specified in the determination. [Subs (2) am Act 35 of 2013, s 3 and Sch 1 items 11 and 12]

(2A) A determination under subsection (2) may provide that it has effect only for the period specified in the determination and, if it does so, the determination ceases to have effect at the end of the specified period. [Subs (2A) insrt Act 35 of 2015, s 3 and Sch 3 item 2, with effect from 18 Apr 2015]

(2B) The period specified in a determination may be different for different classes of unauthorised maritime arrivals. [Subs (2B) insrt Act 35 of 2015, s 3 and Sch 3 item 2, with effect from 18 Apr 2015]

(2C) The Minister may, in writing, vary or revoke a determination made under subsection (2) if the Minister thinks that it is in the public interest to do so. [Subs (2C) insrt Act 35 of 2015, s 3 and Sch 3 item 2, with effect from 18 Apr 2015]

(3) The power under subsection (2) or (2C) may only be exercised by the Minister personally. [Subs (3) am Act 35 of 2015, s 3 and Sch 3 item 3, with effect from 18 Apr 2015]

(4) If the Minister makes, varies or revokes a determination under this section, the Minister must cause to be laid before each House of the Parliament a statement that: (a) sets out the determination, the determination as varied or the instrument of revocation; and (b) sets out the reasons for the determination, variation or revocation, referring in particular to the Minister’s reasons for thinking that the Minister’s actions are in the public interest. [Subs (4) subst Act 35 of 2015, s 3 and Sch 3 item 4, with effect from 18 Apr 2015]

(5) A statement under subsection (4) must not include: (a) the name of the unauthorised maritime arrival; or (b) any information that may identify the unauthorised maritime arrival; 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. [Subs (5) am Act 35 of 2013, s 3 and Sch 1 item 13]

(6) A statement under subsection (4) must be laid before each House of the Parliament within 15 sitting days of that House after: (a) if the determination is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or (b) if the determination is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.

204

Migration Law

[46A.10]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 46A

(7) The Minister does not have a duty to consider whether to exercise the power under subsection (2) or (2C) in respect of any unauthorised maritime arrival whether the Minister is requested to do so by the unauthorised maritime arrival or by any other person, or in any other circumstances. [Subs (7) am Act 35 of 2015, s 3 and Sch 3 item 5, with effect from 18 Apr 2015; Act 35 of 2013, s 3 and Sch 1 item 14] [S 46A am Act 35 of 2015; Act 135 of 2014; Act 35 of 2013, s 3 and Sch 1 item 10; insrt Act 127 of 2001, s 3 and Sch 1 item 4]

SECTION 46A COMMENTARY Scope ................................................................................................................................................... [46A.10] Concepts ............................................................................................................................................. [46A.20] Key cases ............................................................................................................................................ [46A.30]

[46A.10] Scope In 2001, the Parliament enacted six Acts which affected the consequences which would flow where an unlawful non-citizen entered Australian territory. Among other things, the suite of legislation amended the Act to change the way in which persons who arrived in, or sought to enter, the migration zone without a valid visa, were to be dealt with. These amendments reflected the policy known as the “Pacific Strategy”. One of those amendments was the insertion of s 46A by the Migration Amendment (Excision from Migration Zone) Act 2001 (Cth): see, generally, Plaintiff M61/2010 v Commonwealth (2010) 243 CLR 319; 272 ALR 14; 85 ALJR 133; [2010] HCA 41 (Offshore Processing Case) at [29]–[33]. Relevantly, s 46A governs whether and when an unauthorised maritime arrival may make a valid application for a visa. The section provides both a prohibition, and the means by which the Minister may release a person from the effect of the prohibition. Section 46A(1) applies so that an unauthorised maritime arrival may not make any valid application for a visa, while ss 46A(2) to 46A(7) provide the means by which that bar or prohibition may be lifted and the course that must be followed if it is. As the plurality of High Court observed in the Offshore Processing Case at [70] (see also Plaintiff S4/2014 v Minister for Immigration and Border Protection (2013) 304 ALR 135; 88 ALJR 324; [2014] HCA 34 at [44]), there are two steps in the process provided by ss 46A(2) to 46A(7) for permitting a person to whom the section applies to make a valid application for a visa: • first, deciding whether to consider the exercise of the power; and • secondly, deciding whether to permit the making of a valid application. This is colloquially referred to as “lifting the bar”. The only express condition placed upon the exercise of power under s 46A(2) is that the “Minister thinks that it is in the public interest to do so”. Further, the power is non-compellable, in the sense that the Minister has no positive obligation to consider exercising the power conferred by s 46A(2). This carries the implication that mandamus and, therefore, certiorari will not (ordinarily) issue in respect of any legal error in the exercise of power: Offshore Processing Case at [8], [62], [70], [100]. The Pacific Strategy was later abandoned with a change of government. Rather, as was noted in the Offshore Processing Case, the then Government announced on 29 July 2008 that, in future, people who attempted to enter Australia by an unauthorised boat would have their asylum claims processed on Christmas Island: at [37]–[40]. Although s 46A was retained in its existing form (the provision was subsequently amended in 2013), the Department developed a two stage process (being an internal “Refugee Status Assessment” (or RSA), and an external “Independent © 2016 THOMSON REUTERS

205

s 46A

Migration Act 1958

[46A.20]

Merits Review” (or IMR)) by which the Minister would be advised as to whether Australia’s protection obligations under the “Refugees Convention” were engaged in respect of each unauthorised maritime arrival. Importantly, the High Court noted in the Offshore Processing Case that the Act must be understood as empowering and enabling the Minister and the Department to respond to Australia’s protection obligations, including its non-refoulement obligations under the Refugees Convention. By inserting ss 46A and 198A (since repealed), the High Court said that the legislature had expressed an intention to “adhere to that understanding of Australia’s obligations under the Refugees Convention and the Refugees Protocol that informed other provisions made by the Act”: at [34]. The effect of the Government’s announcement of 29 July 2008, and the implementation of the RSA and IMR processes, was said by the High Court to be a decision by the Minister that he would consider exercising the powers under ss 46A and 195A in the case of all unauthorised maritime arrivals. This equated with taking the first “step” in making a decision under those provisions such that all unauthorised maritime arrivals could expect the Minister to consider exercising those powers. Accordingly, and given the rights and interests of each unauthorised maritime arrival was to be directly affected, the High Court held in the Offshore Processing Case that the RSA and the IMR processes, being the first step in the Minister exercising the power under either s 46A or 195A, were required to be procedurally fair and by reference to correct legal principles, correctly applied: [77]–[78]. While the Government’s policy in relation to s 46A (and, indeed, any other provision of the Act) will continue to change over time, the case law that has developed regarding its interpretation continues to apply where similar factual circumstances arise in the future (for instance, where past policies are revisited or revised). [46A.20] Concepts Unauthorised maritime arrival: The definition of “unauthorised maritime arrival” is provided by s 5AA: see s 5(1). Public interest: The only condition expressly stated for the exercise of the Minister’s power under s 46A(2) is “[i]f the Minister thinks that it is in the public interest to do so”. In Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship (2013) 304 ALR 135; 88 ALJR 324; [2013] HCA 53 (Plaintiff M76), French CJ observed at [26] that the “public interest” in this context may allow the Minister to have regard to a range of considerations, consistent with the subject matter, scope and purpose of the Act (see also Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 496; [1948] 1 ALR 89; [1947] HCA 21 at 90 (ALR) per Latham CJ, 94-95 (ALR) per Dixon J). His Honour noted that those considerations are not limited to the criteria for the grant of the type of visa being sought. However, in Plaintiff M76, Hayne J said in obiter that, while the “public interest” condition creates a wide discretion, the Minister chose to identify only one issue which would bear upon the decision whether or not to “lift the bar”: that is, whether or not the plaintiff in that case was a refugee: [87]–[88]. His Honour went on to note at [91]: …Having decided to consider whether to make a determination under s 46A(2), the Minister had to conclude that consideration. Having identified only one issue as relevant to the decision to lift the bar, the Minister could not make that decision by reference to any other consideration.

Justice Hayne added at [93]–[94] that, where a person has been detained for the purposes of the Minister considering whether or not to exercise the power under s 46A(2), if the Minister were permitted by the Act to subsequently refuse to conclude, or to stop, consideration of whether to lift the bar, the Act would thereby authorise detention of the person at the will of the Minister. His Honour stated that such a construction of the Act should not be adopted. At [93], Hayne J 206

Migration Law

[46A.30]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 46A

said, “…Rather, having decided to determine whether or not to lift the bar, the Minister should be held to be bound to make that decision and to do so within a reasonable time.” While the other Justices in Plaintiff M76 did not express any opinion on the matters addressed by Hayne J at [91] and [93]–[94], a majority of the High Court in Plaintiff S4/2014 v Minister for Immigration and Border Protection (2013) 304 ALR 135; 88 ALJR 324; [2014] HCA 34 held at [28] and [58] that, where a person is detained for the purposes of the Minister considering whether or not to exercise the power under s 46A(2), the Minister must then consider the exercise of power and cannot exercise other powers under the Act in a manner which would defeat consideration of the exercise of power under s 46A: per French CJ, Hayne, Crennan, Kiefel and Keane JJ. These comments, taken together with the comments of Hayne J in Plaintiff M76, suggest that, at least for persons who are in migration detention, once the Minister has identified the “public interest” basis on which the power under s 46A(2) may or may not be exercised, the Minister is thereafter unable to consider exercising the power by reference to any other matter. The Minister does not have a duty to consider: Section 46A(7) makes plain that the Minister has no duty, and may not be compelled, to consider whether to exercise the power given by s 46A(2). While that may be the case, where the Minister has undertaken to consider the exercise of power, the Minister must do so in a procedurally fair way, and by reference to correct legal principles, correctly applied: Plaintiff M61/2010 v Commonwealth (2010) 243 CLR 319; 272 ALR 14; 85 ALJR 133; [2010] HCA 41 (Offshore Processing Case) at [77]–[78]. Further, Hayne J said in obiter in Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship (2013) 304 ALR 135; 88 ALJR 324; [2013] HCA 53 at [91] that where the Minister has decided to consider whether to make a determination under s 46A(2), he “must” then do so. Nevertheless, given the Minister is not bound to exercise the power under s 46A(2) (see the Offshore Processing Case at [77]), the Minister cannot be compelled by a writ of mandamus to exercise that power. Further, there would not (ordinarily) be any utility in a writ of certiorari to quash any recommendation made to the Minister regarding the possible exercise of power under s 46A(2): Offshore Processing Case at [8], [62], [70], [100]. However, as the plurality noted at [8] in that case, although mandamus and certiorari are not appropriate remedies in respect of a non-compellable exercise of power, a declaration would be available and, where it is anticipated that the Minister is to make further decisions under the Act in reliance on a recommendation affected by legal error (for instance, by removing an unlawful non-citizen), an injunction. [46A.30] Key cases Common law rules of procedural fairness apply once the Minister has decided to consider whether or not to exercise the power under s 46A(2) In Plaintiff M61/2010 v Commonwealth (2010) 243 CLR 319; (2010) 272 ALR 14; [2010] HCA 41 (Offshore Processing Case), the High Court considered the effect of an announcement by the then Government, on 29 July 2008 that, in future, people who attempted to enter Australia by an unauthorised boat would have their asylum claims processed on Christmas Island: at [37]–[40]. In aid of this, the Department developed a two stage process (being an internal “Refugee Status Assessment” (or RSA), and an external “Independent Merits Review” (or IMR)) by which the Minister would be advised as to whether Australia’s protection obligations under the “Refugees Convention” were engaged in respect of each unauthorised maritime arrival. If Australia’s protection obligations were assessed to be engaged, a submissions would be made to the Minister recommending that the power under either s 46A(2) or s 195A(2) be exercised. The effect of the Government’s announcement of 29 July 2008, and the implementation of the RSA and IMR processes, was said by the High Court to be a decision by the Minister that he would consider exercising the powers under ss 46A and 195A in the case of all unauthorised © 2016 THOMSON REUTERS

207

s 46A

Migration Act 1958

[46A.30]

maritime arrivals. This equated with taking the first “step” in making a decision under those provisions such that all unauthorised maritime arrivals could expect the Minister to consider exercising those powers. Accordingly, and given the rights and interests of each unauthorised maritime arrival was to be directly affected, the High Court held in the Offshore Processing Case that the RSA and the IMR processes, being the first step in the Minister exercising the power under either s 46A or 195A, were required to be procedurally fair and by reference to correct legal principles, correctly applied: [77]–[78]. At [91], the High Court noted that the code of procedural fairness that applied to the former Refugee Review Tribunal are not engaged in circumstances of the kind considered in the Offshore Processing Case. Accordingly, procedural fairness obligations are not informed by those that the Act specifically requires of the former Refugee Review Tribunal, but by the common law: see also, Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505; 132 ALD 269; 296 ALR 525; [2013] FCAFC 33 at [157] per Lander and Gordon JJ (Besanko, Flick and Jagot JJ agreeing). Where an unlawful maritime arrival is detained for the purposes of considering the exercise of power under s 46A, the Minister must then proceed according to s 46A and not any other provision which would circumvent s 46A: the interaction between s 46A and 195A In Plaintiff S4/2014 v Minister for Immigration and Border Protection (2013) 304 ALR 135; 88 ALJR 324; [2014] HCA 34, the plaintiff had arrived at Christmas Island as an unlawful maritime arrival, and was lawfully taken into immigration detention. Section 46A(1) prevented the plaintiff from making a valid application for any visa unless the Minister determined under s 46A(2) to “lift the bar”. The Minister prolonged the plaintiff’s detention as he decided to consider whether to exercise his power under s 46A(2) to permit the plaintiff to apply for a protection visa. The outcome of this process was that the Department determined that the plaintiff satisfied the requirements for the grant of a protection visa. However, the Minister did not exercise his power under s 46A(2) and, instead, exercised his power under s 195A(2) to grant the plaintiff a temporary safe haven visa and a temporary humanitarian concern visa. As a result, s 91K applied to the plaintiff which meant that he could not validly apply for any visa other than a temporary safe haven visa. The plaintiff claimed that the exercise of power by the Minister under s 195A(2), and the subsequent visas he was granted, was/were invalid. Chief Justice French, Hayne, Crennan, Kiefel and Keane JJ at [25]–[26] cited with approval the High Court’s earlier decision in Chu Keng Lim v Minister for Immigration Local Government and Ethnic Affairs (1992) 176 CLR 1; 110 ALR 97; 67 ALJR 125, which provided that the Executive could lawfully detain certain unlawful non-citizens where the statutory power to do so is an incident of the executive power to receive, investigate and determine an application by that person for permission to enter and remain in Australia. However, the High Court noted at [26] that “…[i]t follows that detention under and for the purposes of the Act is limited by the purposes for which the detention is being effected…” In the plaintiff’s case, his detention was for the purposes of determining whether to permit a valid application for a visa being made and, thereafter, either for the processing of an application where the power under s 46A(2) is exercised, or for his removal from Australia under s 198. After considering the provisions of the Act which prescribe the duration of immigration detention, their Honours held at [34] that: It follows that the Executive’s consideration (while the plaintiff was in immigration detention) of whether he might seek and be granted a protection visa had to be undertaken within that framework. As already observed, the authority to detain the plaintiff is an incident of the power of the Executive to remove the plaintiff or to permit him to enter and remain in Australia, and the plaintiff’s detention is limited to what is reasonably capable of being seen as necessary to effect those purposes. The purpose 208

Migration Law

[46A.30]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 46B

for his detention had to be carried into effect as soon as reasonably practicable. Departure from that requirement would entail departure from the purpose for his detention and could be justified only if the Act were construed as permitting detention at the discretion of the Executive. The Act is not to be construed as permitting detention of that kind.

Accordingly, the High Court affirmed at [45] that, where the Minister decides to consider the exercise of power under s 46A, s 195A should be construed as not permitting the Minister to grant a visa which prevents the person making an application for any visa other than a visa of a specified class. Relevantly, ss 46A and 195A are not independent of one another. The Minister cannot therefore circumvent s 46A by resort to s 195A: at [46]. The majority then surmised at [47]: ……the power which the Act provides to the Executive to prolong the detention of a detainee for consideration of the exercise of power under s 46A must be understood as abstracting from the Minister’s power under s 195A(2) any power to grant the detainee a visa which is repugnant to the purpose for which prolongation of that detention was justified. When a person’s detention is prolonged for the purpose of considering the exercise of the power to permit the detainee to make a valid application for a visa, s 195A(2) does not give power to the Minister to grant a visa which, in effect, forbids the very thing which was the subject of uncompleted consideration warranting prolongation of the period of detention.

Having found that the Minister could not exercise other powers under the Act in a manner which would defeat the Minister’s consideration of the exercise of power under s 46A and thereby deprive the prolongation of the plaintiff’s detention of its purpose, the High Court said certiorari should issue to quash the Minister’s decision made under s 195A. 46B Visa applications by transitory persons (1) An application for a visa is not a valid application if it is made by a transitory person who: (a) is in Australia; and (b) either: (i) is an unlawful non-citizen; or (ii) holds a bridging visa or a temporary protection visa, or a temporary visa of a kind (however described) prescribed for the purposes of this subparagraph. Note: Temporary protection visas are provided for by subsection 35A(3). [Subs (1) am Act 35 of 2015, s 3 and Sch 3 item 6, with effect from 18 Apr 2015]

(2) If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a transitory person, determine that subsection (1) does not apply to an application by the person for a visa of a class specified in the determination. (2A) A determination under subsection (2) may provide that it has effect only for the period specified in the determination and, if it does so, the determination ceases to have effect at the end of the specified period. [Subs (2A) insrt Act 35 of 2015, s 3 and Sch 3 item 7, with effect from 18 Apr 2015]

(2B) The period specified in a determination may be different for different classes of transitory persons. [Subs (2B) insrt Act 35 of 2015, s 3 and Sch 3 item 7, with effect from 18 Apr 2015]

(2C) The Minister may, in writing, vary or revoke a determination made under subsection (2) if the Minister thinks that it is in the public interest to do so. [Subs (2C) insrt Act 35 of 2015, s 3 and Sch 3 item 7, with effect from 18 Apr 2015]

© 2016 THOMSON REUTERS

209

s 46B

Migration Act 1958

[46B.10]

(3) The power under subsection (2) or (2C) may only be exercised by the Minister personally. [Subs (3) am Act 35 of 2015, s 3 and Sch 3 item 8, with effect from 18 Apr 2015]

(4) If the Minister makes, varies or revokes a determination under this section, the Minister must cause to be laid before each House of the Parliament a statement that: (a) sets out the determination, the determination as varied or the instrument of revocation; and (b) sets out the reasons for the determination, variation or revocation, referring in particular to the Minister’s reasons for thinking that the Minister’s actions are in the public interest. [Subs (4) subst Act 35 of 2015, s 3 and Sch 3 item 9, with effect from 18 Apr 2015]

(5) A statement under subsection (4) must not include: (a) the name of the transitory person; or (b) any information that may identify the transitory person; 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) must be laid before each House of the Parliament within 15 sitting days of that House after: (a) if the determination is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or (b) if the determination 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 (2) or (2C) in respect of any transitory person whether the Minister is requested to do so by the transitory person or by any other person, or in any other circumstances. [Subs (7) am Act 35 of 2015, s 3 and Sch 3 item 10, with effect from 18 Apr 2015] [S 46B am Act 35 of 2015; insrt Act 10 of 2002, s 3 and Sch 1 item 3]

SECTION 46B COMMENTARY [46B.10] Scope Section 46B governs whether and when a transitory person may make a valid application for a visa. The section provides both a prohibition, and the means by which the Minister may release a person from the effect of the prohibition. Section 46B(1) applies so that a transitory person may not make any valid application for a visa, while ss 46B(2) – 46A(7) provide the means by which that bar or prohibition may be lifted and the course that must be followed if it is. Given s 46B is similarly structured to s 46A, except that s 46B is directed to transitory persons rather than unlawful maritime arrivals, see the commentary to s 46A for a discussion of the relevant concepts and key cases. 47

Consideration of valid visa application (1) The Minister is to consider a valid application for a visa. (2) The requirement to consider an application for a visa continues until: (a) the application is withdrawn; or

210

Migration Law

[47.20]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 47

(b) the Minister grants or refuses to grant the visa; or (c) the further consideration is prevented by section 39 (limiting number of visas) or 84 (suspension of consideration). [Subs (2) am Act 60 of 1994, s 17(a)–(d)]

(3) To avoid doubt, the Minister is not to consider an application that is not a valid application. (4) To avoid doubt, a decision by the Minister that an application is not valid and cannot be considered is not a decision to refuse to grant the visa. [Subs (4) am Act 60 of 1994, s 17(e)] [Former s 26N renum Act 60 of 1994, s 83; am Act 60 of 1994; insrt Act 184 of 1992, s 10 Cross-reference: Ministerial Directions: • Order for considering and disposing of Family Stream visa applications (Direction No. 62): This Direction directs delegates with respect to the performance of functions and exercise of powers under ss 47 and 51, when determining the order for consideration and disposing of Family Stream visa applications. • Priority for considering and disposing of applications for specified visas made by persons who reside, or have resided, in an Ebola Virus Disease affected country (Direction No. 66): This Direction directs delegates with respect to the performance of functions and exercise of powers under ss 47 and 51 to determine the order for considering and disposing of visa applications for specified visas. In this Direction, Ebola Virus Disease affected country means Guinea or Sierra Leone.]

SECTION 47 COMMENTARY Scope ..................................................................................................................................................... [47.10] Key cases ............................................................................................................................................... [47.20] Practice point ......................................................................................................................................... [47.30]

[47.10] Scope Section 47(1) imposes on the Minister a duty to consider a valid application for a visa, and s 47(3) imposes a corresponding duty not to consider an application for a visa that is not a valid application. Section 47(2) makes clear that the duty to consider a valid application continues, subject to exceptions, until the Minister grants, or refuses to grant the visa in the performance of a complementary duty imposed by s 65. [47.20] Key cases If the Minister breaches s 47(3) and considers an invalid visa application, s 69(1) will render any decision made in respect of that application as being valid Section 47(3) provides that the Minister is not to consider an application that is not a valid application. On the other hand, s 69(1) provides that non-compliance by the Minister with Subdivision AA (which includes s 47), AB or s 494D in relation to a visa application, “does not mean that a decision to grant or refuse to grant the visa is not a valid decision but only means that the decision might have been the wrong one and might be set aside if reviewed”. In Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495; 62 ALD 513; [2000] FCA 906, Gyles J (with whom Spender J agreed, Marshall J in dissent) held at [81] that a decision of a delegate made in respect of an otherwise invalid application, although it would involve a contravention of s 47(3), is rendered valid by the operation of s 69(1). Gyles J reasoned that: … It is thus clear that s 69 relieves against invalidity based upon a breach of s 47. It is entirely reasonable that this should be so. The Minister is bound not to consider an invalid application, and should not do so. If the Minister does so, however, why should the applicant be penalized for, or affected by, the Minister’s mistake? If a visa has been granted, but the application had been invalid on © 2016 THOMSON REUTERS

211

s 47

Migration Act 1958

[47.20]

some ground, it would be unreasonable to have it declared invalid in proceedings thereafter, when the remedy had been in the Minister’s own hands at the time. … Viewed in this way, s 69 prevents approbation and reprobation by the executive to the disadvantage of the applicant.

Further, Gyles J in Yilmaz (Spender J agreeing, Marshall J in dissent) rejected any suggestion that the wording of s 65(1) was inconsistent with the above conclusion. His Honour stated at [83]: It seems to be that the words “After considering a valid application for a visa” in that section do not form part of the conditions of exercise of the power, but are, rather, the assumption upon which the section proceeds. This is not surprising, since it would be assumed that the Minister would obey s 47, which is directed to the very point. As non-compliance with s 47 is plainly covered by s 69, I do not find any inconsistency between it and s 65, which is directed to those elements … which must be met before a visa can be granted.

Inchoate applications may be validated by the subsequent provision of missing information For the purposes of s 46(1)(b), r 2.07(3) provides that an applicant for a visa must complete the approved visa application form in accordance with any directions on it. In Yilmaz, Gyles J (with whom Spender J agreed, Marshall J in dissent), the visa applicant lodged an incomplete visa application. It was therefore not a valid application for a visa. Although s 47(3) prohibits the Minister from considering an application for a visa that is not a valid application, a delegate of the Minister proceeded to consider the application and, subsequently, made a decision to refuse the grant of the visa. The visa applicant then applied to the Tribunal for merits review of the delegate’s decision. Before the Tribunal made its decision however, the visa applicant completed the visa application by providing the missing information to both the Department and the Tribunal. The Tribunal then made a decision, affirming the delegate’s decision. Relevantly, the Tribunal is only authorised to make a decision that is authorised by the Act: s 415(4). Because s 47(3) prohibits the Minister from considering a visa application that is not valid, and because s 65(1) presupposes that the Minister has considered a valid visa application only, the Tribunal is not able to make a valid decision in circumstances where no valid application has ever been lodged: see Minister for Immigration and Multicultural Affairs v Li (2000) 103 FCR 486; 178 ALR 523; 62 ALD 627; [2000] FCA 1456 (Li) at [81]–[82]. However, Gyles J (with whom Spender J agreed) held that, although a visa application may be invalid at the time it is made because of incompleteness (there being an absence of supporting material or information setting out the nature and basis of the claims for a protection visa, for instance), the application could nevertheless be rendered valid by the later provision of the additional and necessary material, subject to the material being provided in the manner required by s 46. The majority rejected the argument that, because the application before the delegate was invalid, there was no authority in the Tribunal to review a purported decision of the delegate. This argument was rejected for the following reasons: • section 69(1) preserves the validity of the delegate’s decision, at least to allow merits review, notwithstanding the clear terms of s 47: at [81], [83]; • the Tribunal has jurisdiction to conduct merits review of both valid and invalid decisions: at [85]–[88], relying on Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307; [1979] FCA 21 at [12] per Bowen CJ; • although s 415(4) prevents the Tribunal from making any decision that is not authorised by the Act, and therefore prevents the Tribunal from making a decision in relation to a visa application that is not valid, the deficiencies in the visa application in this case were cured before the Tribunal made its decision, rendering it valid: at [73]. 212

Migration Law

[47.30]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 48

On the other hand, in Li, a Full court of the Federal Court considered the circumstance of both the delegate and the Tribunal making a decision in respect of a visa application that is not valid. In that case, the visa applicant did not cure the defect in the visa application, either before the delegate’s decision or before the Tribunal’s decision. Justices Ryan, Sackville and Emmett JJ held at [82] that: … Section 415(4) of the Migration Act makes it clear that the RRT cannot make a decision not authorised by the Migration Act or the regulations. A decision to refuse a visa where no valid application for a visa has been made is a decision not authorised by the Migration Act or the regs. The fact that the Migration Act preserves an unauthorised decision by a delegate, so as to make it subject to review by the RRT, does not confer on the RRT greater powers than a delegate could ever have properly exercised in relation to an invalid application.

Relevantly, the Court in Li distinguished Yilmaz as a case concerned, by the time the Tribunal made its decision, with a valid application. The Tribunal therefore rejected the suggestion that the Tribunal could refuse an invalid application for a visa on review and validly affirm the decision: at [81]–[82]. It has been said that that the majority judgment in Yilmaz is inconsistent with the decision in Li: see, for example, SZECD v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 53; 227 ALR 656; [2006] FCA 31. However, in SZGME v Minister for Immigration and Citizenship (2008) 168 FCR 487; 102 ALD 31; 247 ALR 467; [2008] FCAFC 91, Black CJ rejected this suggestion, and asserted that Yilmaz and Li are consistent: at [22]–[36] (Allsop J agreeing, Moore J in dissent). At [36], Black CJ observed that the essential difference between Yilmaz on the one hand (and other cases which followed that decision) and Li, on the other, is that as a matter of statutory construction, the defects in the primary decision in Yilmaz did not affect the power exercised by the Tribunal. That was because the defect had been cured by the time the Tribunal made its decision. In Li, on the other hand, the Full Court was of the view that “the persisting lack of validity of the application directly qualified the power of the Tribunal, through ss 47 and 415”. Accordingly, the Tribunal in Li could only set the delegate’s decision aside; it was not able to affirm the decision of the delegate and then positively grant or refuse the visa. [47.30] Practice point As to what constitutes a valid application for a visa, see s 46. 48 Non-citizen refused a visa or whose visa cancelled may only apply for particular visas (1) A non-citizen in the migration zone who: (a) does not hold a substantive visa; and (b) after last entering Australia: (i) was refused a visa, other than a refusal of a bridging visa or a refusal under section 501, 501A or 501B, for which the non-citizen had applied (whether or not the application has been finally determined); or

© 2016 THOMSON REUTERS

213

s 48

Migration Act 1958

(ii)

held a visa that was cancelled under section 109 (incorrect information), 116 (general power to cancel), 133A (Minister’s personal powers to cancel visas on section 109 grounds), 133C (Minister’s personal powers to cancel visas on section 116 grounds), 134 (business visas), 137J (student visas) or 137Q (regional sponsored employment visas); may, subject to the regulations, apply for a visa of a class prescribed for the purposes of this section or have an application for such a visa made on his or her behalf, but not for a visa of any other class. [Subs (1) am Act 129 of 2014, s 3 and Sch 2 item 2, with effect from 11 Dec 2014; subst Act 106 of 2014, s 3 and Sch 1 item 1, with effect from 25 Sep 2014; am Act 33 of 2001, s 3 and Sch 1 item 1; Act 168 of 2000, s 3 and Sch 1 item 1; Act 114 of 1998, s 3 and Sch 1 items 2 and 3]

(1A) A non-citizen in the migration zone who: (a) does not hold a substantive visa; and (b) after last entering Australia, was refused a visa (other than a refusal of a bridging visa or a refusal under section 501, 501A or 501B) for which an application had been made on the non-citizen’s behalf, whether or not: (i) the application has been finally determined; or (ii) the non-citizen knew about, or understood the nature of, the application due to any mental impairment; or (iii) the non-citizen knew about, or understood the nature of, the application due to the fact that the non-citizen was, at the time the application was made, a minor; may, subject to the regulations, apply for a visa of a class prescribed for the purposes of this section or have an application for such a visa made on his or her behalf, but not for a visa of any other class. [Subs (1A) insrt Act 106 of 2014, s 3 and Sch 1 item 1, with effect from 25 Sep 2014]

(2) For the purposes of this section (which applies only in respect of applications made while a non-citizen is in the migration zone), a non-citizen who: (a) has been removed from the migration zone under section 198; and (b) is again in the migration zone as a result of travel to Australia that is covered by paragraph 42(2A)(d) or (e); is taken to have been continuously in the migration zone despite the removal referred to in paragraph (a). Note: Paragraphs 42(2A)(d) and (e) cover limited situations where people are returned to Australia despite their removal under section 198. [Subs (2) am Act 85 of 2008, s 3 and Sch 3 item 21; insrt Act 160 of 1999, s 3 and Sch 1 item 36]

(3) For the purposes of this section (which applies only in respect of applications made while a non-citizen is in the migration zone), a non-citizen who, while holding a bridging visa, leaves and re-enters the migration zone is taken to have been continuously in the migration zone despite that travel. [Subs (3) insrt Act 85 of 2008, s 3 and Sch 3 item 22]

(4) In paragraphs (1)(b) and (1A)(b): (a) a reference to an application for a visa made by or on behalf of a non-citizen includes a reference to an application for a visa that is taken to have been made by the non-citizen by the operation of this Act or a regulation; and

214

Migration Law

[48.10]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 48A

(b) a reference to the cancellation of a visa includes a reference to the cancellation of a visa for which an application is taken to have been made by the operation of this Act or a regulation. [Subs (4) insrt Act 135 of 2014, s 3 and Sch 2 item 22, with effect from 16 Dec 2014] [S 48 am Act 135 of 2014; Act 129 of 2014; Act 106 of 2014; Act 85 of 2008; Act 33 of 2001; Act 168 of 2000; Act 160 of 1999; Act 114 of 1998; former s 26P renum Act 60 of 1994, s 83; subst Act 60 of 1994, s 18; insrt Act 184 of 1992, s 10]

SECTION 48 COMMENTARY [48.10] Practice points For the purposes of s 48(1), r 2.12(1) prescribes the following classes of visa: (a) Partner (Temporary) (Class UK); (b) Partner (Residence) (Class BS); (c) Protection (Class XA); (ca) Medical Treatment (Visitor) (Class UB); – Territorial Asylum (Residence) (Class BE); (f) Border (Temporary) (Class TA); (g) Special Category (Temporary) (Class TY); (h) (Bridging A (Class WA); (j) Bridging B (Class WB); (k) Bridging C (Class WC); (l) Bridging D (Class WD); (m) Bridging E (Class WE); (ma) Bridging F (Class WF); (mb) Bridging R (Class WR); (o) Resolution of Status (Class CD); (p) Child (Residence) (Class BT). 48A No further applications for protection visa after refusal or cancellation (1) Subject to section 48B, a non-citizen who, while in the migration zone, has made: (a) an application for a protection visa, where the grant of the visa has been refused (whether or not the application has been finally determined); or (b) applications for protection visas, where the grants of the visas have been refused (whether or not the applications have been finally determined); may not make a further application for a protection visa, or have a further application for a protection visa made on his or her behalf, while the non-citizen is in the migration zone. [Subs (1AA) am Act 106 of 2014, s 3 and Sch 1 item 2, with effect from 25 Sep 2014]

(1AA) Subject to section 48B, if: (a) an application for a protection visa is made on a non-citizen’s behalf while the non-citizen is in the migration zone; and (b) the grant of the visa has been refused, whether or not: (i) the application has been finally determined; or (ii) the non-citizen knew about, or understood the nature of, the application due to any mental impairment; or (iii) the non-citizen knew about, or understood the nature of, the application due to the fact that the non-citizen was, at the time the application was made, a minor; the non-citizen may not make a further application for a protection visa, or have a further application for a protection visa made on his or her behalf, while the non-citizen is in the migration zone. [Subs (1AA) insrt Act 106 of 2014, s 3 and Sch 1 item 3, with effect from 25 Sep 2014]

(1A) For the purposes of this section, a non-citizen who: (a) has been removed from the migration zone under section 198; and

© 2016 THOMSON REUTERS

215

s 48A

Migration Act 1958

(b) is again in the migration zone as a result of travel to Australia that is covered by paragraph 42(2A)(d) or (e); is taken to have been continuously in the migration zone despite the removal referred to in paragraph (a). Note: Paragraphs 42(2A)(d) and (e) cover limited situations where people are returned to Australia despite their removal under section 198. [Subs (1A) insrt Act 160 of 1999, s 3 and Sch 1 item 37]

(1B) Subject to section 48B, a non-citizen in the migration zone who held a protection visa that was cancelled may not make a further application for a protection visa while in the migration zone. [Subs (1B) insrt Act 131 of 2001, s 3 and Sch 1 item 3]

(1C) Subsections (1) and (1B) apply in relation to a non-citizen regardless of any of the following: (a) the grounds on which an application would be made or the criteria which the non-citizen would claim to satisfy; (b) whether the grounds on which an application would be made or the criteria which the non-citizen would claim to satisfy existed earlier; (c) the grounds on which an earlier application was made or the criteria which the non-citizen earlier claimed to satisfy; (d) the grounds on which a cancelled protection visa was granted or the criteria the non-citizen satisfied for the grant of that visa. [Subs (1C) insrt Act 30 of 2014, s 3 and Sch 2 item 2, with effect from 28 May 2014]

(1D) In paragraphs (1)(a) and (b) and (1AA)(a) and (b), a reference to an application for a protection visa made by or on behalf of a non-citizen includes a reference to an application for a protection visa that is taken to have been made by the non-citizen by the operation of this Act or a regulation. [Subs (1D) insrt Act 135 of 2014, s 3 and Sch 2 item 23, with effect from 16 Dec 2014]

(1E) In subsection (1B), a reference to the cancellation of a protection visa includes a reference to the cancellation of a protection visa in relation to which an application for a protection visa is taken to have been made by the operation of this Act or a regulation. [Subs (1E) insrt Act 135 of 2014, s 3 and Sch 2 item 23, with effect from 16 Dec 2014]

(2) In this section: application for a protection visa means: (aa) an application for a visa of a class provided for by section 35A (protection visas—classes of visas), including (without limitation) an application for a visa of a class formerly provided for by subsection 36(1) that was made before the commencement of this paragraph; or Note: Visas formerly provided for by subsection 36(1) are provided for by subsection 35A(5). Subsection 36(1) was repealed by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014, which also inserted section 35A and this paragraph.

(aaa)

an application for a visa, a criterion for which is that the applicant is a non-citizen who is a refugee; or (a) an application for a visa, or entry permit (within the meaning of this Act as in force immediately before 1 September 1994), a criterion for which is that the applicant is a non-citizen who has been determined to be a refugee under the Refugees Convention as amended by the Refugees Protocol; or (b) an application for a decision that a non-citizen is a refugee under the Refugees Convention as amended by the Refugees Protocol; or

216

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

[48A.20]

(c)

s 48B

an application covered by paragraph (a) or (b) that is also covered by section 39 of the Migration Reform Act 1992.

[Def am Act 135 of 2014, s 3 and Sch 5 item 11, with effect from 18 Apr 2015; Act 135 of 2014, s 3 and Sch 2 items 10–12, with effect from 16 Dec 2014; Act 30 of 2014, s 3 and Sch 2 item 3; Act 121 of 2011, s 3 and Sch 1 item 16; Act 144 of 2008, s 3 and Sch 10 item 23; Act 131 of 2001, s 3 and Sch 1 item 4] [S 48A am Act 135 of 2014; Act 106 of 2014; Act 30 of 2014, s 3 and Sch 2 item 1; Act 121 of 2011; Act 144 of 2008; Act 131 of 2001; Act 160 of 1999; insrt Act 102 of 1995, s 14]

SECTION 48A COMMENTARY Scope ................................................................................................................................................... [48A.10] Concepts ............................................................................................................................................. [48A.20]

[48A.10] Scope The purpose of s 48A is to prevent repeated applications for protection visas: SZGME v Minister for Immigration and Citizenship (2008) 168 FCR 487; 102 ALD 31; 247 ALR 467; [2008] FCAFC 91 at [7]–[12] per Black CJ and Allsop J at [14]. Accordingly, s 48A(1) prevents a non-citizen, who has previously been unsuccessful in applying for a protection visa, or whose protection visa has been cancelled, from making a further application for a protection visa while in the migration zone. [48A.20] Concepts Application for a protection visa: The reference to a previous “application for a protection visa”, when used in ss 48A(1)(a) and 48A(1)(b), is a reference only to any “valid” application for a protection visa in compliance with s 46. That is because s 47 makes clear that the Minister is not to consider an invalid application. Further, s 65 proceeds on the assumption that a visa will only be granted, or refused, where s 47 has been complied with. Accordingly, the refusal of an application referred to in s 48A contemplates circumstances in which the decision-maker has refused a valid application for a visa: SZGME v Minister for Immigration and Citizenship (2008) 168 FCR 487; 102 ALD 31; 247 ALR 467; [2008] FCAFC 91 (SZGME) at [7]–[12] per Black CJ and Allsop J (Moore J dissenting). It therefore follows that, where a person has had an invalid application for a visa refused, the applicant is not barred by s 48A from making a subsequent valid application. Application for a decision that a non-citizen is a refugee - s 48A(2)(b): An application for review to the Tribunal under Part 7 of the Act is not “an application for a decision that a non-citizen is a refugee..” as those words appear in s 48A(2)(b). That is because the Tribunal’s task is not to find, as a fact, that a review applicant is a refugee. Rather, it is to reach, or not to reach, a state of satisfaction about whether Australia has protection obligations and to then make one of the decisions called for by s 65, within the framework of s 415: SZGME at [18], [21] per Black CJ and Allsop J (Moore J dissenting). 48B Minister may determine that section 48A does not apply to non-citizen (1) If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a particular non-citizen, determine that section 48A does not apply to prevent an application for a protection visa made by the non-citizen in the period starting when the notice is given and ending at the end of the seventh working day after the day on which the notice is given. (2) The power under subsection (1) may only be exercised by the Minister personally.

© 2016 THOMSON REUTERS

217

s 48B

Migration Act 1958

[48B.10]

(3) If the Minister makes a determination 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 determination; and (b) sets out the reasons for the determination, referring in particular to the Minister’s reasons for thinking that his or her actions are in the public interest. (4) A statement under subsection (3) is not to include: (a) the name of the non-citizen; or (b) any information that may identify the non-citizen; or (c) if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned—the name of that other person or any information that may identify that other person. (5) A statement under subsection (3) is to laid before each House of the Parliament within 15 sitting days of that House after: (a) if the determination is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or (b) if the determination is made between 1 July and 31 December (inclusive) in a year—1 January in the following year. (6) The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any non-citizen, whether he or she is requested to do so by the non-citizen or by any other person, or in any other circumstances. [S 48B insrt Act 102 of 1995, s 14]

SECTION 48B COMMENTARY Scope ................................................................................................................................................... [48B.10] Key cases ............................................................................................................................................ [48B.20] Practice points ..................................................................................................................................... [48B.30]

[48B.10] Scope Section 48B provides the Minister with a non-compellable, personal, power to “lift the bar” created by s 48A. The concepts that derive from s 48B are similar to those that derive from other provisions where the Minister is conferred with a non-compellable and personal power to lift statutory bars to visa applications, or visas, such as ss 46A and 195A. For a discussion of these concepts, see the commentary to those sections. [48B.20]

Key cases

Departmental officers are under no duty to afford a person procedural fairness in determining whether or not to exercise the power under s 48B(1) In Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636; 290 ALR 616; [2012] HCA 31, French CJ, Kiefel, Gummow, Hayne, Crennan, Bell and Heydon JJ held that the principles of procedural fairness do not apply to the dispensing provisions of ss 48B, 195A, 351 and 417 of the Act: at [50], [53], [99], [110]–[111] and [118]. The four plaintiffs (Plaintiff S10, Plaintiff S49, Plaintiff S51 and Plaintiff S42), each non-citizens who had unsuccessfully applied for visas to remain in Australia, applied to the High Court in relation to their failure to attract the exercise by the Minister of his non-compellable, non-delegable personal discretion to make decisions in favour of unsuccessful visa applicants and persons in detention. Those powers are contained in ss 48B, 195A, 351 and 417. 218

Migration Law

[48B.20]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 48B

Relevantly, Plaintiff S10 had applied for a protection visa in 2007. That application was refused by a delegate of the Minister, whose decision was affirmed by the Tribunal. Subsequently, in 2009, Plaintiff S10 requested that the Minister exercise his power under s 47 of the Act or, alternatively, under s 48B. However, his request in relation to s 48B was not referred to the Minister, as a Departmental officer determined that it did not meet the Ministerial guidelines relating to that provision. He argued that he was not afforded procedural fairness in relation to his s 48B request as he was not given an opportunity to comment on materials relied upon by the Departmental officer, and that the officer failed to address the material and claim before him. That breach of procedural fairness, it was said, also infected the way in which the Minister and the Department dealt with his s 417 request. Plaintiff S10’s application, and the other four plaintiffs’ applications, raised whether the executive power of the Commonwealth is constrained by a requirement that procedural fairness be afforded to a person whose rights, interests or legitimate expectations may be destroyed, defeated or prejudiced by its exercise. Chief Justice French and Kiefel J, held at [4] that: the consideration by officers of the Department of the requests by the plaintiffs for the Minister to consider exercising non-compellable powers under the Act did not attract the requirements of procedural fairness. Further, the Minister is not obliged to accord procedural fairness, in the form of the so-called hearing rule, in personally considering whether to exercise the Minister’s discretion under ss 48B, 195A, 351 or 417.

Chief Justice French and Kiefel J came to this conclusion on the basis that the Minister is not under any duty to respond to a request for his or her consideration of the exercise of power under s 48B (and ss 195A, 351 and 417). As there was no statutory duty to consider such an application, “no question of procedural fairness arises when the Minister declines to embark upon such a consideration”: at [50]. In addition, French CJ and Kiefel J rejected the plaintiffs’ submissions that the issue of ministerial guidelines in relation to the dispensing provisions involved a decision by the Minister to decide to consider the exercise of the powers conferred by s 48B (and ss 195A, 351 and 417) and held that “there was no implied requirement that the guidelines be applied in such a way as to accord with the hearing rule aspect of procedural fairness”: at [52]. Justices Gummow, Hayne, Crennan and Bell observed the following significant characteristics of s 48B (and ss 195A, 351 and 417), at [99(i)] to [99(ix)], being that: • the powers conferred under that section must be exercised by the Minister personally, and cannot be delegated; • the tabling requirements render the Minister accountable to each House of the Parliament; • the exercise of the powers under the section are not preconditioned by the making of a request by any other person, and if a request is made, there is no requirement to consider it; • the exercise of the powers is preconditioned on: – the Minister having decided to consider whether to exercise the power; and – the Minister thinking that it is in the public interest to do so; • the term “public interest” does not have any fixed or precise content and will involve a value judgment; • the personal circumstances of an individual may be taken into account, but they are not mandatory relevant considerations; © 2016 THOMSON REUTERS

219

s 49

Migration Act 1958

[48B.30]

• individual interests and rights are dealt with by provisions of the Act regulating applications and providing for review of decisions concerning visas; • the premise of s 48B is that on a merits review the Tribunal has determined that there is no right to the visa sought; and • against that background, the focus of s 351 is upon the Minister’s view of the public interest rather than the satisfaction of the conditions for the visa. In light of the above, Gummow, Hayne, Crennan and Bell JJ held at [100]: The cumulative significance of the matters referred to above in (i)-(ix) is to disclose a situation akin to that identified by Brennan J in South Australia v O’Shea, namely where a senior officer standing at the peak of the administration of the statute is not required to give an opportunity for a hearing in every case affecting an individual who has had an opportunity of a merits review in the course of the administrative process. Upon their proper construction and in their application to the present cases, the dispensing provisions are not conditioned on observance of the principles of procedural fairness. In particular, there was no requirement to provide to the plaintiffs the opportunities to be heard which they assert in their submissions. The use in the provisions of the Act in question here of language emphatic, there was no requirement to provide to the plaintiffs the opportunities to be heard which they assert in their submissions. The use in the provisions of the Act in question here of language emphatic both of the distinctive nature of the powers conferred upon the Minister (as personal, non-compellable, “public interest” powers), and of the availability of access to the exercise of those powers only to persons who have sought or could have sought, but have not established their right to, a visa is of determinative significance. It reveals the “necessary intendment” referred to in the Offshore Processing Case that the provisions are not attended by a requirement for the observance of procedural fairness.

[48B.30] Practice points Neither the Federal Circuit Court or the Federal Court have the power to consider a matter in relation to s 48B, because: • pursuant to s 476(2)(d), the Federal Circuit does not have jurisdiction to consider matters which fall within s 474(7) (this section includes matters relating to s 48B); and • pursuant to s 476A(1), the Federal Court only has original jurisdiction in relation to the matters listed in that section (s 48B is not listed). Pursuant to s 75(v) of the Constitution, the High Court has original jurisdiction to hear matters in which a writ of mandamus, prohibition or an injunction is sought against an officer of the Commonwealth. Where an application for prerogative relief is filed in the High Court’s original jurisdiction challenging a matter in relation to the exercise (or non-exercise) of the discretion in s 48B, the granting of such relief would serve no useful purpose. This is because the power under this section is non-compellable, meaning the Minister is under no duty to exercise that power: Minister for Immigration and Multicultural and Indigenous Affairs, Re; Ex parte Applicants S134/2002 (2003) 211 CLR 441; 195 ALR 1; [2003] HCA 1 at [100] per Gleeson CH, McHugh, Gummow, Hayne and Callinan JJ. 49

Withdrawal of visa application (1) An applicant for a visa may, by written notice given to the Minister, withdraw the application. (2) An application that is withdrawn is taken to have been disposed of. (3) For the purposes of sections 48 and 48A, the Minister is not taken to have refused to grant the visa if the application is withdrawn before the refusal. [Subs (3) am Act 102 of 1995, s 15; subst Act 60 of 1994, s 19]

220

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 51A

(4) Subject to the regulations, fees payable in respect of an application that is withdrawn are not refundable. [S 49 am Act 102 of 1995; former s 26Q renum Act 60 of 1994, s 83; am Act 60 of 1994; insrt Act 184 of 1992, s 10]

50

Only new information to be considered in later protection visa applications If a non-citizen who has made: (a) an application for a protection visa, where the grant of the visa has been refused and the application has been finally determined; or

[Para (a) am Act 60 of 1994, s 82 and Sch 1 item 14]

(b) applications for protection visas, where the grants of the visas have been refused and the applications have been finally determined; [Para (b) am Act 60 of 1994, s 82 and Sch 1 item 15]

makes a further application for a protection visa, the Minister, in considering the further application: (c) is not required to reconsider any information considered in the earlier application or an earlier application; and (d) may have regard to, and take to be correct, any decision that the Minister made about or because of that information. Note: Section 48A prevents repeat applications for protection visas in most circumstances where the applicant is in the migration zone. [S 50 am Act 102 of 1995, s 16; former s 26R renum Act 60 of 1994, s 83; am Act 60 of 1994; insrt Act 184 of 1992, s 10]

51

Order of consideration (1) The Minister may consider and dispose of applications for visas in such order as he or she considers appropriate. (2) The fact that an application has not yet been considered or disposed of although an application that was made later has been considered or disposed of does not mean that the consideration or disposal of the earlier application is unreasonably delayed. [Former s 26S renum Act 60 of 1994, s 83; insrt Act 184 of 1992, s 10 Cross-reference: Ministerial Directions: • Priority processing for standard business sponsors with accredited status (Direction No. 52): The purpose of this Direction is to ensure that standard business sponsors with “Accredited Status” receive priority processing of their nomination and visa applications under s 51. • Order for considering and disposing of Family Stream visa applications (Direction No. 62): This Direction directs delegates with respect to the performance of functions and exercise of powers under ss 47 and 51, when determining the order for consideration and disposing of Family Stream visa applications. • Priority for considering and disposing of applications for specified visas made by persons who reside, or have resided, in an Ebola Virus Disease affected country (Direction No. 66): This Direction directs delegates with respect to the performance of functions and exercise of powers under ss 47 and 51 to determine the order for considering and disposing of visa applications for specified visas. In this Direction, Ebola Virus Disease affected country means Guinea or Sierra Leone. • Order of consideration – certain skilled migration visas (Direction No. 67): This Direction directs delegates with respect to the performance of functions and exercise of powers under s 51 or s 91 to consider and dispose of visa applications in the appropriate order of consideration.]

SUBDIVISION AB – CODE OF PROCEDURE FOR DEALING FAIRLY, EFFICIENTLY AND QUICKLY WITH VISA APPLICATIONS (SS 51A-64) [Subdiv AB heading insrt Act 184 of 1992, s 10]

51A Exhaustive statement of natural justice hearing rule (1) This Subdivision is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

© 2016 THOMSON REUTERS

221

s 51A

Migration Act 1958

[51A.20]

(2) Sections 494A to 494D, in so far as they relate to this Subdivision, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with. [S 51A insrt Act 60 of 2002, s 3 and Sch 1 item 1]

SECTION 51A COMMENTARY Scope ................................................................................................................................................... [51A.20] CONCEPTS

Natural justice hearing rule ................................................................................................................ [51A.40] In relation to the matters it deals with .............................................................................................. [51A.60] KEY CASE

Natural justice hearing rule is not qualified or excluded in relation to offshore visa applicants .... [51A.80] In relation to the matters it deals with ............................................................................................ [51A.100]

[51A.20] Scope Section 51A was inserted by the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth). Section 51A(1) makes it clear that Pt 2 Div 3 subdiv AB of the Act (which deals with how the Minister is to deal with visa applications) is an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. Similarly, s 51A(2) provides that ss 494A – 494D (which deal with the way that the Minister gives documents), insofar as they relate to subdiv AB, are an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with. According to s 51A, the “codes of procedure” referred to in this section are an exhaustive statement of the requirements of the natural justice hearing rule: Explanatory Memorandum to the Migration Legislation Amendment (Procedural Fairness) Bill 2002 (Cth) at [1]. Section 51A was inserted as a result of the High Court’s decision in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; 179 ALR 238; [2001] HCA 22 (Miah), in which the court held that the exclusion of common law natural justice requirements required clear legislative intention: at [53]–[54] per Gleeson CJ and Hayne J, at [90] per Gaudron J, at [126]–[127] per McHugh J and at [183] per Kirby J. In Miah, the High Court considered whether a delegate had denied the applicants procedural fairness by failing to put to them for comment certain country information. At the relevant time, the Act, in Pt 2 Div 3 subdiv AB, laid down what Gleeson CJ and Hayne J described as a “code of procedure for dealing fairly, efficiently and quickly with visa applications”: at [28]. It did not contain any other statement other than that contained in this section - that the Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule. Gleeson CJ and Hayne J commented at [43] that “there is a difference between a code of procedure for dealing with visa applications and a comprehensive statement of the requirements of natural justice”. The majority were of the view that it is possible to exclude the rule of natural justice, but that in order to do so, the legislation must be clear that the intention is for it to be excluded: at [53]–[54] per Gleeson CJ and Hayne J, at [90] per Gaudron J, at [126]–[127] per McHugh J and at [183] per Kirby J. Necessarily, therefore, the wording in s 51A is clear that the natural justice hearing rule is excluded. In the Second Reading speech for the Migration Legislation Amendment (Procedural Fairness) Bill 2002 (Cth), the Minister noted that the proposed amendments were necessary to restore the Parliament’s original intention that the Act should contain codes of procedure that allow fair, efficient and legally certain decision-making processes that do not replace the common law requirement of the natural justice hearing rule. 222

Migration Law

[51A.40]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 51A

However, this section does not protect any decision that is affected by a jurisdictional error because such a decision will not be considered to be a migration decision and the privative clause provisions in s 474 will have no operation: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; 195 ALR 24; [2003] HCA 2 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. The concept of a privative clause is discussed further under s 474.

CONCEPTS [51A.40] Natural justice hearing rule The phrase “natural justice hearing rule”, or any variation thereof, is not defined in the Act. Natural justice usually requires that a person whose interests are to be affected by a decision be given an opportunity to comment and respond to material which is adverse to his or her interests: Kioa v West (1985) 159 CLR 550; 62 ALR 321; [1985] HCA 81 (Kioa) at 582 (CLR) per Mason J, at 628 – 629 (CLR) per Brennan J. Natural justice and procedural fairness require a decision-maker to bring to an applicant’s attention the critical issues or factors on which its decision is likely to turn in order for the applicant to have the opportunity of dealing with them: Kioa at 587 (CLR) per Mason J; VAAC v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 168; [2003] FCAFC 74 at [27]. In discharging this duty, a decision-maker needs to bring the “substance” of adverse information, which the decision-maker considers may bear upon the decision to be made, to an applicant’s attention: Plaintiff M61/2010 v Commonwealth (2010) 243 CLR 319; 272 ALR 14; [2010] HCA 41 at [91] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ. Procedural fairness may also extend to identifying for the applicant of “any adverse conclusion which has been arrived at which would not obviously be open on the known material” (Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; 34 ALD 324; 127 ALR 699 at [30]), whether that is material provided by the applicant or from other sources. For the requirements of natural justice to be satisfied it is sufficient if the “gravamen or substance of the issue or factor is brought to the applicant’s attention” or that the applicant is “on notice of its essential features”: NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 at [25], referring to Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs (2000) 103 FCR 539; 175 ALR 706; [2000] FCA 1113 at [557]. In the ordinary case, natural justice requires that an opportunity should be given to a person affected by a decision to deal with any adverse information that is “credible, relevant and significant”: see, for example, Kioa at 629 (CLR) per Brennan J. Where a statute confers a power to destroy or prejudice a person’s rights or interests, principles of natural justice regulate the exercise of that power: see Annetts v McCann (1990) 170 CLR 596; 97 ALR 177; [1990] HCA 57 at 598 (CLR) per Mason CJ, Deane and McHugh JJ. In Kioa at 609 (CLR), Brennan J stated that: when the statute does not expressly require that the principles of natural justice be observed, the court construes the statute on the footing that “the justice of the common law will supply the omission of the legislature”. The true intention of the legislation is thus ascertained.

Similarly, in Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1; 195 ALR 502; [2003] HCA 6 at [37], Gleeson CJ observed that procedural fairness is not an abstract concept; it is essentially practical and the concern is to avoid practical injustice. © 2016 THOMSON REUTERS

223

s 51A

Migration Act 1958

[51A.60]

[51A.60] In relation to the matters it deals with The declaration that the subdivision is taken to be an exhaustive statement of the requirements of the natural justice hearing rule is qualified by the words “in relation to the matters it deals with”: Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; 267 ALR 204; [2010] HCA 23 at [35] per French CJ, Gummow, Hayne, Crennan and Kiefel JJ. This means that, insofar as common law rules of procedural fairness are codified under this subdivision, the codification only applies to the subject “matter” the subdivision “deals with” (that is, ss 52 – 64 and ss 494A – 494D). Where the subdivision does not “deal with” a certain subject “matter”, common law rules of procedural fairness continue to apply.

KEY CASE [51A.80]

Natural justice hearing rule is not qualified or excluded in relation to offshore visa applicants In Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; 267 ALR 204; [2010] HCA 23 the High Court considered s 51A of the Act. Ms Saeed, a citizen of Pakistan, was outside Australia and applied for a Skilled – Independent visa (Subclass 175), on the basis of being a cook. As part of the application, Ms Saeed provided documents that she had worked at a restaurant in Rawalpindi. An Australian immigration officer in Pakistan investigated Ms Saeed’s claims and discovered that no employee records were kept on the premises of the restaurant and that no woman had ever worked in the kitchen. On the basis of this information, the delegate advised Ms Saeed that her evidence about her work was false and misleading, and refused to grant the visa. The High Court considered the terms of ss 51A and 57 (which deal with the provisions of certain information to applicants) and concluded that the natural justice hearing rule is excluded only insofar as it concerns onshore visa applicants, and is not excluded in relation to visa applicants who are not in Australia: at [56] per French CJ, Gummow, Hayne, Crennan and Kiefel JJ. The natural justice hearing rule applies to visa applicants offshore, and therefore the delegate was required to provide Ms Saeed with an opportunity to answer the adverse material. [51A.100] In relation to the matters it deals with In Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; 267 ALR 204; [2010] HCA 23 (Saeed), the High Court considered the scope of the expression “in relation to the matters it deals with” and the various cases which had previously interpreted this phrase. French CJ, Gummow, Hayne, Crennan and Kiefel JJ endorsed (and found “plainly correct”) the conclusions reached by: • Lindgren J in NAQF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 130 FCR 456; [2003] FCA 781 at 475 (FCR) that the expression “the matters it deals with” in s 357A(1) requires a search to be made of the operative provisions within Div 5 for a provision “dealing with” a “relevant matter”. The plural form of “matters” suggests that the inquiry might be directed to a number of such provisions: at [38]; and • French J in WAID v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 220 at [58] that s 422B (the equivalent section to s 357A) requires “exploration in terms of its construction and identification of the ‘matters’ to which it applies”: at [58]. To place the High Court’s judgment in Saeed in context, it is necessary to have regard to some earlier decisions. In VXDC v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 146 FCR 562; [2005] FCA 1338 (VXDC), the Full Court of the Federal Court expressed the view that s 51A of the Act operated to exclude the common law natural justice hearing rule 224

Migration Law

[51A.100]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 52

altogether: at [30]. Subsequently, in Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; 231 ALR 412; [2006] FCAFC 61 (Lay Lat), the Full Court of the Federal Court expressed its agreement with the observations made in VXDC at [30]: at [65]–[68]. However, in Antipova v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 151 FCR 480; [2006] FCA 584 (Antipova), Gray J, sitting alone, expressed disagreement with the court’s judgment in VXDC and did not accept that the judgment in Lay Lat was “plainly correct”, and therefore declined to follow that decision: at [96]–[98]. In Saeed, the Full Court of the Federal Court stated that it was not open to Gray J in Antipova not to follow Lay Lat, and expressed its view that Lay Lat was correct: at [42]–[46]. However, in allowing the appeal in Saeed, the High Court, although not expressing any view as to the correctness of either Lay Lat or Antipova, clearly adopted the ratio decidendi of Gray J in Antipova by asserting “the declaration in s 51A(1), that the subdivision is to be taken as an exhaustive statement of the requirements of the natural justice hearing rule, is qualified by the words ‘in relation to the matters it deals with’”. 52

Communication with Minister (1) A visa applicant or interested person must communicate with the Minister in the prescribed way. [Subs (1) am Act 60 of 1994, s 20(a)]

(2) The regulations may prescribe different ways of communicating and specify the circumstances when communication is to be in a particular way. For this purpose, a way of communicating includes any associated process for authenticating identity. [Subs (2) am Act 58 of 2001, s 3 and Sch 2 item 3]

(3) If the applicant or interested person purports to communicate anything to the Minister in a way that is not the prescribed way, the communication is taken not to have been received unless the Minister in fact receives it. [Subs (3) am Act 60 of 1994, s 20(a)]

(3A) A visa applicant must tell the Minister the address at which the applicant intends to live while the application is being dealt with. [Subs (3A) insrt Act 58 of 2001, s 3 and Sch 3 item 1]

(3B) If the applicant proposes to change the address at which he or she intends to live for a period of 14 days or more, the applicant must tell the Minister the address and the period of proposed residence. [Subs (3B) insrt Act 58 of 2001, s 3 and Sch 3 item 1]

(3C) If, in accordance with the regulations, 2 or more non-citizens apply for visas together, notifications given to any of them about the application are taken to be given to each of them. Note 1: If the Minister gives a person a document by a method specified in section 494B, the person is taken to have received the document at the time specified in section 494C in respect of that method. Note 2: Section 494D deals with giving documents to a person’s authorised recipient. [Subs (3C) am Act 85 of 2008, s 3 and Sch 4 item 1; insrt Act 58 of 2001, s 3 and Sch 3 item 1]

(4) In this section, interested person means a person who wants, or who is requested, to give information about the applicant to the Minister. [Subs (4) insrt Act 60 of 1994, s 20(b)] [S 52 am Act 85 of 2008; Act 58 of 2001, s 3 and Sch 3 item 1; former s 26T renum Act 60 of 1994, s 83; am Act 60 of 1994; insrt Act 184 of 1992, s 10]

© 2016 THOMSON REUTERS

225

s 52

Migration Act 1958

53

Delegation by Attorney-General [Repealed]

[54.20]

[S 53 rep Act 58 of 2001, s 3 and Sch 3 item 2; am Act 43 of 1996; former s 26U renum Act 60 of 1994, s 83; am Act 60 of 1994; insrt Act 184 of 1992, s 10]

54

Minister must have regard to all information in application (1) The Minister must, in deciding whether to grant or refuse to grant a visa, have regard to all of the information in the application. (2) For the purposes of subsection (1), information is in an application if the information is: (a) set out in the application; or (b) in a document attached to the application when it is made; or (c) given under section 55. (3) Without limiting subsection (1), a decision to grant or refuse to grant a visa may be made without giving the applicant an opportunity to make oral or written submissions. [Former s 26V renum Act 60 of 1994, s 83; subst Act 60 of 1994, s 22; insrt Act 184 of 1992, s 10]

SECTION 54 COMMENTARY Scope ..................................................................................................................................................... [54.20] CONCEPTS

Have regard to ....................................................................................................................................... [54.40]

[54.20] Scope Section 54(1) imposes a duty on the Minister to have regard to all information that is in an application for a visa, when deciding whether or not to grant or refuse the visa: A v Pelekanakis (1999) 91 FCR 70; 57 ALD 131; [1999] FCA 236 at [82] per Weinberg J. Section 54(2) sets out the information that is taken to be in an application. If the Minister fails to have regard to such information, this will result in the decision being invalid: Pelekanakis at [81] per Weinberg J; Singh v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 152; 194 ALR 599; [2001] FCA 389 at [52] per Sackville J.

CONCEPTS [54.40] Have regard to Pursuant to s 54(1), the Minister is to “have regard to” the information in the application – that is, to “consider” the information. However, it is not necessary to treat the information as “fundamental elements in the decision-making process”: Singh v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 152; 194 ALR 599; [2001] FCA 389 (Singh) at [52] and [57]–[59] per Sackville J. Rather, the decision-maker is required to have “realistic regard” to the information and the information is to be considered “properly in the context of” the Minister performing the statutory duty imposed on him or her. However, it does not require the Minister to accept the information as “true, to act upon it, or even ultimately to be influenced by it”: A v Pelekanakis (1999) 91 FCR 70; 57 ALD 131; [1999] FCA 236 at [82] per Weinberg J. In Singh, the Federal Court considered the words “have regard to” in the context of s 54(1) of the Act. Sackville J noted at [58]: Equally, I do not think that s 54(1) is satisfied merely by the Minister, as the decision-maker, being aware of the information in the application. The expression “have regard to” suggests a process of consideration of information. In order to consider something it is doubtless necessary to know that the thing exists, but more is needed. A decision-maker may be aware of information without paying any attention to it or giving it any consideration.

226

Migration Law

[55.40]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 56

55

Further information may be given (1) Until the Minister has made a decision whether to grant or refuse to grant a visa, the applicant may give the Minister any additional relevant information and the Minister must have regard to that information in making the decision. [Subs (1) am Act 60 of 1994, s 82 and Sch 1 item 16]

(2) Subsection (1) does not mean that the Minister is required to delay making a decision because the applicant might give, or has told the Minister that the applicant intends to give, further information. [Former s 26W renum Act 60 of 1994, s 83; am Act 60 of 1994; insrt Act 184 of 1992, s 10]

SECTION 55 COMMENTARY Scope ..................................................................................................................................................... [55.20] CONCEPTS

Additional relevant information ............................................................................................................ [55.40]

[55.20] Scope Prior to the Minister making a decision about whether or not to grant or refuse a visa, s 55 states that an applicant may give the Minister additional relevant information in relation to the application for a visa, and the Minister must have regard to that information.

CONCEPTS [55.40] Additional relevant information Under s 55, an applicant can provide the Minister with additional relevant information in addition to the information that the applicant has already provided in the visa application. The section does not treat as “additional relevant information” material which is fundamental to the making of a valid visa application. In Patel v Minister for Immigration and Citizenship [2011] FCA 1220, Robertson J considered the proposition that an applicant for a Skilled (Provisional) (Class VC) visa could change the skilled occupation nominated in the visa application form, by reliance on s 55. Robertson J stated at [58]: It is to be recalled that cl 122 specifies as a requirement to be met that the applicant must nominate a skilled occupation in the application. Further, a change of mind as to the skilled occupation nominated does not, in my view, answer the statutory description of “additional relevant information”.

56

Further information may be sought (1) In considering an application for a visa, the Minister may, if he or she wants to, get any information that he or she considers relevant but, if the Minister gets such information, the Minister must have regard to that information in making the decision whether to grant or refuse the visa. [Subs (1) am Act 60 of 1994, s 82 and Sch 1 item 17]

(2) Without limiting subsection (1), the Minister may invite, orally or in writing, the applicant for a visa to give additional information in a specified way. [Former s 26X renum Act 60 of 1994, s 83; am Act 60 of 1994; insrt Act 184 of 1992, s 10]

© 2016 THOMSON REUTERS

227

s 56

Migration Act 1958

[56.20]

SECTION 56 COMMENTARY Scope ..................................................................................................................................................... [56.20] CONCEPTS

May get information that he or she considers relevant ....................................................................... [56.40] Minister must have regard to information ........................................................................................... [56.60] KEY CASES

Natural justice hearing rule and procedural fairness ........................................................................... [56.80] Minister may get information by any means ..................................................................................... [56.100] It is a matter for the Minister’s discretion to determine the weight to be given to information to which he or she must have regard ............................................................................................................. [56.120] PRACTICE POINT

Method by which invitation given ..................................................................................................... [56.140]

[56.20] Scope Section 56(1) gives the Minister the discretionary power to obtain information that he or she considers relevant to the grant or refusal of a visa. However, if the Minister does obtain such information, he or she must have regard to it. Section 56(2) provides the Minister with the discretionary power to invite an applicant, either orally or in writing, to “give” additional information. The written invitation must be in accordance with s 58. This section is essentially in the same terms as s 359 and s 424A and these sections have been used in the interpretation of this provision: SZCTH v Minister for Immigration (No 2) [2004] FMCA 284 at [16] per Driver FM; SZQQU v Minister for Immigration [2014] FCCA 425 at [41] per Lloyd-Jones J.

CONCEPTS [56.40] May get information that he or she considers relevant The words “may get information that he or she considers relevant” in s 56(1) confer a general power and do not restrict or limit the Minister’s powers in any way, other than in the requirement that the Tribunal “must have regard to that information in making the decision”: see Minister for Immigration and Citizenship v SZKTI (2009) 238 CLR 489; 258 ALR 434; [2009] HCA 30 at [37] per French CJ, Heydon, Crennan, Kiefel and Bell JJ (in relation to s 424 which is the equivalent provision to s 56). [56.60] Minister must have regard to information In Singh v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 152; 194 ALR 599; [2001] FCA 389, the Federal Court considered the words “have regard to” in the context of s 54(1) of the Act. Sackville J noted at [58]: Equally, I do not think that s 54(1) is satisfied merely by the Minister, as the decision-maker, being aware of the information in the application. The expression “have regard to” suggests a process of consideration of information. In order to consider something it is doubtless necessary to know that the thing exists, but more is needed. A decision-maker may be aware of information without paying any attention to it or giving it any consideration.

In SZOAU v Minister for Immigration and Citizenship [2010] FMCA 606 at [19], Nicholls FM stated that the above comments of Sackville J are applicable to the same words that appear in s 424 (the equivalent provision to s 56). In SZRLO v Minister for Immigration and Citizenship [2013] FCA 825, Barker J considered the words “have regard to” in s 424(1). Barker J held at [49] that, to comply with the requirements 228

Migration Law

[56.120]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 56

of that section, “the Tribunal must engage in ‘an active intellectual process’ in which information obtained pursuant to s 424(1) receives the Tribunal’s ‘genuine’ consideration” (citing NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51; [2005] FCAFC 134 at [46]; Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248; 274 ALR 438; [2010] FCAFC 145).

KEY CASES [56.80] Natural justice hearing rule and procedural fairness In Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; 267 ALR 204; [2010] HCA 23, the High Court considered s 51A of the Act. Ms Saeed, a citizen of Pakistan, was outside Australia and applied for a Skilled – Independent visa (Subclass 175), on the basis of being a cook. As part of the application, Ms Saeed provided documents that she had worked at a restaurant in Rawalpindi. An Australian immigration officer in Pakistan investigated Ms Saeed’s claims and discovered that no employee records were kept on the premises of the restaurant and that no woman had ever worked in the kitchen. On the basis of this information, the delegate advised Ms Saeed that her evidence about her work was false and misleading, and refused to grant the visa. In relation to the interaction between ss 51A and 56, French CJ, Gummow, Hayne, Crennan and Kiefel JJ stated at [40]: The power in s 56, to invite an applicant to give further information, may be used to further procedural fairness but it does not mandate procedures which may be taken as a substitute for the requirements of the rule. Section 51A is not addressed to s 56.

[56.100] Minister may “get” information by any means In Minister for Immigration and Citizenship v SZKTI (2009) 238 CLR 489; 258 ALR 434; [2009] HCA 30 (SZKTI), the High Court considered s 424 (the equivalent provision to s 56). In that matter, the respondent had applied for a protection visa. In support of the application, the visa applicant provided the former Refugee Review Tribunal with a letter from a local church elder which contained a telephone number. During the course of a hearing before the Tribunal, the Tribunal telephoned the elder. At the relevant time, s 424(3) of the Act required that any invitation to a person to give additional information had to be in writing. The Full Court of the Federal Court held that the Tribunal’s exercise of jurisdiction miscarried because its “invitation” (by telephone) to the elder of the local church was not in writing. The High Court overturned the Full Court of the Federal Court’s decision on appeal. The High Court confirmed that s 424(1) (the equivalent to s 56(1)) did not preclude a Tribunal seeking information from a person by telephone. French CJ, Heydon, Crennan, Kiefel and Bell JJ stated at [45] that: s 424(1) puts into statutory form a power to obtain information by asking questions. This is an obvious power to give to an inquisitorial body. Subject to not interfering with the liberty of another, making an enquiry with no power to compel an answer is not an unlawful activity. No adverse consequences flow against the applicant for review if the applicant, or any other person questioned, fails to co-operate or to give the information sought.

Therefore, since the tribunal has the general power to “get” information under s 424(1), which is distinct and separate to the specific power to “invite” in writing the giving of information under s 424(2), the Tribunal had the power to get information from a person by telephone: SZKTI at [47]. [56.120]

It is a matter for the Minister’s discretion to determine the weight to be given to information to which he or she must have regard In the absence of any statutory or contextual indication of the weight to be given to factors to which a decision-maker must have regard, it is generally for him or her to determine the © 2016 THOMSON REUTERS

229

s 57

Migration Act 1958

[56.140]

appropriate weight to be given to them: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; 66 ALR 299; [1986] HCA 40 at 41 (CLR) per Mason J. In this regard, a court cannot turn a review of an administrative decision into a review of the merits of the decision. Accordingly, proceedings for judicial review should not overzealously scrutinise a decision-maker’s reasons. Those reasons are meant to inform only: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; 136 ALR 481; [1996] HCA 6 at 272 (CLR) per Brennan CJ, Toohey, McHugh and Gummow JJ; SZRLO v Minister for Immigration and Citizenship [2013] FCA 825 at [49].

PRACTICE POINT [56.140] Method by which invitation given Pursuant to s 56(2), the Minister may invite a person to give information. Neither the Act nor the Regulations contain any requirements about how the Minister is to invite a person to give information orally. A written invitation under s 56(2) must be in accordance with the requirements specified in s 58. 57

Certain information must be given to applicant (1) In this section, relevant information means information (other than non-disclosable information) that the Minister considers: (a) would be the reason, or part of the reason: (i) for refusing to grant a visa; or (ii) for deciding that the applicant is an excluded fast track review applicant; and (b) is specifically about the applicant or another person and is not just about a class of persons of which the applicant or other person is a member; and (c) was not given by the applicant for the purpose of the application. Note: Excluded fast track review applicant is defined in subsection 5(1). [Subs (1) am Act 135 of 2014, s 3 and Sch 4 items 9 and 10, with effect from 18 Apr 2015]

(2) The Minister must: (a) give particulars of the relevant information to the applicant in the way that the Minister considers appropriate in the circumstances; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to consideration of the application; and (c) invite the applicant to comment on it. [Subs (2) am Act 106 of 2014, s 3 and Sch 6 item 1, with effect from 1 Jan 2015]

(3) [Repealed] [Subs (3) rep Act 106 of 2014, s 3 and Sch 6 item 2, with effect from 1 Jan 2015] [S 57 am Act 135 of 2014; Act 106 of 2014; former s 26Y renum Act 60 of 1994, s 83; subst Act 60 of 1994, s 23; insrt Act 184 of 1992, s 10]

SECTION 57 COMMENTARY Scope ..................................................................................................................................................... [57.20] CONCEPTS

Relevant information ............................................................................................................................. [57.40] Would be the reason, or part of the reason .......................................................................................... [57.60] Could, would or will be the reason ...................................................................................................... [57.80]

230

Migration Law

[57.60]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 57

Information that is not just about a class of persons of which the applicant or other person is a member ....................................................................................................................................... [57.100] As far as is reasonably practicable ..................................................................................................... [57.120] KEY CASES

Natural justice hearing rule is not qualified or excluded in relation to offshore visa applicants .... Information .......................................................................................................................................... Country information ............................................................................................................................ Practice point .......................................................................................................................................

[57.140] [57.160] [57.180] [57.200]

[57.20] Scope When the Minister is considering whether or not to grant or refuse a visa, he or she must give the applicant relevant information and invite the applicant to comment on that information. Section 57 is an “exhaustive statement” of the circumstances in which an onshore visa applicant is entitled to be informed of, and to have an opportunity to comment on relevant information. The section is not an exhaustive statement of the natural justice hearing rule in relation to offshore applicants: Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; 267 ALR 204; [2010] HCA 23. The terms of s 57 mirror the procedures of the Tribunal, in s 359A, and the in s 424A: Gajjar v Minister for Immigration and Citizenship (2013) 87 ALJR 549; [2013] HCA 13 at [18] per Kiefel J; Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572; 84 ALD 325; [2004] FCAFC 264 at [127] per Merkel and Hely JJ. This provision also mirrors s 120 in relation to the cancellation of visas.

CONCEPTS [57.40] Relevant information The expression “relevant information” is defined in s 57(1). In SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; 81 ALJR 1190; [2007] HCA 26 (SZBYR) at [18], Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ considered the term “information” contained in s 424A relating to the former Refugee Review Tribunal (which mirrors the procedures in this section) and stated that the meaning of “information” refers to the “existence of evidentiary material or documentation, not to the existence of doubts, inconsistencies or the absence of evidence”, or the Tribunal’s disbelief. “Information” does not include the following: • the “subjective appraisals, thought processes or determinations” of the decision-maker: VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471; [2004] FCAFC 123; (VAF) at [24] per Finn and Stone JJ; SZBYR at [18]; Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; 273 ALR 223; [2011] HCA 1 (SZGUR) at [9]; • “identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the [decision-maker] in weighing up the evidence by reference to those gaps, etc”: VAF at [24] per Finn and Stone JJ; SZBYR at [18]; SZGUR at [9]; and • doubts, inconsistencies or the absence of evidence: SZBYR at [18]. [57.60] Would be the reason, or part of the reason For the purposes of s 57(1)(a), the relevant information must be information that the Minister considers “would be the reason, or part of the reason, for cancelling a visa”. This phrase mirrors the same phrase contained in s 359A and s 424A. In this context, and taking into account the common law concept of procedural fairness, the “relevant information” will usually be © 2016 THOMSON REUTERS

231

s 57

Migration Act 1958

[57.80]

information that is adverse to the person. However, not all adverse information will need to be put to a person. Adverse information (or any other type of information) which would not be the reason, or part of the reason, for affirming the decision, does not need to be put to a person in accordance with this section. This is because, even though the information may be adverse, it has not been relied upon in any way by the Minister to refuse to grant the visa. Therefore, it does not need to be put to a person for comment. In SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; 81 ALJR 1190; [2007] HCA 26, the High Court considered the phrase “would be the reason, or part of the reason, for affirming the decision that is under review” in the context of s 424A and noted at [17]: The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place. The Tribunal does not operate in a statutory vacuum, and its role is dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act. The use of the future conditional tense (“would be”) rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance – and independently – of the Tribunal’s particular reasoning on the facts of the case. Here, the appropriate criterion was to be found in s 36(1) of the Act, being the provision under which the appellants sought their protection visa. The “reason, or part of the reason, for affirming the decision that is under review” was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention. When viewed in that light, it is difficult to see why the relevant passages in the appellant’s statutory declaration would itself be “information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review”. Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants’ claims to be persons to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review.

[57.80] Could, would or will be the reason In Minister for Immigration and Citizenship v SZLFX (2009) 238 CLR 507; 258 ALR 448; [2009] HCA 31 at [25], French CJ, Heydon, Crennan, Kiefel and Bell JJ endorsed the comments of Heerey J in MZXBQ v Minister for Immigration and Citizenship (2008) 166 FCR 483; [2008] FCA 319 that s 424A speaks of information which “would”, not which “could” or “might” be the reason or part of the reason for affirming the decision under review. [57.100]

Information that “is not just about a class of persons of which the applicant or other person is a member” In VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 at [14], Gyles and Conti JJ said that the reference to the class of persons in s 424A(3)(a) (which mirrors s 57(1)(b)) is designed to underline the specificity required by precluding any argument that reference to a class would be taken as a reference to all individuals falling within it. [57.120] As far as is reasonably practicable Under s 57(2)(b), the Minister is required to ensure that “as far as reasonably practicable”, a visa applicant understands why certain information is relevant. This requires the Minister to communicate to an applicant “the importance of the information and its potential impact upon the applicant case for a visa” and the communication must be in “a way which promotes that understanding as far as is possible”: Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; 267 ALR 204; [2010] HCA 23 at [20] per French CJ, Gummow, Hayne, Crennan and Kiefel JJ. 232

Migration Law

[57.180]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 57

KEY CASES [57.140]

Natural justice hearing rule is not qualified or excluded in relation to offshore visa applicants In Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; 267 ALR 204; [2010] HCA 23, the High Court considered s 51A of the Act. Ms Saeed, a citizen of Pakistan, was outside Australia and applied for a Skilled – Independent visa (Subclass 175), on the basis of being a cook. As part of the application, Ms Saeed provided documents that she had worked at a restaurant in Rawalpindi. An Australian immigration officer in Pakistan investigated Ms Saeed’s claims and discovered that no employee records were kept on the premises of the restaurant and that no woman had ever worked in the kitchen. On the basis of this information, the delegate advised Ms Saeed that her evidence about her work was false and misleading, and refused to grant the visa. The High Court considered the terms of ss 51A and 57 (which deals with the provisions of certain information to applicants) and concluded that the natural justice hearing rule is excluded only insofar as it concerns onshore visa applicants, and is not excluded in relation to visa applicants who are not in Australia: at [56] per French CJ, Gummow, Hayne, Crennan and Kiefel JJ. The natural justice hearing rule applies to visa applicants offshore, and therefore the delegate was required to provide Ms Saeed with an opportunity to answer the adverse material. [57.160] Information In SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; 81 ALJR 1190; [2007] HCA 26, the High Court considered the meaning of the term “information” as it applied to s 424A of the Act (which mirrors s 57 of the Act). The appellants had initially argued that the Tribunal had breached s 424A by failing to put to them certain information in regard to inconsistencies between the statutory declaration provided by an appellant in connection with the protection visa application and oral evidence to the Tribunal. The argument in the High Court focused on whether s 424A required the Tribunal to put to the appellants for comment relevant passages in the statutory declaration itself, from which the inconsistencies arose. Relevantly, Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ found at [17] that the appellants had not demonstrated that the statutory declaration would be the reason, or part of the reason, for affirming the decision under review. Further, if the reason for affirming the decision was the Tribunal’s disbelief of the appellant’s evidence arising from inconsistencies, then disbelief and inconsistencies did not constitute “information” for the purpose of s 424A(1): at [18]. [57.180] Country information Independent information, commonly referred to as “country information”, will fall within the exclusion in s 57(1)(b) (which is the mirror provision to s 359A(4)(a) and s 424A(3)(a)), provided it is not specifically about the applicant or another person. In VHAJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 80; 75 ALD 609; [2003] FCAFC 186 at [50], Kenny J summarised the concept of “country information” and why it ordinarily falls within the exclusion contained in s 424A(3)(a) (the mirror provision to s 57(1)(b)): It is usual for the Tribunal to have regard to information about the social, political, religious and other conditions prevailing in a country relevant to an applicant’s claim for refugee status, with a view to assessing whether other individuals who share his or her racial, religious, political, social or other attributes suffer treatment of a kind amounting to persecution on Convention grounds in that country. Sometimes information of this kind concerns religious practice, government elections, educational opportunities or other matters. This kind of country information is relevant to the Tribunal’s decision-making task only because the applicant falls within the class of persons who share an attribute, © 2016 THOMSON REUTERS

233

s 58

Migration Act 1958

[57.200]

which, according to his or her claim, gives rise to a well-founded fear of persecution in the country concerned. In this circumstance, the information does not cease to be information “just about” a class of persons simply because it can also be characterised as information about religious practice, government elections or educational opportunities. It has been repeatedly held that information of this kind falls within [s] 424A(3)(a) of the Act.

[57.200] Practice point An invitation under s 57 must be sent in accordance with s 58. 58

Invitation to give further information or comments (1) If a person is: (a) invited under section 56 to give additional information; or (b) invited under section 57 to comment on information; the invitation is to specify whether the additional information or the comments may be given: (c) in writing; or (d) at an interview between the applicant and an officer; or (e) by telephone. [Subs (1) am Act 60 of 1994, s 24]

(2) Subject to subsection (4), if the invitation is to give additional information or comments otherwise than at an interview, the information or comments 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) Subject to subsection (5), if the invitation is to give information or comments at an interview, the interview is to take place: (a) at a place specified in the invitation, being a prescribed place or if no place is prescribed, a reasonable place; 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, that period may be extended by the Minister for a prescribed further period, and then the response is to be made in the extended period. (5) If a person is to respond to an invitation at an interview at a time within a prescribed period, that time may be changed by the Minister to: (a) a later time within that period; or (b) a time within that period as extended by the Minister for a prescribed further period; and then the response is to be made at an interview at the new time. [Former s 26Z renum Act 60 of 1994, s 83; am Act 60 of 1994; insrt Act 184 of 1992, s 10]

SECTION 58 COMMENTARY Scope ..................................................................................................................................................... [58.20] CONCEPTS

Prescribed period ................................................................................................................................... [58.40] Prescribed place ..................................................................................................................................... [58.60]

234

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

[58.60]

s 61

[58.20] Scope Section 58 sets out the requirements for inviting a person to comment on information under s 56 and/or s 57 of the Act.

CONCEPTS [58.40] Prescribed period For the purposes of s 58(2), (3)(b), (4) and (5), the prescribed periods are set out in reg 2.15 of the Regulations. [58.60] Prescribed place For the purposes of s 58(3)(a), no place is prescribed. 59

Interviews (1) An applicant must make every reasonable effort to be available for, and attend, an interview. (2) Section 58 and this section do not mean that the Minister cannot obtain information from an applicant by telephone or in any other way. [Former s 26ZA renum Act 60 of 1994, s 83; insrt Act 184 of 1992, s 10]

60

Medical examination (1) If the health or physical or mental condition of an applicant for a visa is relevant to the grant of a visa, the Minister may require the applicant to visit, and be examined by, a specified person, being a person qualified to determine the applicant’s health, physical condition or mental condition, at a specified reasonable time and specified reasonable place. [Subs (1) am Act 60 of 1994, s 82 and Sch 1 item 18]

(2) An applicant must make every reasonable effort to be available for, and attend, an examination. [Subs (2) am Act 60 of 1994, s 82 and Sch 1 item 19] [Former s 26ZB renum Act 60 of 1994, s 83; am Act 60 of 1994; insrt Act 184 of 1992, s 10 Cross-reference: Ministerial Directions: Required Health Assessments (Direction No. 47): The purpose of this Direction is to ensure that applicants applying for a visa are requested to undergo, where appropriate, the medical tests prescribed by public interest criteria 4005–4007 of Sch 4 of the Migration Regulations 1994.]

61

Prescribed periods If this Subdivision requires or allows the regulations to prescribe a period or other time limit relating to a step in considering an application for a visa, the regulations may prescribe different limits relating to that step and specify when that specified limit is to apply, which, without limiting the generality of the power, may be to: (a) applications for a visa of a specified class; or [Para (a) am Act 60 of 1994, s 82 and Sch 1 item 20]

(b) applications in specified circumstances; or (c) applicants in a specified class of persons; or [Para (c) am Act 60 of 1994, s 82 and Sch 1 item 21]

(d) applicants in a specified class of persons in specified circumstances. [Para (d) am Act 60 of 1994, s 82 and Sch 1 item 21] [Former s 26ZC renum Act 60 of 1994, s 83; am Act 60 of 1994; insrt Act 184 of 1992, s 10]

© 2016 THOMSON REUTERS

235

s 61

Migration Act 1958

62

Failure to receive information not require action (1) If an applicant for a visa: (a) is invited to give additional information; and (b) does not give the information before the time for giving it has passed; the Minister may make a decision to grant or refuse to grant the visa without taking any action to obtain the additional information. [Subs (1) am Act 60 of 1994, s 82 and Sch 1 item 22]

(2) If an applicant for a visa: (a) is invited to comment on information; and (b) does not give the comments before the time for giving them has passed; the Minister may make a decision to grant or refuse to grant the visa without taking any further action to obtain the applicant’s views on the information. [Subs (2) am Act 60 of 1994, s 82 and Sch 1 item 23] [Former s 26ZD renum Act 60 of 1994, s 83; am Act 60 of 1994; insrt Act 184 of 1992, s 10]

63

When decision about visa may be made (1) Subject to sections 39 (criterion limiting number of visas), 57 (give applicant information), 84 (no further processing), 86 (effect of limit on visas) and 94 (put aside under points system) and subsections (2) and (3) of this section, the Minister may grant or refuse to grant a visa at any time after the application has been made. [Subs (1) subst Act 60 of 1994, s 25(a)]

(2) The Minister is not to refuse to grant a visa after inviting the applicant to give information and before whichever of the following happens first: (a) the information is given; (b) the applicant tells the Minister that the applicant does not wish to give the information or does not have it; (c) the time in which the information may be given ends. [Subs (2) am Act 60 of 1994, s 25(b)]

(3) The Minister is not to refuse to grant a visa after inviting the applicant to comment on information and before whichever of the following happens first: (a) the comments are given; (b) the applicant tells the Minister that the applicant does not wish to comment; (c) the time in which the comments are to be given ends. [Subs (3) am Act 60 of 1994, s 25(b)]

(4) The Minister is not to refuse to grant a visa after giving a notice under section 64 and before whichever of the following happens first: (a) the applicant pays the visa application charge; or (b) the applicant tells the Minister that the applicant does not intend to pay the visa application charge; or (c) the end of the period set out in the notice. [Subs (4) insrt Act 27 of 1997, s 3 and Sch 1 item 23] [S 63 am Act 27 of 1997; former s 26ZE renum Act 60 of 1994, s 83; am Act 60 of 1994; insrt Act 184 of 1992, s 10]

64

Notice that visa application charge is payable (1) This section applies to a valid application for a visa if the Minister, after considering the application, has made an assessment that: (a) the health criteria for it (if any) have been satisfied; and

236

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 65

(b) the other criteria for it, prescribed by this Act or the regulations, have been satisfied. (2) If this section applies and an amount of visa application charge is unpaid, the Minister must give the applicant written notice stating that: (a) an amount of visa application charge is payable within the prescribed period; and (b) subject to the regulations providing otherwise, a visa cannot be granted unless that amount is paid; and (c) the Minister may refuse to grant the visa unless that amount is paid within the prescribed period. [Subs (2) subst Act 27 of 1997, s 3 and Sch 1 item 24]

(3) If, in accordance with the regulations, 2 or more non-citizens apply for a visa together, the Minister may give notices under this section in the same document. [Subs (3) subst Act 27 of 1997, s 3 and Sch 1 item 24]

(4) [Repealed] [Subs (4) rep Act 100 of 1995, s 3 and Sch 1 item 3] [S 64 am Act 27 of 1997, s 3 and Sch 1 item 24; Act 100 of 1995; former s 26ZEA renum Act 60 of 1994, s 83; insrt Act 60 of 1994, s 26]

SUBDIVISION AC – GRANT OF VISAS (SS 65–69) [Subdiv AC heading subst Act 60 of 1994, s 27; insrt Act 184 of 1992, s 10]

65

Decision to grant or refuse to grant visa (1) Subject to sections 84 and 86, after considering a valid application for a visa, the Minister: (a) if satisfied that: (i) the health criteria for it (if any) have been satisfied; and (ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and (iii) the grant of the visa is not prevented by section 40 (circumstances when granted), 91W (evidence of identity and bogus documents), 91WA (bogus documents and destroying identity documents), 91WB (applications for protection visas by members of same family unit), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and (iv) any amount of visa application charge payable in relation to the application has been paid; is to grant the visa; or (b) if not so satisfied, is to refuse to grant the visa. Note 1: Section 84 allows the Minister to suspend the processing of applications for visas of a kind specified in a determination made under that section. Section 86 prevents the Minister from granting a visa of a kind specified in a determination under section 85 if the number of such visas granted in a specified financial year has reached a specified maximum number. Note 2: See also section 195A, under which the Minister has a non-compellable power to grant a visa to a person in detention under section 189 (whether or not the person has applied for the visa). Subdivision AA, this Subdivision, Subdivision AF and the regulations do not apply to the Minister’s power under that section.

© 2016 THOMSON REUTERS

237

s 65

Migration Act 1958

[65.20]

Note 3: Decisions to refuse to grant protection visas to fast track review applications must generally be referred to the Immigration Assesment Authority: see Part 7AA. [Subs (1) am Act 4 of 2016, s 3 and Sch 1 item 22, with effect from 10 Mar 2016; Act 35 of 2015, s 3 and Sch 1 item 3, with effect from 18 Apr 2015; Act 135 of 2014, s 3 and Sch 7 items 1–3, with effect from 16 Dec 2014; Act 79 of 2005, s 3 and Sch 1 item 7; Act 34 of 1999, s 3 and Sch 1 item 5; Act 27 of 1997, s 3 and Sch 1 item 25; Act 100 of 1995, s 3 and Sch 1 item 4; Act 60 of 1994, s 28(a)–(d)]

(2) To avoid doubt, an application put aside under section 94 is not taken for the purposes of subsection (1) to have been considered until it has been removed from the pool under subsection 95(3). [Subs (2) am Act 60 of 1994, s 28(e) and (f)]

(3) [Repealed] [Subs (3) rep Act 60 of 1994, s 28(g)] [S 65 am Act 4 of 2016; Act 35 of 2015; Act 135 of 2014; Act 79 of 2005; Act 34 of 1999; Act 27 of 1997; Act 100 of 1995; former s 26ZF renum Act 60 of 1994, s 83; am Act 60 of 1994; insrt Act 184 of 1992, s 10 Cross-reference: Ministerial Directions: • Assessing the genuine temporary entrant criterion for Student visa applications (Direction No. 53): This Direction provides guidance to decision makers on the factors that should be considered in weighing up the various factors that an applicant for a “Student (Temporary) Class TU” visa must satisfy. • Consideration of Protection Visa applications (Direction No. 56): The purpose of this Direction is to guide decision-makers performing functions or exercising powers under ss 65, 414 or 415 when considering an application for the grant of a Protection Visa and when reviewing a decision to refuse to grant a Protection Visa.]

SECTION 65 COMMENTARY Scope ..................................................................................................................................................... [65.20] CONCEPTS

Satisfied ................................................................................................................................................. [65.40] Health criteria and other criteria prescribed ......................................................................................... [65.60]

[65.20] Scope Section 65 governs the decision to grant or refuse to grant a visa and is the provision which gives practical effect to the prescription of criteria under s 31(3): Plaintiff M47-2012 v Director General of Security (2012) 292 ALR 243; 86 ALJR 1372; [2012] HCA 46 at [170] per Hayne J. If the Minister is “satisfied” that the health and other criteria for the visa have been satisfied, and that the grant of the visa is not otherwise prevented by ss 40, 500A, 501 or any other provision of the Act, then the Minister “is to grant the visa”: s 65(1)(a). If not so satisfied, the Minister “is to refuse to grant the visa”: s 65(1)(b).

CONCEPTS [65.40] Satisfied Although the grant of, or the refusal to grant, a visa is subject to the Minister’s satisfaction of the visa criteria and other requirements being met, the provision imposes a mandatory obligation on the Minister, rather than a discretion. That is, if the Minister is satisfied, the visa must be granted while, on the other hand, if the Minister is not so satisfied, the visa must be refused. The satisfaction that is required of the Minister is therefore a component of the condition precedent to the discharge of the obligation imposed by s 65: Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293; 58 ALD 321; 170 ALR 553; 74 ALJR 775; 21(7) Leg Rep 11; [2000] HCA 19 at [41] per Gleeson CJ, Gaudron, Gummow, and Hayne JJ (Kirby J agreeing). In other words, the Minister’s state of satisfaction is a “jurisdictional fact” that necessarily precedes the obligation to discharge the power: Minister for Immigration and 238

Migration Law

[65.60]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 66

Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12; 78 ALJR 992; [2004] HCA 32 at [37] per Gummow and Hayne JJ (Gleeson CJ and Callinan J agreeing; Kirby J dissenting, but not on this point). Accordingly, the relevant decision required to be made by the Minister under s 65 is not whether, for instance, a person is a refugee under s 36, but whether the Minister is satisfied that the requirements of the visa have been met: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; 136 ALR 481; [1996] HCA 6 at 274–275 (CLR) per Brennan CJ, Toohey, McHugh and Gummow JJ (Kirby J agreeing). [65.60] “Health criteria” and “other criteria prescribed” The necessary prerequisites to the grant of a visa are referred to throughout the Act and Regulations as visa “criteria”. Pursuant to s 31(3), the Regulations may prescribe the necessary criteria for each class of visa, with the exception of those visas created by ss 33 – 35 and 38 – 38A. The criteria for these latter visas are contained in the Act only. Regulation 2.03(1) provides that, for the purposes of s 31(3), the prescribed “criteria” for the grant of a visa of a particular class are the “primary criteria” or, if relevant, the “secondary criteria” set out in the relevant Part of Sch 2 to the Regulations. In other words, a visa applicant need only satisfy either the primary or the secondary criteria (provided the secondary criteria are relevant), but not both: Kim v Minister for Immigration and Multicultural Affairs [2001] FCA 1063 at [9] per Lindgren J. The criteria in Sch 2 to the Regulations also incorporate, by numerical reference to the relevant class of visa, further criteria contained in Schs 3-5: reg 2.03(2); Plaintiff M47-2012 v Director General of Security (2012) 292 ALR 243; 86 ALJR 1372; [2012] HCA 46 at [57] per French CJ. Whether or not there are any “health criteria” will therefore depend on what criteria are prescribed under the provisions noted above. 65A Period within which Minister must make decision on protection visas [Repealed] [S 65A rep Act 135 of 2014, s 3 and Sch 7 item 4, with effect from 16 Dec 2014; insrt Act 141 of 2005, s 3 and Sch 1 item 1]

66

Notification of decision (1) When the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way. [Subs (1) am Act 60 of 1994, s 29(a)]

(2) Notification of a decision to refuse an application for a visa must: (a) if the grant of the visa was refused because the applicant did not satisfy a criterion for the visa—specify that criterion; and (b) if the grant of the visa was refused because a provision of this Act or the regulations prevented the grant of the visa—specify that provision; and (c) unless subsection (3) applies to the application—give written reasons (other than non-disclosable information) why the criterion was not satisfied or the provision prevented the grant of the visa; and (d) if the applicant has a right to have the decision reviewed under Part 5 or 7 or section 500—state: (i) that the decision can be reviewed; and (ii) the time in which the application for review may be made; and (iii) who can apply for the review; and

© 2016 THOMSON REUTERS

239

s 66

Migration Act 1958

[66.20]

(iv) where the application for review can be made; and in the case of a fast track reviewable decision—state that the decision has been referred for review under Part 7AA and that it is not subject to review under Part 5 or Part 7; and (f) in the case of a fast track decision that is not a fast track reviewable decision—state that the decision is not subject to review under Part 5, 7 or 7AA.

(e)

[Subs (2) am Act 135 of 2014, s 3 and Sch 4 item 14, with effect from 18 Apr 2015; Act 60 of 1994, s 29(c)–(f)]

(3) This subsection applies to an application for a visa if: (a) the visa is a visa that cannot be granted while the applicant is in the migration zone; and (b) this Act does not provide, under Part 5 or 7, for an application for review of a decision to refuse to grant the visa. [Subs (3) insrt Act 60 of 1994, s 29(g)]

(4) Failure to give notification of a decision does not affect the validity of the decision. (5) This section does not apply to a decision under section 501, 501A, 501B or 501F to refuse to grant a visa to a person. Note: Sections 501C and 501G provide for notification of a decision under section 501, 501A, 501B or 501F to refuse to grant a visa to a person. [Subs (5) insrt Act 114 of 1998, s 3 and Sch 1 item 4] [S 66 am Act 135 of 2014; Act 114 of 1998; former s 26ZG renum Act 60 of 1994, s 83; am Act 60 of 1994; insrt Act 184 of 1992, s 10]

SECTION 66 COMMENTARY Scope ..................................................................................................................................................... [66.20] CONCEPTS

Prescribed way ...................................................................................................................................... [66.40] Failure to comply with section does not affect the validity of the decision ...................................... [66.60] KEY CASES

Validity of notification that does not specify all places that an application for review can be made, as required by s 66(2)(d)(iv) ............................................................................................................ [66.80] If proper notification of the delegate’s decision is not given, time does not commence so as to preclude an applicant from applying to the Tribunal for review ................................................................. [66.100] Failure to specify time to apply for merits review ............................................................................ [66.120] Renotification not possible where valid notification under s 66 already sent .................................. [66.140] Practice point ....................................................................................................................................... [66.160]

[66.20] Scope According to s 66, the Minister must notify an applicant of his or her decision whether to grant or to refuse a visa. If the Minister decides to refuse to grant a visa, the notification must set out the matters listed in s 66(2). In Chan Ta Srey v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 308; [2003] FCA 1292 at [45] Gray J states that the purpose of s 66(2): is to ensure that the legislative scheme in relation to rights of review of decisions operates fairly. The intention is that not only should an unsuccessful applicant for a visa be told that his or her application has been unsuccessful, but he or she should also be given enough information to pursue the right of review if disposed to do so. That information includes the criterion or criteria that the applicant failed to satisfy, any legislative provision that prevented the grant of a visa, in most cases the reasons why the 240

Migration Law

[66.80]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 66

criterion was not satisfied or the provision prevented the grant of the visa, and the steps required to make an application to review the decision. Without all of this information, an unsuccessful applicant would be disadvantaged in the operation of the scheme, in which the time limits are strict and in which there exists no power, discretionary or otherwise, to enlarge them.

CONCEPTS [66.40] Prescribed way Pursuant to s 66(1) the Minister must notify a person of the decision to either grant or refuse a visa in the “prescribed way”. Regulation 2.16 sets out the ways that are prescribed. If the Minister decides to refuse to grant a visa, then pursuant to reg 2.16(3), the Minister is to notify the person in accordance with s 494B of the Act (see s 494B for further commentary). [66.60]

Failure to comply with section does not affect the validity of the decision Section 66(4) states that a failure to notify an applicant in accordance with s 66 does not invalidate the decision to grant or refuse to grant the applicant a visa. In addition, non-compliance with s 66 will not amount to any jurisdictional error in the decision made under s 65: Chan Ta Srey v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 308; [2003] FCA 1292 at [5]–[52] per Gray J; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212; 201 ALR 327; [2003] HCA 56 at [48] per Gleeson CJ, Gummow and Heydon JJ.

KEY CASES [66.80]

Validity of notification that does not specify all places that an application for review can be made, as required by s 66(2)(d)(iv) In Hasan v Minister for Immigration and Citizenship (2010) 184 FCR 523; 114 ALD 602; [2010] FCA 375 (Hasan), the applicant had filed an application for review nearly five months after notification of the primary decision of the delegate. The former Migration Review Tribunal held that it did not have jurisdiction to deal with an application filed outside the prescribed period, as set out in s 347. The appellants argued that no effective notice of the delegate’s decision, under s 66, had been given, and sought an order compelling the Tribunal to hear and determine the application for review. The appellants argued that the notification under s 66 was defective because it did not state all the places where an application for review could be made, as required by s 66(2)(d)(iv). North J found that proper notification had not been given and that, therefore, the time within which to file an application to review the delegate’s decision had not commenced. Similarly, in SZOFE v Minister for Immigration and Citizenship (2010) 185 FCR 129; 269 ALR 343; [2010] FCAFC 79, the appellant claimed that the notification refusing her protection visa was invalid because it did not state all the places where application for review could be made, as required by s 66(2)(d)(iv). The notice gave details of some of the former Refugee Review Tribunal registries. Relevantly, it gave the details of the registry in Sydney where the appellant lived and where she successfully lodged her application for review. Buchanan and Nicholas JJ disagreed with the conclusion reached by North J in Hasan in relation to compliance with s 66(2)(d)(iv): at [64]. The Full Court of the Federal Court held that a failure to list every place where an application for review could be made did not amount to a jurisdictional error in every case and that, in this case, s 66(2)(d)(iv) had been satisfied because the appellant knew where she could apply for review. Buchanan and Nicholas JJ stated at [67]: © 2016 THOMSON REUTERS

241

s 66

Migration Act 1958

[66.100]

However, in our view there cannot be an adequate assessment of whether the requirements of s 66 of the Act have been breached, or of whether the jurisdiction of the RRT was not engaged, without some examination of the consequences of the alleged non-compliance. The judgment of the High Court in SZIZO has expressly drawn attention to the need to evaluate the practical consequences of the failure to comply with procedural obligations under the Act. It is no longer possible, if it ever was, to speak of “imperative obligations” under the Act without specific attention to the purposes they are intended to serve. If the asserted failure to comply with s 66 is tested in that manner then the proposition that in all cases potential applications for review must be advised of all places at which an application might be lodged, or to which it might be sent, cannot be sustained. The consequences of an alleged lack of information need to be assessed in a particular case.

[66.100]

If proper notification of the delegate’s decision is not given, time does not commence so as to preclude an applicant from applying to the Tribunal for review Where proper notification of the delegate’s decision is not given in accordance with the requirements of s 66, time does not commence so as not to preclude an applicant from applying to the Tribunal for review (see s 347 or s 412): see, for example, Hasan v Minister for Immigration and Citizenship (2010) 184 FCR 523; 114 ALD 602; [2010] FCA 375 at [29], [58]; and SZOFE v Minister for Immigration and Citizenship (2010) 185 FCR 129; 269 ALR 343; [2010] FCAFC 79 at [61]–[63]. [66.120] Failure to specify time to apply for merits review In Chan Ta Srey v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 308; [2003] FCA 1292, the applicant claimed that he had never been validly notified under s 66 because the notification did not specify the time within which he could make an application for review, as required by s 66(2)(d)(ii). Gray J held at [54] that since the notification did not state accurately the time within which the application for review may be made, the notification did not comply with s 66(2)(d)(ii) and therefore the obligations imposed by s 66 were not discharged. [66.140]

Renotification not possible where valid notification under s 66 already sent Once an applicant has been validly notified of the delegate’s decision under s 66, it is not possible for any renotification to occur. Therefore, where an applicant is sent more than one letter notifying him or her of the decision, time to apply to the Tribunal will begin from the first letter that is validly sent. In Minister for Immigration and Citizenship v Abdul Manaf (2009) 111 ALD 437; [2009] FCA 963, Ms Abdul Manaf lodged an application for a further business visa, which the delegate refused. The delegate sent the notification letter and decision to the address provided by Ms Abdul Manaf. After having sent the notification letter and decision to that address, Ms Abdul Manaf informed the Department that she had changed her address. A second notification letter, with the decision, was then resent, not to the new address, but to an address that did not exist. Both the first and second notification letters were returned to the Department. Once Ms Abdul Manaf was made aware of the decision, she applied to the former Migration Review Tribunal for review. The Tribunal found that the applicant was validly notified by the first letter sent, and therefore it did not have jurisdiction to consider the application as it had been filed outside the prescribed period provided for under s 347. Ms Abdul Manaf applied for judicial review of the Tribunal’s decision. At first instance, O’Dwyer FM held that the Tribunal had erred in finding that Ms Abdu Manaf had been validly notified by the first notification letter. This is because the second renotification letter invalidated the first notification and, because the second renotification letter had been sent to the wrong address, it did not satisfy the legislative scheme. Therefore Ms Abdul Manaf had not been 242

Migration Law

[67.40]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 68

validly notified. On appeal, Sundberg J held that the first notification letter attaching the decision was validly sent, and that therefore the time to apply to the Tribunal for review had begun at the time that letter was sent. Since the first notification was validly sent, it was not possible to renotify Ms Abdul Manaf as there could not be more than one timetable for the commencement of the review application to the Tribunal. [66.160] Practice point The Minister must notify a person in accordance with s 494B if he or she decides to refuse to grant a visa. If the person has an “authorised recipient”, as defined under s 494D, the Minister is to send the notification to the “authorised recipient”. Section 494C sets out the time when a person is taken to have received the notification. Notification under this provision governs the commencement periods for making an application for merits review in the Tribunal (see s 347 or s 412). 67

Grant and refusal of visa—how and when (1) The following decisions are taken to be made by the Minister causing a record to be made of the decision: (a) a decision to grant a visa; (b) a decision to refuse to grant a visa. (2) The record must state the day and time of its making. (3) The decision is taken to have been made on the day and at the time the record is made. (4) The Minister has no power to vary or revoke the decision after the day and time the record is made. (5) Failure to comply with subsection (2) does not affect the validity of the decision or the operation of subsection (4). [S 67 subst Act 30 of 2014, s 3 and Sch 1 item 4; former s 26ZJ renum Act 60 of 1994, s 83; insrt Act 184 of 1992, s 10]

SECTION 67 COMMENTARY Scope ..................................................................................................................................................... [67.20] Practice point ......................................................................................................................................... [67.40]

[67.20] Scope Section 67 provides that a visa is granted, or refused, by a record of the decision being made. Therefore, a visa cannot be granted from a date earlier than the day on which its grant has been recorded. Accordingly, while the grant of a visa can be post-dated, it cannot be backdated: Sochorova v Minister for Immigration [2010] FMCA 33 at [9] per Wilson FM. [67.40] Practice point Although s 67(1) provides that a visa is granted at the time a record of it has been made, some visas are taken to be granted by force of deeming provisions. For instance, the visas provided for in ss 33, 34 and 35. 68

When visa is in effect (1) Subject to subsection (2), a visa has effect as soon as it is granted.

© 2016 THOMSON REUTERS

243

s 68

Migration Act 1958

[68.20]

(2) A visa may provide that it comes into effect at the beginning of a day, being a day after its grant: (a) specified in the visa; or (b) when an event, specified in the visa, happens. [Subs (2) subst Act 60 of 1994, s 33]

(3) A visa can only be in effect during the visa period for the visa. [Subs (3) insrt Act 60 of 1994, s 33]

(4) A bridging visa (the reactivated bridging visa), held by a non-citizen, that has ceased to be in effect under subsection 82(3), will come into effect again during the visa period for the visa if: (a) the non-citizen does not hold a substantive visa that is in effect; and (b) either: (i) the non-citizen does not hold any other bridging visa; or (ii) the reactivated bridging visa is determined, in accordance with the regulations, to be the most beneficial of the bridging visas held by the applicant. [Subs (4) insrt Act 60 of 1994, s 33] [Former s 26ZK renum Act 60 of 1994, s 83; am Act 60 of 1994; insrt Act 184 of 1992, s 10]

SECTION 68 COMMENTARY Scope ..................................................................................................................................................... [68.20] CONCEPTS

Visa period ............................................................................................................................................. [68.40] Practice points ....................................................................................................................................... [68.60]

[68.20] Scope Section 68(1) states that a visa will have effect as soon as it is granted. This is subject to s 68(2), which permits the visa itself to specify alternative dates for it to be effective.

CONCEPTS [68.40] Visa period Section 5(1) defines “visa period” to mean the period beginning when the visa is granted and ending when the visa ceases to be in effect (or, in the case of a bridging visa, when the visa ceases to be in effect otherwise than under s 82(3)). Further, s 77 provides that a non-citizen holds a visa at all times during the “visa period” in question. [68.60] Practice points A visa can cease to have effect in a number of ways. For instance, it may be cancelled, it may expire, the non-citizen may depart Australia without a right of re-entry, or the holder may obtain a subsequent visa that supplants the previous visa held. Generally speaking, each Part of Sch 2 to the Regulations makes provision for when a particular subclass of visa will be in effect. For example, for a Subclass 461 (New Zealand Citizen Family Relationship) (Temporary) visa, cl 461.511 provides that it is a “[t]emporary visa permitting the holder to travel to, and enter and remain in, Australia for a period of 5 years from the date of grant”.

244

Migration Law

[69.40]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 69

69

Effect of compliance or non-compliance (1) Non-compliance by the Minister with Subdivision AA or AB or section 494D in relation to a visa application does not mean that a decision to grant or refuse to grant the visa is not a valid decision but only means that the decision might have been the wrong one and might be set aside if reviewed. [Subs (1) am Act 58 of 2001, s 3 and Sch 3 item 3; Act 60 of 1994, s 30(1)]

(2) If the Minister deals with a visa application in a way that complies with Subdivision AA, AB and this Subdivision, the Minister is not required to take any other action in dealing with it. [S 69 am Act 58 of 2001; former s 26ZKA renum Act 60 of 1994, s 83; former s 26ZH reloc and renum Act 60 of 1994, s 30(2); am Act 60 of 1994; insrt Act 184 of 1992, s 10]

SECTION 69 COMMENTARY Scope ..................................................................................................................................................... [69.20] KEY CASES

If the Minister breaches s 47(3) and considers an invalid visa application, s 69(1) will render any decision made in respect of that application as being valid ..................................................................... [69.40]

[69.20] Scope Section 69(1) preserves the validity of a decision by the Minister, at least to allow merits review, notwithstanding any non-compliance with either subdiv AA or AB, or s 494D: see, for example, Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495; 62 ALD 513; [2000] FCA 906 at [81], [83] per Gyles J (Spender J agreeing; Marshall J in dissent). Conversely, s 69(1), by inference, avoids any suggestion that compliance with subdiv AA or AB, or s 494D is a condition precedent to the valid exercise of power to grant, or to refuse to grant, a visa: Minister for Immigration and Multicultural Affairs v A [1999] FCA 1679; (1999) 168 ALR 594 at [122] per Finkelstein J.

KEY CASES [69.40]

If the Minister breaches s 47(3) and considers an invalid visa application, s 69(1) will render any decision made in respect of that application as being valid Section 47(3) provides that the Minister is not to consider an application that is not a valid application. On the other hand, s 69(1) provides that non-compliance by the Minister with subdiv AA (which includes s 47), AB, or s 494D in relation to a visa application, “does not mean that a decision to grant or refuse to grant the visa is not a valid decision but only means that the decision might have been the wrong one and might be set aside if reviewed”. In Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495; 62 ALD 513; [2000] FCA 906 at [81], Gyles J (with whom Spender J agreed, Marshall J in dissent) held that a decision of a delegate made in respect of an otherwise invalid application, although it would involve a contravention of s 47(3), is rendered valid by the operation of s 69(1). Gyles J reasoned: It is thus clear that s 69 relieves against invalidity based upon a breach of s 47. It is entirely reasonable that this should be so. The Minister is bound not to consider an invalid application, and should not do so. If the Minister does so, however, why should the applicant be penalised for, or affected by, the Minister’s mistake? If a visa has been granted, but the application had been invalid on some ground, it © 2016 THOMSON REUTERS

245

s 72

Migration Act 1958

[69.40]

would be unreasonable to have it declared invalid in proceedings thereafter, when the remedy had been in the Minister’s own hands at the time. … Viewed in this way, s 69 prevents approbation and reprobation by the executive to the disadvantage of the applicant.

Further, Gyles J (Spender J agreeing, Marshall J in dissent) rejected any suggestion that the wording of s 65(1) was inconsistent with the above conclusion. His Honour stated at [83]: It seems to be that the words “after considering a valid application for a visa” in that section do not form part of the conditions of exercise of the power, but are, rather, the assumption upon which the section proceeds. This is not surprising, since it would be assumed that the Minister would obey s 47, which is directed to the very point. As non-compliance with s 47 is plainly covered by s 69, I do not find any inconsistency between it and s 65, which is directed to those elements … which must be met before a visa can be granted.

SUBDIVISION AE – EVIDENCE OF VISAS (SS 70–71B) [REPEALED] [Subdiv AE, ss 70–71B, rep Act 34 of 2016, s 3 and Sch 1 item 5, with effect from 24 Mar 2016] [Subdiv AE heading insrt Act 184 of 1992, s 10]

SUBDIVISION AF – BRIDGING VISAS (SS 72–76) [Subdiv AF heading insrt Act 184 of 1992, s 10]

72

Interpretation (1) In this Subdivision: eligible non-citizen means a non-citizen who: (a) has been immigration cleared; or (b) is in a prescribed class of persons; or (c) the Minister has determined to be an eligible non-citizen.

[Subs (1) am Act 100 of 1995, s 3 and Sch 1 item 5]

(2) The Minister may make a determination under paragraph (1)(c) that a non-citizen is an eligible non-citizen if: (a) the non-citizen was an unlawful non-citizen when he or she entered the migration zone; and (b) the non-citizen made a valid application for a protection visa after he or she arrived in Australia; and (c) the non-citizen has been in immigration detention for a period of more than 6 months after the application for a protection visa was made; and (d) the Minister has not made a primary decision in relation to the application for a protection visa; and (e) the Minister thinks that the determination would be in the public interest. [Subs (2) insrt Act 100 of 1995, s 3 and Sch 1 item 5]

(3) The power to make a determination under paragraph (1)(c) may only be exercised by the Minister personally. [Subs (3) insrt Act 100 of 1995, s 3 and Sch 1 item 5]

(4) If the Minister makes a determination under paragraph (1)(c), he or she is to cause to be laid before each House of the Parliament a statement that: (a) sets out the determination; and (b) sets out the reasons for the determination, referring in particular to the Minister’s reasons for thinking that his or her actions are in the public interest. [Subs (4) insrt Act 100 of 1995, s 3 and Sch 1 item 5]

246

Migration Law

[73.20]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 73

(5) A statement made under subsection (4) is not to include: (a) the name of any non-citizen who is the subject of the determination; or (b) any information that may identify the non-citizen; or (c) if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned—the name of that other person, or any information that may identify the person. [Subs (5) insrt Act 100 of 1995, s 3 and Sch 1 item 5]

(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 determination is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or (b) if the determination is made between 1 July and 31 December (inclusive) in a year—1 January in the following year. [Subs (6) insrt Act 100 of 1995, s 3 and Sch 1 item 5]

(7) The Minister does not have a duty to consider whether to make a determination under paragraph (1)(c) in respect of any non-citizen, whether he or she is requested to do so by the non-citizen or any other person, or in any other circumstances. [Subs (7) insrt Act 100 of 1995, s 3 and Sch 1 item 5] [S 72 am Act 100 of 1995; former s 26ZN renum Act 60 of 1994, s 83; subst Act 60 of 1994, s 34; insrt Act 184 of 1992, s 10]

73

Bridging visas If the Minister is satisfied that an eligible non-citizen satisfies the criteria for a bridging visa as prescribed under subsection 31(3), the Minister may grant a bridging visa permitting the non-citizen to remain in, or to travel to, enter and remain in Australia: (a) during a specified period; or (b) until a specified event happens. [S 73 am Act 134 of 2001, s 3 and Sch 1 item 6; former s 26ZO renum Act 60 of 1994, s 83; am Act 60 of 1994, s 82 and Sch 1 item 26; insrt Act 184 of 1992, s 10]

SECTION 73 COMMENTARY Scope ..................................................................................................................................................... [73.20] CONCEPTS

Eligible non-citizen ............................................................................................................................... [73.40] Enter and remain in Australia ............................................................................................................... [73.60] Specified period ..................................................................................................................................... [73.80] KEY CASES

Application for an extension of time is an application for judicial review under cl 050.212(4)(a) .... [73.100] Sections 73 and 501E(1) and bar on making application for a bridging application ...................... [73.120] PRACTICE POINTS

Criteria for a bridging visa ................................................................................................................. [73.140]

[73.20] Scope Under s 73, the Minister may grant an eligible non-citizen a bridging visa if the Minister is satisfied that the eligible non-citizen meets the criteria. © 2016 THOMSON REUTERS

247

s 73

Migration Act 1958

[73.40]

Subdivision AF of the Act and Div 2.5 and Sch 1 Pt 3 of the Regulations set out the provisions for the grant of a bridging visa. Subclasses 010 – 070 in Sch 2 of the Regulations contain the criteria for the various bridging visas. Generally, the purpose of a bridging visa is to ensure the lawfulness of a non-citizen’s presence in Australia while the non-citizen’s application for a substantive visa is being processed, or while the non-citizen is making arrangements to depart Australia: Minister of State for Immigration and Multicultural Affairs v Harjanto [1981] FCA 703 at p 10 per Branson J; Explanatory Memorandum to the Migration Reform Bill 1992 Migration (Delayed Visa Applications) Tax Bill 1992 (Cth) at [28]–[29].

CONCEPTS [73.40] Eligible non-citizen The expression “eligible non-citizen” is defined in s 72(1) to mean a non-citizen who: • has been immigration cleared; • is in a prescribed class of persons, which is contained in reg 2.20 of the Regulations; or • the Minister has determined to be an eligible non-citizen. [73.60] Enter and remain in Australia The expression “enter and remain in Australia” is defined in s 5 of the Act. [73.80] Specified period The expression “specified period” is defined in s 28 of the Act.

KEY CASES [73.100]

Application for an extension of time is an application for judicial review under cl 050.212(4)(a) In Minister for Immigration and Citizenship v Khandakar [2011] FCAFC 22, Mr Khandakar filed an application for review in the High Court’s original jurisdiction which was outside the time limits prescribed in s 486A of the Act. Therefore, he required an extension of time. An application for an extension of time needed to be heard and granted first before the substantive application could be dealt with. In the meantime, Mr Khandakar applied for a bridging visa Subclass 050 on the basis of his application before the High Court. A criterion of a Subclass 050 visa is cl 050.212(4)(a), which is satisfied if a person has “applied for judicial review of a decision in relation to a substantive visa”. A delegate of the Minister refused to grant the bridging visa on the basis that cl 050.212(4)(a) was not satisfied because the application before the High Court was an application for an extension of time, and not an application for judicial review. Mr Khandakar applied for review of this decision in the former Migration Review Tribunal (Tribunal) and the Tribunal affirmed the delegate’s decision. Mr Khandakar applied for judicial review of the Tribunal’s decision and the Federal Magistrates Court (in Khandakar v Minister for Immigration and Citizenship [2010] FMCA 611) held that the application to the High Court satisfied the requirement in cl 050.212(4)(a). The Minister appealed the decision of the Federal Magistrates Court on the grounds that the application for an extension of time in the High Court was not an application for judicial review for the purposes of cl 050.212(4)(a). This is because the phrase “has applied for” in cl 050.212(4)(a) should be construed as meaning “has made a competent application for”. No competent application for judicial review had been made because the application for an extension of time had not been granted. 248

Migration Law

[73.140]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 74

Emmett, Stone and Foster JJ held that the reasoning of the primary judge was correct and that the application to the High Court satisfied the requirement in cl 050.212(4)(a) that the visa applicant has applied for judicial review of a decision in respect of a substantive visa: at [47]. Emmett, Stone and Foster JJ stated at [46]–[47]: The approach that should be adopted in construing a statutory provision such as clause 050.212(4)(a) is to consider the relevant language in context at the outset and not only after some perceived ambiguity has arisen. That context includes the object of the clauses of schedule 2 in specifying criteria for the grant of visas, including Subclass 050 visas. The clear object of the grant of a sub-class 050 visa, on the basis of that provision, is that a non-citizen who wishes to challenge, by way of a proceeding for judicial review, a decision to refuse to grant a substantive visa, will be permitted to remain in Australia, and not be subject to compulsory removal under the Act, until there has been final judicial determination of that challenge. Clause 050.212(4)(a) makes no reference to the bona fides of the proceeding for judicial review or to the merits or prospects of success of such a proceeding. The only requirement is that such a proceeding has been commenced and is still on foot. Clause 050.212(4)(a) should not be given an overly technical construction that involves reading it as though it is only where there has been a competent application, or one that is not precluded by s 486A(1) or s 477(1), that the requirement will be satisfied. The reasoning of the primary judge was correct. The High Court Application satisfies the requirement that the Visa Applicant has applied for judicial review of a decision in respect of a substantive visa.

[73.120]

Sections 73 and 501E(1) and bar on making application for a bridging application In Wong v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCA 422, the applicant was barred from making an application for a bridging visa because of s 501E(1), which provides that a person is not allowed to make an application for a visa if the Minister has made a decision under s 501 to refuse to grant a visa to that person. The applicant claimed that even though he was not allowed to make an application for a bridging visa, s 73 permitted the Minister to grant him such a visa. Lindgren J referred to reg 2.25 which deals with granting a bridging visa without application, and relevantly states that the regulation applies where a non-citizen has not been barred from making an application for a bridging visa. Lindgren J held that when ss 73, 501E and reg 2.25 were read together, s 73 did not empower the Minister to grant the applicant a bridging visa: at [37].

PRACTICE POINTS [73.140] Criteria for a bridging visa Schedule 2 of the Regulations prescribes the criteria for the following classes of bridging visas: • Bridging R (Class WR) visa – Subclass 070 • Bridging F (Class WF) visa – Subclass 060 • Bridging B (Class WB) visa – Subclass 020 • Bridging A (Class WA) visa – Subclass 010 • Bridging C (Class WC) visa - Subclass 030 • Bridging D (Class WD) visa – Subclasses 040 and 041 • Bridging E (Class WE) visa – Subclasses 050 and 051 74

Further applications for bridging visa (1) Subject to subsection (2), if:

© 2016 THOMSON REUTERS

249

s 74

Migration Act 1958

(a)

an eligible non-citizen who is in immigration detention makes an application for a bridging visa; and (b) the Minister refuses to grant the visa; the eligible non-citizen may make a further application for a bridging visa. (2) Unless the further application for a bridging visa is made in prescribed circumstances, the further application may be made not earlier than 30 days after: (a) if the eligible non-citizen did not make an application for review of the decision to refuse to grant the visa—the refusal; or (b) if the eligible non-citizen made an application for such review—the application is finally determined. [Former s 26ZP renum Act 60 of 1994, s 83; subst Act 60 of 1994, s 35; insrt Act 184 of 1992, s 10]

75

When eligible non-citizen in immigration detention granted visa (1) If: (a) an eligible non-citizen who is in immigration detention makes an application for a bridging visa of a prescribed class; and (b) the Minister does not make a decision, within the prescribed period, to grant or refuse to grant the bridging visa; the non-citizen is taken to have been granted a bridging visa of the prescribed class on prescribed conditions (if any) at the end of that period. (2) The period in subsection (1) may be extended in relation to a particular application by agreement between the applicant and the Minister. [Former s 26ZPA renum Act 60 of 1994, s 83; insrt Act 60 of 1994, s 35]

76

Bridging visa not affect visa applications (1) The fact that a non-citizen holds a bridging visa does not prevent or affect: (a) an application by the non-citizen for a visa of another class; or (b) the grant of such a visa.

[Subs (1) am Act 60 of 1994, s 82 and Sch 1 items 27 and 28]

(2) To avoid doubt, the holding by a non-citizen of a bridging visa is not to be taken to be, for the purposes of an application for a visa of another class, the holding of a visa. [Subs (2) am Act 60 of 1994, s 82 and Sch 1 item 29] [Former s 26ZQ renum Act 60 of 1994, s 83; am Act 60 of 1994; insrt Act 184 of 1992, s 10]

SUBDIVISION AG – OTHER PROVISIONS ABOUT VISAS (SS 77–84) [Subdiv AG heading insrt Act 184 of 1992, s 10]

77

Visas held during visa period To avoid doubt, for the purposes of this Act, a non-citizen holds a visa at all times during the visa period for the visa. [Former s 26ZR renum Act 60 of 1994, s 83; am Act 60 of 1994, s 36; insrt Act 184 of 1992, s 10]

78

Children born in Australia (1) If: (a) a child born in Australia is a non-citizen when born; and (b) at the time of the birth: (i) one of the child’s parents holds a visa (other than a special purpose visa); and

250

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 82

(ii)

the other parent is, under section 83, included in that visa or does not hold a visa (other than a special purpose visa); the child is taken to have been granted, at the time of the birth, a visa of the same kind and class and on the same terms and conditions (if any) as that visa. [Subs (1) am Act 60 of 1994, s 37(a) and (b)]

(2) If: (a) a child born in Australia is a non-citizen when born; and (b) at the time of the birth, each of the child’s parents holds a visa (other than a special purpose visa); the child is taken to have been granted, at the time of the birth, visas of the same kind and class and on the same terms and conditions (if any) as each of those visas. [Subs (2) am Act 60 of 1994, s 37(a) and (c)]

(3) Subdivisions AA, AB, AC (other than section 68) and AH do not apply in relation to visas granted under this section. [Subs (3) am Act 34 of 2016, s 3 and Sch 1 item 6, with effect from 24 Mar 2016; insrt Act 60 of 1994, s 37(d)] [S 78 am Act 34 of 2016; former s 26ZS renum Act 60 of 1994, s 83; am Act 60 of 1994; insrt Act 184 of 1992, s 10]

79

Effect on visa of leaving Australia If the holder of a visa leaves Australia the holder may only re-enter Australia because of the visa if: (a) the visa is permission for the re-entry; and (b) the visa is in effect on re-entry. [Para (b) am Act 60 of 1994, s 82 and Sch 1 item 30] [Former s 26ZT renum Act 60 of 1994, s 83; am Act 60 of 1994; insrt Act 184 of 1992, s 10]

80

Certain persons taken not to leave Australia A person is taken not to leave Australia if the person goes outside the migration zone on a vessel and: (a) does not go (other than for transit purposes) to a foreign country; and (b) remains a passenger, or a member of the crew, of that vessel while outside the migration zone; and (c) is outside the migration zone for no longer than the prescribed period. [Former s 26ZU renum Act 60 of 1994, s 83; subst Act 60 of 1994, s 38; insrt Act 184 of 1992, s 10]

81

Extent of visa authority (1) A visa to travel to Australia during a period is not permission to travel to it outside that period. (2) A visa to enter Australia within a period is not permission to so enter outside that period. (3) A visa to remain in Australia during a period is not permission to so remain outside that period. [Former s 26ZV renum Act 60 of 1994, s 83; insrt Act 184 of 1992, s 10]

82

When visas cease to be in effect (1) A visa that is cancelled ceases to be in effect on cancellation.

[Subs (1) am Act 60 of 1994, s 39(a) and (b)]

© 2016 THOMSON REUTERS

251

s 82

Migration Act 1958

(2) A substantive visa held by a non-citizen ceases to be in effect if another substantive visa (other than a special purpose visa) for the non-citizen comes into effect. [Subs (2) subst Act 60 of 1994, s 39(c)]

(2AA) Despite subsection (2): (a) a maritime crew visa held by a non-citizen does not cease to be in effect if a substantive visa for the non-citizen that is of a class specified by the Minister, by legislative instrument, for the purposes of this subsection comes into effect; and (b) a substantive visa held by a non-citizen that is of a class specified by the Minister, by legislative instrument, for the purposes of this subsection does not cease to be in effect if a maritime crew visa for the non-citizen comes into effect. [Subs (2AA) insrt Act 73 of 2007, s 3 and Sch 1 item 9]

(2A) A temporary visa held by a non-citizen ceases to be in effect if an enforcement visa for the non-citizen comes into effect. [Subs (2A) insrt Act 160 of 1999, s 3 and Sch 1 item 24]

(3) A bridging visa held by a non-citizen ceases to be in effect if another visa (other than a special purpose visa or a maritime crew visa) for the non-citizen comes into effect. [Subs (3) am Act 73 of 2007, s 3 and Sch 1 item 10; insrt Act 60 of 1994, s 39(c)]

(4) A visa ceases to be in effect when the holder leaves Australia because of a deportation order made under section 200. (5) A visa to travel to and enter Australia (whether also a visa to remain in Australia) during a particular period or until a particular date ceases to be in effect at the end of that period or on that date unless the holder of the visa: (a) has entered Australia in that period or on or before that date; and (b) is in Australia at the end of that period or on that date. [Subs (5) am Act 60 of 1994, s 39(e)]

(6) A visa to travel to and enter Australia (whether also a visa to remain in Australia) during a particular period or until a particular date ceases to be in effect if the holder leaves Australia after that period or date. [Subs (6) am Act 60 of 1994, s 39(e)]

(7) A visa to remain in Australia (whether also a visa to travel to and enter Australia) during a particular period or until a particular date ceases to be in effect at the end of that period or on that date. [Subs (7) am Act 60 of 1994, s 39(f)]

(7A) A bridging visa permitting the holder to remain in, or to travel to, enter and remain in, Australia until a specified event happens, ceases to be in effect the moment the event happens. [Subs (7A) insrt Act 85 of 2008, s 3 and Sch 3 item 24]

(8) A visa to remain in, but not re-enter, Australia that is granted to a non-citizen in Australia ceases to be in effect if the holder leaves Australia. (9) This section does not affect the operation of other provisions of this Act under which a visa ceases to be in effect (such as sections 173 and 174). (10) For the purposes of subsections (5), (6) and (7), particular date includes: (a) the date an event, specified in the visa, happens; or

252

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 84

(b) the date the holder ceases to have a status specified in the visa or the regulations. [Subs (10) insrt Act 60 of 1994, s 39(h)] [S 82 am Act 85 of 2008; Act 73 of 2007; Act 160 of 1999; former s 26ZW renum Act 60 of 1994, s 83; am Act 60 of 1994; insrt Act 184 of 1992, s 10 Cross-reference: Legislative Instruments: IMMI 09/058 — Migration Act 1958 – Specification – Substantive Visa Classes: This Instrument revokes the Migration Act 1958 – Specification under paragraphs 82(2AA)(a) and (b) – Substantive Visa Classes – August 2007 and specifies substantive visa classes that may be held concurrently with the Maritime Crew visa (MCV).]

83 Certain persons taken to be included in spouse, de facto partner or parent’s visa (1) Where: (a) a person’s name is included in the passport or other document of identity of the person’s spouse or de facto partner; and (b) the person accompanies his or her spouse or de facto partner to Australia (whether before or after the commencement of this section); the person shall be taken to be included in any visa granted to the spouse or de facto partner evidence of which is endorsed on the passport or other document of identity if, and only if, the person’s name is included in the endorsement. Note: Subsection 5(1) defines de facto partner and spouse. For the purposes of this section, those definitions apply only in relation to visas granted on or after 1 July 2009: see the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Act 2008. This section as in force before the amendment of this Act by that Act continues to apply in relation to visas granted before 1 July 2009. [Subs (1) am Act 144 of 2008, s 3 and Sch 10 items 25 and 26; Act 184 of 1992, s 38 and Sch]

(2) Where: (a) the name of a child is included in the passport or other document of identity of a parent of the child; and (b) the child accompanies that parent to Australia (whether before or after the commencement of this section); the child shall be taken to be included in any visa granted to the parent evidence of which is endorsed on the passport or other document of identity if, and only if, the child’s name is included in the endorsement. Note: Subsection 5(1) defines child and parent. For the purposes of this section, those definitions apply only in relation to visas granted on or after 1 July 2009: see the Same-Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Act 2008. [Subs (2) am Act 144 of 2008, s 3 and Sch 10 item 27; Act 184 of 1992, s 38 and Sch] [S 83 am Act 144 of 2008, s 3 and Sch 10 item 25; former s 27 renum Act 60 of 1994, s 83; am Act 184 of 1992; former s 11H renum Act 59 of 1989, s 35; insrt Act 59 of 1989, s 6]

84

Minister may suspend processing of visa applications (1) The Minister may, by legislative instrument, determine that dealing with applications for visas (including protection visas) of a specified class is to stop until a day specified in the determination (in this section called the resumption day). [Subs (1) am Act 135 of 2014, s 3 and Sch 7 items 5–7, with effect from 16 Dec 2014]

(2) On and after the commencement of an instrument made under subsection (1), no act is to be done in relation to any application for a visa of the class concerned until the resumption day. [Subs (2) am Act 135 of 2014, s 3 and Sch 7 item 8, with effect from 16 Dec 2014; Act 58 of 2001, s 3 and Sch 2 item 4]

© 2016 THOMSON REUTERS

253

s 84

Migration Act 1958

(3) A determination under this section does not have any effect in relation to an application for a visa made by a person on the ground that he or she is the spouse, de facto partner or dependent child of: (a) an Australian citizen; or (b) the holder of a permanent visa that is in effect; or (c) a person who is usually resident in Australia and whose continued presence in Australia is not subject to a limitation as to time imposed by law. [Subs (3) am Act 135 of 2014, s 3 and Sch 7 item 9, with effect from 16 Dec 2014; Act 144 of 2008, s 3 and Sch 10 item 29; Act 27 of 1997, s 3 and Sch 2 item 2; Act 100 of 1995, s 3 and Sch 1 item 6; Act 60 of 1994, s 82 and Sch 1 item 31 (am Act 43 of 1996); Act 184 of 1992, s 38 and Sch; subst Act 175 of 1992, s 6]

(4) Nothing in this section prevents an act being done to implement a decision to grant or to refuse to grant a visa if the decision had been made before the date of the determination concerned. [Subs (4) am Act 135 of 2014, s 3 and Sch 7 item 10, with effect from 16 Dec 2014; Act 58 of 2001, s 3 and Sch 2 item 5; Act 60 of 1994, s 82 and Sch 1 item 32]

(5) For the purposes of this section, a child of a person is a dependent child if the child: (a) does not have a spouse or de facto partner; and (b) either: (i) is under 18; or (ii) is 18, 19 or 20 and is dependent on the person for: (A) financial and psychological support; or (B) physical support. [Subs (5) am Act 144 of 2008, s 3 and Sch 10 item 30; former subs (4A) renum Act 60 of 1994, s 83; insrt Act 175 of 1992, s 6]

(6) In this section: act means an act connected with performing functions or exercising powers under or for the purposes of this Act. [Subs (6) subst Act 58 of 2001, s 3 and Sch 2 item 6; former subs (5) renum Act 60 of 1994, s 83; am Act 175 of 1992, s 6] [S 84 am Act 135 of 2014; Act 144 of 2008; Act 58 of 2001; Act 27 of 1997; Act 100 of 1995; former s 28 renum Act 60 of 1994, s 83; am Act 60 of 1994; Act 184 of 1992; Act 175 of 1992; former s 11J renum Act 59 of 1989, s 35; insrt Act 59 of 1989, s 6]

SUBDIVISION AH – LIMIT ON VISAS (SS 85–91) [Subdiv AH heading subst Act 59 of 1993, s 24] [Subdiv AH insrt Act 175 of 1992, s 7]

85

Limit on visas (1) Subject to subsection (2), the Minister may, by legislative instrument, determine the maximum number of: (a) the visas (including protection visas) of a specified class; or (b) the visas (including protection visas) of specified classes; that may be granted in a specified financial year. [Subs (1) am Act 135 of 2014, s 3 and Sch 7 items 10A–12, with effect from 16 Dec 2014]

(2) Subsection (1) does not apply in relation to temporary protection visas or safe haven enterprise visas. [Subs (2) am Act 135 of 2014, s 3 and Sch 2 item 18A, with effect from 18 Apr 2015; insrt Act 135 of 2014, s 3 and Sch 7 item 12A, with effect from 16 Dec 2014] [S 85 am Act 135 of 2014; former s 28A renum Act 60 of 1994, s 83; insrt Act 175 of 1992, s 7 Cross-reference: Ministerial Directions:

254

Migration Law

[85.40]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 85

• Order for considering and disposing of visa applications under s 91 (Direction No. 49): This Direction applies to delegates performing functions or exercising powers under s 91 to consider and dispose of applications for certain visas in such order as they consider appropriate. Legislative Instruments: • IMMI 13/071 — Migration Act 1958 – Determination under section 85 – Granting of Parent and Other Family Visas in 2013/2014 Financial Year: This Instrument determines the maximum number of visas that may be granted in the financial year 2013/2014 for Parent (Migrant) (Class AX), Aged Parent (Residence) (Class BP), Other Family (Migrant) (Class BO) and Other Family (Residence) (Class BU) visas. • IMMI 14/026 — Migration Act 1958 – Determination of Granting of Protection Class XA Visas in 2013/2014 Financial Year: This Instrument operates to set the cap for the Protection (Class XA) visa. • IMMI 15/111 — Migration Act 1958 – Granting of Parent and Other Family Visas in 2015/2016 Financial Year: This Determination operates to cap all relevant visa classes to include the anticipated number of visa grants. • IMMI 15/112 — Migration Act 1958 – Determination of the fixed maximum number of specified skilled visas that may be granted in the 2015-2016 financial year 2015: This Determination operates to specify the fixed maximum number of visas that may be granted within the financial year 1 July 2015 to 30 June 2016 for Skilled Independent visas, Skilled Sponsored visas and Skilled Regional Sponsored visas.]

SECTION 85 COMMENTARY Scope ..................................................................................................................................................... [85.20] Practice point ......................................................................................................................................... [85.40]

[85.20] Scope Section 85 confers on the Minister a discretionary power to determine the maximum number of visas of a specified class, or classes, that may be granted in a particular financial year Section 85 should be read with s 86, which attaches a legal consequence to any determination made under s 85. Prior to the repeal of ss 65A, 91Y, 414A and 440A by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (MMP Act), the words “visas of a specified class” were held not to include protection visas: Plaintiff S297/2013 v Minister for Immigration and Border Protection (2014) 309 ALR 209; 88 ALJR 722; [2014] HCA 24 at [65] per Crennan, Bell, Gageler and Keane JJ (French CJ and Hayne and Kiefel JJ agreeing); Plaintiff 150/2013 v Minister for Immigration and Border Protection (2014) 309 ALR 255; 88 ALJR 735; [2014] HCA 25 at [45] per French CJ, at [90] per Hayne and Kiefel JJ (Crennan, Bell, Gageler and Keane JJ agreeing). The repeal of those provisions by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 is intended to overturn the effect of that case and to resolve the conflict between the former s 65A and s 85: see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 at [1149] – [1450]. [85.40] Practice point In Plaintiff 150/2013 v Minister for Immigration and Border Protection (2014) 309 ALR 255; 88 ALJR 735; [2014] HCA 25 at [14] French CJ posited, in obiter, that s 85 is of “doubtful application” to bridging visas (although, that decision preceded the repeal of ss 65A, 91Y, 414A and 440A by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth)).

© 2016 THOMSON REUTERS

255

s 86

Migration Act 1958

[86.20]

86

Effect of limit If: (a) there is a determination of the maximum number of visas of a class or classes that may be granted in a financial year; and (b) the number of visas of the class or classes granted in the year reaches that maximum number; no more visas of the class or classes may be granted in the year. [Former s 28B renum Act 60 of 1994, s 83; insrt Act 175 of 1992, s 7]

SECTION 86 COMMENTARY [86.20] Scope Section 86 attaches a legal consequence to any determination made under s 85 and should therefore be read together with that provision. In Plaintiff 150/2013 v Minister for Immigration and Border Protection (2014) 309 ALR 255; 88 ALJR 735; [2014] HCA 25 at [44] (which should be read with the decision in Plaintiff S297/2013 v Minister for Immigration and Border Protection (2014) 309 ALR 209; 88 ALJR 722; [2014] HCA 24), Crennan, Bell, Gageler and Keane JJ noted the effect of the combination of ss 86 and 89 where a determination under s 85 is made: Where triggered by a determination under s 85 of the maximum number of visas of a specified class that may be granted in a specified financial year, ss 86 and 89 therefore combine: to leave unaffected a valid application for a visa of that class; to leave unaffected the duty of the Minister under s 47 to consider that application; to suspend the duty of the Minister under s 65, having considered the application, to make a binary decision either to grant or refuse to grant a visa of that class; once the specified maximum number of visas has been reached, to prohibit the Minister from deciding under s 65(1)(a) to grant a visa of that class if, having considered a valid application, the Minister is satisfied of the matters set out in each of the sub-paragraphs of s 65(1)(a); and to permit the Minister still to decide under s 65(1)(b) to refuse to grant a visa of that class if, having considered a valid application, the Minister is not satisfied of all of the matters set out in the sub-paragraphs of s 65(1)(a).

87

Limit does not prevent visas for certain persons (1) Section 86 does not prevent the grant of a visa to a person who applied for it on the ground that he or she is the spouse, de facto partner or dependent child of: (a) an Australian citizen; or (b) the holder of a permanent visa that is in effect; or (c) a person who is usually resident in Australia and whose continued presence in Australia is not subject to a limitation as to time imposed by law. [Subs (1) am Act 144 of 2008, s 3 and Sch 10 item 31; Act 27 of 1997, s 3 and Sch 2 item 3; Act 60 of 1994, s 82 and Sch 1 item 33]

(2) For the purposes of this section, a child of a person is a dependent child if the child: (a) does not have a spouse or de facto partner; and (b) either: (i) is under 18; or (ii) is 18, 19 or 20 and is dependent on the person for: (A) financial and psychological support; or

256

Migration Law

[87A.20]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 87A

(B) physical support. [Subs (2) am Act 144 of 2008, s 3 and Sch 10 item 32] [S 87 am Act 144 of 2008; Act 27 of 1997; former s 28C renum Act 60 of 1994, s 83; am Act 60 of 1994; insrt Act 175 of 1992, s 7]

SECTION 87 COMMENTARY [87.20] Scope Section 87 qualifies the scope of s 86 by providing that s 86 does not prevent the grant of a visa to a person in specified circumstances. 87A Limit does not prevent the grant of visas to certain people who are unable to meet health or character requirements before the limit applies because of circumstances beyond their control If: (a) a person has applied, whether before or after the commencement of this section, for the grant of a visa; and (b) a time was or is reached when the grant of the visa to the person in a particular financial year was or is prevented by section 86; and (c) the person was requested by the Minister after that time to satisfy requirements for the grant of the visa that relate to health or character; and (d) after the making of the request referred to in paragraph (c) the person satisfies the requirements referred to in that paragraph in a financial year subsequent to the financial year in which the time referred to in paragraph (b) occurred; and (e) the grant of the visa to the person at the time when the requirements referred to in paragraph (c) are satisfied would, apart from this section, be prevented by section 86; and (f) the person was unable to satisfy the requirements referred to in paragraph (c) at a time when, apart from this section, section 86 would not have prevented the grant of the visa to the person; and (g) the Minister is satisfied that the person’s inability to satisfy the requirements referred to in paragraph (c) at a time mentioned in paragraph (e) was due to circumstances beyond the person’s control; section 86 does not prevent the grant of the visa to the person. [S 87A insrt Act 28 of 2000, s 3 and Sch 6 item 1]

SECTION 87A COMMENTARY [87A.20] Scope As with s 87, s 87A qualifies the scope of s 86 by providing that s 86 does not prevent the grant of a visa to a person in specified circumstances.

© 2016 THOMSON REUTERS

257

s 88

Migration Act 1958

[88.20]

88

Limit does not affect processing of applications Section 86’s prevention of the grant of a visa does not prevent any other action related to the application for it. [Former s 28D renum Act 60 of 1994, s 83; insrt Act 175 of 1992, s 7]

SECTION 88 COMMENTARY [88.20] Scope Section 88 further qualifies the limited scope of the prohibition created by s 86. In particular, notwithstanding any determination made under s 85, the Minister may still refuse to grant a visa if, having considered a valid visa application, the Minister is not satisfied of the matters set out in s 65(1)(a). In this way, s 88 implies that a determination under s 85 has no effect on the existence of an application for a visa of a class specified in the determination. Indeed, any such application is merely suspended: Plaintiff S297/2013 v Minister for Immigration and Border Protection (2014) 309 ALR 209; 88 ALJR 722; [2014] HCA 24 at [41], [44]–[45] per Crennan, Bell, Gageler and Keane JJ. 89

Determination of limit not to mean failure to decide The fact that the Minister has neither granted nor refused to grant a visa of a class or classes to which a determination under section 85 applies does not mean, for any purpose, that the Minister has failed to make a decision to grant or refuse to grant the visa. [Former s 28E renum Act 60 of 1994, s 83; am Act 60 of 1994, s 82 and Sch 1 item 34; insrt Act 175 of 1992, s 7]

SECTION 89 COMMENTARY [89.20] Scope As observed by Crennan, Bell, Gageler and Keane JJ in Plaintiff S297/2013 v Minister for Immigration and Border Protection (2014) 309 ALR 209; 88 ALJR 722; [2014] HCA 24 at [43], s 89 has the effect of suspending the Minister’s duty under s 65 to either grant, or refuse to grant, a visa of a class to which a determination under s 85 has been made, for the remainder of the financial year specified in the determination. The court also noted at [44] the effect of the combination of ss 86 and 89 where a determination under s 85 is made: Where triggered by a determination under s 85 of the maximum number of visas of a specified class that may be granted in a specified financial year, ss 86 and 89 therefore combine: to leave unaffected a valid application for a visa of that class; to leave unaffected the duty of the Minister under s 47 to consider that application; to suspend the duty of the Minister under s 65, having considered the application, to make a binary decision either to grant or refuse to grant a visa of that class; once the specified maximum number of visas has been reached, to prohibit the Minister from deciding under s 65(1)(a) to grant a visa of that class if, having considered a valid application, the Minister is satisfied of the matters set out in each of the sub-paragraphs of s 65(1)(a); and to permit the Minister still to decide under s 65(1)(b) to refuse to grant a visa of that class if, having considered a valid application, the Minister is not satisfied of all of the matters set out in the sub-paragraphs of s 65(1)(a).

258

Migration Law

[91.20]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 91

90

Order of dealing with limited visas The fact that an application for a visa of a class or classes to which a determination under section 85 applies has not been considered or disposed of although an application for another visa of the class or classes that was made later has been considered or disposed of does not mean, for any purpose, that the consideration or disposal of the earlier application is unreasonably delayed. [Former s 28F renum Act 60 of 1994, s 83; insrt Act 175 of 1992, s 7]

SECTION 90 COMMENTARY [90.20] Scope In Plaintiff S297/2013 v Minister for Immigration and Border Protection (2014) 309 ALR 209; 88 ALJR 722; [2014] HCA 24 at [45], Crennan, Bell, Gageler and Keane JJ stated that s 90 (in addition to s 91) confirms that a determination under s 85 suspends the duty imposed on the Minister by s 65, without affecting the existence of an application for a visa of that class. The provision does so by making clear that the consideration or disposal of an application for a visa of a class to which a determination applies is not taken to be unreasonably delayed by reason only of the consideration or disposal of a subsequent application for another visa of that class. 91

Order of dealing with visas If a determination under section 85 applies, or has applied, to visas of a class or classes, the Minister may consider or, subject to section 86, dispose of outstanding and further applications for such visas in such order as he or she considers appropriate. [Former s 28G renum Act 60 of 1994, s 83; insrt Act 175 of 1992, s 7 Cross-reference: Ministerial Directions: • Order for considering and disposing of visa applications under s 91 (Direction No. 49): This Direction applies to delegates performing functions or exercising powers under s 91 to consider and dispose of applications for certain visas in such order as they consider appropriate. • Order of consideration – certain skilled migration visas (Direction No. 67): This Direction directs delegates with respect to the performance of functions and exercise of powers under s 51 or s 91 to consider and dispose of visa applications in the appropriate order of consideration.]

SECTION 91 COMMENTARY [91.20] Scope In Plaintiff S297/2013 v Minister for Immigration and Border Protection (2014) 309 ALR 209; 88 ALJR 722; [2014] HCA 24 at [45], Crennan, Bell, Gageler and Keane JJ stated that s 91 (in addition to s 90) confirms that a determination under s 85 suspends the duty imposed on the Minister by s 65, without affecting the existence of an application for a visa of that class. The provision does so by conferring power on the Minister to dispose of outstanding applications for visas of a class to which a determination applies or has applied, in such order as the Minister considers appropriate.

© 2016 THOMSON REUTERS

259

s 91A

Migration Act 1958

[91.20]

SUBDIVISION AI – SAFE THIRD COUNTRIES (SS 91A–91G) [Subdiv AI heading subst Act 34 of 1999, s 3 and Sch 1 item 6] [Subdiv AI insrt Act 136 of 1994, s 3 and Sch item 1]

91A Reason for Subdivision This Subdivision is enacted because the Parliament considers that certain non-citizens who are covered by the CPA, or in relation to whom there is a safe third country, should not be allowed to apply for a protection visa or, in some cases, any other visa. Any such non-citizen who is an unlawful non-citizen will be subject to removal under Division 8. [S 91A insrt Act 136 of 1994, s 3 and Sch item 1]

91B Interpretation (1) In this Subdivision: agreement includes a written arrangement or understanding, whether or not binding. CPA means the Comprehensive Plan of Action approved by the International Conference on Indo-Chinese Refugees, held at Geneva, Switzerland, from 13 to 14 June 1989. (2) For the purposes of this Subdivision, if, apart from this section: (a) a colony, overseas territory or protectorate of a foreign country; or (b) an overseas territory for the international relations of which a foreign country is responsible; is not a country in its own right, the colony, territory or protectorate is taken to be a country in its own right. [S 91B insrt Act 136 of 1994, s 3 and Sch item 1]

91C Non-citizens covered by Subdivision (1) This Subdivision applies to a non-citizen at a particular time if: (a) the non-citizen is in Australia at that time; and (b) at that time, the non-citizen is covered by: (i) the CPA; or (ii) an agreement, relating to persons seeking asylum, between Australia and a country that is, or countries that include a country that is, at that time, a safe third country in relation to the non-citizen (see section 91D); and (c) the non-citizen is not excluded by the regulations from the application of this Subdivision. (2) To avoid doubt, a country does not need to be prescribed as a safe third country at the time that the agreement referred to in subparagraph (1)(b)(ii) is made. [S 91C insrt Act 136 of 1994, s 3 and Sch item 1]

91D Safe third countries (1) A country is a safe third country in relation to a non-citizen if: (a) the country is prescribed as a safe third country in relation to the non-citizen, or in relation to a class of persons of which the non-citizen is a member; and (b) the non-citizen has a prescribed connection with the country. (2) Without limiting paragraph (1)(b), the regulations may provide that a person has a prescribed connection with a country if: (a) the person is or was present in the country at a particular time or at any time during a particular period; or

260

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 91F

(b) the person has a right to enter and reside in the country (however that right arose or is expressed). (3) The Minister must, within 2 sitting days after a regulation under paragraph (1)(a) is laid before a House of the Parliament, cause to be laid before that House a statement, covering the country, or each of the countries, prescribed as a safe third country by the regulation, about: (a) the compliance by the country, or each of the countries, with relevant international law concerning the protection of persons seeking asylum; and (b) the meeting by the country, or each of the countries, of relevant human rights standards for the persons in relation to whom the country is prescribed as a safe third country; and (c) the willingness of the country, or each of the countries, to allow any person in relation to whom the country is prescribed as a safe third country: (i) to go to the country; and (ii) to remain in the country during the period in which any claim by the person for asylum is determined; and (iii) if the person is determined to be a refugee while in the country—to remain in the country until a durable solution relating to the permanent settlement of the person is found. (4) A regulation made for the purposes of paragraph (1)(a) ceases to be in force at the end of 2 years after the regulation commences. [S 91D insrt Act 136 of 1994, s 3 and Sch item 1]

91E Non-citizens to which this Subdivision applies unable to make valid applications for certain visas Despite any other provision of this Act, if this Subdivision applies to a non-citizen at a particular time and, at that time, the non-citizen applies, or purports to apply, for a protection visa then, subject to section 91F: (a) if the non-citizen has not been immigration cleared at that time—neither that application nor any other application made by the non-citizen for a visa is a valid application; or (b) if the non-citizen has been immigration cleared at that time—neither that application nor any other application made by the non-citizen for a protection visa is a valid application. [S 91E insrt Act 136 of 1994, s 3 and Sch item 1]

91F Minister may determine that section 91E does not apply to non-citizen (1) If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a particular non-citizen, determine: (a) that section 91E does not apply to an application for a visa made by the non-citizen in the period starting when the notice is given and ending at the end of the seventh working day after the day that the notice is given; or (b) that section 91G does not apply to an application for a visa made by the non-citizen during the transitional period referred to in that section. [Subs (1) subst Act 1 of 1995, s 3 and Sch item 1]

(2) The power under subsection (1) may only be exercised by the Minister personally. (3) If the Minister makes a determination 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 determination; and

© 2016 THOMSON REUTERS

261

s 91F

Migration Act 1958

[91F.20]

(b) sets out the reasons for the determination, referring in particular to the Minister’s reasons for thinking that his or her actions are in the public interest. (4) A statement under subsection (3) is not to include: (a) the name of the non-citizen; or (b) any information that may identify the non-citizen; or (c) if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned—the name of that other person or any information that may identify that other person. (5) A statement under subsection (3) is to be laid before each House of the Parliament within 15 sitting days of that House after: (a) if the determination is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or (b) if the determination is made between 1 July and 31 December (inclusive) in a year—1 January in the following year. (6) The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any non-citizen, whether he or she is requested to do so by the non-citizen or by any other person, or in any other circumstances. [S 91F am Act 1 of 1995; insrt Act 136 of 1994, s 3 and Sch item 1]

SECTION 91F COMMENTARY Scope ................................................................................................................................................... [91F.20] Practice points ..................................................................................................................................... [91F.40]

[91F.20] Scope Section 91F provides the Minister with a non-compellable, personal, power to “lift the bar” created by s 91E. The concepts that derive from s 91F are similar to those that derive from other provisions where the Minister is conferred with a non-compellable and personal power to lift statutory bars to visa applications, or visas, such as ss 46A and 195A. For a discussion of these concepts, see the commentary to those sections. [91F.40] Practice points Neither the Federal Circuit Court nor the Federal Court have the power to consider a matter in relation to s 91F because: • pursuant to s 476(2)(d), the Federal Circuit Court does not have jurisdiction to consider matters which fall within s 474(7) (this section includes matters relating to s 91F); and • pursuant to s 476A(1), the Federal Court only has original jurisdiction in relation to the matters listed in that section (s 48B is not listed). Pursuant to s 75(v) of the Constitution, the High Court has original jurisdiction to hear matters in which a writ of mandamus, prohibition or an injunction is sought against an officer of the Commonwealth. Where an application for prerogative relief is filed in the High Court’s original jurisdiction challenging a matter in relation to the exercise (or non-exercise) of the discretion in s 91F, the granting of such relief would serve no useful purpose. This is because the power under this section is non-compellable, which means that the Minister is under no duty to exercise that power: Re Minister for Immigration and Multicultural and Indigenous Affairs (2003) 211 CLR 441; 195 ALR 1; [2003] HCA 1 at [100] per Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ.

262

Migration Law

[91F.40]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 91H

91G Applications made before regulations take effect (1) Subject to section 91F and subsection (3), if: (a) this Subdivision applies to a non-citizen immediately after a regulation prescribing a country as a safe third country takes effect and did not apply to the non-citizen immediately before that time; and (b) the regulation prescribes a day as the cut off day; and (c) during the period (the transitional period) from the beginning of the cut off day until immediately before that regulation takes effect, the non-citizen made an application for a protection visa; then: (d) if the non-citizen had not been immigration cleared at the time of making the application—that application, and any other application made by the non-citizen for a visa made during the transitional period, ceases to be a valid application when the regulation takes effect; and (e) if the non-citizen had been immigration cleared at the time of making the application—that application, and any other application made by the non-citizen for a protection visa made during the transitional period, ceases to be a valid application when the regulation takes effect; and (f) on and after the regulation takes effect, this Act applies as if the non-citizen had applied for a protection visa immediately after the regulation takes effect. (2) To avoid doubt: (a) paragraphs (1)(d) and (e) apply even if an application referred to in the paragraph concerned, or a decision in relation to such an application, is the subject of a review by, or an appeal or application to, the Administrative Appeals Tribunal, a Federal Court or any other body or court; and (b) no visa may be granted to the non-citizen as a direct, or indirect, result of such an application. [Subs (2) am Act 60 of 2015, s 3 and Sch 2 item 12, with effect from 1 Jul 2015; Act 113 of 1998, s 3 and Sch 2 item 3]

(3) Subsection (1) does not apply in relation to a non-citizen who, before the regulation referred to in that subsection takes effect, has: (a) been granted a substantive visa as a result of an application referred to in that subsection; or (b) been determined under this Act to be a non-citizen who satisfies the criterion mentioned in subsection 36(2). (4) The cut off day specified in the regulation must not be: (a) before a day on which the Minister, by notice in the Gazette, announces that he or she intends that such a regulation will be made; or (b) more than 6 months before the regulation takes effect. [S 91G am Act 60 of 2015; Act 113 of 1998; insrt Act 1 of 1995, s 3 and Sch item 2]

SUBDIVISION AJ – TEMPORARY SAFE HAVEN VISAS (SS 91H-91L) [Subdiv AJ insrt Act 34 of 1999, s 3 and Sch 1 item 7]

91H Reason for this Subdivision This Subdivision is enacted because the Parliament considers that a non-citizen (other than an unauthorised maritime arrival or a transitory person) who holds a temporary safe haven visa, or who has not left Australia since ceasing to hold such a visa, should not be allowed to

© 2016 THOMSON REUTERS

263

s 91H

Migration Act 1958

apply for a visa other than another temporary safe haven visa. Any such non-citizen who ceases to hold a visa will be subject to removal under Division 8. Note: For temporary safe haven visas, see section 37A. [S 91H am Act 35 of 2015, s 3 and Sch 3 item 11, with effect from 18 Apr 2015; insrt Act 34 of 1999, s 3 and Sch 1 item 7]

[Editor’s Note: There is no section 91I in this Act.] 91J Non-citizens to whom this Subdivision applies (1) This Subdivision applies to a non-citizen in Australia at a particular time if, at that time, the non-citizen: (a) holds a temporary safe haven visa; or (b) has not left Australia since ceasing to hold a temporary safe haven visa. [Subs (1) am Act 35 of 2015, s 3 and Sch 3 item 12, with effect from 18 Apr 2015]

(2) This Subdivision does not apply to an unauthorised maritime arrival or a transitory person. Note: Unauthorised maritime arrivals are covered by section 46A and transitory persons are covered by section 46B. [Subs (2) insrt Act 35 of 2015, s 3 and Sch 3 item 13, with effect from 18 Apr 2015] [S 91J am Act 35 of 2015; insrt Act 34 of 1999, s 3 and Sch 1 item 7]

91K Non-citizens to whom this Subdivision applies are unable to make valid applications for certain visas Despite any other provision of this Act but subject to section 91L, if this Subdivision applies to a non-citizen at a particular time and, at that time, the non-citizen applies, or purports to apply, for a visa (other than a temporary safe haven visa), then that application is not a valid application. [S 91K insrt Act 34 of 1999, s 3 and Sch 1 item 7]

91L Minister may determine that section 91K does not apply to a non-citizen (1) If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a particular non-citizen, determine that section 91K does not apply to an application for a visa made by the non-citizen in the period starting when the notice is given and ending at the end of the seventh working day after the day that the notice is given. (2) The power under subsection (1) may only be exercised by the Minister personally. (3) If the Minister makes a determination 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 determination; and (b) sets out the reasons for the determination, referring in particular to the Minister’s reasons for thinking that his or her actions are in the public interest. (4) A statement under subsection (3) is not to include: (a) the name of the non-citizen; or (b) any information that may identify the non-citizen; or (c) if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned—the name of that other person or any information that may identify that other person. (5) A statement under subsection (3) is to be laid before each House of the Parliament within 15 sitting days of that House after: (a) if the determination is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or

264

Migration Law

[91L.40]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 91M

(b) if the determination is made between 1 July and 31 December (inclusive) in a year—1 January in the following year. (6) The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any non-citizen, whether he or she is requested to do so by the non-citizen or by any other person, or in any other circumstances. [S 91L insrt Act 34 of 1999, s 3 and Sch 1 item 7]

SECTION 91L COMMENTARY Scope ................................................................................................................................................... [91L.20] Practice points ..................................................................................................................................... [91L.40]

[91L.20] Scope Section 91L provides the Minister with a non-compellable, personal power to “lift the bar” created by s 91K. The concepts that derive from s 91L are similar to those that derive from other provisions where the Minister is conferred with a non-compellable and personal power to lift statutory bars to visa applications, or visas, such as ss 46A and 195A. For a discussion of these concepts, see the commentary to those sections. [91L.40] Practice points Neither the Federal Circuit Court nor the Federal Court has the power to consider a matter in relation to s 91L because: • pursuant to s 476(2)(d), the Federal Circuit Court does not have jurisdiction to consider matters which fall within s 474(7) (this section includes matters relating to s 91L); and • pursuant to s 476A(1), the Federal Court only has original jurisdiction in relation to the matters listed in that section (s 91L is not listed). Pursuant to s 75(v) of the Constitution, the High Court has original jurisdiction to hear matters in which a writ of mandamus, prohibition or an injunction is sought against an officer of the Commonwealth. Where an application for prerogative relief is filed in the High Court’s original jurisdiction challenging a matter in relation to the exercise (or non-exercise) of the discretion in s 91L, the granting of such relief would serve no useful purpose. This is because the power under this section is non-compellable, which means that the Minister is under no duty to exercise that power: Re Minister for Immigration and Multicultural and Indigenous Affairs (2003) 211 CLR 441; 195 ALR 1; [2003] HCA 1 at [100] per Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ.

SUBDIVISION AK – NON-CITIZENS WITH ACCESS TO PROTECTION FROM THIRD COUNTRIES (SS 91M–91Q) [Subdiv AK insrt Act 160 of 1999, s 3 and Sch 1 item 67]

91M Reason for this Subdivision This Subdivision is enacted because the Parliament considers that a non-citizen who can avail himself or herself of protection from a third country, because of nationality or some other right to re-enter and reside in the third country, should seek protection from the third country instead of applying in Australia for a protection visa, or, in some cases, any other visa. Any such non-citizen who is an unlawful non-citizen will be subject to removal under Division 8.

© 2016 THOMSON REUTERS

265

s 91M

Migration Act 1958

Note: For protection visas, see section 36. [S 91M insrt Act 160 of 1999, s 3 and Sch 1 item 67]

91N Non-citizens to whom this Subdivision applies (1) This Subdivision applies to a non-citizen at a particular time if, at that time, the non-citizen is a national of 2 or more countries. (2) This Subdivision also applies to a non-citizen at a particular time if, at that time: (a) the non-citizen has a right to re-enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country (the available country) apart from: (i) Australia; or (ii) a country of which the non-citizen is a national; or (iii) if the non-citizen has no country of nationality—the country of which the non-citizen is an habitual resident; and (b) the non-citizen has ever resided in the available country for a continuous period of at least 7 days or, if the regulations prescribe a longer continuous period, for at least that longer period; and (c) a declaration by the Minister is in effect under subsection (3) in relation to the available country. (3) The Minister may, after considering any advice received from the Office of the United Nations High Commissioner for Refugees: (a) declare in writing that a specified country: (i) provides access, for persons seeking protection, to effective procedures for assessing their need for protection; and (ii) provides protection to persons to whom that country has protection obligations; and (iii) meets relevant human rights standards for persons to whom that country has protection obligations; or (b) in writing, revoke a declaration made under paragraph (a). [Subs (3) am Act 121 of 2011, s 3 and Sch 1 item 17]

(4) A declaration made under paragraph (3)(a): (a) takes effect when it is made by the Minister; and (b) ceases to be in effect if and when it is revoked by the Minister under paragraph (3)(b). (5) The Minister must cause a copy of a declaration, or of a revocation of a declaration, to be laid before each House of the Parliament within 2 sitting days of that House after the Minister makes the declaration or revokes the declaration. Determining nationality (6) For the purposes of this section, the question of whether a non-citizen is a national of a particular country must be determined solely by reference to the law of that country. (7) Subsection (6) does not, by implication, affect the interpretation of any other provision of this Act. [S 91N am Act 121 of 2011; insrt Act 160 of 1999, s 3 and Sch 1 item 67]

[Editor’s Note: There is no section 91O in this Act.]

266

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 91Q

91P Non-citizens to whom this Subdivision applies are unable to make valid applications for certain visas (1) Despite any other provision of this Act but subject to section 91Q, if: (a) this Subdivision applies to a non-citizen at a particular time; and (b) at that time, the non-citizen applies, or purports to apply, for a visa; and (c) the non-citizen is in the migration zone and has not been immigration cleared at that time; neither that application, nor any other application the non-citizen makes for a visa while he or she remains in the migration zone, is a valid application. (2) Despite any other provision of this Act but subject to section 91Q, if: (a) this Subdivision applies to a non-citizen at a particular time; and (b) at that time, the non-citizen applies, or purports to apply, for a protection visa; and (c) the non-citizen is in the migration zone and has been immigration cleared at that time; neither that application, nor any other application made by the non-citizen for a protection visa while he or she remains in the migration zone, is a valid application. [S 91P insrt Act 160 of 1999, s 3 and Sch 1 item 67]

91Q Minister may determine that section 91P does not apply to a non-citizen (1) If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a particular non-citizen, determine that section 91P does not apply to an application for a visa made by the non-citizen in the period starting when the notice is given and ending at the end of the seventh working day after the day that the notice is given. (2) For the purposes of subsection (1), the matters that the Minister may consider include information that raises the possibility that, although the non-citizen satisfies the description set out in subsection 91N(1) or (2), the non-citizen might not be able to avail himself or herself of protection from the country, or any of the countries, by reference to which the non-citizen satisfies that description. (3) The power under subsection (1) may only be exercised by the Minister personally. (4) If the Minister makes a determination 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 determination; and (b) sets out the reasons for the determination, referring in particular to the Minister’s reasons for thinking that his or her actions are in the public interest. (5) A statement under subsection (4) is not to include: (a) the name of the non-citizen; or (b) any information that may identify the non-citizen; or (c) if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned—the name of that other person or any information that may identify that other person. (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 determination is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or (b) if the determination is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.

© 2016 THOMSON REUTERS

267

s 91Q

Migration Act 1958

[91Q.20]

(7) The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any non-citizen, whether he or she is requested to do so by the non-citizen or by any other person, or in any other circumstances. [S 91Q insrt Act 160 of 1999, s 3 and Sch 1 item 67]

SECTION 91Q COMMENTARY Scope ................................................................................................................................................... [91Q.20] Practice points .................................................................................................................................... [91Q.40]

[91Q.20] Scope Section 91Q provides the Minister with a non-compellable, personal power to “lift the bar” created by s 91P. The concepts that derive from s 91Q are similar to those that derive from other provisions where the Minister is conferred with a non-compellable and personal power to lift statutory bars to visa applications, or visas, such as ss 46A and 195A. For a discussion of these concepts, see the commentary to those sections. [91Q.40] Practice points Neither the Federal Circuit Court nor the Federal Court has the power to consider a matter in relation to s 91Q because: • pursuant to s 476(2)(d), the Federal Circuit Court does not have jurisdiction to consider matters which fall within s 474(7) (this section includes matters relating to s 91Q); and • pursuant to s 476A(1), the Federal Court only has original jurisdiction in relation to the matters listed in that section (s 91Q is not listed). Pursuant to s 75(v) of the Constitution, the High Court has original jurisdiction to hear matters in which a writ of mandamus, prohibition or an injunction is sought against an officer of the Commonwealth. Where an application for prerogative relief is filed in the High Court’s original jurisdiction challenging a matter in relation to the exercise (or non-exercise) of the discretion in s 91Q, the granting of such relief would serve no useful purpose. This is because the power under this section is non-compellable, which means that the Minister is under no duty to exercise that power: Re Minister for Immigration and Multicultural and Indigenous Affairs (2003) 211 CLR 441; 195 ALR 1; [2003] HCA 1 at [100] per Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ. SUBDIVISION AL – OTHER PROVISIONS ABOUT PROTECTION VISAS (SS 91V–91X) [Subdiv AL insrt Act 131 of 2001, s 3 and Sch 1 item 5]

[Editor’s Note: Sections 91R–91U were repealed by Act 135 of 2014, s 3 and Sch 5 item 12, with effect from 18 Apr 2015, and have not been reproduced.] 91V Verification of information Applicant for protection visa (1) If an applicant for a protection visa has given information to the Minister or an officer in, or in connection with, the application for the visa, the Minister or an officer may, either orally or in writing, request the applicant to make an oral statement, on oath or affirmation, to the effect that the information is true. (2) If:

268

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 91V

(a) the applicant has been given a request under subsection (1); and (b) the applicant refuses or fails to comply with the request; and (c) when the request was made, the applicant was given a warning, either orally or in writing, that the Minister may draw an inference unfavourable to the applicant’s credibility in the event that the applicant refuses or fails to comply with the request; then, in making a decision whether to grant the protection visa to the applicant, the Minister may draw any reasonable inference unfavourable to the applicant’s credibility. (3) If: (a) the applicant has been given a request under subsection (1); and (b) the applicant complies with the request; and (c) the Minister has reason to believe that, because of: (i) the manner in which the applicant complied with the request; or (ii) the applicant’s demeanour in relation to compliance with the request; the applicant was not sincere; then, in making a decision whether to grant the protection visa to the applicant, the Minister may draw any reasonable inference unfavourable to the applicant’s credibility. Non-citizen refused immigration clearance (4) If: (a) either: (i) a non-citizen gave information to an officer when the non-citizen was in immigration clearance, and the non-citizen is subsequently refused immigration clearance; or (ii) a non-citizen was refused immigration clearance and subsequently gave information to an officer; and (b) the information is relevant to the administration or enforcement of this Act or the regulations; an officer may, either orally or in writing, request the non-citizen to make an oral statement, on oath or affirmation, to the effect that the information is true. (5) If: (a) the non-citizen has been given a request under subsection (4); and (b) the non-citizen refuses or fails to comply with the request; and (c) when the request was made, the non-citizen was given a warning, either orally or in writing, that the Minister may draw an inference unfavourable to the non-citizen’s credibility in the event that the non-citizen refuses or fails to comply with the request; then, in making a decision about the non-citizen under this Act or the regulations, the Minister may draw any reasonable inference unfavourable to the non-citizen’s credibility. (6) If: (a) the non-citizen has been given a request under subsection (4); and (b) the non-citizen complies with the request; and (c) the Minister has reason to believe that, because of: (i) the manner in which the non-citizen complied with the request; or (ii) the non-citizen’s demeanour in relation to compliance with the request; the non-citizen was not sincere; then, in making a decision about the non-citizen under this Act or the regulations, the Minister may draw any reasonable inference unfavourable to the non-citizen’s credibility.

© 2016 THOMSON REUTERS

269

s 91V

Migration Act 1958

Offıcer (7) A reference in this section to an officer includes a reference to a person who is a clearance officer within the meaning of section 165. Oaths or affırmations (8) The Minister or an officer may administer an oath or affirmation for the purposes of this section. [S 91V insrt Act 131 of 2001, s 3 and Sch 1 item 5]

91W Evidence of identity and bogus documents (1) The Minister or an officer may, either orally or in writing, request an applicant for a protection visa to produce, for inspection by the Minister or the officer, documentary evidence of the applicant’s identity, nationality or citizenship. (2) The Minister must refuse to grant the protection visa to the applicant if: (a) the applicant has been given a request under subsection (1); and (b) the applicant refuses or fails to comply with the request, or produces a bogus document in response to the request; and (c) the applicant does not have a reasonable explanation for refusing or failing to comply with the request, or for producing the bogus document; and (d) when the request was made, the applicant was given a warning, either orally or in writing, that the Minister cannot grant the protection visa to the applicant if the applicant: (i) refuses or fails to comply with the request; or (ii) produces a bogus document in response to the request. [Subs (2) am Act 35 of 2015, s 3 and Sch 1 items 5–9, with effect from 18 Apr 2015]

(3) Subsection (2) does not apply if the Minister is satisfied that the applicant: (a) has a reasonable explanation for refusing or failing to comply with the request or producing the bogus document; and (b) either: (i) produces documentary evidence of his or her identity, nationality or citizenship; or (ii) has taken reasonable steps to produce such evidence. [Subs (3) insrt Act 35 of 2015, s 3 and Sch 1 item 10, with effect from 18 Apr 2015]

(4) For the purposes of this section, a person produces a document if the person produces, gives, presents or provides the document or causes the document to be produced, given, presented or provided. [Subs (4) insrt Act 35 of 2015, s 3 and Sch 1 item 10, with effect from 18 Apr 2015] [S 91W am Act 35 of 2015, s 3 and Sch 1 item 4, with effect from 18 Apr 2015; insrt Act 131 of 2001, s 3 and Sch 1 item 5]

91WA Providing bogus documents or destroying identity documents (1) The Minister must refuse to grant a protection visa to an applicant for a protection visa if: (a) the applicant provides a bogus document as evidence of the applicant’s identity, nationality or citizenship; or (b) the Minister is satisfied that the applicant: (i) has destroyed or disposed of documentary evidence of the applicant’s identity, nationality or citizenship; or

270

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 91Y

(ii) has caused such documentary evidence to be destroyed or disposed of. (2) Subsection (1) does not apply if the Minister is satisfied that the applicant: (a) has a reasonable explanation for providing the bogus document or for the destruction or disposal of the documentary evidence; and (b) either: (i) provides documentary evidence of his or her identity, nationality or citizenship; or (ii) has taken reasonable steps to provide such evidence. (3) For the purposes of this section, a person provides a document if the person provides, gives or presents the document or causes the document to be provided, given or presented. [S 91WA insrt Act 35 of 2015, s 3 and Sch 1 item 11, with effect from 18 Apr 2015]

91WB Application for protection visa by member of same family unit (1) This section applies to a non-citizen in Australia (the family applicant): (a) who applies for a protection visa; and (b) who is a member of the same family unit as a person (the family visa holder) who has been granted a protection visa. (2) Despite anything else in this Act, the Minister must not grant the protection visa to the family applicant on the basis of a criterion mentioned in paragraph 36(2)(b) or (c) unless the family applicant applies for the protection visa before the family visa holder is granted a protection visa. [S 91WB insrt Act 35 of 2015, s 3 and Sch 1 item 11, with effect from 18 Apr 2015]

91X Names of applicants for protection visas not to be published by the High Court, Federal Court or Federal Circuit Court (1) This section applies to a proceeding before the High Court, the Federal Court or the Federal Circuit Court if the proceeding relates to a person in the person’s capacity as: (a) a person who applied for a protection visa; or (b) a person who applied for a protection-related bridging visa; or (c) a person whose protection visa has been cancelled; or (d) a person whose protection-related bridging visa has been cancelled. [Subs (1) am Act 13 of 2013, s 3 and Sch 2 item 1; am Act 157 of 2001, s 3 and Sch 5]

(2) The court must not publish (in electronic form or otherwise), in relation to the proceeding, the person’s name. (3) In this section: application for a protection-related bridging visa means an application for a bridging visa, where the applicant for the bridging visa is, or has been, an applicant for a protection visa. proceeding means a proceeding in a court, whether between parties or not, and includes an incidental proceeding in the course of, or in connection with, a proceeding, and also includes an appeal. protection-related bridging visa means a bridging visa granted as a result of an application for a protection-related bridging visa. [S 91X am Act 13 of 2013, s 3 and Sch 1 item 332; Act 157 of 2001; insrt Act 131 of 2001, s 3 and Sch 1 item 5]

91Y

Secretary’s obligation to report to Minister [Repealed]

[S 91Y rep Act 135 of 2014, s 3 and Sch 7 item 13, with effect from 16 Dec 2014; insrt Act 141 of 2005, s 3 and Sch 1 item 2]

© 2016 THOMSON REUTERS

271

s 91Y

Migration Act 1958

SUBDIVISION B – THE POINTS SYSTEM (SS 92–96) 92

Operation of Subdivision This Subdivision has effect where one of the prescribed criteria in relation to a visa of a particular class is the criterion that the applicant receives the qualifying score when assessed as provided by this Subdivision. [Former s 29 renum Act 60 of 1994, s 83; am Act 14 of 1994, s 7; former s 11K renum Act 59 of 1989, s 35; insrt Act 59 of 1989, s 6]

93

Determination of applicant’s score (1) The Minister shall make an assessment by giving the applicant the prescribed number of points for each prescribed qualification that is satisfied in relation to the applicant. (2) In this section: prescribed means prescribed by regulations in force at the time the assessment is made. [Former s 30 renum Act 60 of 1994, s 83; former s 11L renum Act 59 of 1989, s 35; insrt Act 59 of 1989, s 6 (am Act 159 of 1989)]

94

Initial application of “points” system (1) An applicant whose assessed score is more than or equal to the applicable pass mark at the time when the score is assessed is taken to have received the qualifying score. [Subs (1) subst Act 14 of 1994, s 8]

(2) An applicant whose assessed score is less than the applicable pool mark at the time when the score is assessed is taken not to have received the qualifying score. [Subs (2) subst Act 14 of 1994, s 8]

(3) If an applicant’s assessed score is more than or equal to the applicable pool mark, but less than the applicable pass mark, at the time when the score is assessed: (a) the Minister must, unless the application is withdrawn, put the application aside and deal with it in accordance with section 95; and (b) if the Minister puts the application aside—the Minister is taken to have put the application into a pool. [Subs (3) subst Act 14 of 1994, s 8]

(4) Where, in accordance with this section, the Minister puts an application aside, he or she shall be taken for all purposes not to have failed to make a decision to grant or refuse to grant a visa. [Subs (4) am Act 60 of 1994, s 82 and Sch 1 item 35] [Former s 31 renum Act 60 of 1994, s 83; am Act 60 of 1994; Act 14 of 1994; former s 11M renum Act 59 of 1989, s 35; insrt Act 59 of 1989, s 6]

95 Applications in pool When section applies (1) This section applies if the Minister puts an application into a pool. How applications to be dealt with (2) If, within 12 months after the assessment of the applicant’s assessed score, the Minister gives a notice under section 96 varying the applicable pass mark or the applicable pool mark: (a) the Minister must, without re-assessing that score, compare that score with the applicable pass mark and the applicable pool mark; and (b) if that score is more than or equal to the applicable pass mark—the applicant is taken to have received the qualifying score; and

272

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 96

(c)

if that score is less than the applicable pool mark—the applicant is taken not to have received the qualifying score; and (d) if that score is more than or equal to the applicable pool mark but less than the applicable pass mark—the application remains in the pool until it is removed from the pool (see subsection (3)). Removal of applications from pool (3) An application in the pool is taken to have been removed from the pool at whichever is the earliest of the following times: (a) the end of 12 months after the assessment of the applicant’s assessed score; (b) the earliest time (if any) when the applicant is taken to have received the qualifying score as the result of the operation of subsection (2); (c) the earliest time (if any) when the applicant is taken not to have received the qualifying score as the result of the operation of subsection (2). Removal from pool under paragraph (3)(a) treated as failure to receive qualifying score (4) If an application is removed from the pool because of paragraph (3)(a), the applicant is taken not to have received the qualifying score. [Subs (4) am Act 28 of 2000, s 3 and Sch 7 item 1]

Section to be subject to section 95A (5) This section has effect subject to section 95A. [Subs (5) insrt Act 28 of 2000, s 3 and Sch 7 item 1] [S 95 am Act 28 of 2000; former s 31A renum Act 60 of 1994, s 83; insrt Act 14 of 1994, s 9]

95A Extension of period in pool (1) This section applies to an application that: (a) is in the pool at the commencement of this section; or (b) is put in the pool after that commencement. (2) Section 95 has effect in relation to the application as if references in subsections 95(2) and (3) to 12 months were references to 2 years. [S 95A insrt Act 28 of 2000, s 3 and Sch 7 item 2]

96

Minister may set pool mark and pass mark (1) The Minister may, from time to time, by notice in the Gazette, specify, in relation to a class of visas, the pool mark for the purposes of this Act and the regulations. [Subs (1) am Act 14 of 1994, s 10(a)]

(2) The Minister may, from time to time, by notice in the Gazette, specify, in relation to applications for visas of a particular class, the pass mark for the purposes of this Act and the regulations. (3) A notice under subsection (1) or (2) operates to revoke the previous notice under that subsection in relation to the same class of visas and also operates as a variation of the mark specified in the previous notice. [Subs (3) am Act 14 of 1994, s 10(b)]

(4) The Minister shall cause copies of each notice under subsection (1) or (2) to be laid before each House of the Parliament within 15 sitting days of that House after the publication of the notice in the Gazette. (5) This Act does not prevent a pool mark and a pass mark from being equal. [Subs (5) insrt Act 14 of 1994, s 10(c)]

© 2016 THOMSON REUTERS

273

s 96

Migration Act 1958

(6) This Act does not prevent a pool mark and a pass mark from being varied independently of each other. [Subs (6) insrt Act 14 of 1994, s 10(c)] [Former s 32 renum Act 60 of 1994, s 83; am Act 14 of 1994; former s 11N renum Act 59 of 1989, s 35; insrt Act 59 of 1989, s 6 Cross-reference: Legislative Instruments: • IMMI 12/017 — Migration Act 1958 – Specification – Pass Marks And Pool Marks In Relation To Applications For General Skilled Migrations Visas (Classes VE, VC, VF, VB, SI, SN and SP): This Instrument revokes the Migration Act 1958 – Specification under subsection 96(1) and 96(2) – Pass and Pool Marks in relation to applications for General Skilled Migration Visas (Classes VE, VC, VF and VB) – June 2011 and specifies pass and pool marks for General Skilled Migration visas. • Migration Act 1958 – Notice under subsection 96(1) – Specification of Pool Mark in relation to Applications for Class AJ Visas (Skilled – Australian Linked (Migrant)): This Notice specifies the pool mark for applications for particular visas. • Migration Act 1958 – Notice under subsection 96(1) – Specification of Pool Mark in relation to Applications for Independent (Migrant) (Class AT) Visas: This Notice specifies the pool mark for applications for particular visas. • Migration Act 1958 – Notice under subsection 96(1) – Specification of Pool Mark in relation to Applications for Skilled – Australian-sponsored (Migrant) (Class BQ) Visas: This Notice specifies the pool mark for applications for particular visas. • Migration Act 1958 – Notice under subsection 96(1) – Specification of Pool Mark in relation to Applications for Skilled – Australian-sponsored Overseas Students (Residence) (Class DE) Subclass 881 Visas: This Notice specifies the pool mark for applications for particular visas. • Migration Act 1958 – Notice under subsection 96(1) – Specification of Pool Mark in relation to applications for Skilled – Independent Overseas Student (Residence) (Class DD) Visas: This Instrument specifies pool marks in relation to applications made at certain dates. • Migration Act 1958 – Notice under subsection 96(1) – Specification of Pool Mark in Relation to Applications for Skilled Independent Regional (Provisional) (Class UX) Visas: This Specification specifies the pool mark in relation to applications for a visa. • Migration Act 1958 – Notice under subsection 96(1) – Specification of Pool Mark in Relation to Applications for Skilled – New Zealand Citizen (Residence) (Class DB) Visas: This Instrument specifies pool marks in relation to applications made at certain dates. • Migration Act 1958 – Notice under subsection 96(1) – Specification of Pool Mark in relation to Applications for Skilled-Independent (Migrant) (Class BN) Visas: This Notice specifies pool marks for applications for a particular visa. • Migration Act 1958 – Notice under subsection 96(2) – Pass Mark in Relation to Applications for Skilled – Independent (Migrant) (Class BN) Visas: This Notice specifies the pass mark in relation to applications made at certain dates. • Migration Act 1958 – Notice under subsection 96(2) – Specification of Pass Mark in relation to Applications for Class AJ Visas (Skilled – Australian Linked (Migrant)): This Notice specifies the pass mark for applications for a particular visa. • Migration Act 1958 – Notice under subsection 96(2) – Specification of Pass mark in relation to Applications for Skilled – Australian-sponsored (Migrant) (Class BQ) Visas: This Notice specifies the pass mark for applications for a particular visa. • Migration Act 1958 – Notice under subsection 96(2) – Specification of Pass Mark in relation to Applications for Skilled – Australian-sponsored Overseas Students (Residence) (Class DE) Subclass 881 Visas: This Notice specifies the pass mark for applications for a particular visa. • Migration Act 1958 – Notice under subsection 96(2) – Specification of Pass Mark in relation to applications for Skilled – Independent Overseas Student (Residence) (Class DD) Visas: This Instrument specifies pass marks for applications made at certain dates. • Migration Act 1958 – Notice under subsection 96(2) – Specification of Pass Mark in Relation to Applications for Skilled Independent Regional (Provisional) (Class UX) Visas: This Specification specifies the pass mark in relation to applications for a visa. • Migration Act 1958 – Notice under subsection 96(2) – Specification of Pass Mark in Relation to Applications for Skilled – New Zealand Citizen (Residence) (Class DB) Visas: This Instrument specifies pass marks in relation to applications for certain visas.

274

Migration Law

[97A.20]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 97A

• Migration Regulations 1994 – Notice under subsection 96(2) – Specification of Pass Mark in relation to Applications for Subclass 126 (Independent) Visas: This Notice under s 96(2) specifies the pass mark in relation to applications for certain visas.]

SUBDIVISION C – VISAS BASED ON INCORRECT INFORMATION MAY BE CANCELLED (SS 97–115) [Subdiv C heading insrt Act 184 of 1992, s 11]

97

Interpretation In this Subdivision: application form, in relation to a non-citizen, means a form on which a non-citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

[Def am Act 58 of 2001, s 3 and Sch 4 item 1; Act 60 of 1994, s 82 and Sch 1 item 36]

bogus document [Repealed] [Def rep Act 35 of 2015, s 3 and Sch 1 item 12, with effect from 18 Apr 2015]

passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c). Note: Bogus document is defined in subsection 5(1). [S 97 am Act 35 of 2015, s 3 and Sch 1 item 13, with effect from 18 Apr 2015; Act 58 of 2001; former s 33 renum Act 60 of 1994, s 83; am Act 60 of 1994; subst Act 184 of 1992, s 11; am Act 14 of 1994; Act 196 of 1991; former s 11P renum Act 59 of 1989, s 35; insrt Act 59 of 1989, s 6]

97A Exhaustive statement of natural justice hearing rule (1) This Subdivision 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 494A to 494D, in so far as they relate to this Subdivision, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with. [S 97A insrt Act 60 of 2002, s 3 and Sch 1 item 2]

SECTION 97A COMMENTARY Scope ................................................................................................................................................... [97A.20] CONCEPTS

Natural justice hearing rule ................................................................................................................ [97A.40] In relation to the matters it deals with .............................................................................................. [97A.60] KEY CASE

Natural justice hearing rule is not qualified or excluded in relation to offshore visa applicants .... [97A.80] In relation to the matters it deals with ............................................................................................ [97A.100]

[97A.20] Scope Section 97A was inserted by the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth). Section 97A(1) provides that Pt 2 Div 3 subdiv C of the Act (which deals with how the Minister is to deal with visa applications) is an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. Similarly, s 97A(2) makes it clear that ss 494A – 494D (which deal with the way the Minister gives documents), insofar as © 2016 THOMSON REUTERS

275

s 97A

Migration Act 1958

[97A.40]

they relate to subdiv C, are an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with. The purpose of s 97A is to ensure that the “codes of procedure” referred to in this section are an exhaustive statement of the requirements of the natural justice hearing rule: Explanatory Memorandum to the Migration Legislation Amendment (Procedural Fairness) Bill 2002 (Cth) at [1]. This provision was inserted as a result of the High Court’s decision in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; 179 ALR 238; [2001] HCA 22 (Miah), in which the court held that the exclusion of common law natural justice requirements required clear legislative intention: at [53]–[54] per Gleeson CJ and Hayne J, at [90] per Gaudron J, at [126]–[127] per McHugh J and at [183] per Kirby J. In Miah, the High Court considered whether a delegate had denied the applicants procedural fairness by failing to put to them for comment certain country information. At the relevant time, the Act, in Pt 2 Div 3 subdiv AB, laid down what Gleeson CJ and Hayne J described as a “code of procedure for dealing fairly, efficiently and quickly with visa applications”: at [28]. It did not contain any other statement other than the one contained in this section - that the Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule. Gleeson CJ and Hayne J commented at [43] that “there is a difference between a code of procedure for dealing with visa applications and a comprehensive statement of the requirements if natural justice”. The majority were of the view that it is possible to exclude the rule of natural justice, but that in order to do so, the legislation must be clear that the intention is for it to be excluded: at [53]–[54] per Gleeson CJ and Hayne J, at [90] per Gaudron J, at [126]–[127] per McHugh J and at [183] per Kirby J. Necessarily, therefore, the wording in s 97A is clear that the natural justice hearing rule is excluded. In the Second Reading speech for the Migration Legislation Amendment (Procedural Fairness) Bill 2002 (Cth), the Minister noted that the proposed amendments were necessary to restore Parliament’s original intention that the Act should contain codes of procedure that allow fair, efficient and legally certain decision-making processes that do not replace the common law requirement of the natural justice hearing rule. However, s 97A does not protect any decision that is affected by a jurisdictional error because such a decision will not be considered to be a migration decision and the privative clause provisions in s 474 will have no operation: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; 195 ALR 24; [2003] HCA 2 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. The concept of a privative clause is discussed further under s 474.

CONCEPTS [97A.40] Natural justice hearing rule The phrase “natural justice hearing rule”, or any variation thereof, is not defined in the Act. Natural justice usually requires that a person whose interests are to be affected by a decision be given an opportunity to comment and respond to material that is adverse to his or her interests: Kioa v West (1985) 159 CLR 550; 62 ALR 321; [1985] HCA 81 (Kioa) at 582 (CLR) per Mason J, at 628–629 (CLR) per Brennan J. Natural justice and procedural fairness require a decision-maker to bring to an applicant’s attention the critical issues or factors on which its decision is likely to turn in order for the applicant to have the opportunity of dealing with them: Kioa at 587 (CLR) per Mason J; VAAC v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 168; [2003] FCAFC 74 at [27]. In discharging this duty, a decision-maker needs to bring to an applicant’s attention the “substance” of adverse information the decision-maker considers may bear upon the decision to 276

Migration Law

[97A.80]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 97A

be made: Plaintiff M61/2010 v Commonwealth (2010) 243 CLR 319; 272 ALR 14; [2010] HCA 41 at [91] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ. Procedural fairness may extend to requiring identification to the applicant of “any adverse conclusion which has been arrived at which would not obviously be open on the known material” (Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; 34 ALD 324; 127 ALR 699 at [30]), whether that is material provided by the applicant or from other sources. For the requirements of natural justice to be satisfied, it is sufficient if the “gravamen or substance of the issue or factor is brought to the applicant’s attention” or that the applicant is “on notice of its essential features”: NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 at [25], referring to Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs (2000) 103 FCR 539; 175 ALR 706; [2000] FCA 1113 at [557]. In the ordinary case, natural justice requires that an opportunity should be given to a person affected by a decision to deal with any adverse information that is “credible, relevant and significant”: see, for example, Kioa at 629 (CLR) per Brennan J. Where a statute confers a power to destroy or prejudice a person’s rights or interests, principles of natural justice regulate the exercise of that power: see Annetts v McCann (1990) 170 CLR 596; 97 ALR 177; [1990] HCA 57 at 598 (CLR) per Mason CJ, Deane and McHugh JJ. In Kioa at 609 (CLR), Brennan J stated that: when the statute does not expressly require that the principles of natural justice be observed, the court construes the statute on the footing that “the justice of the common law will supply the omission of the legislature”. The true intention of the legislation is thus ascertained.

Similarly, in Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1; 195 ALR 502; [2003] HCA 6 at [37], Gleeson CJ observed that procedural fairness is not an abstract concept; it is essentially practical and the concern is to avoid practical injustice. [97A.60] In relation to the matters it deals with The declaration that the subdivision is taken to be an exhaustive statement of the requirements of the natural justice hearing rule is qualified by the words “in relation to the matters it deals with”: Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; 267 ALR 204; [2010] HCA 23 at [35] per French CJ, Gummow, Hayne, Crennan and Kiefel JJ. This means that, insofar as common law rules of procedural fairness are codified under this subdivision, the codification only applies to the subject “matter” the subdivision “deals with” – that is, ss 97 – 115 and 494A – 494D. Where the subdivision does not “deal with” a certain subject “matter”, common law rules of procedural fairness continue to apply.

KEY CASE [97A.80]

Natural justice hearing rule is not qualified or excluded in relation to offshore visa applicants In Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; 267 ALR 204; [2010] HCA 23, the High Court considered s 51A of the Act (which is in the same terms as s 97A). Ms Saeed, a citizen of Pakistan, was outside Australia and applied for a Skilled – Independent visa (Subclass 175), on the basis of being a cook. As part of the application, Ms Saeed provided documents that she had worked at a restaurant in Rawalpindi. An Australian immigration officer in Pakistan investigated Ms Saeed’s claims and discovered that no employee records were kept on the premises of the restaurant and that no woman had ever worked in the kitchen. On the basis of this information, the delegate advised Ms Saeed that her evidence about her work was false and misleading, and refused to grant the visa. The High Court considered the terms of ss 51A and 57 (which deals with the provision of certain information to applicants) and © 2016 THOMSON REUTERS

277

s 98

Migration Act 1958

[97A.100]

concluded that the natural justice hearing rule is excluded only insofar as it concerns onshore visa applicants, and is not excluded in relation to visa applicants who are not in Australia: at [56] per French CJ, Gummow, Hayne, Crennan and Kiefel JJ. The natural justice hearing rule applies to visa applicants offshore, and therefore the delegate was required to provide Ms Saeed with an opportunity to answer the adverse material. [97A.100] In relation to the matters it deals with In Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; 267 ALR 204; [2010] HCA 23 (Saeed), the High Court considered the scope of the phrase “in relation to the matters it deals with” and the various cases which had previously interpreted this phrase. French CJ, Gummow, Hayne, Crennan and Kiefel JJ endorsed (and found “plainly correct”) the conclusions reached by: • Lindgren J in NAQF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 130 FCR 456; [2003] FCA 781 at 475 (FCR) that the expression “the matters it deals with” in s 357A(1) (which is in the same terms as s 97A) requires a search to be made of the operative provisions within Div 5 for a provision “dealing with” a “relevant matter”. The plural form of “matters” suggests that the inquiry might be directed to a number of such provisions: at [38]; and • French J in WAID v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 220 at [58], that s 422B (which is in the same terms as s 97A) requires “exploration in terms of its construction and identification of the ‘matters’ to which it applies”: at [39]. To place the High Court’s judgment in Saeed in context, it is necessary to have regard to some earlier decisions. In VXDC v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 146 FCR 562; [2005] FCA 1338 (VXDC), the Full Court of the Federal Court expressed the view that s 51A (which is in the same terms as s 97A) operated to exclude the common law natural justice hearing rule altogether: at [30]. Subsequently, in Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; 231 ALR 412; [2006] FCAFC 61 (Lay Lat), the Full Court of the Federal Court expressed its agreement with the observations made in VXDC at [30]: at [65]–[68]. However, in Antipova v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 151 FCR 480; [2006] FCA 584 (Antipova), Gray J, sitting alone, expressed disagreement with the court’s judgment in VXDC and did not accept that the judgment in Lay Lat was “plainly correct”, and therefore declined to follow that decision: at [96]–[98]. In Saeed, the Full Court of the Federal Court stated it was not open to Gray J in Antipova not to follow Lay Lat, and expressed its view that Lay Lat was correct: at [42]–[46]. However, in allowing the appeal in Saeed, the High Court, although not expressing any view as to the correctness of either Lay Lat or Antipova, clearly adopted the ratio decidendi of Gray J in Antipova by asserting that “the declaration in s 51A(1), that the subdivision is to be taken as an exhaustive statement of the requirements of the natural justice hearing rule, is qualified by the words ‘in relation to the matters it deals with’”. 98

Completion of visa application A non-citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf. [Former s 34 renum Act 60 of 1994, s 83; subst Act 184 of 1992, s 11; am Act 176 of 1992; Act 198 of 1991; Act 86 of 1991; former s 11Q renum Act 59 of 1989, s 35; insrt Act 59 of 1989, s 6]

278

Migration Law

[98.40]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 99

SECTION 98 COMMENTARY Scope ..................................................................................................................................................... [98.20] Applicant fixed with responsibility of content of visa application ..................................................... [98.30] Where the visa applicant is complicit and knowingly involved in fraudulent conduct ..................... [98.40]

[98.20] Scope According to s 98, a non-citizen is taken to have completed a visa application form or a passenger card if he or she causes it to be filled in, or if it is otherwise filled on his or her behalf. A non-citizen is taken to have filled out the application form or passenger card even in circumstances where it was filled in by his or her agent (or some other person) and that agent (or other person) provides the incorrect information: SZGJO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 393 at [16] per Bennett J; NAWZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 199 at [16] per Finn, Mansfield and Stone JJ; Zhang v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1706 at [14]–[15] per Edmonds J; SZIWV v Minister for Immigration and Citizenship [2007] FCA 1338 at [28] and [37] per Lander J. [98.30] Applicant fixed with responsibility of content of visa application Where an application is filed on an applicant’s behalf then, pursuant to s 98, the applicant will be “fixed with responsibility for the actual content of [the] false application [which is] filed on his behalf”: NAWZ v Minister for Immigration and Multicultural Affairs [2004] FCAFC 199 at [16]. This will be the case regardless of whether the applicant was aware of the contents of the application or specifically authorised the inclusion of incorrect information: SZJGO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 393 at [7]–[8]. [98.40]

Where the visa applicant is complicit and knowingly involved in fraudulent conduct In SZLHP v Minister for Immigration and Citizenship (2008) 172 FCR 170; [2008] FCAFC 152, Branson J (Lindgren and Graham JJ agreeing) held at [20] that, where a visa applicant is complicit and knowingly involved in the conduct in question, he or she cannot be said to have been fraudulently deceived in the sense discussed by the High Court in SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; 96 ALD 510; 237 ALR 64; 81 ALJR 1401; [2007] HCA 35. 99

Information is answer Any information that a non-citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment Authority, reviewing a decision under this Act in relation to the non-citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non-citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise. [S 99 am Act 60 of 2015, s 3 and Sch 2 items 13 and 148, with effect from 1 Jul 2015; Act 62 of 2007, s 3 and Sch 3 items 3 and 4; former s 35 renum Act 60 of 1994, s 83; subst Act 184 of 1992, s 11; am Act 196 of 1991; former s 11R renum Act 59 of 1989, s 35; insrt Act 59 of 1989, s 6 (am Act 159 of 1989)]

© 2016 THOMSON REUTERS

279

s 99

Migration Act 1958

100 Incorrect answers For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect. [S 100 am Act 62 of 2007, s 3 and Sch 3 item 5; former s 36 renum Act 60 of 1994, s 83; subst Act 184 of 1992, s 11; am Act 24 of 1992, s 7 and Sch 3; former s 11S renum Act 59 of 1989, s 35; insrt Act 59 of 1989, s 6]

101 Visa applications to be correct A non-citizen must fill in or complete his or her application form in such a way that: (a) all questions on it are answered; and (b) no incorrect answers are given or provided. [Para (b) am Act 62 of 2007, s 3 and Sch 3 item 7] [S 101 am Act 62 of 2007, s 3 and Sch 3 item 6; former s 37 renum Act 60 of 1994, s 83; am Act 60 of 1994; subst Act 184 of 1992, s 11; am Act 24 of 1992; Act 86 of 1991, s 26 and Sch; former s 11T renum Act 59 of 1989, s 35; insrt Act 59 of 1989, s 6]

102 Passenger cards to be correct A non-citizen must fill in his or her passenger card in such a way that: (a) all questions on it are answered; and (b) no incorrect answers are given. [Former s 38 renum Act 60 of 1994, s 83; am Act 60 of 1994; subst Act 184 of 1992, s 11; former s 11U renum Act 59 of 1989, s 35; insrt Act 59 of 1989, s 6]

103 Bogus documents not to be given etc. A non-citizen must not give, present, produce or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, produced or provided. [S 103 am Act 60 of 2015, s 3 and Sch 2 items 14 and 149, with effect from 1 Jul 2015; Act 116 of 2014, s 3 and Sch 7 items 1 and 2, with effect from 4 Nov 2014; Act 62 of 2007, s 3 and Sch 3 items 8 and 9; former s 39 renum Act 60 of 1994, s 83; am Act 60 of 1994, s 82 and Sch 1 item 38; subst Act 184 of 1992, s 11; former s 11V renum Act 59 of 1989, s 35; insrt Act 59 of 1989, s 6]

104 Changes in circumstances to be notified (1) If circumstances change so that an answer to a question on a non-citizen’s application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them. [Subs (1) am Act 58 of 2001, s 3 and Sch 1 item 16; Act 113 of 1998, s 3 and Sch 6 item 1]

(2) If the applicant is in Australia at the time the visa is granted, subsection (1) only applies to changes in circumstance before the visa is granted. [Subs (2) subst Act 58 of 2001, s 3 and Sch 1 item 17]

(3) If the applicant is outside Australia at the time the visa is granted, subsection (1) only applies to changes in circumstances after the application and before the applicant is immigration cleared. [Subs (3) am Act 58 of 2001, s 3 and Sch 1 item 18]

(4) Subsection (1) applies despite the grant of any visa. [Former subs (5) renum Act 60 of 1994, s 83; am Act 60 of 1994, s 40] [S 104 am Act 58 of 2001; Act 113 of 1998; former s 40 renum Act 60 of 1994, s 83; am Act 60 of 1994; subst Act 184 of 1992, s 11; am Act 175 of 1992; former s 11W renum Act 59 of 1989, s 35; insrt Act 59 of 1989, s 6]

280

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 107

105 Particulars of incorrect answers to be given (1) If a non-citizen becomes aware that: (a) an answer given or provided in his or her application form; or (b) an answer given in his or her passenger card; or (c) information given by him or her under section 104 about the form or card; or (d) a response given by him or her under section 107; was incorrect when it was given or provided, he or she must, as soon as practicable, notify an officer in writing of the incorrectness and of the correct answer. [Subs (1) am Act 62 of 2007, s 3 and Sch 3 items 10 and 11; Act 58 of 2001, s 3 and Sch 1 item 19; Act 113 of 1998, s 3 and Sch 6 item 2; Act 60 of 1994, s 82 and Sch 1 items 39 and 40; Act 14 of 1994, s 12(a)]

(2) Subsection (1) applies despite the grant of any visa. [S 105 am Act 62 of 2007, s 3 and Sch 3 item 11; Act 58 of 2001; Act 113 of 1998; former s 41 renum Act 60 of 1994, s 83; am Act 60 of 1994; Act 14 of 1994; subst Act 184 of 1992, s 11; former s 11X renum Act 59 of 1989, s 35; insrt Act 59 of 1989, s 6 (am Act 159 of 1989)]

106 Obligations to give etc. information is not affected by other sources of information The requirement for a non-citizen to comply with sections 101, 102, 103, 104 and 105, is not removed or otherwise affected by the fact that the Minister or an officer had, or had access to: (a) any information given by the non-citizen for purposes unrelated to the non-citizen’s visa application; or (b) any other information. [S 106 am Act 62 of 2007, s 3 and Sch 3 item 11; former s 42 renum Act 60 of 1994, s 83; am Act 14 of 1994; subst Act 184 of 1992, s 11; former s 11Y renum Act 59 of 1989, s 35; insrt Act 59 of 1989, s 6]

107 Notice of incorrect applications (1) If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice: (a) giving particulars of the possible non-compliance; and (b) stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that: (i) if the holder disputes that there was non-compliance: (A) shows that there was compliance; and (B) in case the Minister decides under section 108 that, in spite of the statement under sub-subparagraph (A), there was noncompliance—shows cause why the visa should not be cancelled; or (ii) if the holder accepts that there was non-compliance: (A) give reasons for the non-compliance; and (B) shows cause why the visa should not be cancelled; and (c) stating that the Minister will consider cancelling the visa: (i) if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or (ii) if the holder gives the Minister a written response within that period—when the response is given; or

© 2016 THOMSON REUTERS

281

s 107

Migration Act 1958

[98.40]

(iii) otherwise—at the end of that period; and (d) setting out the effect of sections 108, 109, 111 and 112; and (e) informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and (f) requiring the holder: (i) to tell the Minister the address at which the holder is living; and (ii) if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non-compliance by the holder—to tell the Minister the changed address. [Subs (1) am Act 113 of 1998, s 3 and Sch 6 items 3–5; am Act 60 of 1994, s 41]

(1A) The period to be stated in the notice under subsection (1) must be: (a) in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or (b) otherwise—14 days. [Subs (1A) insrt Act 113 of 1998, s 3 and Sch 6 item 6]

(1B) Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to: (a) visas of a stated class; or (b) visa holders in stated circumstances; or (c) visa holders in a stated class of people (who may be visa holders in a particular place); or (d) visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances. [Subs (1B) insrt Act 113 of 1998, s 3 and Sch 6 item 6]

(2) If the visa holder responds to the notice, he or she must do so without making any incorrect statement. [S 107 am Act 113 of 1998; former s 43 renum Act 60 of 1994, s 83; am Act 60 of 1994; subst Act 184 of 1992, s 11; former s 11Z renum Act 59 of 1989, s 35; insrt Act 59 of 1989, s 6]

SECTION 107 COMMENTARY Scope ................................................................................................................................................... [107.20] CONCEPTS

Particulars of possible non-compliance .............................................................................................. [107.40] Prescribed by the Regulations ............................................................................................................ [107.60] KEY CASES

Particulars of non-compliance ............................................................................................................ [107.80] Address known to the Minister in reg 2.55 for sending notifications about cancellation decisions ............................................................................................................... [107.100] Post box address under reg 2.55 for the purpose of sending a notification ................................... [107.120] Transmitting the document under reg 2.55 for the purpose of sending a notification ................... [107.140] PRACTICE POINTS

Compliance with section 107 ........................................................................................................... [107.160]

282

Migration Law

[107.80]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 107

[107.20] Scope Before the Minister (or his delegate) can proceed to cancel a non-citizen’s visa under s 109 on the basis that the non-citizen has provided incorrect information, the Minister (or his delegate) must first send the non-citizen a notice according to s 107. A notice under s 107 can only be sent if the Minister (or his delegate) thinks that the non-citizen has failed to comply with one of the following provisions by: • not filling in or completing a visa application with the correct answers or information: s 101; • not filling in a passenger card with the correct answers or information: s 102; • presenting or providing either an officer, an authorised system, the Minister or a Tribunal with a bogus document: s 103; • not notifying an officer about any changes in circumstances that would change an answer on a visa application form: s 104; or • not notifying an officer of incorrect information in a visa application, passenger card or under s 104: s 105; see also Zhong v MIAC (2008) 171 FCR 444; 102 ALD 86; [2008] FCA 507. A notice under this section must contain the information set out in s 107(1)(a) – (f). The notice must also be served according to the rules set out in reg 2.55 of the Regulations.

CONCEPTS [107.40] Particulars of possible non-compliance Under s 107(1)(a), the notice must provide particulars of the non-compliance, not by simply stating that, for example, the non-citizen has not complied with s 101; rather, the notice must set out the “specifics (the particulars) of that non-compliance”: Saleem v Migration Review Tribunal [2004] FCA 234 at [43] per Allsop J. [107.60] Prescribed by the Regulations Section 107(1A) and (1B) both refer to a period that is prescribed under the Regulations. There is no period that is prescribed for these provisions in the Regulations.

KEY CASES [107.80] Particulars of non-compliance In Minister for Immigration and Citizenship v Brar (2012) 201 FCR 240; 126 ALD 99; [2012] FCAFC 30, North, Greenwood and Besanko JJ considered an appeal filed by the Minister in relation to a decision made by the Federal Magistrates Court (as it was then known). The Federal Magistrates Court held that the s 107 notice provided to Mr Brar was false in a material particular because it stated that Mr Brar had provided a bogus document to an “officer” instead of an “authorised system”. Since the ground of non-compliance was incorrectly framed, it could not support the cancellation decision made by the delegate. North, Greenwood and Besanko JJ upheld the Minister’s appeal and stated at [56]–[57]: A notice under s 107 of the Act is not a criminal charge or a pleading in a civil action. The notice must contain, among other things, particulars of possible non-compliance and then the decision-maker under s 108 must decide whether there has been non-compliance in the way described in the notice. In Zhao v Minister for Immigration and Multicultural Affairs [2000] FCA 1235 the Full Court of this Court considered a notice under s 119 of the Act. That section is in different terms from s107. Nevertheless, we think the following statements of the Court (at [25]–[26]) are of assistance in terms of the proper interpretation and application of s 107: © 2016 THOMSON REUTERS

283

s 107

Migration Act 1958

[107.100]

Section 119 requires particulars of the grounds relied upon to be included in the notice. The level of particularity is not specified. It must serve the statutory purpose. That is to say it must be sufficient, when read in conjunction with the supporting information, to fairly inform the visa holder of the basis upon which cancellation is being considered so that the visa holder is adequately equipped to provide such relevant information as may be available and to make such submissions as may be open. … The requirement of notification of grounds of possible cancellation is not a requirement for delivery of some form of pleading which may then be the subject of strict construction and technical criticism. The overall purpose to be served by s 119 is procedural fairness and it is that which informs the construction and application of the section. The Court, testing the matter by reference to the statutory purpose, refused to find that an erroneous reference to a regulation rendered the notice ineffective for non-compliance with s 119.

North, Greenwood and Besanko JJ then considered and applied the High Court’s decision in Minister for Immigration and Citizenship v SZIZO (2009) 238 CLR 627; 259 ALR 405; [2009] HCA 37 and held at [61]: In our opinion, it was not Parliament’s intention that all departures from the statements made in a notice under s 107 deprive the decision-maker of jurisdiction under ss 108 and 109 to making findings of non-compliance by the visa holder in the way described in the notice. The phrase “in the way described in the notice” must be read in light of the purpose of the statutory scheme which is to ensure that the visa holder has notice of the alleged non-compliance and an opportunity to dispute the allegations and to respond to them. A departure which is minor and insignificant in the context of the facts of a particular case and which does not go to the substance of the allegations of non-compliance does not deprive the decision-maker of jurisdiction under ss 108 and 109. The departure in this case should be so characterised.

[107.100]

“Address known to the Minister” in reg 2.55 for sending notifications about cancellation decisions A notice under s 107 must be sent to a person in accordance with reg 2.55. Relevantly, under this regulation, a written notification may be: • handed to another person who is at the person’s (that is, the person whose visa is cancelled) “last residential or business address known to the Minister”: reg 2.55(3)(b); • dispatched by prepaid post to the person’s “last residential address, business address or post box address known to the Minister”: reg 2.55(3)(c); and • transmitted by fax, email or other electronic means to the “last fax number, email address or other electronic address known to the Minister”: reg 2.55(3)(d). In Ball v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 199; 199 ALR 374; [2003] FCA 699, the applicant’s visa was cancelled on character grounds and the notification under s 501G was dispatched by prepaid post to the last address known to the Minister. An officer at the Department obtained the address from the Western Australian Police Service. In relation to the concept of “last known address” in reg 2.55, Ryan J stated at [25] that: the concept of last known address in reg 2.55(3)(c) does not depend on the Minister’s knowledge coming from a particular source. Nor does it require that the Minister’s knowledge be verified in any particular way. It is sufficient that the means of knowledge relied on by the Minister be reasonable in the circumstances. In the present case, the knowledge acquired from the Western Australian Police about the applicant’s residential address was accurate when acquired and remained accurate until the applicant left Western Australia on 18 January 2003. Short of physically locating the applicant, it is difficult to perceive what more the Department could reasonably have done to bring to her notice the intention to consider cancellation of her visa. 284

Migration Law

[107.160]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 107

In Osborne v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 416; [2002] FCA 1113, a notice of intended cancellation was sent to the applicant’s last known address, which was the address of a close relative, being his mother, with whom he had expressed an intention to resume living after he was released from jail. French J held that in those circumstances, it was reasonable for the notice to have been sent to this address and for this to be the last known address. In Minister for Immigration and Multicultural Affairs v George (2004) 139 FCR 127; 85 ALD 513; [2004] FCAFC 276, Black CJ and Emmett and Selway JJ were of the view that the last residential address in reg 2.55 must be an address at which the applicant has actually resided at some point in time: at [36]. Their Honours were of the view that the consequence of a notice being sent to the last known residential address, at which the applicant had never resided, was that an applicant would not be taken to have been notified and the Minister could not rely on deemed receipt provisions in reg 2.55(7) (unless the applicant actually received the notice and the Minister could then rely on reg 2.55(9)). In Lu v Minister for Immigration and Multicultural Affairs (2004) 135 FCR 450; [2004] FCA 181, Emmett J was also of the view that the reference to “residential address” in reg 2.55 must be an address at which the applicant had resided at some point: at [32]. However, the last known residential address is not confined to addresses known only after an applicant’s last entry into Australia: Choi v Minister for Immigration and Citizenship [2008] FMCA 1717 at [40] per Smith FM. [107.120]

“Post box address” under reg 2.55 for the purpose of sending a notification Under reg 2.55, a written notice can be sent to the last “post box address” known to the Minister: see reg 2.55(3)(c), (3A)(c) and (e). The expression “post box address” means a postal address known to the Minister which is not a residential or business address: Zhang v Minister for Immigration and Citizenship (2007) 161 FCR 419; [2007] FCAFC 151 at [30] per Finn, Kenny and Greenwood JJ. [107.140]

“Transmitting the document” under reg 2.55 for the purpose of sending a notification Under reg 2.55, a written notice can be given by “transmitting” it by fax, email or other electronic means to the last address known by the Minister: see reg 2.55(3)(d), (3A)(d) and (f). In Sainju v Minister for Immigration and Citizenship (2010) 185 FCR 86; 115 ALD 371; [2010] FCA 461, Jacobson J considered the words “by transmitting” and “transmitted” in reg 2.55(8) and whether they mean “by sending” or “sent”, regardless of whether the document is actually received by the applicant. Jacobson J held that “by transmitting” means by “sending” and that an applicant is taken to have received the transmitted document at the end of the day on which it is sent: at [57]. His Honour explained in relation to deeming provisions at [58]: The purpose of provisions such as these is to achieve administrative certainty as to whether a document has been given to a person, and as to the time at which this has occurred. It affects time limits for review of administrative decisions and may, in some instances, foreclose that possibility.

PRACTICE POINTS [107.160] Compliance with section 107 Compliance with the provisions in s 107 is a statutory requirement before the Minister (or his delegate) can proceed to cancel a visa under s 109. When considering whether to cancel a visa under s 109, the Minister (or his delegate) must consider whether there has been non-compliance in the way described in the notice. This means the Minister (or his delegate) is not able to inquire into whether there was non-compliance in a way not described in the notice: Minister for Immigration and Citizenship v Brar (2012) 201 © 2016 THOMSON REUTERS

285

s 107A

Migration Act 1958

[108.20]

FCR 240; 126 ALD 99; [2012] FCAFC 30 at [45] per North, Greenwood and Besanko JJ. This also applies to the former Migration Review Tribunal when reviewing a decision to cancel a visa under s 109: Saleem v Migration Review Tribunal [2004] FCA 234 at [22] per Allsop J. 107A Possible non-compliances in connection with a previous visa may be grounds for cancellation of current visa The possible non-compliances that: (a) may be specified in a notice by the Minister under section 107 to a person who is the holder of a visa; and (b) if so specified, can constitute a ground for the cancellation of that visa under section 109; include non-compliances that occurred at any time, including non-compliances in respect of any previous visa held by the person. [S 107A insrt Act 113 of 1998, s 3 and Sch 6 item 7]

108 Decision about non-compliance The Minister is to: (a) consider any response given by a visa holder in the way required by paragraph 107(1)(b); and (b) decide whether there was non-compliance by the visa holder in the way described in the notice. [Former s 44 renum Act 60 of 1994, s 83; subst Act 184 of 1992, s 11; former s 11ZA renum Act 59 of 1989, s 35; insrt Act 59 of 1989, s 6]

SECTION 108 COMMENTARY Scope ................................................................................................................................................... [108.20] Concept

Way described in the notice ................................................................................................................ [108.40] KEY CASE

Jurisdictional fact and non-compliance .............................................................................................. [108.60] Non-compliance in the way described in the notice ......................................................................... [108.80]

[108.20] Scope When considering whether to cancel a visa under s 109, the Minister (or his delegate) must consider any response to the s 107 notice (s 108(a)) and whether there has been non-compliance in the way described in the notice sent under s 107: s 108(b).

CONCEPT [108.40] Way described in the notice Section 108(b) requires the Minister (or his delegate) to consider whether there has been non-compliance in the way described in the notice sent under s 107. This means the Minister (or his delegate) is not able to inquire into whether there was non-compliance in a way not described in the notice: Minister for Immigration and Citizenship v Brar (2012) 201 FCR 240; 126 ALD 99; [2012] FCAFC 30 at [45] per North, Greenwood and Besanko JJ. This also applies to the former Migration Review Tribunal when reviewing a decision to cancel a visa under s 109: Saleem v Migration Review Tribunal [2004] FCA 234 at [22] per Allsop J. 286

Migration Law

[108.80]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 108

KEY CASE [108.60] Jurisdictional fact and non-compliance In SHJB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 43; [2003] FCAFC 303, Carr, Finn and Sundberg JJ considered the question of what facts are jurisdictional facts under ss 108 and 109. Relevantly, their Honours considered whether the fact of non-compliance by a visa holder in the way described in the s 107 notice was a jurisdictional fact and therefore, a court hearing a judicial review application must first decide this fact. Carr, Finn and Sundberg JJ held at [17] that a court did not need to make this decision and that the relevant jurisdictional fact was a decision by the Minister that the visa holder had not complied with the requirements of s 108. [108.80] Non-compliance in the way described in the notice In Minister for Immigration and Citizenship v Brar (2012) 201 FCR 240; 126 ALD 99; [2012] FCAFC 30, North, Greenwood and Besanko JJ considered an appeal filed by the Minister in relation to a decision made by the Federal Magistrates Court (as it was then known). The Federal Magistrates Court held that the s 107 notice provided to Mr Brar was false in a material particular because it stated that Mr Brar had provided a bogus document to an “officer” instead of an “authorised system”. Since the ground of non-compliance was incorrectly framed, it could not support the cancellation decision made by the delegate because the non-compliance was not in the way described in the notice. North, Greenwood and Besanko JJ upheld the Minister’s appeal and stated at [56]–[57]: A notice under s 107 of the Act is not a criminal charge or a pleading in a civil action. The notice must contain, among other things, particulars of possible non-compliance and then the decision-maker under s 108 must decide whether there has been non-compliance in the way described in the notice. In Zhao v Minister for Immigration and Multicultural Affairs [2000] FCA 1235 the Full Court of this Court considered a notice under s 119 of the Act. That section is in different terms from s 107. Nevertheless, we think the following statements of the Court (at [25]–[26]) are of assistance in terms of the proper interpretation and application for s 107: Section 119 required particulars of the grounds relied upon to be included in the notice. The level of particularity is not specified. It must serve the statutory purpose. That is to say it must be sufficient, when read in conjunction with the supporting information, to fairly inform the visa holder of the basis upon which cancellation is being considered so that the visa holder is adequately equipped to provide such relevant information as may be available and to make such submissions as may be open. … The requirement of notification of grounds of possible cancellation is not a requirement for delivery of some form of pleading which may then be the subject of strict construction and technical criticism. The overall purpose to be served by s 119 is procedural fairness and it is that which informs the construction and application of the section. The Court, testing the matter by reference to the statutory purpose, refused to find that an erroneous reference to a regulation rendered the notice ineffective for non-compliance with s 119.

North, Greenwood and Besanko JJ then considered and applied the High Court’s decision in Minister for Immigration and Citizenship v SZIZO (2009) 238 CLR 627; 259 ALR 405; [2009] HCA 37 and held at [61] that: In our opinion, it was not Parliament’s intention that all departures from the statements made in a notice under s 107 deprive the decision-maker of jurisdiction under ss 108 and 109 to making findings of non-compliance by the visa holder in the way described in the notice. The phrase “in the way described in the notice” must be read in light of the purpose of the statutory scheme which is to ensure that the visa holder has notice of the alleged non-compliance and an opportunity to dispute the allegations and © 2016 THOMSON REUTERS

287

s 109

Migration Act 1958

[109.20]

to respond to them. A departure which is minor and insignificant in the context of the facts of a particular case and which does not go to the substance of the allegations of non-compliance does not deprive the decision-maker of jurisdiction under ss 108 and 109. The departure in this case should be so characterised.

109 Cancellation of visa if information incorrect (1) The Minister, after: (a) deciding under section 108 that there was non compliance by the holder of a visa; and (b) considering any response to the notice about the non compliance given in a way required by paragraph 107(1)(b); and (c) having regard to any prescribed circumstances; may cancel the visa. (2) If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled. [Former s 45 renum Act 60 of 1994, s 83; am Act 60 of 1994, s 82 and Sch 1 item 41; subst Act 184 of 1992, s 11; former s 11ZB renum Act 59 of 1989, s 35; insrt Act 59 of 1989, s 6]

SECTION 109 COMMENTARY Scope ................................................................................................................................................... [109.20] CONCEPTS

Prescribed circumstances .................................................................................................................... [109.40] Circumstances declared by the Regulations ....................................................................................... [109.60] KEY CASES

Jurisdictional fact and non-compliance .............................................................................................. [109.80] Non-compliance in the way described in the notice ....................................................................... [109.100] Address known to the Minister in reg 2.55 for sending notifications about cancellation decisions ................................................................................................................................... [109.120] Post box address under reg 2.55 for the purpose of sending a notification ................................... [109.140] Transmitting the document under reg 2.55 for the purpose of sending a notification ................... [109.160] PRACTICE POINT

Compliance with section 107 ........................................................................................................... [109.180]

[109.20] Scope Section 109 provides the Minister with a discretion to cancel a visa if the Minister has: • decided under s 108 that there has been non-compliance by the visa holder; • considered the responses to the s 107 notice; and • considered the circumstances prescribed in reg 2.41. If the Minister (or his delegate) decides to cancel a visa, he or she must notify the person of this decision in writing and send the letter pursuant to reg 2.55: reg 2.42 of the Regulations.

CONCEPTS [109.40] Prescribed circumstances Under s 109(1)(c) the Minister (or his delegate) is to have regard to any prescribed circumstances when considering whether or not to cancel a visa. The prescribed circumstances are listed in reg 2.4. 288

Migration Law

[109.100]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 109

[109.60] Circumstances declared by the Regulations Pursuant to s 107(2), if there are circumstances declared by the Regulations to be circumstances in which a visa is to be cancelled, the Minister (or his delegate) must cancel the visa if those circumstances exist. There are no circumstances declared by the Regulations.

KEY CASES [109.80] Jurisdictional fact and non-compliance In SHJB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 43; [2003] FCAFC 303, Carr, Finn and Sundberg JJ considered the question of what facts are jurisdictional facts under ss 108 and 109. Relevantly, their Honours considered whether the fact of non-compliance by a visa holder in the way described in the s 107 notice was a jurisdictional fact, and that therefore a court hearing a judicial review application must first decide this fact. Carr, Finn and Sundberg JJ held at [17] that a court did not need to make this decision and that the relevant jurisdictional fact was a decision made by the Minister that the visa holder had not complied with the requirements of s 108. [109.100] Non-compliance in the way described in the notice In Minister for Immigration and Citizenship v Brar (2012) 201 FCR 240; 126 ALD 99; [2012] FCAFC 30, North, Greenwood and Besanko JJ considered an appeal filed by the Minister in relation to a decision made by the Federal Magistrates Court (as it was then known). The Federal Magistrates Court held that the s 107 notice provided to Mr Brar was false in a material particular because it stated that Mr Brar had provided a bogus document to an “officer” instead of an “authorised system”. Since the ground of non-compliance was incorrectly framed, it could not support the cancellation decision made by the delegate because the non-compliance was not in the way described in the notice. North, Greenwood and Besanko JJ upheld the Minister’s appeal and stated at [56]–[57]: A notice under s 107 of the Act is not a criminal charge or a pleading in a civil action. The notice must contain, among other things, particulars of possible non-compliance and then the decision-maker under s 108 must decide whether there has been non-compliance in the way described in the notice. In Zhao v Minister for Immigration and Multicultural Affairs [2000] FCA 1235 the Full Court of this Court considered a notice under s 119 of the Act. That section is in different terms from s107. Nevertheless, we think the following statements of the Court (at [25]–[26]) are of assistance in terms of the proper interpretation and application for s 107: Section 119 required particulars of the grounds relied upon to be included in the notice. The level of particularity is not specified. It must serve the statutory purpose. That is to say it must be sufficient, when read in conjunction with the supporting information, to fairly inform the visa holder of the basis upon which cancellation is being considered so that the visa holder is adequately equipped to provide such relevant information as may be available and to make such submissions as may be open. … The requirement of notification of grounds of possible cancellation is not a requirement for delivery of some form of pleading which may then be the subject of strict construction and technical criticism. The overall purpose to be served by s 119 is procedural fairness and it is that which informs the construction and application of the section. The Court, testing the matter by reference to the statutory purpose, refused to find that an erroneous reference to a regulation rendered the notice ineffective for non-compliance with s 119.

North, Greenwood and Besanko JJ then considered and applied the High Court’s decision in Minister for Immigration and Citizenship v SZIZO (2009) 238 CLR 627; 259 ALR 405; [2009] HCA 37 and held at [61]: © 2016 THOMSON REUTERS

289

s 109

Migration Act 1958

[109.120]

In our opinion, it was not Parliament’s intention that all departures from the statements made in a notice under s 107 deprive the decision-maker of jurisdiction under ss 108 and 109 to making findings of non-compliance by the visa holder in the way described in the notice. The phrase “in the way described in the notice” must be read in light of the purpose of the statutory scheme which is to ensure that the visa holder has notice of the alleged non-compliance and an opportunity to dispute the allegations and to respond to them. A departure which is minor and insignificant in the context of the facts of a particular case and which does not go to the substance of the allegations of non-compliance does not deprive the decision-maker of jurisdiction under ss 108 and 109. The departure in this case should be so characterised.

[109.120]

“Address known to the Minister” in reg 2.55 for sending notifications about cancellation decisions If the Minister decides to cancel a visa under s 109, pursuant to reg 2.42 a written notice of that decision must be sent in accordance with reg 2.55. Relevantly, under this regulation, a written notification may be: • handed to another person who is at the person’s (that is, the person whose visa is cancelled) “last residential or business address known to the Minister”: reg 2.55(3)(b); • dispatched by prepaid post to the person’s “last residential address, business address or post box address known to the Minister”: reg 2.55(3)(c); and • transmitted by fax, email or other electronic means to the “last fax number, email address or other electronic address known to the Minister”: reg 2.55(3)(d). In Ball v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 199; 199 ALR 374; [2003] FCA 699, the applicant’s visa was cancelled on character grounds and the notification under s 501G was dispatched by prepaid post to the last address known to the Minister. An officer at the Department obtained the address from the Western Australian Police Service. In relation to the concept of “last known address” in reg 2.55, Ryan J stated at [25] that: the concept of last known address in reg 2.55(3)(c) does not depend on the Minister’s knowledge coming from a particular source. Nor does it require that the Minister’s knowledge be verified in any particular way. It is sufficient that the means of knowledge relied on by the Minister be reasonable in the circumstances. In the present case, the knowledge acquired from the Western Australian Police about the applicant’s residential address was accurate when acquired and remained accurate until the applicant left Western Australia on 18 January 2003. Short of physically locating the applicant, it is difficult to perceive what more the Department could reasonably have done to bring to her notice the intention to consider cancellation of her visa.

In Osborne v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 416; [2002] FCA 1113, a notice of intended cancellation was sent to the applicant’s last known address, which was the address of a close relative, his mother, with whom he had expressed an intention to resume living after he was released from jail. French J held that, in those circumstances, it was reasonable for the notice to have been sent to this address and for this to be the last known address. In Minister for Immigration and Multicultural Affairs v George (2004) 139 FCR 127; 85 ALD 513; [2004] FCAFC 276, Black CJ and Emmett and Selway JJ, were of the view that the last residential address in reg 2.55 must be an address at which the applicant has actually resided at some point in time: at [36]. Their Honours were of the view that the consequence of a notice being sent to the last known residential address, at which the applicant had never resided, was that an applicant would not be taken to have been notified and the Minister could not rely on deemed receipt provisions in reg 2.55(7) (unless the applicant actually received the notice and the Minister could then rely on reg 2.55(9)). In Lu v Minister for Immigration and Multicultural Affairs (2004) 135 FCR 450; [2004] FCA 181, Emmett J was also of the view that the reference 290

Migration Law

[109.180]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 110

to “residential address” in reg 2.55 must be an address at which the applicant had resided at some point: at [32]. However, the last known residential address is not confined to addresses known only after an applicant’s last entry into Australia: Choi v Minister for Immigration and Citizenship [2008] FMCA 1717 at [40] per Smith FM. [109.140]

“Post box address” under reg 2.55 for the purpose of sending a notification Under reg 2.55, a written notice can be sent to the last “post box address” known to the Minister: see reg 2.55(3)(c), (3A)(c) and (e). The expression “post box address” means a postal address known to the Minister, which is not a residential or business address: Zhang v Minister for Immigration and Citizenship (2007) 161 FCR 419; [2007] FCAFC 151 at [30] per Finn, Kenny and Greenwood JJ. [109.160]

“Transmitting the document” under reg 2.55 for the purpose of sending a notification Under reg 2.55, a written notice can be given by “transmitting” it by fax, email or other electronic means to the last address known by the Minister: see reg 2.55(3)(d), (3A)(d) and (f). In Sainju v Minister for Immigration and Citizenship (2010) 185 FCR 86; 115 ALD 371; [2010] FCA 461, Jacobson J considered the words “by transmitting” and “transmitted” in reg 2.55(8) and whether they mean “by sending” or “sent”, regardless of whether the document is actually received by the applicant. Jacobson J held that “by transmitting” means by “sending” and that an applicant is taken to have received the transmitted document at the end of the day on which it is sent: at [57]. His Honour explained in relation to deeming provisions at [58]: The purpose of provisions such as these is to achieve administrative certainty as to whether a document has been given to a person, and as to the time at which this has occurred. It affects time limits for review of administrative decisions and may, in some instances, foreclose that possibility.

PRACTICE POINT [109.180] Compliance with section 107 Compliance with the provisions in s 107 is a statutory requirement before the Minister (or his delegate) can proceed to cancel a visa under s 109. When considering whether to cancel a visa under s 109, the Minister (or his delegate) must consider whether there has been non-compliance in the way described in the s 107 notice. This means the Minister (or his delegate) is not able to inquire into whether there was non-compliance in a way not described in the notice: Minister for Immigration and Citizenship v Brar (2012) 201 FCR 240; 126 ALD 99; [2012] FCAFC 30 at [45] per North, Greenwood and Besanko JJ. This also applies to the former Migration Review Tribunal when reviewing a decision to cancel a visa under s 109: Saleem v Migration Review Tribunal [2004] FCA 234 at [22] per Allsop J. A decision to cancel a visa under this section is reviewable by the Tribunal under Pt 5. 110 Cancellation provisions apply whatever source of knowledge of non-compliance To avoid doubt, sections 107, 108 and 109 apply whether or not the Minister became aware of the non-compliance because of information given by the holder. [Former s 46 renum Act 60 of 1994, s 83; am Act 60 of 1994, s 82 and Sch 1 item 41; subst Act 184 of 1992, s 11; former s 11ZC renum Act 59 of 1989, s 35; insrt Act 59 of 1989, s 6]

© 2016 THOMSON REUTERS

291

s 110

Migration Act 1958

111 Cancellation provisions apply whether or not non-compliance deliberate To avoid doubt, sections 107, 108 and 109 apply whether the non-compliance was deliberate or inadvertent. [Former s 47 renum Act 60 of 1994, s 83; subst Act 184 of 1992, s 11; subst Act 86 of 1991, s 12; former s 11ZD renum Act 59 of 1989, s 35; insrt Act 59 of 1989, s 6]

112 Action because of one non-compliance not prevent action because of other non-compliance (1) A notice under section 107 to a person because of an instance of possible non-compliance does not prevent another notice under that section to that person because of another instance of possible non-compliance. (2) The non-cancellation of a visa under section 109 despite an instance of non-compliance does not prevent the cancellation, or steps for the cancellation, of the visa because of another instance of non-compliance. [Former s 48 renum Act 60 of 1994, s 83; subst Act 184 of 1992, s 11; former s 11ZE renum Act 59 of 1989, s 35; insrt Act 59 of 1989, s 6]

113 No cancellation if full disclosure If the holder of a visa who has been immigration cleared complied with sections 101, 102, 103, 104 and 105 in relation to the visa, it cannot be cancelled under this Subdivision because of any matter that was fully disclosed in so complying. [Former s 49 renum Act 60 of 1994, s 83; subst Act 184 of 1992, s 11; former s 11ZF renum Act 59 of 1989, s 35; insrt Act 59 of 1989, s 6]

114 Effect of setting aside decision to cancel visa (1) If the Federal Court, the Federal Circuit Court or the Administrative Appeals Tribunal sets aside a decision under section 109 to cancel a person’s visa, the visa is taken never to have been cancelled. [Subs (1) am Act 60 of 2015, s 3 and Sch 2 item 15, with effect from 1 Jul 2015; Act 13 of 2013, s 3 and Sch 2 item 1, with effect from 12 Apr 2013; Act 157 of 2001, s 3 and Sch 1 item 2, with effect from 1 Oct 2001; Act 113 of 1998, s 3 and Sch 2 item 3, with effect from 1 Jun 1999; Act 113 of 1998, s 3 and Sch 1 item 3, with effect from 1 Jun 1999]

(2) In spite of subsection (1), any detention of the non-citizen between the purported cancellation of the visa and the decision to set aside the decision to cancel is lawful and the non-citizen is not entitled to make any claim against the Commonwealth or an officer because of the detention. [S 114 am Act 60 of 2015; Act 13 of 2013; Act 157 of 2001; Act 113 of 1998; subst Act 184 of 1992, s 11, with effect from 1 Sep 1994; insrt Act 59 of 1989, s 6, with effect from 19 Dec 1989]

115 Application of Subdivision (1) This Subdivision applies to: (a) applications for visas made; and (b) passenger cards filled in; on or after 1 September 1994. [Subs (1) am Act 59 of 1993, s 17]

(2) This Subdivision, other than sections 101 and 102, applies to: (a) applications for visas, or entry permits, within the meaning of the Migration Act 1958 as in force before 1 September 1994, that under the regulations are taken to be applications for visas and that have not been finally determined before that date; and (b) passenger cards filled in before 1 September 1994. [Subs (2) am Act 59 of 1993, s 17]

292

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 116

(3) This Subdivision applies to a visa granted otherwise than because of an application on or after 1 September 1994 and does so as if: (a) this Subdivision had applied to: (i) the application for the visa; and (ii) passenger cards filled in before that date; and (b) the application for any other visa, or entry permit, (within the meaning of the Migration Act 1958 as in force immediately before that date) because of which the visa is held had been the application for the visa; and (c) for the purposes of sections 107 to 114, non-compliance by the holder of the visa with the sections referred to in section 107 included any action or condition of the holder because of which section 20 of that Act as so in force applied to the holder. [Subs (3) am Act 59 of 1993, s 17] [Former s 50AA renum Act 60 of 1994, s 83; am Act 59 of 1993; insrt Act 184 of 1992, s 11]

SUBDIVISION D – VISAS MAY BE CANCELLED ON CERTAIN GROUNDS (SS 116–118) [Subdiv D heading insrt Act 184 of 1992, s 11]

116 Power to cancel (1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that: (a) the decision to grant the visa was based, wholly or partly, on a particular fact or circumstance that is no longer the case or that no longer exists; or (aa) the decision to grant the visa was based, wholly or partly, on the existence of a particular fact or circumstance, and that fact or circumstance did not exist; or (b) its holder has not complied with a condition of the visa; or (c) another person required to comply with a condition of the visa has not complied with that condition; or (d) if its holder has not entered Australia or has so entered but has not been immigration cleared—it would be liable to be cancelled under Subdivision C (incorrect information given by holder) if its holder had so entered and been immigration cleared; or (e) the presence of its holder in Australia is or may be, or would or might be, a risk to: (i) the health, safety or good order of the Australian community or a segment of the Australian community; or (ii) the health or safety of an individual or individuals; or (f) the visa should not have been granted because the application for it or its grant was in contravention of this Act or of another law of the Commonwealth; or (fa) in the case of a student visa: (i) its holder is not, or is likely not to be, a genuine student; or (ii) its holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa; or (g) a prescribed ground for cancelling a visa applies to the holder. [Subs (1) am Act 129 of 2014, s 3 and Sch 2 items 3 and 4, with effect from 11 Dec 2014; Act 168 of 2000, s 3 and Sch 4 item 1; Act 60 of 1994, s 82 and Sch 1 items 42–44]

(1AA) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is not satisfied as to the visa holder’s identity. [Subs (1AA) insrt Act 129 of 2014, s 3 and Sch 2 item 5, with effect from 11 Dec 2014]

© 2016 THOMSON REUTERS

293

s 116

Migration Act 1958

(1AB) Subject to subsections (2) and (3), the Minister may cancel a visa (the current visa) if he or she is satisfied that: (a) incorrect information was given, by or on behalf of the person who holds the current visa, to: (i) an officer; or (ii) an authorised system; or (iii) the Minister; or (iv) any other person, or a tribunal, performing a function or purpose under this Act; or (v) any other person or body performing a function or purpose in an administrative process that occurred or occurs in relation to this Act; and (b) the incorrect information was taken into account in, or in connection with, making: (i) a decision that enabled the person to make a valid application for a visa; or (ii) a decision to grant a visa to the person; and (c) the giving of the incorrect information is not covered by Subdivision C. This subsection applies whenever the incorrect information was given and whether the visa referred to in subparagraph (b)(i) or (ii) is the current visa or a previous visa that the person held. [Subs (1AB) insrt Act 129 of 2014, s 3 and Sch 2 item 5, with effect from 11 Dec 2014]

(1AC) Subject to subsections (2) and (3), the Minister may cancel a visa (the current visa) if he or she is satisfied that: (a) a benefit was asked for or received by, or on behalf of, the person (the visa holder) who holds the current visa from another person in return for the occurrence of a sponsorship-related event; or (b) a benefit was offered or provided by, or on behalf of, the person (the visa holder) who holds the current visa to another person in return for the occurrence of a sponsorship-related event. [Subs (1AC) insrt Act 161 of 2015, s 3 and Sch 1 item 1, with effect from 14 Dec 2015]

(1AD) Subsection (1AC) applies: (a) whether or not the visa holder held the current visa or any previous visa at the time the benefit was asked for, received, offered or provided; and (b) whether or not the sponsorship-related event relates to the current visa or any previous visa that the visa holder held; and (c) whether or not the sponsorship-related event occurred. [Subs (1AD) insrt Act 161 of 2015, s 3 and Sch 1 item 1, with effect from 14 Dec 2015]

(1A) The regulations may prescribe matters to which the Minister may have regard in determining whether he or she is satisfied as mentioned in paragraph (1)(fa). Such regulations do not limit the matters to which the Minister may have regard for that purpose. [Subs (1A) insrt Act 168 of 2000, s 3 and Sch 4 item 2]

(1B) [Repealed] [Subs (1B) rep Act 168 of 2000, s 3 and Sch 2 item 1A; insrt Act 168 of 2000, s 3 and Sch 4 item 2]

(2) The Minister is not to cancel a visa under subsection (1), (1AA), (1AB) or (1AC) if there exist prescribed circumstances in which a visa is not to be cancelled. [Subs (2) am Act 161 of 2015, s 3 and Sch 1 item 2, with effect from 14 Dec 2015; Act 129 of 2014, s 3 and Sch 2 item 6, with effect from 11 Dec 2014]

294

Migration Law

[116.20]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 116

(3) If the Minister may cancel a visa under subsection (1), (1AA), (1AB) or (1AC), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled. [Subs (3) am Act 161 of 2015, s 3 and Sch 1 item 2, with effect from 14 Dec 2015; Act 129 of 2014, s 3 and Sch 2 item 7, with effect from 11 Dec 2014]

(4) In this section: benefit has a meaning affected by section 245AQ. sponsorship-related event has the meaning given by section 245AQ. [Subs (4) insrt Act 161 of 2015, s 3 and Sch 1 item 3, with effect from 14 Dec 2015] [S 116 am Act 161 of 2015; Act 129 of 2014; Act 168 of 2000; former s 50AB renum Act 60 of 1994, s 83; am Act 60 of 1994; insrt Act 184 of 1992, s 11 Cross-reference: Ministerial Directions: Bridging E Visas – Cancellation under s 116(1)(g) – Reg 2.43(1)(p) or (q) (Direction No. 63): The purpose of this Direction is to guide decision-makers who are delegated to perform functions or exercise powers under the Act to cancel the visa of a non-citizen under s 116(1)(g) and reg 2.43(1)(p) or (q).]

SECTION 116 COMMENTARY Scope .................................................................................................................................................... [116.20] CONCEPTS

Prescribed ground ................................................................................................................................ [116.40] Prescribed matters ............................................................................................................................... [116.60] Prescribed circumstances .................................................................................................................... [116.80] KEY CASES

Notice under s 119 enlivens cancellation power .............................................................................. [116.100] Inadequate s 119 notice does not prevent Tribunal considering merits .......................................... [116.120] Breach of condition 8202 .................................................................................................................. [116.140] PRACTICE POINTS

Cancellation of visa ........................................................................................................................... [116.160]

[116.20] Scope Under s 116 the Minister: • has a discretion to cancel a non-citizen’s visa if the circumstances set out in s 116(1) exist: for example, if a non-citizen has breached a condition of the visa; or • must cancel a non-citizen’s visa if the prescribed circumstances in reg 2.43(2) exist: s 116(3); or • regardless of whether the circumstances in s 116(1) exist, must not cancel a non-citizen’s visa if prescribed circumstances exist in which a visa is not to be cancelled: s 116(2). No circumstances have been prescribed. The power to cancel a visa is enlivened after a notice under s 119 has been sent and after: • the non-citizen either: – responds to that notice; – tells the Minister he or she does not wish to respond; or – the time for responding has passed; and • a notice under s 120 has been sent if such a notice is required to be sent: s 124. Pursuant to s 127 and reg 2.45, the decision to cancel a visa must be in writing. However, the section does not specify the way in which notification of the cancellation decision is to be given to a person. Therefore, pursuant to s 494A, the Minister may give the notification to the person © 2016 THOMSON REUTERS

295

s 116

Migration Act 1958

[116.40]

by any method he or she considers appropriate. In other words, the Minister may send the notification by the methods set out either in s 494B or in reg 2.55, which specifically deals with notification of cancellation-related matters, or any other method.

CONCEPTS [116.40] Prescribed ground According to s 116(1)(g), the prescribed grounds for cancelling a visa are set out in reg 2.43(1) of the Regulations. [116.60] Prescribed matters Regulation 2.43(1C) and (1D) set out the matters that are prescribed matters for the purposes of s 116(1A). [116.80] Prescribed circumstances There are no prescribed circumstances under which the Minister must not cancel a visa for the purposes of s 116(2). Regulation 2.43(2) sets out the prescribed circumstances under which the Minister must cancel a visa for the purposes of s 116(3).

KEY CASES [116.100] Notice under s 119 enlivens cancellation power The power to cancel a visa under s 116 is enlivened after a valid notice under s 119, notifying a non-citizen of the intention to cancel the visa, has been sent: Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed (2005) 143 FCR 314; [2005] FCAFC 58 at [35] per Hely, Gyles and Allsop JJ. In Uddin v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 149 FCR 1; [2005] FCAFC 218, the s 119 notice stated that “there may be grounds for cancelling” the non-citizen’s visa, rather than “there appear to be grounds for cancelling” the visa, which are the words used in s 119(1). Since the notice did not comply with the wording of s 119, there had not been a valid notice issued. Wilcox and Branson JJ relevantly stated at [39]–[40]: Further, the expression “there may be grounds” contained in Form 1099 is not the equivalent of the statutory phrase “there appear to be grounds”. The first of the two expressions is more speculative in nature. That the statutory expression “there appear to be grounds” is not intended to be speculative is confirmed by the language of par 119(1)(a) which calls for the notification of particulars of the information because of which the grounds appear to exist. The grounds will, in our view, “appear to exist” within the meaning of s 119 if the decision-maker is satisfied, albeit on a provisional basis pending any response to the notice from the visa holder, in respect of one of the matters identified in pars (a)-(g) of subs 116(1). The language of s 119 demonstrates that the section is a procedural provision calculated to satisfy the requirements of natural justice where the Minister is considering cancelling a visa.

[116.120] Inadequate s 119 notice does not prevent Tribunal considering merits The Tribunal’s powers under s 349 to review a decision, such as a cancellation decision under s 116, are not limited by s 119. Therefore, where a delegate has not complied with the requirements of s 119, the Tribunal will still have the power to review the merits of a matter. In Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed (2005) 143 FCR 314; [2005] FCAFC 58 (Ahmed), the Minister failed to comply with the requirements of s 119 on the basis that the non-citizen had not been properly notified that the cancellation was being considered. Hely, Gyles and Allsop JJ held at [44] that the failure to comply with s 119 did not 296

Migration Law

[116.160]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 117

“deprive the Tribunal of statutory authority” to review the merits of the matter and the Tribunal was not limited to only finding that the delegate lacked the power to cancel the visa under s 116 and to set that decision aside. In Uddin v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 149 FCR 1; [2005] FCAFC 218 at [55] and [78], Wilcox, Branson and Bennett JJ followed the decision in Ahmed. [116.140] Breach of condition 8202 Section 116(1)(b) provides that the Minister may cancel a visa if a non-citizen breaches a condition of the visa. Condition 8202 is a common condition imposed on many student visas. In Maan v Minister for Immigration and Citizenship (2009) 179 FCR 581; 112 ALD 25; [2009] FCAFC 150, a delegate of the Minister cancelled the appellant’s student visa pursuant to s 116(1)(b) on the basis that the appellant had breached condition 8202 by failing to attend classes. Dowsett, Greenwood and Collier JJ held that condition 8202 is breached when the student’s education provider certifies that the student has not achieved either satisfactory course progress or attendance.

PRACTICE POINTS [116.160] Cancellation of visa A valid notice of intention to consider cancelling a visa under s 119 must be sent before the Minister’s power to cancel is enlivened. If the Minister decides to cancel a visa under this section, he must notify the non-citizen of this decision (s 127) and the notification must be in writing: reg 2.45. The Minister may send the notification by any method he or she considers appropriate: s 494A. Section 116 provides the Minister with the power to cancel a visa. This decision may be made if a s 20 notice under the Education Services for Overseas Students Act 2000 (Cth) (for breach of a visa condition) is sent to the non-citizen. Note, however, that the powers under ss 116 and 137J are separate cancellation powers that do not constrain each other: Humayun v Minister for Immigration (2006) 149 FCR 558; 90 ALD 482; [2006] FCAFC 35; Minister for Immigration v Zhou (2006) 152 FCR 115; [2006] FCAFC 96; Shek v Minister for Immigration [2006] FCA 522. A decision to cancel a visa under this section is reviewable by the Tribunal under Pt 5. 117 When visa may be cancelled (1) Subject to subsection (2), a visa held by a non-citizen may be cancelled under subsection 116(1), (1AA), (1AB) or (1AC): (a) before the non-citizen enters Australia; or (b) when the non-citizen is in immigration clearance (see section 172); or (c) when the non-citizen leaves Australia; or (d) while the non-citizen is in the migration zone. [Subs (1) am Act 161 of 2015, s 3 and Sch 1 item 4, with effect from 14 Dec 2015; Act 129 of 2014, s 3 and Sch 2 item 8, with effect from 11 Dec 2014; Act 60 of 1994, s 82 and Sch 1 items 45 and 46]

(2) A permanent visa cannot be cancelled under subsection 116(1) if the holder of the visa: (a) is in the migration zone; and (b) was immigration cleared on last entering Australia. [Subs (2) am Act 129 of 2014, s 3 and Sch 2 item 9, with effect from 11 Dec 2014] [S 117 am Act 161 of 2015; Act 129 of 2014; former s 50AC renum Act 60 of 1994, s 83; am Act 60 of 1994; insrt Act 184 of 1992, s 11]

© 2016 THOMSON REUTERS

297

s 117

[116.160]

Migration Act 1958

118 Cancellation powers do not limit or affect each other The powers to cancel a visa under: (a) section 109 (incorrect information); or (b) section 116 (general power to cancel); or (c) section 128 (when holder outside Australia); or (ca) section 133A (Minister’s personal powers to cancel visas on section 109 grounds); or [Para (ca) insrt Act 129 of 2014, s 3 and Sch 2 item 10, with effect from 11 Dec 2014]

(cb)

section 133C (Minister’s personal powers to cancel visas on section 116 grounds); or

[Para (cb) insrt Act 129 of 2014, s 3 and Sch 2 item 10, with effect from 11 Dec 2014]

(cc) section 134B (emergency cancellation on security grounds); or [Para (cc) insrt Act 116 of 2014, s 3 and Sch 4 item 3, with effect from 4 Nov 2014]

(d) section 134 (cancellation of business visas); or (da) section 137Q (cancellation of regional sponsored employment visas); or [Para (da) insrt Act 33 of 2001, s 3 and Sch 1 item 2]

(e) section 140 (consequential cancellation of other visas); or (ea) section 500A (refusal or cancellation of temporary safe haven visas); or [Para (ea) insrt Act 34 of 1999, s 3 and Sch 1 item 8]

(f)

section 501, 501A or 501B (special power to refuse or cancel on character grounds);

[Para (f) am Act 129 of 2014, s 3 and Sch 2 item 11, with effect from 11 Dec 2014; Act 114 of 1998, s 3 and Sch 1 item 5]

are not limited, or otherwise affected, by each other.

[S 118 am Act 129 of 2014; Act 116 of 2014; Act 33 of 2001; Act 34 of 1999; Act 114 of 1998; former s 50AD renum Act 60 of 1994, s 83; subst Act 60 of 1994, s 43; insrt Act 184 of 1992, s 11]

SUBDIVISION E – PROCEDURE FOR CANCELLING VISAS UNDER SUBDIVISION D IN OR OUTSIDE AUSTRALIA (SS 118A–127) [Subdiv E heading insrt Act 184 of 1992, s 11]

118A Exhaustive statement of natural justice hearing rule (1) This Subdivision 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 494A to 494D, in so far as they relate to this Subdivision, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with. [S 118A insrt Act 60 of 2002, s 3 and Sch 1 item 3]

SECTION 118A COMMENTARY Scope ................................................................................................................................................. [118A.20] CONCEPTS

Natural justice hearing rule .............................................................................................................. [118A.40] In relation to the matters it deals with ............................................................................................ [118A.60] KEY CASE

Natural justice hearing rule is not qualified or excluded in relation to offshore visa applicants .... [118A.80] In relation to the matters it deals with .......................................................................................... [118A.100] 298

Migration Law

[118A.40]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 118A

[118A.20] Scope Section 118A was inserted by the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth). Section 118A(1) makes it clear that Pt 2 Div 3 subdiv E (which deals with how the Minister is to handle visa applications) is an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. Similarly, s 118A(2) provides that ss 494A – 494D (which deal with the way the Minister gives documents), insofar as they relate to subdiv E, are an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with. According to s 118A, the “codes of procedure” referred to in this section are an exhaustive statement of the requirements of the natural justice hearing rule: Explanatory Memorandum to the Migration Legislation Amendment (Procedural Fairness) Bill 2002 (Cth) at [1]. This section was inserted as a result of the High Court’s decision in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; 179 ALR 238; [2001] HCA 22 (Miah), in which the court held that the exclusion of common law natural justice requirements required clear legislative intention: at [53]–[54] per Gleeson CJ and Hayne J, at [90] per Gaudron J, at [126]–[127] per McHugh J and at [183] per Kirby J. In Miah, the High Court considered whether a delegate had denied the applicants procedural fairness by failing to put to them for comment certain country information. At the relevant time, Pt 2 Div 3 subdiv AB of the Act laid down what Gleeson CJ and Hayne J described as a “code of procedure for dealing fairly, efficiently and quickly with visa applications”: at [28]. It did not contain any other statement other than the one contained in this section - that the Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule. Gleeson CJ and Hayne J commented at [43] that “there is a difference between a code of procedure for dealing with visa applications and a comprehensive statement of the requirements of natural justice”. The majority were of the view that it is possible to exclude the rule of natural justice, but that in order to do so, the legislation must be clear that the intention is for it to be excluded: at [53]–[54] per Gleeson CJ and Hayne J, at [90] per Gaudron J, at [126]–[127] per McHugh J and at [183] per Kirby J. Necessarily, therefore, the wording in s 118A is clear that the natural justice hearing rule is excluded. In the Second Reading speech for the Migration Legislation Amendment (Procedural Fairness) Bill 2002 (Cth), the Minister noted that the proposed amendments were necessary to restore the Parliament’s original intention that the Act should contain codes of procedure that allow fair, efficient and legally certain decision-making processes that do not replace the common law requirement of the natural justice hearing rule. However, s 118A does not protect any decision that is affected by a jurisdictional error because such a decision will not be considered to be a migration decision and the privative clause provisions in s 474 will have no operation: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; 195 ALR 24; [2003] HCA 2 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. The concept of a privative clause is discussed further under s 474.

CONCEPTS [118A.40] Natural justice hearing rule The phrase “natural justice hearing rule”, or any variation thereof, is not defined in the Act. Natural justice usually requires that a person whose interests are to be affected by a decision be given an opportunity to comment and respond to material which is adverse to his or her interests: Kioa v West (1985) 159 CLR 550; 62 ALR 321; [1985] HCA 81 (Kioa) at 582 (CLR) per Mason J, at 628 – 629 (CLR) per Brennan J. Natural justice and procedural fairness require a decision-maker to bring to an applicant’s attention the critical issues or factors on which its decision is likely to turn in order for the © 2016 THOMSON REUTERS

299

s 118A

Migration Act 1958

[118A.60]

applicant to have the opportunity of dealing with them: Kioa at 587 (CLR); VAAC v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 168; [2003] FCAFC 74 at [27]. In discharging this duty, a decision-maker needs to bring to an applicant’s attention the “substance” of any adverse information that the decision-maker considers may bear upon the decision to be made Plaintiff M61/2010 v Commonwealth (2010) 243 CLR 319; 272 ALR 14; [2010] HCA 41 at [91] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ. Procedural fairness may extend to requiring identification to the applicant of “any adverse conclusion which has been arrived at which would not obviously be open on the known material” (Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; 34 ALD 324; 127 ALR 699 at [30]), whether that is material provided by the applicant or from other sources. For the requirements of natural justice to be satisfied, it is sufficient if the “gravamen or substance of the issue or factor is brought to the applicant’s attention” or that the applicant is “on notice of its essential features”: NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 at [25], referring to Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs (2000) 103 FCR 539; 175 ALR 706; [2000] FCA 1113 at [557]. In the ordinary case, natural justice requires that an opportunity should be given to a person affected by a decision to deal with any adverse information that is “credible, relevant and significant”: see, for example, Kioa at 629 (CLR) per Brennan J. Where a statute confers a power to destroy or prejudice a person’s rights or interests, principles of natural justice regulate the exercise of that power: see Annetts v McCann (1990) 170 CLR 596; 97 ALR 177; [1990] HCA 57 at 598 (CLR) per Mason CJ, Deane and McHugh JJ. In Kioa at 609 (CLR), Brennan J stated that: when the statute does not expressly require that the principles of natural justice be observed, the court construes the statute on the footing that “the justice of the common law will supply the omission of the legislature”. The true intention of the legislation is thus ascertained.

Similarly, in Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1; 195 ALR 502; [2003] HCA 6 at [37], Gleeson CJ observed that procedural fairness is not an abstract concept; it is essentially practical and the concern is to avoid practical injustice. [118A.60] In relation to the matters it deals with The declaration that the subdivision is taken to be an exhaustive statement of the requirements of the natural justice hearing rule is qualified by the words “in relation to the matters it deals with”: Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; 267 ALR 204; [2010] HCA 23 at [35] per French CJ, Gummow, Hayne, Crennan and Kiefel JJ. That is, insofar as common law rules of procedural fairness are codified under this subdivision, the codification only applies to the subject “matter” the subdivision “deals with” (that is, ss 119 – 127 and 494A – 494D). Where the subdivision does not “deal with” a certain subject “matter”, common law rules of procedural fairness continue to apply.

KEY CASE [118A.80]

Natural justice hearing rule is not qualified or excluded in relation to offshore visa applicants In Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; 267 ALR 204; [2010] HCA 23, the High Court considered s 51A (which is in the same terms as s 118A). Ms Saeed, a citizen of Pakistan, was outside Australia and applied for a Skilled – Independent visa (Subclass 175), on the basis of being a cook. As part of the application, Ms Saeed provided documents that she had worked at a restaurant in Rawalpindi. An Australian immigration officer 300

Migration Law

[118A.100]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 118A

in Pakistan investigated Ms Saeed’s claims and discovered that no employee records were kept on the premises of the restaurant and that no woman had ever worked in the kitchen. On the basis of this information, the delegate advised Ms Saeed that her evidence about her work was false and misleading, and refused to grant the visa. The High Court considered the terms of ss 51A and 57 (which deal with the provisions of certain information to applicants) and concluded that the natural justice hearing rule is excluded only insofar as it concerns onshore visa applicants, and is not excluded in relation to visa applicants who are not in Australia: at [56] per French CJ, Gummow, Hayne, Crennan and Kiefel JJ. The natural justice hearing rule applies to visa applicants offshore, and therefore the delegate was required to provide Ms Saeed with an opportunity to answer the adverse material. [118A.100] In relation to the matters it deals with In Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; 267 ALR 204; [2010] HCA 23 (Saeed), the High Court considered the scope of the phrase “in relation to the matters it deals with” and the various cases which had previously interpreted this phrase. French CJ, Gummow, Hayne, Crennan and Kiefel JJ endorsed (and found “plainly correct”) the conclusions reached by: • Lindgren J in NAQF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 130 FCR 456; [2003] FCA 781 at 475, that the expression “the matters it deals with” in s 357A(1) (which is in the same terms as s 118A) requires a search to be made of the operative provisions within Div 5 for a provision “dealing with” a “relevant matter”. The plural form of “matters” suggests that the inquiry might be directed to a number of such provisions: at [38]; and • French J in WAID v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 220 at [58], that s 422B (which is in the same terms as s 118A) requires “exploration in terms of its construction and identification of the ‘matters’ to which it applies”: at [39]. To place the High Court’s judgment in Saeed in context, it is necessary to have regard to some earlier decisions. In VXDC v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 146 FCR 562; [2005] FCA 1338 (VXDC), the Full Court of the Federal Court expressed the view that s 51A (which is in the same terms as s 118A) operated to exclude the common law natural justice hearing rule altogether: at [30]. Subsequently, in Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; 231 ALR 412; [2006] FCAFC 61 (Lay Lat), the Full Court of the Federal Court expressed its agreement with the observations made in VXDC at [30]: at [65]–[68]. However, in Antipova v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 151 FCR 480; [2006] FCA 584 (Antipova), Gray J, sitting alone, expressed disagreement with the court’s judgment in VXDC. His Honour did not accept that the judgment in Lay Lat was “plainly correct” and therefore declined to follow that decision: at [96]–[98]. In Saeed, the Full Court of the Federal Court stated that it was not open to Gray J in Antipova not to follow Lay Lat, and expressed its view that Lay Lat was correct: at [42]–[46]. However, in allowing the appeal in Saeed, the High Court, although not expressing any view as to the correctness of either Lay Lat or Antipova, clearly adopted the ratio decidendi of Gray J in Antipova by asserting that “the declaration in s 51A(1), that the subdivision is to be taken as an exhaustive statement of the requirements of the natural justice hearing rule, is qualified by the words ‘in relation to the matters it deals with’”.

© 2016 THOMSON REUTERS

301

s 119

[119.20]

Migration Act 1958

119 Notice of proposed cancellation (1) Subject to Subdivision F (non-citizens outside Australia), if the Minister is considering cancelling a visa, whether its holder is in or outside Australia, under section 116, the Minister must notify the holder that there appear to be grounds for cancelling it and: (a) give particulars of those grounds and of the information (not being non-disclosable information) because of which the grounds appear to exist; and (b) invite the holder to show within a specified time that: (i) those grounds do not exist; or (ii) there is a reason why it should not be cancelled. [Subs (1) am Act 60 of 1994, s 82 and Sch 1 item 47]

(2) The holder is to be notified in the prescribed way or, if there is no prescribed way, a way that the Minister considers to be appropriate. (3) The way of notifying the holder, whether prescribed or considered appropriate, may, without limiting the generality of subsection (2), be orally. (4) The other provisions of this Subdivision do not apply to a cancellation: (a) under a provision other than section 116; or (b) to which Subdivision F applies. [Former s 50AE renum Act 60 of 1994, s 83; am Act 60 of 1994; insrt Act 184 of 1992, s 11]

SECTION 119 COMMENTARY Scope .................................................................................................................................................... [119.20] CONCEPTS

Particulars of those grounds ................................................................................................................ [119.40] Invite the holder .................................................................................................................................. [119.60] Prescribed way .................................................................................................................................... [119.80] KEY CASES

Particulars of grounds ....................................................................................................................... [119.100] Notice under s 119 enlivens cancellation power .............................................................................. [119.120] Inadequate s 119 notice does not prevent Tribunal considering merits .......................................... [119.140] Address known to the Minister in reg 2.55 for sending notifications about cancellation decisions .................................................................................................................................... [119.160] Post box address under reg 2.55 for the purpose of sending a notification ................................... [119.180] Transmitting the document under reg 2.55 for the purpose of sending a notification ................... [119.200] PRACTICE POINTS

Compliance ........................................................................................................................................ [119.220]

[119.20] Scope Before the Minister can proceed to cancel a non-citizen’s visa under s 116, he or she must first send the non-citizen a notice under this section that there appear to be grounds for cancelling the visa. A notice under s 119 must: • give particulars of the grounds for cancelling the visa; • give details of the information because of which the grounds appear to exist; • invite the non-citizen to show, within a specified time: 302

Migration Law

[119.100]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 119

– that the grounds do not exist; or – there is a reason why the visa should not be cancelled; • comply with the requirements in s 121; and • be sent in accordance with reg 2.55. The purpose of a notice under this section is to “satisfy the requirements of natural justice where the Minister is considering cancelling a visa”: Uddin v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 149 FCR 1; [2005] FCAFC 218 at [40] per Wilcox and Branson JJ.

CONCEPTS [119.40] Particulars of those grounds Under s 119(1)(a) a notice of proposed cancellation must contain particulars of the grounds for cancelling. Neither the Act nor the Regulations specify the level of particulars that are required. However, the particulars must be sufficient to “fairly inform” the non-citizen of the basis for cancellation so that the non-citizen is “adequately equipped” to provide the relevant information and make submissions: Zhao v Minister for Immigration and Multicultural Affairs [2000] FCA 1235 at [25] per French, Carr and Hill JJ. [119.60] Invite the holder Under s 119(1)(b), the Minister is to invite the non-citizen to either show, within a specified time, that the grounds for cancellation do not exist or that there are reasons why the visa should not be cancelled. An invitation under this section is to be sent in accordance with s 121 of the Act. For the purposes of s 121(2), a response to the invitation is to be given within the prescribed period, which is set out in reg 2.44 of the Regulations. [119.80] Prescribed way Under s 119(2), a non-citizen is to be notified in the “prescribed way”. If there is no “prescribed way”, then the notification should be in a way that the Minister considers appropriate. Regulation 2.55 sets out the ways in which a document relating to the proposed cancellation of a visa is to be given to a non-citizen, while reg 5.02 sets out the ways in which a document is to be given to a person in immigration detention.

KEY CASES [119.100] Particulars of grounds In Zhao v Minister for Immigration and Multicultural Affairs [2000] FCA 1235, the Full Court of the Federal Court considered a notice under s 119 of the Act. French, Carr and Hill JJ stated at [25]–[26]: Section 119 required particulars of the grounds relied upon to be included in the notice. The level of particularity is not specified. It must serve the statutory purpose. That is to say it must be sufficient, when read in conjunction with the supporting information, to fairly inform the visa holder of the basis upon which cancellation is being considered so that the visa holder is adequately equipped to provide such relevant information as may be available and to make such submissions as may be open. … The requirement of notification of grounds of possible cancellation is not a requirement for delivery of some form of pleading which may then be the subject of strict construction and technical criticism. The overall purpose to be served by s 119 is procedural fairness and it is that which informs the construction and application of the section. © 2016 THOMSON REUTERS

303

s 119

Migration Act 1958

[119.120]

In Minister for Immigration and Citizenship v Brar (2012) 201 FCR 240; 126 ALD 99; [2012] FCAFC 30, North, Greenwood and Besanko JJ considered an appeal filed by the Minister in relation to a decision made by the Federal Magistrates Court (as it was then known) regarding the validity of a notice of intention to consider cancelling a visa sent under s 107. The Federal Magistrates Court held that the s 107 notice provided to Mr Brar was false in a material particular because it stated that Mr Brar had provided a bogus document to an “officer” instead of an “authorised system”. Since the ground of non-compliance was incorrectly framed, it could not support the cancellation decision made by the delegate. North, Greenwood and Besanko JJ upheld the Minister’s appeal and held that the notice was not invalid. North, Greenwood and Besanko JJ at [56]–[57] relied on the above paragraphs in Zhao v Minister for Immigration and Multicultural Affairs [2000] FCA 1235. Their Honours also relied upon the High Court’s decision in Minister for Immigration and Citizenship v SZIZO (2009) 238 CLR 627; 259 ALR 405; [2009] HCA 37 and held at [61]: In our opinion, it was not Parliament’s intention that all departures from the statements made in a notice under s 107 deprive the decision-maker of jurisdiction under ss 108 and 109 to making findings of non-compliance by the visa holder in the way described in the notice. The phrase “in the way described in the notice” must be read in light of the purpose of the statutory scheme which is to ensure that the visa holder has notice of the alleged non-compliance and an opportunity to dispute the allegations and to respond to them. A departure which is minor and insignificant in the context of the facts of a particular case and which does not go to the substance of the allegations of non-compliance does not deprive the decision-maker of jurisdiction under ss 108 and 109. The departure in this case should be so characterised.

[119.120] Notice under s 119 enlivens cancellation power The power to cancel a visa under s 116 is enlivened after a valid notice under s 119 has been sent notifying a non-citizen of the intention to cancel the visa: Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed (2005) 143 FCR 314; [2005] FCAFC 58 at [35] per Hely, Gyles and Allsop JJ. In Uddin v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 149 FCR 1; [2005] FCAFC 218, the s 119 notice stated that “there may be grounds for cancelling” the non-citizen’s visa, rather than stating “there appear to be grounds for cancelling” the visa, which are the words used in s 119(1). Since the notice did not comply with the wording of s 119, the notice issued was not valid. Wilcox and Branson JJ relevantly stated at [39]–[40]: Further, the expression “there may be grounds” contained in Form 1099 is not the equivalent of the statutory phrase “there appear to be grounds”. The first of the two expressions is more speculative in nature. That the statutory expression “there appear to be grounds” is not intended to be speculative is confirmed by the language of par 119(1)(a) which calls for the notification of particulars of the information because of which the grounds appear to exist. The grounds will, in our view, “appear to exist” within the meaning of s 119 if the decision-maker is satisfied, albeit on a provisional basis pending any response to the notice from the visa holder, in respect of one of the matters identified in pars (a)-(g) of subs 116(1). The language of s 119 demonstrates that the section is a procedural provision calculated to satisfy the requirements of natural justice where the Minister is considering cancelling a visa.

[119.140] Inadequate s 119 notice does not prevent Tribunal considering merits The Tribunal’s powers under s 349 to review a decision, such as a cancellation decision under s 116, are not limited by s 119. Therefore, where a delegate has not complied with the requirements under s 119, the Tribunal will still have the power to review the merits of a matter. In Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed (2005) 143 FCR 314; [2005] FCAFC 58 (Ahmed), the Minister failed to comply with the requirements of s 119 304

Migration Law

[119.160]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 119

because the non-citizen had not been properly notified that the cancellation was being considered. Hely, Gyles and Allsop JJ held at [44] that the failure to comply with s 119 did not “deprive the Tribunal of statutory authority” to review the merits of the matter and that the Tribunal was not limited to only finding that the delegate lacked the power to cancel the visa under s 116 and to set that decision aside. In Uddin v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 149 FCR 1; [2005] FCAFC 218, Wilcox, Branson and Bennett JJ followed the decision in Ahmed at [55] and [78]. [119.160]

“Address known to the Minister” in reg 2.55 for sending notifications about cancellation decisions A notice under s 119 must be sent to a person in accordance with reg 2.55. According to this regulation, a written notification may be: • handed to another person who is at the person’s (that is, the person whose visa is cancelled) “last residential or business address known to the Minister”: reg 2.55(3)(b); • dispatched by prepaid post to the person’s “last residential address, business address or post box address known to the Minister”: reg 2.55(3)(c); and • transmitted by fax, email or other electronic manes to the “last fax number, email address or other electronic address known to the Minister”: reg 2.55(3)(d). In Ball v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 199; 199 ALR 374; [2003] FCA 699, the applicant’s visa was cancelled on character grounds and the notification under s 501G was dispatched by prepaid post to the last address known to the Minister. An officer at the Department obtained the address from the Western Australian Police Service. In relation to the concept of “last known address” in reg 2.55, Ryan J stated at [25] that: the concept of last known address in reg 2.55(3)(c) does not depend on the Minister’s knowledge coming from a particular source. Nor does it require that the Minister’s knowledge be verified in any particular way. It is sufficient that the means of knowledge relied on by the Minister be reasonable in the circumstances. In the present case, the knowledge acquired from the Western Australian Police about the applicant’s residential address was accurate when acquired and remained accurate until the applicant left Western Australia on 18 January 2003. Short of physically locating the applicant, it is difficult to perceive what more the Department could reasonably have done to bring to her notice the intention to consider cancellation of her visa.

In Osborne v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 416; [2002] FCA 1113, a notice of intended cancellation was sent to the applicant’s last known address, which was the address of a close relative, his mother, with whom he had expressed an intention to resume living after he was released from jail. French J held that, in those circumstances, it was reasonable for the notice to have been sent to this address and for this to be the last known address. In Minister for Immigration and Multicultural Affairs v George (2004) 139 FCR 127; 85 ALD 513; [2004] FCAFC 276, Black CJ, Emmett and Selway JJ, were of the view that the last residential address in reg 2.55 must be an address at which the applicant has actually resided at some point in time: at [36]. Their Honours were of the view that the consequence of a notice being sent to the last known residential address, at which the applicant had never resided, was that an applicant would not be taken to have been notified and the Minister could not rely on deemed receipt provisions in reg 2.55(7) (unless the applicant actually received the notice and the Minister could then rely on reg 2.55(9)). In Lu v Minister for Immigration and Multicultural Affairs (2004) 135 FCR 450; [2004] FCA 181, Emmett J was also of the view that the reference to “residential address” in reg 2.55 must be an address at which the applicant had resided at some point: at [32]. However, the last known residential address is not confined to addresses © 2016 THOMSON REUTERS

305

s 120

Migration Act 1958

[119.180]

known only after an applicant’s last entry into Australia: Choi v Minister for Immigration and Citizenship [2008] FMCA 1717 at [40] per Smith FM. [119.180]

“Post box address” under reg 2.55 for the purpose of sending a notification According to reg 2.55, a written notice can be sent to the last “post box address” known to the Minister: see reg 2.55(3)(c), (3A)(c) and (e). The expression “post box address” means a postal address known to the Minister which is not a residential or business address: Zhang v Minister for Immigration and Citizenship (2007) 161 FCR 419; [2007] FCAFC 151 at [30] per Finn, Kenny and Greenwood JJ. [119.200]

“Transmitting the document” under reg 2.55 for the purpose of sending a notification Under reg 2.55, a written notice can be given by “transmitting” it by fax, email or other electronic means to the last address known by the Minister: see reg 2.55(3)(d), (3A)(d) and (f). In Sainju v Minister for Immigration and Citizenship (2010) 185 FCR 86; 115 ALD 371; [2010] FCA 461, Jacobson J considered the words “by transmitting” and “transmitted” in reg 2.55(8) and whether they mean “by sending” or “sent”, regardless of whether the document is actually received by the applicant. Jacobson J held that “by transmitting” means by “sending” and an applicant is taken to have received the transmitted document at the end of the day on which it is sent: at [57]. His Honour explained in relation to deeming provisions at [58]: The purpose of provisions such as these is to achieve administrative certainty as to whether a document has been given to a person, and as to the time at which this has occurred. It affects time limits for review of administrative decisions and may, in some instances, foreclose that possibility.

PRACTICE POINTS [119.220] Compliance Compliance with the provisions in this section is a statutory requirement before the Minister can proceed to cancel a visa under s 116: see s 124. A notice under this section must be sent in accordance with s 121 and regs 2.44, 2.55 and 5.02 (if the non-citizen is in immigration detention). 120 Certain information must be given to visa holder (1) In this section, relevant information means information (other than non-disclosable information) that the Minister considers: (a) would be the reason, or a part of the reason, for cancelling a visa; and (b) is specifically about the holder or another person and is not just about a class of persons of which the holder or other person is a member; and (c) was not given by the holder; and (d) was not disclosed to the holder in the notification under section 119. (2) The Minister must: (a) give particulars of the relevant information to the holder; and (b) ensure, as far as reasonably practicable, that the holder understands why it is relevant to the cancellation; and (c) invite the holder to comment on it. (3) The particulars and invitation are to be given in the way that the Minister considers appropriate in the circumstances. [Former s 50AF renum Act 60 of 1994, s 83; subst Act 60 of 1994, s 44; insrt Act 184 of 1992, s 11]

306

Migration Law

[120.40]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 120

SECTION 120 COMMENTARY Scope ................................................................................................................................................... [120.20] CONCEPTS

Relevant information ........................................................................................................................... [120.40] Would be the reason, or part of the reason ........................................................................................ [120.60] Could, would or will be the reason .................................................................................................... [120.80] Information that is not just about a class of persons of which the holder or other person is a member ..................................................................................................................................... [120.100] As far as is reasonably practicable ................................................................................................... [120.120] KEY CASES

Information ........................................................................................................................................ [120.140] Country information .......................................................................................................................... [120.160] PRACTICE POINT

Invitation under s 120 ....................................................................................................................... [120.180]

[120.20] Scope When the Minister is considering whether or not to cancel a person’s visa, the Minister must give the person relevant information and invite the person to comment on that information. The purpose of this provision is to ensure that a person is “accorded fair treatment and that no decision is made in the Minister’s name until the matters in issue have been fairly put to and understood” by the person: Chiorny v Minister for Immigration and Multicultural Affairs (1997) 73 FCR 237; 44 ALD 605; 154 ALR 191 at 198 (ALR) per Olney J. The terms in this section are mirrored in the procedures of the Tribunal in s 359A and in s 424A: Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed [2005] FCAFC 58 at [23] per Hely, Gyles and Allsop JJ; Uddin v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 149 FCR 1; [2005] FCAFC 218 at [31] per Wilcox and Branson JJ.

CONCEPTS [120.40] Relevant information The expression “relevant information” is defined in s 120(1). In SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; 81 ALJR 1190; [2007] HCA 26 (SZBYR) at [18], Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ considered the term “information” contained in s 424A relating to the former Refugee Review Tribunal (which mirrors the procedures in this section) and stated that the meaning of “information” refers to the “existence of evidentiary material or documentation, not to the existence of doubts, inconsistencies or the absence of evidence”, or the Tribunal’s disbelief. “Information” does not include the following: • the “subjective appraisals, thought processes or determinations” of the decision-maker: VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471; [2004] FCAFC 123 (VAF) at [24] per Finn and Stone JJ; SZBYR at [18]; Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; 273 ALR 223; [2011] HCA 1 (SZGUR) at [9]; • “identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the decision-maker in weighing up the evidence by reference to those gaps etc”: VAF at [24] per Finn and Stone JJ; SZBYR at [18]; SZGUR at [9]; and • doubts, inconsistencies or the absence of evidence: SZBYR at [18]. © 2016 THOMSON REUTERS

307

s 120

Migration Act 1958

[120.60]

[120.60] Would be the reason, or part of the reason For the purposes of s 120(1)(a), the relevant information must be information that the Minister considers “would be the reason, or part of the reason, for cancelling a visa”. This expression mirrors the same term contained in s 359A and s 424A, in relation to the Tribunal. In this context, and taking into account the common law concept of procedural fairness, the “relevant information” will usually be adverse information in regard to the person. However, not all adverse information will need to be put to a person. Adverse information (or any other type of information) which would not be the reason, or part of the reason, for affirming the decision, does not need to be put to a person in accordance with this section. This is because, even though the information may be adverse, it has not been relied upon in any way by the Minister in cancelling the visa. Therefore, it does not need to be put to a person for comment. In SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; 81 ALJR 1190; [2007] HCA 26, the High Court considered the expression “would be the reason, or a part of the reason, for affirming the decision that is under review” in the context of s 424A and noted at [17]: The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place. The Tribunal does not operate in a statutory vacuum, and its role is dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act. The use of the future conditional tense (“would be”) rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance – and independently – of the Tribunal’s particular reasoning on the facts of the case. Here, the appropriate criterion was to be found in s 36(1) of the Act, being the provision under which the appellants sought their protection visa. The “reason, or a part of the reason, for affirming the decision that is under review” was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention. When viewed in that light, it is difficult to see why the relevant passages in the appellants’ statutory declaration would itself be “information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”. Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants’ claims to be persons to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review.

[120.80] Could, would or will be the reason In Minister for Immigration and Citizenship v SZLFX (2009) 238 CLR 507; 258 ALR 448; [2009] HCA 31 at [25], French CJ, Heydon, Crennan, Kiefel and Bell JJ endorsed the comments of Heerey J in MZXBQ v Minister for Immigration and Citizenship (2008) 166 FCR 483; [2008] FCA 319, that s 424A speaks of information which “would”, not which “could” or “might”, be the reason or part of the reason for affirming the decision under review. [120.100]

Information that “is not just about a class of persons of which the holder or other person is a member” In VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 at [14], Gyles and Conti JJ said that the reference to the class of persons in s 424A(3)(a) (which mirrors s 120(1)(b)) is designed to underline the specificity required by precluding any argument that reference to a class would be taken as a reference to all individuals falling within that class. [120.120] As far as is reasonably practicable According to s 120(2)(b), the Minister is required to ensure that “as far as reasonably practicable”, a person understands why certain information is relevant. This requires the Minister to communicate to an applicant “the importance of the information and its potential impact upon” the person’s case, and the communication must be in “a way which promotes that 308

Migration Law

[120.180]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 120

understanding as far as is possible”: Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; 267 ALR 204; [2010] HCA 23 at [20] per French CJ, Gummow, Hayne, Crennan and Kiefel JJ, in relation to s 57, which is the equivalent provision to s 120 but in relation to the grant or refusal of a visa.

KEY CASES [120.140] Information In SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; 81 ALJR 1190; [2007] HCA 26, the High Court considered the meaning of the term “information” as it applied to s 424A of the Act (which mirrors s 120 in the context of the former Refugee Review Tribunal). The appellants had initially argued that the Tribunal had breached s 424A by failing to put to them certain information in regard to inconsistencies between the statutory declaration provided by an appellant in connection with the protection visa application and oral evidence to the Tribunal. The argument in the High Court focused on whether s 424A required the Tribunal to put to the appellants for comment the relevant passages in the statutory declaration itself, from which the inconsistencies arose. Relevantly, at [17], Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ found that the appellants had not demonstrated that the statutory declaration would be the reason, or part of the reason, for affirming the decision under review. Further, if the reason for affirming the decision was the Tribunal’s disbelief of the appellant’s evidence arising from inconsistencies, then disbelief and inconsistencies did not constitute “information” for the purpose of s 424A(1): at [18]. [120.160] Country information Independent information, commonly referred to as “country information”, will fall within the exclusion provided in s 120(1)(b) (which is the mirror provision to s 359A(4)(a) and s 424A(3)(a), in relation to the Tribunal), provided it is not specifically about the applicant or another person. In VHAJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 80; 75 ALD 609; [2003] FCAFC 186 at [50], Kenny J summarised the concept of “country information” and why it ordinarily falls within the exclusion contained in s 424A(3)(a) (the mirror provision to s 120(1)(b) in the former Refugee Review Tribunal context): It is usual for the tribunal to have regard to information about the social, political, religious and other conditions prevailing in a country relevant to an applicant’s claim for refugee status, with a view to assessing whether other individuals who share his or her racial, religious, political, social or other attributes suffer treatment of a kind amounting to persecution on Convention grounds in that country. Sometimes information of this kind concerns religious practice, government elections, educational opportunities or other matters. This kind of country information is relevant to the tribunal’s decision-making task only because the applicant falls within the class of persons who share an attribute, which, according to his or her claim, gives rise to a well-founded fear of persecution in the country concerned. In this circumstance, the information does not cease to be information “just about” a class of persons simply because it can also be characterised as information about religious practice, government elections or educational opportunities. It has been repeatedly held that information of this kind falls within s 424A(3)(a) of the Act.

PRACTICE POINT [120.180] Invitation under s 120 An invitation under s 120 must be sent in accordance with s 121 and regs 2.44, 2.55 and 5.02 (if the non-citizen is in immigration detention).

© 2016 THOMSON REUTERS

309

s 121

Migration Act 1958

[121.20]

121 Invitation to give comments etc. (1) An invitation under paragraph 119(1)(b) or 120(2)(c) is to specify whether the response to the invitation may be given: (a) in writing; or (b) at an interview between the holder and an officer; or (c) by telephone. [Subs (1) am Act 60 of 1994, s 82 and Sch 1 item 48]

(2) Subject to subsection (4), if the invitation is to respond otherwise than at an interview, the response is to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period. (3) Subject to subsection (5), if the invitation is to respond at an interview, the interview is to take place: (a) at a place specified in the invitation, being a prescribed place or, if no place is prescribed, a reasonable place; and (b) at a time specified in the invitation, being a time within a prescribed period or, if no period is prescribed, within a reasonable period. (4) If a person is to respond to an invitation within a prescribed period, that period may be extended by the Minister for a prescribed further period, and then the response is to be given in the extended period. (5) If a person is to respond to an invitation at an interview at a time within a prescribed period, that time may be changed by the Minister to: (a) a later time within that period; or (b) a time within that period as extended by the Minister for a prescribed further period; and then the response is to be given at an interview at the new time. (6) This section is subject to sections 125 and 126. [Former s 50AG renum Act 60 of 1994, s 83; am Act 60 of 1994; insrt Act 184 of 1992, s 11]

SECTION 121 COMMENTARY Scope ................................................................................................................................................... [121.20] CONCEPTS

Prescribed period ................................................................................................................................. [121.40] Reasonable period ............................................................................................................................... [121.60]

[121.20] Scope Section 121 sets out the requirements for inviting a person to comment under s 119 and/or s 121 of the Act.

CONCEPTS [121.40] Prescribed period For the purposes of s 121(2) and (4), the prescribed period is set out in reg 2.44. There is no period prescribed for the purposes of s 121(3)(b).

310

Migration Law

[121.60]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 124

[121.60] Reasonable period For the purposes of s 121(3)(b), no period is prescribed for when an interview is to take place. Therefore, the time period is to be a “reasonable period”. In Zhaou v Minister for Immigration [2002] FCA 748 at [78], Kenny J stated: Absent s 474 considerations, what is a reasonable period for the purposes of s 121(3)(b) of the Act would fall to be considered in light of all the circumstances of the case as they existed when the time of the interview is fixed. These circumstances may include the nature of the cancellation grounds that the decision-maker is considering, the personal attributes of the visa holder (ie, age, facility in English language, physical infirmity or well-being), the presence of an interpreter or lawyer, the visa holder’s familiarity with the matters of concern to the decision-maker, the circumstances in which the decision falls to be made, and the availability of matters corroborative of the applicant. Regard would also be taken of the statutory context and purpose of s 121(3)(b) of the Act.

122 Prescribed periods Regulations prescribing a period or other time limit relating to a step in considering the cancellation of a visa may prescribe different limits relating to that step and specify when a particular limit is to apply, which, without limiting the generality of the power, may be to: (a) visas of a specified class; or [Para (a) am Act 60 of 1994, s 82 and Sch 1 item 49]

(b) visa holders in specified circumstances; or (c) visa holders in a specified class of persons (which may be visa holders in a specified place); or [Para (c) am Act 60 of 1994, s 82 and Sch 1 item 50]

(d) visa holders in a specified class of persons (which may be visa holders in a specified place) in specified circumstances. [Para (d) am Act 60 of 1994, s 82 and Sch 1 item 50] [Former s 50AH renum Act 60 of 1994, s 83; am Act 60 of 1994; insrt Act 184 of 1992, s 11]

123 Failure to accept invitation not require action If a visa holder does not respond to an invitation under paragraph 119(1)(b) or 120(2)(c) before the time for giving it has passed or tells the Minister that the visa holder does not wish to respond, the Minister may make the decision about cancellation without taking any further action about the information. [Former s 50AI renum Act 60 of 1994, s 83; am Act 60 of 1994, s 82 and Sch 1 item 51; insrt Act 184 of 1992, s 11]

124 When decision about visa cancellation may be made (1) Subject to section 120 (give information) and subsection (2), the Minister may cancel a visa at any time after notice about the cancellation has been given under section 119 and after whichever one of the following happens first: (a) the holder responds to the notice; (b) the holder tells the Minister that the holder does not wish to respond; (c) the time for responding to the notice passes. (2) The Minister is not to cancel a visa after inviting the visa holder to comment on information and before whichever one of the following happens first: (a) the comments are given; (b) the holder tells the Minister that the holder does not wish to comment; (c) the time for commenting passes. [Former s 50AJ renum Act 60 of 1994, s 83; insrt Act 184 of 1992, s 11]

© 2016 THOMSON REUTERS

311

s 124

[121.60]

Migration Act 1958

125 Application of Subdivision to non-citizen in immigration clearance If a non-citizen in immigration clearance who is not taken into questioning detention is given an invitation under paragraph 119(1)(b) or 120(2)(c), the period within which he or she may respond to the invitation is to end when, or before, he or she ceases to be in immigration clearance. [Former s 50AK renum Act 60 of 1994, s 83; am Act 60 of 1994, s 82 and Sch 1 item 52; insrt Act 184 of 1992, s 11]

126 Application of Subdivision to non-citizen in questioning detention (1) If a non-citizen in questioning detention who is not released before the end of the 4 hours for which he or she may be detained is given an invitation under paragraph 119(1)(b) or 120(2)(c), the period within which he or she may respond to the invitation is to end when, or before, those 4 hours end. [Subs (1) am Act 60 of 1994, s 82 and Sch 1 item 53]

(2) If a non-citizen who has been given an invitation under paragraph 119(1)(b) or 120(2)(c) (whether in immigration clearance or otherwise) is taken into questioning detention and not released before the end of the 4 hours for which he or she may be detained, the period within which he or she is to respond to the invitation is to end when, or before, those 4 hours end. [Subs (2) am Act 60 of 1994, s 82 and Sch 1 item 53] [Former s 50AL renum Act 60 of 1994, s 83; am Act 60 of 1994; insrt Act 184 of 1992, s 11]

127 Notification of decision (1) When the Minister decides to cancel a visa, he or she is to notify the visa holder of the decision in the prescribed way. (2) Notification of a decision to cancel a visa must: (a) specify the ground for the cancellation; and (b) state whether the decision is reviewable under Part 5 or 7; and (c) if the former visa holder has a right to have the decision reviewed under Part 5 or 7—state: (i) that the decision can be reviewed; and (ii) the time in which the application for review may be made; and (iii) who can apply for the review; and (iv) where the application for review can be made. [Subs (2) am Act 113 of 1998, s 3 and Sch 6 item 8]

(3) Failure to give notification of a decision does not affect the validity of the decision. [S 127 am Act 113 of 1998; former s 50AM renum Act 60 of 1994, s 83; insrt Act 184 of 1992, s 11]

SECTION 127 COMMENTARY Scope ................................................................................................................................................... [127.20] CONCEPTS

Prescribed way .................................................................................................................................... [127.40] KEY CASES

Address known to the Minister in reg 2.55 for sending notifications about cancellation decisions .... [127.60] Post box address under reg 2.55 for the purpose of sending a notification ..................................... [127.80] Transmitting the document under reg 2.55 for the purpose of sending a notification ................... [127.100]

312

Migration Law

[127.60]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 127

PRACTICE POINTS

Method of notification ....................................................................................................................... [127.120]

[127.20] Scope Pursuant to s 127, the Minister must notify a person if he or she decides to cancel the person’s visa. Section 127(2) sets out the required content of the notification letter, which must be in writing: reg 2.45. The section does not specify the way in which the notification of the cancellation decision is to be given to a person. Therefore, pursuant to s 494A, the Minister may give the notification to the person by any method he or she considers appropriate. In other words, the Minister may send the notification by the methods set out either in s 494B or in reg 2.55, which specifically deals with notification for cancellation-related matters, or any other method.

CONCEPTS [127.40] Prescribed way According to s 127(1), the Minister must notify a person of a cancellation decision in the “prescribed way”. The prescribed way is in writing: reg. 2.45.

KEY CASES [127.60]

“Address known to the Minister” in reg 2.55 for sending notifications about cancellation decisions If the Minister decides to cancel a visa under s 116, a written notice of that decision may be sent in accordance with reg 2.55. Under this regulation, a written notification may be: • handed to another person who is at the person’s (that is, the person whose visa is cancelled) “last residential or business address known to the Minister”: reg 2.55(3)(b); • dispatched by prepaid post to the person’s “last residential address, business address or post box address known to the Minister”: reg 2.55(3)(c); and • transmitted by fax, email or other electronic means to the “last fax number, email address or other electronic address known to the Minister”: reg 2.55(3)(d). In Ball v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 199; 199 ALR 374; [2003] FCA 699, the applicant’s visa was cancelled on character grounds and the notification under s 501G was dispatched by prepaid post to the last address known to the Minister. An officer at the Department obtained the address from the Western Australian Police Service. In relation to the concept of “last known address” in reg 2.55, Ryan J stated at [25] that: the concept of last known address in reg 2.55(3)(c) does not depend on the Minister’s knowledge coming from a particular source. Nor does it require that the Minister’s knowledge be verified in any particular way. It is sufficient that the means of knowledge relied on by the Minister be reasonable in the circumstances. In the present case, the knowledge acquired from the Western Australian Police about the applicant’s residential address was accurate when acquired and remained accurate until the applicant left Western Australia on 18 January 2003. Short of physically locating the applicant, it is difficult to perceive what more the Department could reasonably have done to bring to her notice the intention to consider cancellation of her visa.

In Osborne v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 416; [2002] FCA 1113, a notice of intended cancellation was sent to the applicant’s last known address, which was the address of a close relative, his mother, with whom he had © 2016 THOMSON REUTERS

313

s 127

Migration Act 1958

[127.80]

expressed an intention to resume living after he was released from jail. French J held that, in those circumstances, it was reasonable for the notice to have been sent to this address and for this to be the last known address. In Minister for Immigration and Multicultural Affairs v George (2004) 139 FCR 127; 85 ALD 513; [2004] FCAFC 276, Black CJ, Emmett and Selway JJ, were of the view that the last residential address in reg 2.55 must be an address at which the applicant has actually resided at some point in time: at [36]. Their Honours were of the view that the consequence of a notice being sent to the last known residential address, at which the applicant had never resided, was that an applicant would not be taken to have been notified and the Minister could not rely on deemed receipt provisions in reg 2.55(7) (unless the applicant actually received the notice and the Minister could then rely on reg 2.55(9)). In Lu v Minister for Immigration and Multicultural Affairs (2004) 135 FCR 450; [2004] FCA 181, Emmett J was also of the view that the reference to “residential address” in reg 2.55 must be an address at which the applicant had resided at some point: at [32]. However, the last known residential address is not confined to addresses only known after an applicant’s last entry into Australia: Choi v Minister for Immigration and Citizenship [2008] FMCA 1717 at [40] per Smith FM. [127.80]

“Post box address” under reg 2.55 for the purpose of sending a notification Under reg 2.55, a written notice can be sent to the last “post box address” known to the Minister: see reg 2.55(3)(c), (3A)(c) and (e). The expression “post box address” means a postal address known to the Minister, which is not a residential or business address: Zhang v Minister for Immigration and Citizenship (2007) 161 FCR 419; [2007] FCAFC 151 at [30] per Finn, Kenny and Greenwood JJ. [127.100]

“Transmitting the document” under reg 2.55 for the purpose of sending a notification According to reg 2.55, a written notice can be given by “transmitting” it by fax, email or other electronic means to the last address known by the Minister: see reg 2.55(3)(d), (3A)(d) and (f). In Sainju v Minister for Immigration and Citizenship (2010) 185 FCR 86; 115 ALD 371; [2010] FCA 461, Jacobson J considered the words “by transmitting” and “transmitted” in reg 2.55(8) and whether they mean “by sending” or “sent”, regardless of whether the document is actually received by the applicant. Jacobson J held that “by transmitting” means by “sending” and an applicant is taken to have received the transmitted document at the end of the day on which it is sent: at [57]. His Honour explained in relation to deeming provisions at [58]: The purpose of provisions such as these is to achieve administrative certainty as to whether a document has been given to a person, and as to the time at which this has occurred. It affects time limits for review of administrative decisions and may, in some instances, foreclose that possibility.

PRACTICE POINT [127.120] Method of notification Since s 127 does not specify the method by which the notification is to be provided to a person, the Minister may provide the notification to a person by any method he or she considers appropriate. However, if the Minister wishes to rely upon the deemed receipt provisions, then it is preferable to send the notification in accordance with either reg 2.55 or s 494B (refer to s 494B for commentary about this section).

314

Migration Law

[127A.20]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 127A

SUBDIVISION F – OTHER PROCEDURE FOR CANCELLING VISAS UNDER SUBDIVISION D OUTSIDE AUSTRALIA (SS 127A–133) [Subdiv F heading insrt Act 184 of 1992, s 11]

127A Exhaustive statement of natural justice hearing rule (1) This Subdivision 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 494A to 494D, in so far as they relate to this Subdivision, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with. [S 127A insrt Act 60 of 2002, s 3 and Sch 1 item 4]

SECTION 127A COMMENTARY Scope ................................................................................................................................................. [127A.20] CONCEPTS

Natural justice hearing rule .............................................................................................................. [127A.40] In relation to the matters it deals with ............................................................................................ [127A.60] KEY CASE

Natural justice hearing rule is not qualified or excluded in relation to offshore visa applicants .... [127A.80] In relation to the matters it deals with .......................................................................................... [127A.100]

[127A.20] Scope Section 127A was inserted by the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth). Section 127A(1) provides that Pt 2 Div 3 subdiv F of the Act (which deals with how the Minister is to deal with visa applications) is an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. Similarly, s 127A(2) makes it clear that ss 494A – 494D (which deal with the way that the Minister gives documents), insofar as they relate to subdiv F, are an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with. The purpose of s 127A is to ensure that the “codes of procedure” referred to in this section are an exhaustive statement of the requirements of the natural justice hearing rule: Explanatory Memorandum to the Migration Legislation Amendment (Procedural Fairness) Bill 2002 (Cth) at [1]. This section was inserted as a result of the High Court’s decision in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; 179 ALR 238; [2001] HCA 22 (Miah), in which the court held that the exclusion of common law natural justice requirements required clear legislative intention: at [53]–[54] per Gleeson CJ and Hayne J, at [90] per Gaudron J, at [126]–[127] per McHugh J and at [183] per Kirby J. In Miah, the High Court considered whether a delegate had denied the applicants procedural fairness by failing to put to them for comment certain country information. At the relevant time, the Act in Pt 2 Div 3 subdiv AB laid down what Gleeson CJ and Hayne J described as a “code of procedure for dealing fairly, efficiently and quickly with visa applications”: at [28]. It did not contain any further statement other than the one contained in this section - that the Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule. Gleeson CJ and Hayne J commented at [43] that “there is a difference between a code of procedure for dealing with visa applications and a comprehensive statement of the requirements of natural justice”. The majority were of the view that it is possible to exclude the rule of natural justice, but that, in order to do so, the legislation must be clear that the intention is for it to be excluded: at © 2016 THOMSON REUTERS

315

s 127A

Migration Act 1958

[127A.40]

[53]–[54] per Gleeson CJ and Hayne J, at [90] per Gaudron J, at [126]–[127] per McHugh J and at [183] per Kirby J. Necessarily, therefore, the wording in s 127A is clear that the natural justice hearing rule is excluded. In the Second Reading speech for the Migration Legislation Amendment (Procedural Fairness) Bill 2002 (Cth), the Minister noted that the proposed amendments were necessary to restore the Parliament’s original intention that the Act should contain codes of procedure that allow fair, efficient and legally certain decision-making processes that do not replace the common law requirement of the natural justice hearing rule. However, s 127A does not protect any decision that is affected by a jurisdictional error because such a decision will not be considered to be a migration decision and the privative clause provisions in s 474 will have no operation: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; 195 ALR 24; [2003] HCA 2 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. The concept of a privative clause is discussed further under s 474.

CONCEPTS [127A.40] Natural justice hearing rule The phrase “natural justice hearing rule”, or any variation thereof, is not defined in the Act. Natural justice usually requires that a person whose interests are to be affected by a decision be given an opportunity to comment and respond to material which is adverse to his or her interests: Kioa v West (1985) 159 CLR 550; 62 ALR 321; [1985] HCA 81 (Kioa) at 582 (CLR) per Mason J, at 628 – 629 (CLR) per Brennan J. Natural justice and procedural fairness require a decision-maker to bring to an applicant’s attention the critical issues or factors on which its decision is likely to turn in order for the applicant to have the opportunity of dealing with them: Kioa at 587 (CLR); VAAC v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 168; [2003] FCAFC 74 at [27]. In discharging this duty, a decision-maker needs to bring to an applicant’s attention the “substance” of any adverse information the decision-maker considers may bear upon the decision to be madePlaintiff M61/2010 v Commonwealth (2010) 243 CLR 319; 272 ALR 14; [2010] HCA 41 at [91] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ. Procedural fairness may extend to requiring identification to the applicant of “any adverse conclusion which has been arrived at which would not obviously be open on the known material” (Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; 34 ALD 324; 127 ALR 699 at [30]), whether that is material provided by the applicant or from other sources. For the requirements of natural justice to be satisfied it is sufficient if the “gravamen or substance of the issue or factor is brought to the applicant’s attention” or that the applicant is “on notice of its essential features”: NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 at [25], referring to Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs (2000) 103 FCR 539; 175 ALR 706; [2000] FCA 1113 at [557]. In the ordinary case, natural justice requires that an opportunity should be given to a person affected by a decision to deal with any adverse information that is “credible, relevant and significant”: see for example, Kioa at 629 (CLR) per Brennan J. Where a statute confers a power to destroy or prejudice a person’s rights or interests, principles of natural justice regulate the exercise of that power: see Annetts v McCann (1990) 170 CLR 596; 97 ALR 177; [1990] HCA 57 at 598 (CLR) per Mason CJ, Deane and McHugh JJ. In Kioa at 609 (CLR), Brennan J stated that: 316

Migration Law

[127A.100]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 127A

when the statute does not expressly require that the principles of natural justice be observed, the court construes the statute on the footing that “the justice of the common law will supply the omission of the legislature”. The true intention of the legislation is thus ascertained.

Similarly, in Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1; 195 ALR 502; [2003] HCA 6 at [37], Gleeson CJ observed that procedural fairness is not an abstract concept; it is essentially practical and the concern is to avoid practical injustice. [127A.60] In relation to the matters it deals with The declaration that the subdivision is taken to be an exhaustive statement of the requirements of the natural justice hearing rule is qualified by the words “in relation to the matters it deals with”: Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; 267 ALR 204; [2010] HCA 23 at [35] per French CJ, Gummow, Hayne, Crennan and Kiefel JJ. This means that, insofar as common law rules of procedural fairness are codified under this subdivision, the codification only applies to the subject “matter” the subdivision “deals with” (see ss 128 – 133 and 494A – 494D). Where the subdivision does not “deal with” a certain subject “matter”, common law rules of procedural fairness continue to apply.

KEY CASE [127A.80] Natural justice hearing rule is not qualified or excluded in relation to offshore visa applicants In Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; 267 ALR 204; [2010] HCA 23, the High Court considered s 51A (which is in the same terms as s 127A). Ms Saeed, a citizen of Pakistan, was outside Australia and applied for a Skilled – Independent visa (Subclass 175), on the basis of being a cook. As part of the application, Ms Saeed provided documents that she had worked at a restaurant in Rawalpindi. An Australian immigration officer in Pakistan investigated Ms Saeed’s claims and discovered that no employee records were kept on the premises of the restaurant and that no woman had ever worked in the kitchen. On the basis of this information, the delegate advised Ms Saeed that her evidence about her work was false and misleading, and refused to grant the visa. The High Court considered the terms of ss 51A and 57 (which deal with the provisions of certain information to applicants) and concluded that the natural justice hearing rule is excluded only insofar as it concerns onshore visa applicants, and is not excluded in relation to visa applicants who are not in Australia: at [56] per French CJ, Gummow, Hayne, Crennan and Kiefel JJ. The natural justice hearing rule applies to visa applicants offshore, and therefore the delegate was required to provide Ms Saeed with an opportunity to answer the adverse material. [127A.100] In relation to the matters it deals with In Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; 267 ALR 204; [2010] HCA 23 (Saeed), the High Court considered the scope of the phrase “in relation to the matters it deals with” and the various cases which had previously interpreted this phrase. French CJ, Gummow, Hayne, Crennan and Kiefel JJ endorsed (and found “plainly correct”) the conclusions reached by: • Lindgren J, in NAQF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 130 FCR 456; [2003] FCA 781 at 475 (FCR), that the expression “the matters it deals with” in s 357A(1) (which is in the same terms as s 127A) requires a search to be made of the operative provisions within Div 5 for a provision “dealing with” a “relevant matter”. The plural form of “matters” suggests that the inquiry might be directed to a number of such provisions: at [38]; and © 2016 THOMSON REUTERS

317

s 128

[128.20]

Migration Act 1958

• French J, in WAID v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 220 at [58], that s 422B (which is in the same terms as s 127A) requires “exploration in terms of its construction and identification of the ‘matters’ to which it applies”: at [39]. To place the High Court’s judgment in Saeed in context, it is necessary to have regard to some earlier decisions. In VXDC v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 146 FCR 562; [2005] FCA 1338 (VXDC), the Full Court of the Federal Court expressed the view that s 51A (which is in the same terms as s 127A) operated to exclude the common law natural justice hearing rule altogether: at [30]. Subsequently, in Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; 231 ALR 412; [2006] FCAFC 61 (Lay Lat), the Full Court of the Federal Court expressed its agreement with the observations made in VXDC at [30]: at [65]–[68]. However, in Antipova v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 151 FCR 480; [2006] FCA 584 (Antipova), Gray J, sitting alone, expressed disagreement with the court’s judgment in VXDC and did not accept that the judgment in Lay Lat was “plainly correct”, therefore declining to follow that decision: at [96]–[98]. In Saeed, the Full Court of the Federal Court stated it was not open to Gray J in Antipova not to follow Lay Lat, and expressed its view that Lay Lat was correct: at [42]–[46]. However, in allowing the appeal in Saeed, the High Court, although not expressing any view as to the correctness of either Lay Lat or Antipova, clearly adopted the ratio decidendi of Gray J in Antipova by asserting, “the declaration in s 51A(1), that the subdivision is to be taken as an exhaustive statement of the requirements of the natural justice hearing rule, is qualified by the words ‘in relation to the matters it deals with’”. 128 Cancellation of visas of people outside Australia If: (a) the Minister is satisfied that: (i) there is a ground for cancelling a visa under section 116; and (ii) it is appropriate to cancel in accordance with this Subdivision; and (b) the non-citizen is outside Australia; [Para (b) am Act 113 of 1998, s 3 and Sch 6 item 9]

the Minister may, without notice to the holder of the visa, cancel the visa. [S 128 am Act 113 of 1998; former s 50AN renum Act 60 of 1994, s 83; insrt Act 184 of 1992, s 11]

SECTION 128 COMMENTARY [128.20] Scope Section 128 provides a separate, independent and discretionary power for the Minister to cancel a visa without notice to the visa holder, if the following elements exist: • the visa holder is outside Australia: s 128(b). It does not matter that the non-citizen may have been in Australia at some point in time in the past; it only matters that the non-citizen is outside Australia at the time of the cancellation: Cheaib v Minister of State for Immigration and Multicultural Affairs (1997) 75 FCR 308; 145 ALR 379 at 379 (ALR) per Lockhart, O’Loughlin and Merkel JJ; and • the Minister is satisfied: – that there is a ground for cancelling under s 116: s 128(a)(i). However, s 128 does not “incorporate an analog [sic] of s 116(3) that requires cancellation in certain 318

Migration Law

[129.20]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 129

circumstances”: Doukmak v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 432; [2001] FCA 1821 at [48] per Moore J; and – it is appropriate to cancel the visa: s 128(a)(ii). The Minister may cancel a visa under s 128 without giving the visa holder any notice. However, if the Minister cancels a visa under this section he or she must give the non-citizen notice in accordance with s 129 of the decision to cancel the visa. Under s 131, the Minister may revoke the cancellation decision. 129 Notice of cancellation (1) If the Minister cancels a visa under section 128, he or she must give the former holder of the visa a notice: (a) stating the ground on which it was cancelled; and (b) giving particulars of that ground and of the information (not being non-disclosable information) because of which the ground was considered to exist; and (c) inviting the former holder to show, within a specified time, being a prescribed time, that: (i) that ground does not exist; or (ii) there is a reason why the visa should not have been cancelled; and (d) stating that, if the former holder shows, within the specified time, that the ground does not exist, the cancellation will be revoked; and (e) stating that, if the former holder shows that there is a reason why the visa should not have been cancelled, the cancellation might be revoked. [Subs (1) am Act 60 of 1994, s 45]

(2) The notice is to be given in the prescribed way. (3) Failure to give notification of a decision does not affect the validity of the decision. [Subs (3) insrt Act 113 of 1998, s 3 and Sch 5 item 1] [S 129 am Act 113 of 1998; former s 50AO renum Act 60 of 1994, s 83; am Act 60 of 1994; insrt Act 184 of 1992, s 11]

SECTION 129 COMMENTARY Scope ................................................................................................................................................... [129.20] CONCEPTS

Particulars ............................................................................................................................................ [129.40] Prescribed time .................................................................................................................................... [129.60] Prescribed way .................................................................................................................................... [129.80] KEY CASES

Inadequate particulars and invalid notice ......................................................................................... [129.100] PRACTICE POINT

Notice under section 129 .................................................................................................................. [129.120]

[129.20] Scope If the Minister cancels a non-citizen’s visa under s 128, he or she must send the non-citizen a notice of that cancellation. Section 129 sets out the requirements for a cancellation notice, which must: • state the ground on which the visa was cancelled; © 2016 THOMSON REUTERS

319

s 129

Migration Act 1958

[129.40]

• give particulars of the ground of cancellation; • give particulars of the information because of which the ground exists; and • invite the non-citizen to respond to the notice within the prescribed time: Noeung v Minister for Immigration and Multicultural Affairs (2002) 125 FCR 503; [2002] FCA 1304 at [72] per Allsop J. A cancellation notice that is valid, or which can adequately “elicit a meaningful response to the reasons for the cancellation” is a precondition to the Minster exercising the revocation power under s 131: Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 167 at [35] per Mansfield J.

CONCEPTS [129.40] Particulars Section 129(1)(b) requires that the cancellation notice must provide “particulars” of the ground of cancellation as well as “particulars” of the information because of which the ground was considered to exist. In relation to the “particulars” to be provided under this section, Allsop J stated in Noeung v Minister for Immigration and Multicultural Affairs (2002) 125 FCR 503; [2002] FCA 1304 at [73]: Sometimes, it will be straightforward to say: the ground is section X of the Act; particulars of the grounds are as follows (being in all likelihood the elements of the section of the Act in question); and the information as to why the ground is considered to exist is as follows. If the underlying proposition is simple, there may be little to differentiate (b) and (c) - particulars of the ground and particulars of the information because of which the ground was considered to exist. Also, if the evidentiary material before the delegate is voluminous, it may not be necessary to exhaustively recount it all, identifying every detail of it. What is required are particulars of the information because of which the ground is considered to exist. As I said in Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396 at [104] and [116], in discussing not dissimilar words in s 424A of the Act, being words evincing a similar statutory purpose to those in par 129(1)(b): [104] The evident purpose of s 424A is to play its part in the provision of a procedural analogue to the common law of procedural fairness. I think s 424A should be looked at with a purpose in mind of ensuring that the claimant is fairly informed of information adverse to his or her case (in the manner described by the section) so that investigation may be made, and steps may be taken, somehow, if possible, to meet it. The extent of particulars of any information should be looked at in a common sense way in the context of the matter in hand and with fairness to the applicant in mind. A consideration of these matters is obviously affected by the chosen approach of the Tribunal. Particulars of information need to be provided to the applicant so that the applicant understands what is the relevant information to the review. This very much depends upon what the Tribunal takes to be relevant.

[129.60] Prescribed time For the purposes of s 129(1)(c), the prescribed time for a non-citizen to respond to a notice of cancellation is set out in reg 2.46 of the Regulations. The prescribed times are as follow: • if the non-citizen is outside Australia, 28 days from when the non-citizen is given the notice of cancellation; or • if the non-citizen is in Australia and wants the cancellation reconsidered while he or she is in Australia, 5 minutes from when the non-citizen is given the notice of cancellation; or • if the non-citizen is in Australia and wants the cancellation reconsidered while he or she is outside Australia and he or she departs as soon as possible, 28 days from when the non-citizen is given the notice of cancellation. 320

Migration Law

[129.120]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 129

[129.80] Prescribed way For the purposes of s 129(2), a notice of cancellation is to be given in the “prescribed way”, which, according to reg 2.47, is in writing. In reg 2.47 there are two notes which provide that: • reg 2.55 applies to the giving of documents relating to the cancellation of a visa; and • reg 5.02 applies to the giving of documents to a person in immigration detention.

KEY CASES [129.100] Inadequate particulars and invalid notice The Minister’s power under s 131 to revoke a cancellation under s 128 will not be enlivened unless the notice under s 129 is valid. In Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 167, Mr Wang’s visa was cancelled under s 128. The cancellation notice under s 129 did not contain a copy of the delegate’s reasons for the decision, identifying three specific documents the delegate considered bogus and had relied upon to make the decision. Murphy J held that there had not been compliance with s 129 because the reasons for the decision were not enclosed in the notice. Therefore, Mr Wang was not given particulars of the ground of cancellation and the information because of which that ground existed: at [18]. Since there had not been compliance with s 129, the Minister’s powers to revoke the cancellation under s 131 had not been enlivened. At [33] to [34] Murphy J stated at [33]–[34]: In this matter, the precondition to the entitlement to making a decision under s 131 did not exist. There was no response to a notice under s 129 because no proper notice under s 129 was given. There is no contention that the letter given on 18 July 2001 constituted substantial compliance with that section, as the Reasons for Decision which would have provided the information required by s 129(1)(c) were not enclosed. As the applicant’s response of 21 August 2001 shows, the absence of that information meant that the applicant’s response was not a response to a notice under s 129. It did not properly engage the issue whether the ground for cancellation of the visa did not exist because the applicant was not given the information required so as to enable him to do so. In my judgment, the circumstance is not simply one whether a procedural prescription imposed as part of the process of decision-making has not been complied with. It is one where the jurisdictional fact prescribed by the Act, and one which is also the essence of the material upon which the Minister is entitled and obliged to make a decision, has been shown not to exist. The purpose of the decision-making process under s 131 has been frustrated. If I may paraphrase Stephen J in Green v Daniels (1977) 51 ALJR 463 at 465, the respondent has wrongly precluded himself from attaining the requisite state of satisfaction.

The appeal against the orders of Murphy J was dismissed by a majority in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 123 FCR 298; 193 ALR 449; [2002] FCAFC 228 per Black CJ, Wilcox and French J.

PRACTICE POINT [129.120] Notice under section 129 A notice under s 129 which is invalid or inadequate to “elicit a meaningful response” from a non-citizen in relation to the reconsideration of the cancellation will not enliven the revocation power under s 131: Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 167 at [35] per Mansfield J.

© 2016 THOMSON REUTERS

321

s 130

Migration Act 1958

[131.20]

130 Prescribed periods Regulations prescribing a period for the purpose of paragraph 129(1)(c) may prescribe different periods and specify when a particular period is to apply, which, without limiting the generality of the power, may be to: (a) visas of a specified class; or [Para (a) am Act 60 of 1994, s 82 and Sch 1 item 55]

(b) former visa holders in specified circumstances; or (c) former visa holders in a specified class of persons (which may be former visa holders in a specified place); or [Para (c) am Act 60 of 1994, s 82 and Sch 1 item 56]

(d) former visa holders in a specified class of persons (which may be former visa holders in a specified place) in specified circumstances. [Para (d) am Act 60 of 1994, s 82 and Sch 1 item 56] [Former s 50AP renum Act 60 of 1994, s 83; am Act 60 of 1994, s 82 and Sch 1 item 54; insrt Act 184 of 1992, s 11]

131 Decision about revocation of cancellation (1) Subject to subsection (2), after considering any response to a notice under section 129 of the cancellation of a visa, the Minister: (a) if not satisfied that there was a ground for the cancellation; or (b) if satisfied that there is another reason why the cancellation should be revoked; is to revoke the cancellation. (2) The Minister is not to revoke the cancellation of a visa if there exist prescribed circumstances in which the visa must be cancelled. [Former s 50AQ renum Act 60 of 1994, s 83; insrt Act 184 of 1992, s 11]

SECTION 131 COMMENTARY Scope ................................................................................................................................................... [131.20] CONCEPTS

Prescribed circumstances .................................................................................................................... [131.40] KEY CASES

Inadequate particulars and invalid notice ........................................................................................... [131.60] Power to be exercised in good faith ................................................................................................... [131.80] PRACTICE POINT

Decision about revocation of cancellation ....................................................................................... [131.100]

[131.20] Scope If the Minister cancels a visa under s 128, s 131 provides the Minister with a discretionary power to revoke that cancellation. A precondition to the Minister exercising the power under this section is the provision of a cancellation notice under s 129. However, the notice must either be valid or one that can adequately “elicit a meaningful response to the reasons for the cancellation”: Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 167 (Wang) at [35] per Mansfield J. The Minister must consider any response provided in relation to the s 129 notice: at [31] per Mansfield J.

322

Migration Law

[131.80]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 131

CONCEPTS [131.40] Prescribed circumstances According to s 131(2), the Minister is not to revoke a cancellation if “prescribed circumstances” exist. The “prescribed circumstances” are set out in reg 2.48 of the Regulations and are the grounds prescribed under s 116(3).

KEY CASES [131.60] Inadequate particulars and invalid notice The Minister’s power under s 131, to revoke a cancellation under s 128, will not be enlivened unless the notice under s 129 is valid. In Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 167, Mr Wang’s visa was cancelled under s 128. The cancellation notice under s 129 did not contain a copy of the delegate’s reasons for the decision, identifying three specific documents the delegate considered bogus and had relied upon to make the decision. Murphy J held that there had not been compliance with s 129 because the reasons for the decision were not enclosed in the notice. Therefore, Mr Wang was not given particulars of the ground of cancellation and the information because of which that ground existed: at [18]. Since there had not been compliance with s 129, the Minister’s powers to revoke the cancellation under s 131 had not been enlivened. Murphy J stated at [33]–[34]: In this matter, the precondition to the entitlement to making a decision under s 131 did not exist. There was no response to a notice under s129 because no proper notice under s 129 was given. There is no contention that the letter given on 18 July 2001 constituted substantial compliance with that section, as the Reasons for Decision which would have provided the information required by s 129(1)(c) were not enclosed. As the applicant’s response of 21 August 2001 shows, the absence of that information meant that the applicant’s response was not a response to a notice under s 129. It did not properly engage the issue whether the ground for cancellation of the visa did not exist because the applicant was not given the information required so as to enable him to do so. In my judgment, the circumstance is not simply one whether a procedural prescription imposed as part of the process of decision-making has not been complied with. It is one where the jurisdictional fact prescribed by the Act, and one which is also the essence of the material upon which the Minister is entitled and obliged to make a decision, has been shown not to exist. The purpose of the decision-making process under s 131 has been frustrated. If I may paraphrase Stephen J in Green v Daniels (1977) 51 ALJR 463 at 465, the respondent has wrongly precluded himself from attaining the requisite state of satisfaction.

The appeal against the orders of Murphy J was dismissed by a majority in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 123 FCR 298; 193 ALR 449; [2002] FCAFC 228 per Black CJ, Wilcox and French J. [131.80] Power to be exercised in good faith The Minister must exercise the power in s 131 in good faith. In Chhuon v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 74 ALD 381; 198 ALR 500; [2003] FCA 565, Mansfield J found that the delegate had only “rubber stamped” the original cancellation decision under s 128 and had not given proper consideration to whether or not to revoke that decision. Mansfield stated at [54]: I have reached the firm view that the second decision did not reflect an attempt in good faith to perform the review function prescribed by s 131 of the Act. Section 131(1)(a) appears to place at least an evidentiary onus on the applicant to adduce material upon which the respondent through his delegate might not be satisfied that there was a ground for the cancellation of the visa. The focus is clearly upon the ground upon which the initial cancellation decision under s 128 was made. It required the revisiting © 2016 THOMSON REUTERS

323

s 132

[131.100]

Migration Act 1958

of that ground afresh and with specific regard to my response. Section 131(1)(b) requires the delegate to then address whether there is another reason why the cancellation should be revoked. That may refer to that element of the initial decision required by s 128(a)(ii), namely that it is appropriate to cancel the visa under s 128 whilst the visa holder is out of Australia, rather than under the procedures prescribed by Subdiv E. Those procedures provide more substantial procedural fairness entitlements to the visa holder before cancellation of the visa. As the power to cancel a visa under s 128 is discretionary, the decision to revoke the cancellation may also have regard to other discretionary considerations, as contemplated by s 131(1)(b).

PRACTICE POINT [131.100] Decision re revocation of cancellation A decision as to whether or not to revoke a cancellation must be notified to the non-citizen in accordance with s 132. The prescribed way of notification is in writing for the purposes of reg 2.49, which contains two notes stating that: – reg 2.55 applies to the giving of documents relating to the revocation of the cancellation of a visa; and – reg 5.02 applies to the giving of documents to a person in immigration detention. 132 Notification of decision about revocation of cancellation When, under section 131, the Minister revokes or does not revoke the cancellation of a visa, he or she is to notify the visa holder or former visa holder of the decision in the prescribed way. [Former s 50AR renum Act 60 of 1994, s 83; insrt Act 184 of 1992, s 11]

133 Effect of revocation of cancellation (1) If the cancellation of a visa is revoked, then, without limiting its operation before cancellation, it has effect as if it were granted on the revocation. (2) Subject to subsection (1), if the cancellation of a visa is revoked, the Minister may vary the time the visa is to be in effect or any period in which, or date until which, the visa permits its holder to travel to, enter and remain in Australia, or to remain in Australia. [Subs (2) am Act 60 of 1994, s 46] [Former s 50AS renum Act 60 of 1994, s 83; am Act 60 of 1994; insrt Act 184 of 1992, s 11]

SUBDIVISION FA – ADDITIONAL PERSONAL POWERS FOR MINISTER TO CANCEL VISAS ON SECTION 109 OR 116 GROUNDS (SS 133A–133F) [Subdiv FA insrt Act 129 of 2014, s 3 and Sch 2 item 12, with effect from 11 Dec 2014]

133A Minister’s personal powers to cancel visas on section 109 grounds Action by Minister—natural justice applies (1) If a notice was given under section 107 to the holder of a visa in relation to a ground for cancelling the visa under section 109, and the Administrative Appeals Tribunal or the former Migration Review Tribunal or former Refugee Review Tribunal, or a delegate of the Minister: (a) decided that the ground did not exist; or (b) decided not to exercise the power in subsection 109(1) to cancel the visa (despite the existence of the ground); the Minister may set aside that decision and cancel the visa, if: (c) the Minister considers that the ground exists; and (d) the visa holder does not satisfy the Minister that the ground does not exist; and

324

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

(e)

s 133B

the Minister is satisfied that it would be in the public interest to cancel the visa.

Note: The grounds for cancellation under section 109 are non-compliance with section 101, 102, 103, 104 or 105. [Subs (1) am Act 60 of 2015, s 3 and Sch 2 item 189, with effect from 1 Jul 2015]

(2) The procedure set out in Subdivision C does not apply to a decision under subsection (1). Action by Minister—natural justice does not apply (3) The Minister may cancel a visa held by a person who has been immigration cleared (whether or not because of that visa) if: (a) the Minister is satisfied that a ground for cancelling the visa under section 109 exists; and (b) the Minister is satisfied that it would be in the public interest to cancel the visa. Note: The grounds for cancellation under section 109 are non-compliance with section 101, 102, 103, 104 or 105.

(4) The rules of natural justice, and the procedure set out in Subdivision C, do not apply to a decision under subsection (3). (5) The Minister may cancel a visa under subsection (3) whether or not: (a) the visa holder was given a notice under section 107 in relation to the ground for cancelling the visa; or (b) the visa holder responded to any such notice; or (c) the Administrative Appeals Tribunal or the former Migration Review Tribunal or former Refugee Review Tribunal, or a delegate of the Minister: (i) decided that the ground did not exist; or (ii) decided not to exercise the power in subsection 109(1) to cancel the visa (despite the existence of the ground). [Subs (5) am Act 60 of 2015, s 3 and Sch 2 item 190, with effect from 1 Jul 2015]

(6) If a decision was made as mentioned in paragraph (5)(c), the power under subsection (3) to cancel a visa is a power to set aside that decision and cancel the visa. Minister’s exercise of power (7) The power in subsection (1) or (3) may only be exercised by the Minister personally. (8) The Minister does not have a duty to consider whether to exercise the power in subsection (1) or (3), whether or not the Minister is requested to do so, or in any other circumstances. (9) Subsection 138(4) does not prevent the Minister setting aside a decision of a Tribunal or a delegate and cancelling a visa in accordance with this section. [S 133A am Act 60 of 2015; insrt Act 129 of 2014, s 3 and Sch 2 item 12, with effect from 11 Dec 2014]

133B Other provisions relating to the exercise of powers in section 133A (1) Subject to subsection (2), the possible non-compliances that can constitute a ground for the cancellation of a visa under subsection 133A(1) or (3) include non-compliances that occurred at any time (whether before or after the commencement of this section), including non-compliances in respect of any previous visa held by the person. (2) Section 115 (application of Subdivision C) applies in relation to section 133A in the same way that it applies in relation to Subdivision C. (3) To avoid doubt, subsections 133A(1) and (3) apply: (a) whether or not the Minister became aware of the ground for cancelling the visa because of information given by the visa holder; and

© 2016 THOMSON REUTERS

325

s 133B

Migration Act 1958

(b) whether the non-compliance because of which the ground is considered to exist was deliberate or inadvertent. (4) Steps taken for the purposes of the Minister exercising the power in subsection 133A(1) or (3) in relation to an instance of possible non-compliance by a person do not prevent: (a) a notice under section 107 being given to that person because of another instance of possible non-compliance; or (b) the exercise of the power in subsection 133A(1) or (3) in relation to the person because of another instance of possible non-compliance. (5) The non-cancellation of a visa under section 133A despite an instance of noncompliance does not prevent the cancellation, or steps for the cancellation, of the visa because of another instance of non-compliance. [S 133B insrt Act 129 of 2014, s 3 and Sch 2 item 12, with effect from 11 Dec 2014]

133C Minister’s personal powers to cancel visas on section 116 grounds Action by Minister—natural justice applies (1) If a notification was given under section 119 to the holder of a visa in relation to a ground for cancelling the visa under section 116, and the Administrative Appeals Tribunal or the former Migration Review Tribunal or former Refugee Review Tribunal, or a delegate of the Minister: (a) decided that the ground did not exist; or (b) decided not to exercise the power in section 116 to cancel the visa (despite the existence of the ground); the Minister may set aside that decision and cancel the visa if: (c) the Minister considers that the ground exists; and (d) the visa holder does not satisfy the Minister that the ground does not exist; and (e) the Minister is satisfied that it would be in the public interest to cancel the visa. Note: The Minister’s power to cancel a visa under this subsection is subject to section 117 (see subsection (9) of this section). [Subs (1) am Act 60 of 2015, s 3 and Sch 2 item 191, with effect from 1 Jul 2015]

(2) The procedures set out in Subdivisions E and F do not apply to a decision under subsection (1). Action by Minister—natural justice does not apply (3) The Minister may cancel a visa held by a person if: (a) the Minister is satisfied that a ground for cancelling the visa under section 116 exists; and (b) the Minister is satisfied that it would be in the public interest to cancel the visa. Note: The Minister’s power to cancel a visa under this subsection is subject to section 117 (see subsection (9) of this section).

(4) The rules of natural justice, and the procedures set out in Subdivisions E and F, do not apply to a decision under subsection (3). (5) The Minister may cancel a visa under subsection (3) whether or not: (a) the visa holder was given a notification under section 119 in relation to the ground for cancelling the visa; or (b) the visa holder responded to any such notification; or (c) the Administrative Appeals Tribunal or the former Migration Review Tribunal or former Refugee Review Tribunal, or a delegate of the Minister: (i) decided that the ground did not exist; or

326

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 133F

(ii)

decided not to exercise the power in section 116 to cancel the visa (despite the existence of the ground); or (d) a delegate of the Minister decided to revoke, under subsection 131(1), a cancellation of the visa in accordance with section 128 in relation to the ground. [Subs (5) am Act 60 of 2015, s 3 and Sch 2 item 192, with effect from 1 Jul 2015]

(6) If a decision was made as mentioned in paragraph (5)(c), the power under subsection (3) to cancel a visa is a power to set aside that decision and cancel the visa. Minister’s exercise of power (7) The power in subsection (1) or (3) may only be exercised by the Minister personally. (8) The Minister does not have a duty to consider whether to exercise the power in subsection (1) or (3), whether or not the Minister is requested to do so, or in any other circumstances. (9) Section 117 applies in relation to the power in subsection (1) or (3) in the same way as it applies to the cancellation of a visa under section 116. (10) Subsection 138(4) does not prevent the Minister setting aside a decision of a Tribunal or a delegate and cancelling a visa in accordance with this section. [S 133C am Act 60 of 2015; insrt Act 129 of 2014, s 3 and Sch 2 item 12, with effect from 11 Dec 2014]

133D Cancellation under subsection 133A(1) or 133C(1)—method of satisfying Minister of matters The regulations may provide that, in determining for the purposes of subsection 133A(1) or 133C(1) whether: (a) a person; or (b) a person included in a specified class of persons; satisfies the Minister that a ground for cancelling the person’s visa does not exist, any information or material submitted by or on behalf of the person must not be considered by the Minister unless the information or material is submitted within the period, and in the manner, ascertained in accordance with the regulations. [S 133D insrt Act 129 of 2014, s 3 and Sch 2 item 12, with effect from 11 Dec 2014]

133E Cancellation under subsection 133A(1) or 133C(1)—notice of cancellation (1) If a decision is made under subsection 133A(1) or 133C(1) to cancel a visa that has been granted to a person, the Minister must give the former holder of the visa a written notice that: (a) sets out the decision; and (b) specifies the provision under which the decision was made; and (c) sets out the reasons (other than non-disclosable information) for the decision. (2) The notice is to be given in the prescribed manner. (3) A failure to comply with this section in relation to a decision does not affect the validity of the decision. [S 133E insrt Act 129 of 2014, s 3 and Sch 2 item 12, with effect from 11 Dec 2014]

133F Cancellation under subsection 133A(3) or 133C(3)—Minister may revoke cancellation in certain circumstances (1) This section applies if the Minister makes a decision (the original decision) under subsection 133A(3) or 133C(3) to cancel a visa that has been granted to a person.

© 2016 THOMSON REUTERS

327

s 133F

Migration Act 1958

(2) For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers: (a) would be the reason, or a part of the reason, for making the original decision; and (b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member. (3) As soon as practicable after making the original decision, the Minister must: (a) give the person, in the way that the Minister considers appropriate in the circumstances: (i) a written notice that sets out the original decision; and (ii) particulars of the relevant information; and (b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision. (4) The Minister may revoke the original decision if: (a) the person makes representations in accordance with the invitation; and (b) the person satisfies the Minister that the ground for cancelling the visa referred to in subsection 133A(3) or 133C(3) (as the case requires) does not exist. (5) The power in subsection (4) may only be exercised by the Minister personally. (6) If the Minister revokes the original decision, the original decision is taken not to have been made. This subsection has effect subject to subsection (7). (7) Any detention of the person that occurred during any part of the period: (a) beginning when the original decision was made; and (b) ending at the time of the revocation of the original decision; is lawful and the person is not entitled to make any claim against the Commonwealth, an officer or any other person because of the detention. [S 133F insrt Act 129 of 2014, s 3 and Sch 2 item 12, with effect from 11 Dec 2014]

SUBDIVISION FB – EMERGENCY CANCELLATION ON SECURITY GROUNDS (SS 134A–134F) [Subdiv FB insrt Act 116 of 2014, s 3 and Sch 4 item 4, with effect from 4 Nov 2014]

134A Natural justice The rules of natural justice do not apply to a decision made under this Subdivision. [S 134A insrt Act 116 of 2014, s 3 and Sch 4 item 4, with effect from 4 Nov 2014]

134B Emergency cancellation on security grounds The Minister must cancel a visa held by a person if: (a) there is an assessment made by ASIO for the purposes of this section; and (b) the assessment contains advice that ASIO suspects that the person might be, directly or indirectly, a risk to security (within the meaning of section 4 of the ASIO Act); and (c) the assessment contains a recommendation that all visas held by the person be cancelled under this section; and (d) the person is outside Australia. [S 134B insrt Act 116 of 2014, s 3 and Sch 4 item 4, with effect from 4 Nov 2014]

134C Decision about revocation of emergency cancellation Application of section (1) This section applies to a visa that is cancelled under section 134B.

328

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 134E

First ground to revoke cancellation (2) The Minister must revoke the cancellation of the visa as soon as reasonably practicable after the end of the period referred to in subsection (5). (3) However, the Minister must not revoke the cancellation under subsection (2) if: (a) there is an assessment made by ASIO for the purposes of this section before the end of the period referred to in subsection (5); and (b) the assessment contains advice that the former holder of the visa is, directly or indirectly, a risk to security (within the meaning of section 4 of the ASIO Act); and (c) the assessment contains a recommendation that the cancellation not be revoked under subsection (2). Second ground to revoke cancellation (4) If: (a) there is an assessment made by ASIO for the purposes of this section before the end of the period referred to in subsection (5); and (b) the assessment contains a recommendation that the cancellation of the visa be revoked under this subsection; then the Minister must revoke the cancellation as soon as reasonably practicable after the assessment is made. Period (5) For the purposes of subsections (2), (3) and (4), the period is the period that: (a) starts at the beginning of the day (the cancellation day) the visa is cancelled; and (b) ends at the end of the 28th day after the cancellation day. [S 134C insrt Act 116 of 2014, s 3 and Sch 4 item 4, with effect from 4 Nov 2014]

134D Effect of revocation of cancellation (1) If the cancellation of a visa is revoked under section 134C, then, without limiting its operation before cancellation, it has effect as if it were granted on the revocation. (2) However, the Minister may vary: (a) the time the visa is to be in effect; or (b) any period in which, or date until which, the visa permits its holder to travel to, enter and remain in Australia, or to remain in Australia. [S 134D insrt Act 116 of 2014, s 3 and Sch 4 item 4, with effect from 4 Nov 2014]

134E Notice of cancellation (1) If: (a) the Minister decides under section 134B to cancel a visa; and (b) the Minister decides under subsection 134C(3) not to revoke the cancellation; then the Minister must give the former holder of the visa notice of the cancellation. (2) The notice must be given: (a) if the assessment made by ASIO for the purposes of section 134C contains an advice that it is essential to the security of the nation that a notice is not given to the person under this section—as soon as reasonably practicable after ASIO advises the Minister, in writing, that it is no longer essential to the security of the nation for the notice not to be given; and (b) otherwise—as soon as reasonably practicable after the Minister decides under subsection 134C(3) not to revoke the cancellation.

© 2016 THOMSON REUTERS

329

s 134E

Migration Act 1958

(3) The notice must: (a) state that the visa was cancelled under section 134B; and (b) be given to the person in the prescribed way. (4) Failure to give the notice does not affect the validity of either: (a) the decision under section 134B to cancel the visa; or (b) the decision under subsection 134C(3) not to revoke the cancellation. [S 134E insrt Act 116 of 2014, s 3 and Sch 4 item 4, with effect from 4 Nov 2014]

134F Effect of cancellation on other visas (1) This section applies if: (a) a visa held by a person (the relevant person) is cancelled under section 134B; and (b) the Minister decides under subsection 134C(3) not to revoke the cancellation; and (c) the Minister has given a notice to the relevant person under section 134E about the cancellation. (2) If another person holds a visa only because the relevant person held a visa, then the Minister may, without notice to the other person, cancel the other person’s visa. [S 134F insrt Act 116 of 2014, s 3 and Sch 4 item 4, with effect from 4 Nov 2014]

SUBDIVISION G – CANCELLATION OF BUSINESS VISAS (SS 134–137) [Subdiv G heading insrt Act 84 of 1992, s 9]

134 Cancellation of business visas (1) Subject to subsection (2) and to section 135, the Minister may cancel a business visa (other than an established business in Australia visa, an investment-linked visa or a family member’s visa) if the Minister is satisfied that its holder: (a) has not obtained a substantial ownership interest in an eligible business in Australia; or (b) is not utilising his or her skills in actively participating at a senior level in the day-to-day management of that business; or (c) does not intend to continue to: (i) hold a substantial ownership interest in; and (ii) utilise his or her skills in actively participating at a senior level in the day-to-day management of; an eligible business in Australia. [Subs (1) am Act 30 of 2014, s 3 and Sch 1 item 5, with effect from 28 May 2014; Act 110 of 1995, s 3 and Sch 1 item 1, with effect from 29 Sep 1995; Act 184 of 1992, s 38 and Sch, with effect from 1 Sep 1994]

(2) The Minister must not cancel a business visa under subsection (1) if the Minister is satisfied that its holder: (a) has made a genuine effort to obtain a substantial ownership interest in an eligible business in Australia; and (b) has made a genuine effort to utilise his or her skills in actively participating at a senior level in the day-to-day management of that business; and (c) intends to continue to make such genuine efforts. [Subs (2) am Act 184 of 1992, s 38 and Sch, with effect from 1 Sep 1994]

(3) Without limiting the generality of matters that the Minister may take into account in determining whether a person has made the genuine effort referred to in subsection (2), the Minister may take into account any or all of the following matters:

330

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 134

(a) business proposals that the person has developed; (b) the existence of partners or joint venturers for the business proposals; (c) research that the person has undertaken into the conduct of an eligible business in Australia; (d) the period or periods during which the person has been present in Australia; (e) the value of assets transferred to Australia by the person for use in obtaining an interest in an eligible business; (f) the value of ownership interest in eligible businesses in Australia that are, or have been, held by the person; (g) business activity that is, or has been, undertaken by the person; (h) whether the person has failed to comply with a notice under section 137; (i) if the person no longer holds a substantial ownership interest in a particular business or no longer utilises his or her skills in actively participating at a senior level of a day-to-day management of a business: (i) the length of time that the person held the ownership interest or participated in the management (as the case requires); and (ii) the reasons why the person no longer holds the interest or participates in the management (as the case requires). (3A) Subject to section 135, the Minister may cancel an investment-linked visa (other than a family member’s visa) if the Minister is satisfied that the person, or any of the persons, who held the relevant designated investment when the visa was granted has or have ceased, for any reason, to hold that investment within 3 years of that investment being made. [Subs (3A) am Act 30 of 2014, s 3 and Sch 1 item 6, with effect from 28 May 2014; insrt Act 110 of 1995, s 3 and Sch 1 item 2, with effect from 29 Sep 1995]

(4) Subject to subsection (5) and to section 135, if: (a) the Minister cancels a person’s business visa under subsection (1) or (3A); and (b) a business visa is held by another person who is or was a member of the family unit of the holder of the cancelled visa; and (c) the other person would not have held that business visa if he or she had never been a member of the family unit of the holder of the cancelled visa; the Minister must cancel the other person’s business permit or business visa. [Subs (4) am Act 30 of 2014, s 3 and Sch 1 item 7, with effect from 28 May 2014; Act 110 of 1995, s 3 and Sch 1 item 3, with effect from 29 Sep 1995; Act 60 of 1994, s 82 and Sch 1 item 57, with effect from 1 Sep 1994; Act 184 of 1992, s 38 and Sch (am Act 60 of 1994), with effect from 1 Sep 1994]

(5) The Minister must not cancel the other person’s business visa under subsection (4) if the cancellation of that visa would result in extreme hardship to the person. [Subs (5) am Act 184 of 1992, s 38 and Sch, with effect from 1 Sep 1994]

(6) The Minister is taken not to have cancelled a person’s business visa under subsection (4) if the Administrative Appeals Tribunal has set aside the decision of the Minister to cancel the business visa of the relevant person to whom paragraph (4)(a) applied. [Subs (6) am Act 184 of 1992, s 38 and Sch, with effect from 1 Sep 1994]

(7) If the Minister cancels a business visa under this section, the Minister must give written notice of the cancellation decision to its holder, including: (a) the Minister’s reason for the cancellation; and (b) a statement to the effect that the holder may, within 28 days after receiving the notice, apply to the Administrative Appeals Tribunal for review of the cancellation. [Subs (7) am Act 30 of 2014, s 3 and Sch 1 item 8, with effect from 28 May 2014; Act 184 of 1992, s 38 and Sch, with effect from 1 Sep 1994]

© 2016 THOMSON REUTERS

331

s 134

Migration Act 1958

(8) A cancellation under this section has effect on and from: (a) if the person applies to the Administrative Appeals Tribunal for a review of the decision to cancel the visa—the 28th day after the day on which the Administrative Appeals Tribunal gives its decision on that review; or (b) if: (i) the person’s visa was cancelled under subsection (4); and (ii) the relevant person to whom paragraph (4)(a) applied has applied to the Administrative Appeals Tribunal for a review of the decision to cancel that person’s visa; the 28th day after the day on which the Administrative Appeals Tribunal gives its decision on that review; or (c) the 28th day after the day on which the notice of cancellation is given to the holder of the cancelled visa; whichever is the latest. [Subs (8) am Act 184 of 1992, s 38 and Sch, with effect from 1 Sep 1994]

(9) The Minister must not cancel a business visa under subsection (1), (3A) or (4) unless a notice under section 135 was given to its holder within the period of 3 years commencing: (a) if its holder was in Australia when he or she was first granted a business visa—on the day on which that first visa was granted; or (b) if its holder was not in Australia when he or she was first granted a business visa—on the day on which its holder first entered Australia after that first visa was granted. [Subs (9) am Act 110 of 1995, s 3 and Sch 1 item 4, with effect from 29 Sep 1995; Act 184 of 1992, s 38 and Sch, with effect from 1 Sep 1994]

(10) In this section: business permit [Repealed] [Def rep Act 184 of 1992, s 38 and Sch, with effect from 1 Sep 1994]

business visa means: (a) a visa included in a class of visas, being a class that: (i) has the words “Business Skills” in its title; and (ii) is prescribed for the purposes of this paragraph; or (b) a visa: (i) to which a prescribed provision of the Migration Reform (Transitional Provisions) Regulations applies; and (ii) that is of a kind prescribed for the purposes of this paragraph; or (c) a return visa that is granted to a person who is or was the holder of a business permit or business visa; that is or was granted on or after 17 February 1992. [Def am Act 110 of 1995, s 3 and Sch 1 items 5–7, with effect from 29 Sep 1995]

designated investment has the meaning given by the regulations. [Def insrt Act 110 of 1995, s 3 and Sch 1 item 9, with effect from 29 Sep 1995]

eligible business means a business that the Minister reasonably believes is resulting or will result in one or more of the following: (a) the development of business links with the international market; (b) the creation or maintenance of employment in Australia; (c) the export of Australian goods or services;

332

Migration Law

[131.100]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 134

(d) the production of goods or the provision of services that would otherwise be imported into Australia; (e) the introduction of new or improved technology to Australia; (f) an increase in commercial activity and competitiveness within sectors of the Australian economy. established business in Australia visa means a business visa a criterion for whose grant: (a) relates to the applicant having an established business in Australia; or (b) is that the applicant is a member of the family unit of the holder of a visa a criterion for whose grant is as mentioned in paragraph (a). [Def insrt Act 110 of 1995, s 3 and Sch 1 item 9, with effect from 29 Sep 1995]

family member’s visa means a business visa held by a person: (a) who is or was a member of the family unit of another person who held a business visa; and (b) who would not have held the business visa if he or she had never been a member of the family unit of the other person. [Def insrt Act 110 of 1995, s 3 and Sch 1 item 9, with effect from 29 Sep 1995]

investment-linked visa means a business visa a criterion for whose grant: (a) relates to the holding of a designated investment; or (b) is that the applicant is a member of the family unit of the holder of a visa a criterion for whose grant is as mentioned in paragraph (a). [Def insrt Act 110 of 1995, s 3 and Sch 1 item 9, with effect from 29 Sep 1995]

member of the family unit [Repealed] [Def rep Act 144 of 2008, s 3 and Sch 10 item 35, with effect from 1 Jul 2009; subst Act 110 of 1995, s 3 and Sch 1 item 8, with effect from 29 Sep 1995; am Act 184 of 1992, s 38 and Sch, with effect from 1 Sep 1994]

ownership interest, in relation to a business, means an interest in the business as: (a) a shareholder in a company that carries on the business; or (b) a partner in a partnership that carries on the business; or (c) the sole proprietor of the business; including such an interest held indirectly through one or more interposed companies, partnerships or trusts. relevant designated investment, in relation to an investment-linked visa (other than a family member’s visa), means the designated investment that was, in deciding to grant the visa, regarded as satisfying the criterion referred to in paragraph (a) of the definition of investment-linked visa. [Def insrt Act 110 of 1995, s 3 and Sch 1 item 9, with effect from 29 Sep 1995]

return visa has the same meaning as in the regulations. [S 134 am Act 30 of 2014; Act 144 of 2008; Act 110 of 1995; former s 50A renum Act 60 of 1994, s 83; Act 60 of 1994; Act 184 of 1992; insrt Act 84 of 1992, s 9, with effect from 30 Jun 1992]

SECTION 134 COMMENTARY Scope ................................................................................................................................................... [134.20] CONCEPTS

Genuine effort ...................................................................................................................................... [134.40] Ownership interest ............................................................................................................................... [134.60] Written notice ...................................................................................................................................... [134.80]

© 2016 THOMSON REUTERS

333

s 135

Migration Act 1958

[134.20]

[134.20] Scope Section 134 provides the Minister with the discretion to cancel a person’s business visa. In relation to this section, Kiefel J stated in Kim v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 38 AAR 304; [2004] FCA 31 at [19]: Section 134 is directed to a subsequent assessment of what has been undertaken by a business visa holder and what their further intentions are. The grant of a business visa is based, in large part, upon a person’s commitment to establish, participate in or own an eligible business in Australia. The reporting conditions are connected with the assessment and may trigger it. It is of some importance, I consider, that the Minister may exercise the power given by s 134 at any time. At any time during the currency of the visa, if the Minister is satisfied that the visa holder’s obligations have not been met and the Minister is not persuaded that there have been genuine efforts to do so or that it is intended to continue to make those efforts, then s 134 permits cancellation of the visa.

Before the Minister can exercise the power under s 134, he or she must send a notice under s 135 to the visa holder, notifying the person in writing of the decision. A decision made under this section is reviewable by the Administrative Appeals Tribunal.

CONCEPTS [134.40] Genuine effort The expression “genuine effort” is referred to in s 134(2). Section 134(3) sets out a non-exhaustive list of matters the Minister may take into account when determining whether a person has made a “genuine effort”. The word “genuine” refers to “effort that is more than superficial or token”: Weng v Minister for Immigration and Citizenship (No 2) (2011) 121 ALD 77; [2011] FCA 444 at [50] per McKerracher J. [134.60] Ownership interest The expression “ownership interest” is defined in s 134(10). In relation to a shareholder that carries on a business, it is possible for a shareholder of a trust to meet this definition: Minister for Immigration and Citizenship v Hart (2009) 179 FCR 212; 111 ALD 502; [2009] FCAFC 112. [134.80] Written notice Section 134 does not specify the method by which a written notice under s 134(1), (3A) or (4) is to be given to a person. In those circumstances, and pursuant to s 494A, the Minister may give the notice by any method he or she considers appropriate: Lo v Minister for Immigration and Citizenship (2007) 159 FCR 160; 95 ALD 332; [2007] FCA 553 at [49] per Conti J. 135 Representations concerning cancellation of business visa (1) Before cancelling a visa under subsection 134(1), (3A) or (4), the Minister must give its holder a written notice: (a) stating that the Minister proposes to cancel the visa; and (b) inviting its holder to make representations to the Minister concerning the proposed cancellation within: (i) if the notice is given in Australia—28 days after the notice is given; or (ii) if the notice is given outside Australia—70 days after the notice is given. [Subs (1) am Act 110 of 1995, s 3 and Sch 1 item 10, with effect from 29 Sep 1995; Act 184 of 1992, s 38 and Sch]

(2) The holder may make such representations to the Minister within the time specified in the notice. (3) The Minister must give due consideration to any representations.

334

Migration Law

[135.60]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 136

(4) If: (a) the time specified in the notice ends after the end of the period referred to in subsection 134(9); and (b) at the end of the period of 90 days commencing at the time specified in the notice, the Minister has not made a decision on whether to proceed with the cancellation; the Minister is not to proceed with the cancellation. (5) If the Minister decides not to proceed with the cancellation, the Minister must give its holder written notice to that effect. [S 135 am Act 110 of 1995; former s 50B renum Act 60 of 1994, s 83; am Act 184 of 1992, s 38 and Sch; insrt Act 84 of 1992, s 9]

SECTION 135 COMMENTARY Scope ................................................................................................................................................... [135.20] CONCEPTS

Written notice ...................................................................................................................................... [135.40] End of the 90-day period .................................................................................................................... [135.60]

[135.20] Scope Before the Minister can cancel a business visa under s 134, he or she must first send the visa holder a notice under s 135 which: – states that the Minister proposes to cancel the visa; and – invites the visa holder to make representations regarding the proposed cancellation.

CONCEPTS [135.40] Written notice Section 135 does not specify the method by which a written notice is to be given to a person. In those circumstances, and pursuant to s 494A, the Minister may give the notice by any method he or she considers appropriate: Lo v Minister for Immigration and Citizenship (2007) 159 FCR 160; 95 ALD 332; [2007] FCA 553 at [49] per Conti J. [135.60] End of the 90-day period Pursuant to s 135(4)(b), the Minister is not to proceed with the cancellation if at the “end of the period of 90 days commencing at the time specified in the notice” the Minister has not yet made a decision. For the purposes of calculating the 90-day period, the date specified in the notice is not to be taken as the first day of the 90-day period: Tio v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 126 FCR 185; 197 ALR 117; [2003] FCAFC 53 at [26] per Lindgren J, at [69] per Downes J. 136 Review of decisions Application may be made to the Administrative Appeals Tribunal for review of a decision of the Minister under subsection 134(1), (3A) or (4). [S 136 am Act 110 of 1995, s 3 and Sch 1 item 11, with effect from 29 Sep 1995; former s 50C renum Act 60 of 1994, s 83; insrt Act 84 of 1992, s 9]

© 2016 THOMSON REUTERS

335

s 136

Migration Act 1958

137 Provision of information—holders of business visas (1) The Secretary or Australian Border Force Commissioner may by written notice require the holder of a business visa to give the Secretary or Australian Border Force Commissioner such information as is specified in the notice. [Subs (1) am Act 41 of 2015, s 3 and Sch 3 item 5, with effect from 1 Jul 2015]

(2) The Secretary or Australian Border Force Commissioner may not require information under subsection (1) unless the information is to be used by the Secretary, the Australian Border Force Commissioner or the Minister for the purpose of the administration of this Act or of regulations made under this Act. [Subs (2) am Act 41 of 2015, s 3 and Sch 3 items 6 and 7, with effect from 1 Jul 2015]

(3) A notice under subsection (1) is only valid in the period of 3 years commencing: (a) if the holder was in Australia when he or she was first granted a business visa—on the day on which that first visa was granted; or (b) if the holder was not in Australia when he or she was first granted a business visa—on the day on which the holder first entered Australia after that first visa was granted. [Subs (3) am Act 184 of 1992, s 38 and Sch]

(4) Without limiting the generality of the information that may be required under subsection (1), the Secretary or Australian Border Force Commissioner may require the holder to advise the Secretary or Australian Border Force Commissioner in writing of any change in the address of the holder during a period specified in the notice. [Subs (4) am Act 41 of 2015, s 3 and Sch 3 item 8, with effect from 1 Jul 2015]

(5) A notice under subsection (1) must state that the information must be provided within a period of 28 days commencing on a day specified in the notice. (6) The day specified in the notice may be: (a) the day on which the notice is issued; or (b) a later particular day; or (c) the day on which an event specified in the notice occurs. (7) A person who fails to comply with a notice under subsection (1) commits an offence at the end of every successive 28 day period that is contained in the period commencing on the day specified in the notice and ending when the person complies with the notice. [Subs (7) am Act 97 of 2001, s 3 and Sch 1 item 7, with effect from 19 Sep 2001]

(7A) Subsection (7) does not apply if the person has a reasonable excuse. Note: A defendant bears an evidential burden in relation to the matter in subsection (7A) (see subsection 13.3(3) of the Criminal Code). [Subs (7A) insrt Act 97 of 2001, s 3 and Sch 1 item 8, with effect from 19 Sep 2001]

(7B) An offence against subsection (7) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. [Subs (7B) insrt Act 97 of 2001, s 3 and Sch 1 item 8, with effect from 19 Sep 2001]

(8) Subsection 4K(2) of the Crimes Act 1914 does not apply to an offence under subsection (7). (9) [Repealed] [Subs (9) rep Act 137 of 2000, s 3 and Sch 2 item 281]

(10) In this section:

336

Migration Law

[135.60]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 137J

business permit [Repealed] [Def rep Act 184 of 1992, s 38 and Sch]

business visa has the same meaning as in section 134. Penalty: $5,000. [S 137 am Act 41 of 2015; Act 97 of 2001; Act 137 of 2000; former s 50D renum Act 60 of 1994, s 83; am Act 184 of 1992, s 38 and Sch; insrt Act 84 of 1992, s 9]

SUBDIVISION GA – CANCELLATION OF APPROVAL AS A BUSINESS SPONSOR [REPEALED] (SS 137A – 137H) [Subdiv GA, ss 137A–137H, rep Act 159 of 2008, s 3 and Sch 1 item 9, with effect from 14 Sep 2009; insrt Act 28 of 2000, s 3 and Sch 1 item 1]

[Editor’s Note: There is no section 137I in this Act.] SUBDIVISION GB – AUTOMATIC CANCELLATION OF STUDENT VISAS (SS 137J– 137P) [Subdiv GB insrt Act 168 of 2000, s 3 and Sch 1 item 2]

137J Non-complying students may have their visas automatically cancelled (1) This section applies if a notice is sent to a non-citizen under section 20 of the Education Services for Overseas Students Act 2000 in relation to a visa held by the non-citizen (even if the non-citizen never receives the notice). Note 1: Under that section, a registered education provider must send a notice to a non-citizen who breaches a condition of the non-citizen’s visa that is prescribed by regulations made for the purposes of that Act. The notice must give particulars of the breach and must require the non-citizen to attend before an officer for the purpose of making any submissions about the breach and the circumstances that led to the breach. Note 2: Under subsection 20(4A) of that Act, a registered provider must not send a notice on or after the day that subsection commences. [Subs (1) am Act 192 of 2012, s 3 and Sch 1 items 6 and 7; Act 70 of 2007, s 3 and Sch 1 item 24; Act 144 of 2006, s 3 and Sch 2 item 7]

(2) The non-citizen’s visa is cancelled by force of this section at the end of the 28th day after the day that the notice specifies as the date of the notice unless, before the end of that 28th day: (a) the non-citizen complies with the notice; or (b) the non-citizen, while attending in person at an office of Immigration (within the meaning of the regulations) that is either: (i) in Australia; or (ii) approved for the purposes of this paragraph by the Minister by notice in the Gazette; makes himself or herself available to an officer for the stated purpose of making any submissions about the breach and the circumstances that led to the breach. [Subs (2) am Act 70 of 2007, s 3 and Sch 1 item 25] [S 137J am Act 192 of 2012; Act 70 of 2007; Act 144 of 2006; insrt Act 168 of 2000, s 3 and Sch 1 item 2]

SECTION 137J COMMENTARY Scope .................................................................................................................................................. [137J.20] CONCEPTS

Office of Immigration ........................................................................................................................ [137J.40]

© 2016 THOMSON REUTERS

337

s 137J

Migration Act 1958

[137J.20]

KEY CASES

Valid s 20 notice must be sent to enliven cancellation .................................................................... [137J.60] PRACTICE POINT

Cancellation of visa ........................................................................................................................... [137J.80]

[137J.20] Scope Section 137J automatically cancels a non-citizen’s student visa if the following occurs: – the non-citizen’s registered education provider sends the non-citizen a notice under s 20 of the Education Services for Overseas Students Act 2000 (Cth) because the non-citizen has breached a condition of the student visa; and – at the end of the 28th day the notice specifies, the non-citizen does not: • comply with the notice; or • makes himself or herself available to an officer for the purpose of making any submissions about the breach, while attending an office of Immigration in person. The purpose of the s 137J is to “provide for a statutory form of cancellation of visas which does not require any administrative decision”: Shao v Minister for Immigration and Multicultural and Indigenous Affairs (2007) 157 FCR 300; [2007] FCA 18 at [57] per Lander J. Therefore, a cancellation under this section is not an administrative decision. The only administrative decision which may be made in relation to a cancellation under this section is whether the Minister will exercise the power under s 137N to revoke the cancellation: Shao v Minister for Immigration and Multicultural and Indigenous Affairs (2007) 157 FCR 300; [2007] FCA 18 at [55] per Lander J.

CONCEPTS [137J.40] Office of Immigration An “office of Immigration” has the meaning in reg 2.50A. The Minister has not approved any place as an “office of Immigration” in a notice in the Gazette.

KEY CASES [137J.60] Valid s 20 notice must be sent to enliven cancellation Before a non-citizen’s student visa is automatically cancelled, a valid notice under s 20 of the Education Services for Overseas Students Act 2000 (Cth) (ESOS Act) must first be sent to the non-citizen by his or her registered education provider. If the notice does not strictly comply with s 20 of the ESOS Act, then the notice has not been given under that section and the automatic cancellation provisions in s 137J do not apply. In Uddin v Minister for Immigration [2005] FMCA 841, the notice sent under s 20 of the ESOS Act did not advise Mr Uddin that he was required to attend in person before an officer within the meaning of the Act, but rather that he was to report to a compliance officer. Nor did the notice state the effect of non-compliance with s 137J and the provisions of s 137K(2) regarding revocation. Scarlett FM found that the requirements in s 20(4) of the ESOS Act were mandatory and that if the notice did not comply with this section then s 137J did not apply: at [56].

PRACTICE POINT [137J.80] Cancellation of visa A cancellation under s 137J is not an administrative decision and therefore is not reviewable by the Tribunal, nor does it enliven the Federal Circuit Court’s jurisdiction under s 476 or the Federal Court’s jurisdiction under s 476A: Kumar v Minister for Immigration (2008) 221 FLR 338

Migration Law

[137K.20]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 137L

361; [2008] FMCA 1458 at [25] per Emmett FM; Shao v Minister for Immigration and Multicultural and Indigenous Affairs (2007) 157 FCR 300; [2007] FCA 18 at [57] per Lander J. Under s 116, the Minister has the power to cancel a visa. This decision may be made if a s 20 notice under the ESOS Act (for breach of a visa condition) is sent to the non-citizen. However, the powers under ss 116 and 137J are separate cancellation powers, which do not constrain each other: Humayun v Minister for Immigration (2006) 149 FCR 558; 90 ALD 482; [2006] FCAFC 35; Minister for Immigration v Zhou (2006) 152 FCR 115; [2006] FCAFC 96; Shek v Minister for Immigration [2006] FCA 522. 137K Applying for revocation of cancellation (1) A non-citizen whose visa has been cancelled under section 137J may apply in writing to the Minister for revocation of the cancellation. (2) A non-citizen who is in the migration zone cannot apply for revocation at a time when, because of section 82, the visa would no longer have been in effect anyway had the visa not been cancelled under section 137J. (3) In addition to the restriction in subsection (2), a non-citizen who is in the migration zone and who has been detained under section 189 cannot apply for revocation later than: (a) 2 working days after the day on which section 194 was complied with in relation to his or her detention; or (b) if he or she informs an officer in writing within those 2 days of his or her intention to so apply—within the next 5 working days after those 2 working days. (4) A non-citizen who is outside the migration zone cannot apply for revocation later than 28 days after the day of the cancellation. (5) In any case, a non-citizen cannot apply for revocation if he or she has previously made such an application in respect of the same cancellation. [S 137K insrt Act 168 of 2000, s 3 and Sch 1 item 2]

SECTION 137K COMMENTARY [137K.20] Scope If a non-citizen’s student visa is automatically cancelled under s 137J, the Minister has a discretionary power to revoke the cancellation under s 137K. An application for revocation must be in writing. Section 137L sets out the way in which the Minister is to deal with an application for revocation of a cancellation under s 137J. 137L Dealing with the application (1) On an application under section 137K, the Minister may revoke the cancellation if, and only if, the applicant satisfies the Minister: (a) that the non-citizen did not in fact breach the relevant visa condition or conditions; or (b) that the breach was due to exceptional circumstances beyond the non-citizen’s control; or (c) of any other matter prescribed in the regulations. (2) However, the Minister must not revoke the cancellation on the ground that the non-citizen was unaware of the notice or of the effect of section 137J.

© 2016 THOMSON REUTERS

339

s 137L

Migration Act 1958

[137L.20]

(3) A cancellation is revoked under this section by the Minister causing a record of the revocation to be made. [S 137L insrt Act 168 of 2000, s 3 and Sch 1 item 2]

SECTION 137L COMMENTARY Scope ................................................................................................................................................. [137L.20] CONCEPTS

Prescribed .......................................................................................................................................... [137L.40] Exceptional circumstances ................................................................................................................ [137L.60]

[137L.20] Scope Section 137K provides the Minister with the discretion to revoke a cancellation under s 137J if the non-citizen applies in writing. The Minister may revoke the cancellation if he or she is satisfied in regard to the factors listed in s 137L(1)(a) – (c).

CONCEPTS [137L.40] Prescribed For the purposes of s 137L(1)(c), there are no other matters prescribed in the Regulations. [137L.60] Exceptional circumstances The expression “exceptional circumstances” is not defined in the Act or Regulations. In Maan v Minister for Immigration and Citizenship (2009) 179 FCR 581; 112 ALD 25; [2009] FCAFC 150, Dowsett, Greenwood and Collier JJ considered this expression in the context of a cancellation under s 116. Dowsett, Greenwood and Collier JJ acknowledged at [51] that the expression was not defined, but found assistance in the following comments of Lord Bingham of Cornhill in R v Kelly (Attorney-General’s Reference No 53 of 1998) [2000] 1 QB 198; [1999] 2 All ER 13 at 208 (QB), at 20 (All ER): We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or usual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.

Compare Baker v The Queen (2004) 223 CLR 513; 210 ALR 1; [2004] HCA 45 at [173]; and Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]–[25]. 137M Notification of decision (1) When the Minister decides whether to revoke a cancellation under section 137L, he or she must give the non-citizen written notice of the decision. (2) Notice of a decision not to revoke a cancellation must: (a) specify the grounds for the decision; and (b) state: (i) that if the non-citizen was in the migration zone when the decision was made, the decision is reviewable under Part 5; and (ii) the time in which the application for review may be made; and (iii) who may apply for the review; and (iv) where the application for review may be made.

340

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 137Q

(3) Failure to notify of a decision whether to revoke a cancellation does not affect the validity of the decision. [S 137M insrt Act 168 of 2000, s 3 and Sch 1 item 2]

137N Minister may revoke cancellation on his or her own initiative (1) The Minister may, on his or her own initiative, revoke the cancellation under section 137J of a particular non-citizen’s visa, if the Minister thinks that it is in the public interest to do so. (2) The Minister must give the relevant non-citizen written notice of a decision under subsection (1) to revoke a cancellation. (3) The power in subsection (1) may only be exercised by the Minister personally. (4) The Minister does not have a duty to consider whether to exercise the power in subsection (1), whether or not the non-citizen or anyone else requests him or her to do so, or in any other circumstances. (5) A cancellation is revoked under this section by the Minister causing a record of the revocation to be made. [S 137N insrt Act 168 of 2000, s 3 and Sch 1 item 2]

[Editor’s Note: There is no section 137O in this Act.] 137P Effect of revocation (1) If the cancellation of a visa is revoked under section 137L or 137N, the visa is taken never to have been cancelled under section 137J. (2) If the revocation is under section 137L and the decision is made wholly or partly on the ground that paragraph 137L(1)(a) or (b) applies to the breach that was alleged in the notice mentioned in section 137J, then that breach cannot be a ground for cancelling the visa under section 116. (3) However, a revocation under section 137L or 137N does not otherwise limit or affect any other power to cancel the visa under this Act. (4) In particular, a different or later breach of a condition of the visa can be a ground for cancelling the visa under section 116. (5) Despite subsection (1), any detention of the non-citizen that occurred during any part of the period: (a) beginning when the visa was cancelled under section 137J; and (b) ending at the time of the revocation of the cancellation; is lawful and the non-citizen is not entitled to make any claim against the Commonwealth, an officer or any other person because of the detention. [S 137P insrt Act 168 of 2000, s 3 and Sch 1 item 2]

SUBDIVISION GC – CANCELLATION OF REGIONAL SPONSORED EMPLOYMENT VISAS (SS 137Q–137T) [Subdiv GC insrt Act 33 of 2001, s 3 and Sch 1 item 3]

137Q Cancellation of regional sponsored employment visas Employment does not commence (1) The Minister may cancel a regional sponsored employment visa held by a person if: (a) the Minister is satisfied that the person has not commenced the employment referred to in the relevant employer nomination within the period prescribed by the regulations; and

© 2016 THOMSON REUTERS

341

s 137Q

Migration Act 1958

(b) the person does not satisfy the Minister that he or she has made a genuine effort to commence that employment within that period. Employment terminates within 2 years (2) The Minister may cancel a regional sponsored employment visa held by a person if: (a) the Minister is satisfied that: (i) the person commenced the employment referred to in the relevant employer nomination (whether or not within the period prescribed by the regulations); and (ii) the employment terminated within the period (the required employment period) of 2 years starting on the day the person commenced that employment; and (b) the person does not satisfy the Minister that he or she has made a genuine effort to be engaged in that employment for the required employment period. Regional sponsored employment visa (3) In this section: regional sponsored employment visa means a visa of a kind that: (a) is included in a class of visas that has the words “Employer Nomination” in its title; and (b) is prescribed by the regulations for the purposes of this definition. [S 137Q insrt Act 33 of 2001, s 3 and Sch 1 item 3]

137R Representations concerning cancellation etc. (1) Before cancelling a person’s visa under section 137Q, the Minister must give the person a written notice: (a) stating that the Minister proposes to cancel the visa; and (b) inviting the person to make representations to the Minister concerning the proposed cancellation within: (i) if the notice is given in Australia—28 days after the notice is given; or (ii) if the notice is given outside Australia—70 days after the notice is given. (2) The Minister must consider any representations received within that period. (3) If the Minister decides not to proceed with the cancellation, the Minister must give the person written notice of the decision. [S 137R insrt Act 33 of 2001, s 3 and Sch 1 item 3]

137S Notice of cancellation (1) If the Minister decides to cancel a person’s visa under section 137Q, he or she must give the person written notice of the decision. The notice must: (a) specify the reasons for the cancellation; and (b) state whether or not the decision to cancel the visa is reviewable under Part 5; and (c) if the decision to cancel the visa is reviewable under Part 5—state the period within which an application for review can be made, who can apply for the review and where the application for review can be made. (2) Failure to give notice of the decision does not affect the validity of the decision. [S 137S subst Act 33 of 2001, s 3 and Sch 1 item 4; insrt Act 33 of 2001, s 3 and Sch 1 item 3]

137T Cancellation of other visas (1) If a person’s visa is cancelled under section 137Q, a visa held by another person because of being a member of the family unit of the person is also cancelled.

342

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3 – Visa for non-citizens (ss 28–140)

s 140

(2) The cancellation under subsection (1) of this section is set aside if the cancellation of the person’s visa under section 137Q is set aside under Part 5. (3) [Repealed] [Subs (3) rep Act 144 of 2008, s 3 and Sch 10 item 36, with effect from 1 Jul 2009] [S 137T am Act 144 of 2008; insrt Act 33 of 2001, s 3 and Sch 1 item 3]

SUBDIVISION H – GENERAL PROVISIONS ON CANCELLATION (SS 138–140) [Subdiv H heading insrt Act 184 of 1992, s 12]

138 Cancellation and revocation of cancellation of visas—how and when (1) The following decisions are taken to be made by the Minister causing a record to be made of the decision: (a) a decision to cancel a visa, or not to cancel a visa; (b) a decision to revoke the cancellation of a visa, or not to revoke the cancellation of a visa. (2) The record must state the day and time of its making. (3) The decision is taken to have been made on the day and at the time the record is made. (4) The Minister has no power to vary or revoke the decision after the day and time the record is made. (5) Failure to comply with subsection (2) does not affect the validity of the decision or the operation of subsection (4). [S 138 subst Act 30 of 2014, s 3 and Sch 1 item 9; am Act 168 of 2000; former s 50E renum Act 60 of 1994, s 83; insrt Act 184 of 1992, s 12]

139 Visas held by 2 or more If a visa is held by 2 or more non-citizens: (a) Subdivisions C, D, E, F and FA and this Subdivision apply as if each of them were the holder of the visa; and [Para (a) am Act 129 of 2014, s 3 and Sch 2 item 13, with effect from 11 Dec 2014]

(b) to avoid doubt, if the visa is cancelled because of one non-citizen being its holder, it is cancelled so that all those non-citizens cease to hold the visa. [S 139 am Act 129 of 2014; former s 50F renum Act 60 of 1994, s 83; insrt Act 184 of 1992, s 12]

140 Cancellation of visa results in other cancellation (1) If a person’s visa is cancelled under section 109 (incorrect information), 116 (general power to cancel), 128 (when holder outside Australia), 133A (Minister’s personal powers to cancel visas on section 109 grounds), 133C (Minister’s personal powers to cancel visas on section 116 grounds) or 137J (student visas), a visa held by another person because of being a member of the family unit of the person is also cancelled. [Subs (1) am Act 129 of 2014, s 3 and Sch 2 item 14, with effect from 11 Dec 2014; Act 144 of 2008, s 3 and Sch 10 item 37, with effect from 1 Jul 2009; Act 129 of 2001, s 3 and Sch 2 item 5; Act 168 of 2000, s 3 and Sch 1 item 4]

(2) If: (a) a person’s visa is cancelled under section 109 (incorrect information), 116 (general power to cancel), 128 (when holder outside Australia), 133A (Minister’s personal powers to cancel visas on section 109 grounds), 133C (Minister’s personal powers to cancel visas on section 116 grounds) or 137J (student visas); and

© 2016 THOMSON REUTERS

343

s 140

Migration Act 1958

(b) another person to whom subsection (1) does not apply holds a visa only because the person whose visa is cancelled held a visa; the Minister may, without notice to the other person, cancel the other person’s visa. [Subs (2) am Act 129 of 2014, s 3 and Sch 2 item 14, with effect from 11 Dec 2014; Act 129 of 2001, s 3 and Sch 2 item 6; Act 168 of 2000, s 3 and Sch 1 item 5]

(3) If: (a) a person’s visa (the cancelled visa) is cancelled under any provision of this Act; and (b) the person is a parent of another person; and (c) the other person holds a particular visa (the other visa), that was granted under section 78 (child born in Australia) because the parent held the cancelled visa; the other visa is also cancelled. [Subs (3) insrt Act 60 of 1994, s 47(a)]

(4) If: (a) a visa is cancelled under subsection (1), (2) or (3) because another visa is cancelled; and (b) the cancellation of the other visa is revoked under section 131, 133F, 137L or 137N; the cancellation under subsection (1), (2) or (3) is revoked. [Subs (4) am Act 129 of 2014, s 3 and Sch 2 item 15, with effect from 11 Dec 2014; Act 168 of 2000, s 3 and Sch 1 item 6; Act 60 of 1994, s 47(b)] [S 140 am Act 129 of 2014; Act 144 of 2008; Act 129 of 2001; Act 168 of 2000; former s 50G renum Act 60 of 1994, s 83; am Act 60 of 1994; insrt Act 184 of 1992, s 12]

DIVISION 3A – SPONSORSHIP (SS 140A–140ZK) [Div 3A insrt Act 99 of 2003, s 3 and Sch 1 item 2]

SUBDIVISION A – PRELIMINARY (SS 140A–140AB) [Subdiv A heading subst Act 159 of 2008, s 3 and Sch 1 item 10, with effect from 14 Sep 2009]

140A Division applies to prescribed kinds of visa This Division applies to visas of a prescribed kind (however described). [S 140A insrt Act 99 of 2003, s 3 and Sch 1 item 2]

140AA Division 3A—purposes The purposes of this Division are as follows: (a) to provide a framework for a temporary sponsored work visa program in order to address genuine skills shortages; (b) to address genuine skills shortages in the Australian labour market: (i) without displacing employment and training opportunities for Australian citizens and Australian permanent residents (within the meaning of the regulations); and (ii) without the temporary sponsored work visa program serving as a mainstay of the skilled migration program; (c) to balance the objective of ensuring employment and training opportunities for Australian citizens and Australian permanent residents with that of upholding the rights of non-citizens sponsored to work in Australia under the program; (d) to impose obligations on sponsors to ensure that: (i) non-citizens sponsored to work in Australia under the program are protected; and

344

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3A – Sponsorship (ss 140A–140ZK)

s 140F

(ii) the program is not used inappropriately; to enable monitoring, detection, deterrence and enforcement in relation to any inappropriate use of the program; (f) to give Fair Work Inspectors (including the Fair Work Ombudsman) and inspectors appointed under this Division the necessary powers and functions to investigate compliance with the program.

(e)

[S 140AA insrt Act 122 of 2013, s 3 and Sch 1 item 1]

140AB Ministerial Advisory Council on Skilled Migration (1) The Minister must take all reasonable steps to ensure that, at all times, there is in existence a council that: (a) is known as the Ministerial Advisory Council on Skilled Migration; and (b) is established under the executive power of the Commonwealth; and (c) includes representatives of unions, industry and State and Territory governments and other members (if any) nominated by the Minister; and (d) meets at least quarterly. (2) Without limiting its functions apart from this section, the Ministerial Advisory Council on Skilled Migration is to provide advice to the Minister in relation to the temporary sponsored work visa program. [S 140AB insrt Act 122 of 2013, s 3 and Sch 1 item 1]

SUBDIVISION B – APPROVING SPONSORS AND NOMINATIONS (SS 140E– 140GC) [Subdiv B heading subst Act 159 of 2008, s 3 and Sch 1 items 11 and 12, with effect from 14 Sep 2009]

[Editor’s note: Sections 140B–140D were repealed by Act 159 of 2008, s 3 and Sch 1 item 12, with effect from 14 Sep 2009, and have not been reproduced] 140E Minister to approve sponsor (1) The Minister must approve a person as a sponsor in relation to one or more classes prescribed for the purpose of subsection (2) if prescribed criteria are satisfied. Note: A person (other than a Minister) who is a party to a work agreement is an approved sponsor and does not need to be approved as a sponsor under this section: see paragraph (b) of the definition of approved sponsor. [Subs (1) am Act 159 of 2008, s 3 and Sch 1 items 13 and 14, with effect from 14 Sep 2009]

(2) The regulations must prescribe classes in relation to which a person may be approved as a sponsor. [Subs (2) am Act 159 of 2008, s 3 and Sch 1 item 15, with effect from 14 Sep 2009]

(3) Different criteria may be prescribed for: (a) different kinds of visa (however described); and (b) different classes in relation to which a person may be approved as a sponsor; and (c) different classes of person within a class in relation to which a person may be approved as a sponsor. [Subs (3) insrt Act 159 of 2008, s 3 and Sch 1 item 15, with effect from 14 Sep 2009] [S 140E am Act 159 of 2008, s 3 and Sch 1 item 13, with effect from 14 Sep 2009; insrt Act 99 of 2003, s 3 and Sch 1 item 2]

140F Process for approving sponsors (1) The regulations may establish a process for the Minister to approve a person as a sponsor.

© 2016 THOMSON REUTERS

345

s 140F

Migration Act 1958

(2) Different processes may be prescribed for: (a) different kinds of visa (however described); and (b) different classes in relation to which a person may be approved as a sponsor. [Subs (2) subst Act 159 of 2008, s 3 and Sch 1 item 16, with effect from 14 Sep 2009] [S 140F am Act 159 of 2008; insrt Act 99 of 2003, s 3 and Sch 1 item 2]

140G Terms of approval as a sponsor (1) An approval as a sponsor may be on terms specified in the approval. (2) The terms must be of a kind prescribed by the regulations. Note: The following are examples of the kinds of terms that might be set out in the regulations: (a) the number of people whom the approved sponsor may sponsor under the approval; (b) the duration of the approval.

(3) An actual term may be prescribed by the regulations. [Subs (3) subst Act 159 of 2008, s 3 and Sch 1 item 17, with effect from 14 Sep 2009]

(4) Different kinds of terms may be prescribed for: (a) different kinds of visa (however described); and (b) different classes in relation to which a person may be approved as a sponsor. [Subs (4) insrt Act 159 of 2008, s 3 and Sch 1 item 17, with effect from 14 Sep 2009] [S 140G am Act 159 of 2008; insrt Act 99 of 2003, s 3 and Sch 1 item 2]

140GA Variation of terms of approval as a sponsor (1) The regulations may establish a process for the Minister to vary a term of a person’s approval as a sponsor. (2) The Minister must vary a term specified in an approval if: (a) the term is of a kind prescribed by the regulations for the purposes of this paragraph; and (b) prescribed criteria are satisfied. (3) Different processes and different criteria may be prescribed for: (a) different kinds of visa (however described); and (b) different kinds of terms; and (c) different classes in relation to which a person may be approved as a sponsor. [S 140GA insrt Act 159 of 2008, s 3 and Sch 1 item 18, with effect from 14 Sep 2009]

140GB Minister to approve nominations (1) An approved sponsor may nominate: (a) an applicant, or proposed applicant, for a visa of a prescribed kind (however described), in relation to: (i) the applicant or proposed applicant’s proposed occupation; or (ii) the program to be undertaken by the applicant or proposed applicant; or (iii) the activity to be carried out by the applicant or proposed applicant; or (b) a proposed occupation, program or activity. (2) The Minister must approve an approved sponsor’s nomination if: (a) in a case to which section 140GBA applies, unless the sponsor is exempt under section 140GBB or 140GBC—the labour market testing condition under section 140GBA is satisfied; and (b) in any case—the prescribed criteria are satisfied.

346

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3A – Sponsorship (ss 140A–140ZK)

s 140GBA

Note: Section 140GBB provides an exemption from the labour market testing condition in the case of a major disaster. Section 140GBC provides for exemptions from the labour market testing condition to apply in relation to the required skill level and occupation for a nominated position. [Subs (2) subst Act 122 of 2013, s 3 and Sch 2 item 1]

(3) The regulations may establish a process for the Minister to approve an approved sponsor’s nomination. (4) Different criteria and different processes may be prescribed for: (a) different kinds of visa (however described); and (b) different classes in relation to which a person may be approved as a sponsor. [S 140GB am Act 122 of 2013; insrt Act 159 of 2008, s 3 and Sch 1 item 18, with effect from 14 Sep 2009]

140GBA Labour market testing—condition Scope (1) This section applies to a nomination by an approved sponsor, under section 140GB, if: (a) the approved sponsor is in a class of sponsors prescribed by the regulations; and (b) the sponsor nominates: (i) a proposed occupation for the purposes of paragraph 140GB(1)(b); and (ii) a particular position, associated with the nominated occupation, that is to be filled by a visa holder, or applicant or proposed applicant for a visa, identified in the nomination; and (c) it would not be inconsistent with any international trade obligation of Australia determined under subsection (2) to require the sponsor to satisfy the labour market testing condition in this section, in relation to the nominated position. (2) For the purposes of paragraph (1)(c), the Minister may, by legislative instrument, determine (as an international trade obligation of Australia) an obligation of Australia under international law that relates to international trade, including such an obligation that arises under any agreement between Australia and another country, or other countries. Labour market testing condition (3) The labour market testing condition is satisfied if: (a) the Minister is satisfied that the approved sponsor has undertaken labour market testing in relation to the nominated position within a period determined under subsection (4) in relation to the nominated occupation; and (b) the nomination is accompanied by: (i) evidence in relation to that labour market testing (see subsections (5) and (6)); and (ii) if one or more Australian citizens or Australian permanent residents were, in the previous 4 months, made redundant or retrenched from positions in the nominated occupation in a business, or an associated entity, of the approved sponsor—information about those redundancies or retrenchments; and (d) having regard to that evidence, and information (if any), the Minister is satisfied that: (i) a suitably qualified and experienced Australian citizen or Australian permanent resident is not readily available to fill the nominated position; and (ii) a suitably qualified and experienced eligible temporary visa holder is not readily available to fill the nominated position. (4) For the purposes of paragraph (3)(a), the Minister may, by legislative instrument, determine a period within which labour market testing is required in relation to a nominated occupation.

© 2016 THOMSON REUTERS

347

s 140GBA

Migration Act 1958

(4A) Despite paragraph (3)(a) and subsection (4), if there have been redundancies or retrenchments as mentioned in subparagraph (3)(b)(ii), the labour market testing must be undertaken after those redundancies and retrenchments. Evidence of labour market testing (5) For the purposes of subparagraph (3)(b)(i), the evidence in relation to the labour market testing: (a) must include information about the approved sponsor’s attempts to recruit suitably qualified and experienced Australian citizens or Australian permanent residents to the position and any other similar positions (see also subsection (6)); and (b) may also include other evidence, such as: (i) copies of, or references to, any research released in the previous 4 months relating to labour market trends generally and in relation to the nominated occupation; or (ii) expressions of support from Commonwealth, State and Territory government authorities with responsibility for employment matters; or (iii) any other type of evidence determined by the Minister, by legislative instrument, for this subparagraph. (6) For the purposes of paragraph (5)(a), the information mentioned: (a) must include details of: (i) any advertising (paid or unpaid) of the position, and any similar positions, commissioned or authorised by the approved sponsor; and (ii) fees and other expenses paid (or payable) for that advertising; and (b) may also include other information, such as: (i) information about the approved sponsor’s participation in relevant job and career expositions; or (ii) details of any other fees and expenses paid (or payable) for any recruitment attempts mentioned in paragraph (5)(a) (including any participation mentioned in subparagraph (i) of this paragraph); or (iii) details of the results of such recruitment attempts, including details of any positions filled as a result. (6A) If the approved sponsor elects to provide other evidence and information as mentioned in paragraphs (5)(b) and (6)(b), the Minister may take that evidence and information into account. But if the approved sponsor elects not to provide such other evidence or information, the Minister is not to treat the nomination less favourably merely because of that fact. Definitions (7) In this section: associated entity has the same meaning as in Part 2A of the regulations. Australian permanent resident means an Australian permanent resident within the meaning of the regulations. eligible temporary visa holder: a person is an eligible temporary visa holder in relation to a nomination by an approved sponsor if, at the time when the nomination is made: (a) the person is the holder of a temporary visa referred to in the regulations as a Subclass 417 (Working Holiday) visa or a Subclass 462 (Work and Holiday) visa; and

348

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3A – Sponsorship (ss 140A–140ZK)

s 140GBB

(b) the person is employed in the agricultural sector by the approved sponsor (or an associated entity of the approved sponsor); and (c) the temporary visa does not prohibit the person from performing that employment. labour market testing, in relation to a nominated position, means testing of the Australian labour market to demonstrate whether a suitably qualified and experienced Australian citizen or Australian permanent resident is readily available to fill the position. [S 140GBA insrt Act 122 of 2013, s 3 and Sch 2 item 2 Cross-reference: Legislative Instruments: • IMMI 14/107 — Migration Act 1958 – Determination of International Trade Obligations Relating to Labour Market Testing: This Instrument determines the obligations of Australia, under international law that relate to international trade, as international trade obligations of Australia where labour market testing would be inconsistent with that obligation. • IMMI 14/113 — Migration Act 1958 – Determination of Japan Australia Economic Partnership Agreement: This instrument determines Australia’s international trade obligations under which it would be inconsistent for an approved sponsor to be required to satisfy the labour market testing condition for the nominated position. • IMMI 15/149 — Migration Act 1958 – Determination of International Trade Obligations Relating to Labour Market Testing 2015: This instrument gives domestic effect to Australia’s commitments under international trade agreements to which it is party.]

140GBB Labour market testing—major disaster exemption (1) An approved sponsor is exempt from the requirement to satisfy the labour market testing condition in section 140GBA if an exemption under subsection (2) of this section is in force in relation to the sponsor. (2) The Minister may, in writing, exempt a sponsor from the requirement to satisfy the labour market testing condition in section 140GBA if the Minister is satisfied that: (a) an event (a major disaster) has occurred in Australia, whether naturally or otherwise, that has such a significant impact on individuals that a government response is required; and (b) the exemption is necessary or desirable in order to assist disaster relief or recovery. (3) In deciding whether a major disaster has occurred, the Minister must have regard to matters including the following: (a) the number of individuals affected; (b) the extent to which the nature or extent of the disaster is unusual. (4) An exemption of an approved sponsor under subsection (2): (a) may be expressed to apply in relation to: (i) a specified nomination by the sponsor; or (ii) a specified class of nominations by the sponsor; and (b) must be expressed to apply to a particular sponsor specified in the exemption rather than a class of sponsors, despite subsections 33(3A) and (3AB) of the Acts Interpretation Act 1901. (5) An exemption made under subsection (2) is not a legislative instrument. [S 140GBB insrt Act 122 of 2013, s 3 and Sch 2 item 2 Cross-reference: Legislative Instruments: IMMI 13/136 — Migration Act 1958 – Determination of Specified Period in Which Labour Market Testing Must be Undertaken: This Instrument determines a period within which labour market testing is required in relation to a nominated occupation.]

© 2016 THOMSON REUTERS

349

s 140GBB

Migration Act 1958

140GBC Labour market testing—skill and occupational exemptions Scope (1) This section applies to a nomination by an approved sponsor, under section 140GB, if the sponsor nominates: (a) a proposed occupation for the purposes of paragraph 140GB(1)(b); and (b) a particular position, associated with the nominated occupation, that is to be filled by a visa holder, or applicant or proposed applicant for a visa, identified in the nomination. Skill and occupational exemptions (2) The approved sponsor is exempt from the requirement to satisfy the labour market testing condition in section 140GBA if: (a) either or both of the following are required for the nominated position, in relation to the nominated occupation: (i) a relevant bachelor degree or higher qualification, other than a protected qualification; (ii) 5 years or more of relevant experience, other than protected experience; and (b) the nominated occupation is specified for the purposes of this subsection under subsection (4). (3) The approved sponsor is exempt from the requirement to satisfy the labour market testing condition in section 140GBA if: (a) either or both of the following are required for the nominated position, in relation to the nominated occupation: (i) a relevant associate degree, advanced diploma or diploma covered by the AQF, other than a protected qualification; (ii) 3 years or more of relevant experience, other than protected experience; and (b) the nominated occupation is specified for the purposes of this subsection under subsection (4). Legislative instrument (4) The Minister may, by legislative instrument: (a) specify an occupation (or occupations) for the purposes of subsection (2); and (b) specify an occupation (or occupations) for the purposes of subsection (3). (5) Despite regulations made for the purposes of paragraph 44(2)(b) of the Legislation Act 2003, section 42 (disallowance) of that Act applies to an instrument made under subsection (4). [Subs (5) am Act 126 of 2015, s 3 and Sch 1 item 383, with effect from 5 Mar 2016]

Definitions (6) In this section: AQF means the Australian Qualifications Framework within the meaning of the Higher Education Support Act 2003. protected experience means experience in the field of engineering (including shipping engineering) or nursing.

350

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3A – Sponsorship (ss 140A–140ZK)

s 140H

protected qualification means a qualification (however described) in engineering (including shipping engineering) or nursing. [S 140GBC am Act 126 of 2015; insrt Act 122 of 2013, s 3 and Sch 2 item 2 Cross-reference: Legislative Instruments: IMMI 13/137 — Migration Act 1958 – Specification of Occupations Exempt from Labour Market Testing: This Instrument specifies occupations that are classified in the ANZSCO (Australian and New Zealand Standard Classification of Occupations published by the Australian Bureau of Statistics) as Skill Level 1 or 2 that are exempt from the labour market testing requirement.]

140GC Work agreements For the purposes of the definition of work agreement, the regulations may prescribe requirements that an agreement must satisfy. Note: A person (other than a Minister) who is a party to a work agreement is an approved sponsor and must satisfy sponsorship obligations. [S 140GC insrt Act 159 of 2008, s 3 and Sch 1 item 18, with effect from 14 Sep 2009]

SUBDIVISION C – SPONSORSHIP OBLIGATIONS (SS 140H–140J) [Subdiv C subst Act 159 of 2008, s 3 and Sch 1 item 19, with effect from 14 Sep 2009]

140H Sponsorship obligations—general Requirement to satisfy sponsorship obligations (1) A person who is or was an approved sponsor must satisfy the sponsorship obligations prescribed by the regulations. [Subs (1) am Act 122 of 2013, s 3 and Sch 4 items 2 and 3; Act 85 of 2009, s 3 and Sch 1 item 30]

Work agreements and sponsorship obligations (2) However, if: (a) a person (other than a Minister) is or was a party to a work agreement; and (b) a sponsorship obligation, that would otherwise be imposed on the person by the regulations, is varied by a term of the agreement; then, the person must satisfy the sponsorship obligation as so varied. [Subs (2) am Act 122 of 2013, s 3 and Sch 4 item 4]

(3) If: (a) a person (other than a Minister) is or was a party to a work agreement; and (b) an obligation, identified in the agreement as a sponsorship obligation, is imposed on the person by a term of the agreement; then, the person must also satisfy the sponsorship obligation imposed by the term of the agreement. Sponsorship obligation regulations (4) The regulations may require a person to satisfy sponsorship obligations in respect of each visa holder sponsored by the person or generally. [Subs (4) am Act 122 of 2013, s 3 and Sch 4 item 5]

(5) Sponsorship obligations must be satisfied in the manner (if any) and within the period (if any) prescribed by the regulations. (6) Different kinds of sponsorship obligations may be prescribed for: (a) different kinds of visa (however described); and (b) different classes in relation to which a person may be, or may have been, approved as a sponsor.

© 2016 THOMSON REUTERS

351

s 140H

Migration Act 1958

(7) The regulations cannot prescribe, as a sponsorship obligation, an obligation to pay the Commonwealth an amount relating to the cost of a person’s immigration detention. [Subs (7) insrt Act 85 of 2009, s 3 and Sch 1 item 31] [S 140H am Act 122 of 2013, s 3 and Sch 4 item 1; Act 85 of 2009; subst Act 159 of 2008, s 3 and Sch 1 item 19, with effect from 14 Sep 2009; insrt Act 99 of 2003, s 3 and Sch 1 item 2]

140HA Sponsorship obligations—Minister’s responsibility (1) Subject to subsection (2), the Minister must take all reasonable steps to ensure that regulations made under section 504 for the purposes of subsection 140H(1) include obligations in relation to the following matters: (a) paying a market salary rate (however described) to a visa holder; (b) paying prescribed costs to the Commonwealth in relation to locating a former visa holder, and removing a former visa holder from Australia; (c) paying prescribed costs of the departure of a visa holder (or a former visa holder) from Australia; (d) complying with prescribed requirements to keep information, and provide information to the Minister; (e) notifying the Department of prescribed changes in the circumstances of an approved sponsor, a former approved sponsor, a visa holder or a former visa holder; (f) cooperating with the exercise of powers under or for the purposes of Subdivision F (which deals with inspector powers); (g) ensuring that a visa holder participates in an occupation, program or activity nominated by an approved sponsor (including by preventing the on-hire of a visa holder); (h) requiring an approved sponsor or former approved sponsor not to transfer, charge or recover prescribed costs; (i) requiring an approved sponsor or former approved sponsor to meet prescribed training requirements. (2) For any particular matter mentioned in subsection (1), the Minister must take all reasonable steps to ensure that the obligations in the relevant regulations apply in relation to: (a) all approved sponsors or former approved sponsors; or (b) a specified class (or classes) of approved sponsors or former approved sponsors, and not to all approved sponsors or former approved sponsors. (3) Subsection (1) does not limit the sponsorship obligations that may be prescribed for the purposes of subsection 140H(1). [S 140HA insrt Act 122 of 2013, s 3 and Sch 4 item 6]

140I Amounts payable to the Commonwealth [Repealed] [S 140I rep Act 159 of 2008, s 3 and Sch 1 item 19, with effect from 14 Sep 2009; insrt Act 99 of 2003, s 3 and Sch 1 item 2]

140J Amounts payable in relation to sponsorship obligations (1) If an amount is payable under the regulations by a person who is or was an approved sponsor in relation to a sponsorship obligation, the person is not liable to pay to the Commonwealth more than the lesser of: (a) if a limit is prescribed by the regulations—that limit; and (b) the actual costs incurred by the Commonwealth.

352

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3A – Sponsorship (ss 140A–140ZK)

s 140K

Example: If the Commonwealth incurs costs in locating a person, the person who is or was an approved sponsor is not liable to pay to the Commonwealth more than the total amount of those costs or a lesser amount (if a limit is prescribed in the regulations and that limit is less than the actual costs incurred by the Commonwealth). [Subs (1) am Act 85 of 2009, s 3 and Sch 1 item 32]

(2) The Minister may, by legislative instrument, specify one or more methods for working out the actual costs incurred by the Commonwealth in relation to a sponsorship obligation. (3) If an amount is payable under the regulations by a person who is or was an approved sponsor in relation to a sponsorship obligation, the person (the sponsor) is taken not to have satisfied the sponsorship obligation if a visa holder or former visa holder, or a person on behalf of a visa holder or former visa holder, reimburses the sponsor or another person for all or part of the amount. [S 140J am Act 85 of 2009; subst Act 159 of 2008, s 3 and Sch 1 item 19, with effect from 14 Sep 2009; insrt Act 99 of 2003, s 3 and Sch 1 item 2]

SUBDIVISION D – ENFORCEMENT (SS 140K–140RA) [Subdiv D insrt Act 159 of 2008, s 3 and Sch 1 item 19, with effect from 14 Sep 2009]

140K Sanctions for failing to satisfy sponsorship obligations Actions that may be taken in relation to approved sponsors (1) If a person is an approved sponsor and fails to satisfy an applicable sponsorship obligation, one or more of the following actions may be taken: (a) the Minister may do one or more of the following: (i) if regulations are prescribed under section 140L, bar the sponsor under subsection 140M(1) from doing certain things; (ii) if regulations are prescribed under section 140L, cancel the person’s approval as a sponsor under subsection 140M(1); (iii) apply for a civil penalty order; (iv) accept an undertaking under section 119 of the Regulatory Powers Act, for the purposes of this Subdivision from the person; (v) if the Minister considers that the person has breached such an undertaking—apply for an order under section 120 of the Regulatory Powers Act, for the purposes of this Subdivision ; (b) the person may be issued with an infringement notice under regulations made for the purposes of section 506A as an alternative to proceedings for a civil penalty order; (c) an authorized officer may require and take a security under section 269 or enforce a security already taken under that section. [Subs (1) am Act 122 of 2013, s 3 and Sch 5 items 7 and 8, with effect from 1 Oct 2014; Act 122 of 2013, s 3 and Sch 5 item 1; Act 10 of 2013, s 3 and Sch 1 items 4 and 5]

Actions that may be taken in relation to former approved sponsors (2) If a person was an approved sponsor and fails to satisfy an applicable sponsorship obligation, one or more of the following actions may be taken: (a) the Minister may do one or more of the following: (i) if regulations are prescribed under section 140L, bar the person under subsection 140M(2) from making future applications for approval; (ii) apply for a civil penalty order; (iii) accept an undertaking under section 119 of the Regulatory Powers Act, for the purposes of this Subdivision from the person;

© 2016 THOMSON REUTERS

353

s 140K

Migration Act 1958

(iv) if the Minister considers that the person has breached such an undertaking—apply for an order under section 120 of the Regulatory Powers Act, for the purposes of this Subdivision; (b) the person may be issued with an infringement notice under regulations made for the purposes of section 506A as an alternative to proceedings for a civil penalty order; (c) an authorized officer may require and take a security under section 269 or enforce a security already taken under that section. [Subs (2) am Act 122 of 2013, s 3 and Sch 5 items 9 and 10, with effect from 1 Oct 2014; Act 122 of 2013, s 3 and Sch 5 items 2 and 3; Act 10 of 2013, s 3 and Sch 1 items 6 and 7]

(3) To avoid doubt, subsections (1) and (2) do not limit the circumstances in which: (a) the Minister may: (i) bar a sponsor under section 140M from doing certain things; or (ii) cancel a person’s approval as a sponsor under section 140M; or (b) an authorized officer may require and take a security under section 269 or enforce a security already taken under that section. [S 140K am Act 122 of 2013; Act 10 of 2013; subst Act 159 of 2008, s 3 and Sch 1 item 19, with effect from 14 Sep 2009; insrt Act 99 of 2003, s 3 and Sch 1 item 2]

140L Regulations may prescribe circumstances in which sponsor may be barred or sponsor’s approval cancelled Circumstances in which the Minister may take action (1) The regulations may prescribe: (a) either or both of the following: (i) circumstances in which the Minister may take one or more of the actions mentioned in section 140M in relation to a person who is or was an approved sponsor if the Minister is reasonably satisfied that the person has failed to satisfy a sponsorship obligation in the manner (if any) or within the period (if any) prescribed by the regulations; (ii) other circumstances in which the Minister may take one or more of the actions mentioned in section 140M; and (b) the criteria to be taken into account by the Minister in determining what action to take under section 140M. Circumstances in which the Minister must take action (2) The regulations may prescribe either or both of the following: (a) circumstances in which the Minister must take one or more of the actions mentioned in section 140M in relation to a person who is or was an approved sponsor if the Minister is reasonably satisfied that the person has failed to satisfy a sponsorship obligation in the manner (if any) or within the period (if any) prescribed by the regulations; (b) other circumstances in which the Minister must take one or more of the actions mentioned in section 140M. (3) Different circumstances and different criteria may be prescribed for: (a) different kinds of visa (however described); and (b) different classes in relation to which a person may be, or may have been, approved as a sponsor. [S 140L subst Act 159 of 2008, s 3 and Sch 1 item 19, with effect from 14 Sep 2009; insrt Act 99 of 2003, s 3 and Sch 1 item 2]

354

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3A – Sponsorship (ss 140A–140ZK)

s 140O

140M Cancelling approval as a sponsor or barring a sponsor Actions that may be taken in relation to approved sponsors (1) If regulations are prescribed under section 140L, the Minister may (or must) take one or more of the following actions in relation to an approved sponsor: (a) cancelling the approval of a person as a sponsor in relation to a class to which the sponsor belongs; (b) cancelling the approval of a person as a sponsor for all classes to which the sponsor belongs; (c) barring the sponsor, for a specified period, from sponsoring more people under the terms of one or more existing specified approvals for different kinds of visa (however described); (d) barring the sponsor, for a specified period, from making future applications for approval as a sponsor in relation to one or more classes prescribed by the regulations for the purpose of subsection 140E(2). Action that may be taken in relation to former approved sponsors (2) If regulations are prescribed under section 140L and a person was an approved sponsor, the Minister may (or must) bar the person, for a specified period, from making future applications for approval as a sponsor in relation to one or more classes prescribed by the regulations for the purpose of subsection 140E(2). [S 140M subst Act 159 of 2008, s 3 and Sch 1 item 19, with effect from 14 Sep 2009; insrt Act 99 of 2003, s 3 and Sch 1 item 2]

140N Process for cancelling or barring approval as a sponsor (1) The regulations may establish a process for the Minister to cancel the approval of a person as a sponsor under section 140M. [Subs (1) am Act 159 of 2008, s 3 and Sch 1 item 20, with effect from 14 Sep 2009]

(2) The regulations may establish a process for the Minister to place a bar on a person under section 140M. [Subs (2) am Act 159 of 2008, s 3 and Sch 1 item 20, with effect from 14 Sep 2009]

(3) Different processes may be prescribed for: (a) different kinds of visa (however described); and (b) different classes in relation to which a person may be, or may have been, approved as a sponsor. [Subs (3) subst Act 159 of 2008, s 3 and Sch 1 item 21, with effect from 14 Sep 2009] [S 140N am Act 159 of 2008; insrt Act 99 of 2003, s 3 and Sch 1 item 2]

140O Waiving a bar (1) [Repealed] [Subs (1) rep Act 159 of 2008, s 3 and Sch 1 item 22, with effect from 14 Sep 2009]

(2) The Minister may, in prescribed circumstances, waive a bar placed on a person under section 140M. [Subs (2) am Act 159 of 2008, s 3 and Sch 1 item 23, with effect from 14 Sep 2009]

(3) The regulations may prescribe the criteria to be taken into account by the Minister in determining whether to waive the bar. (4) Different circumstances and different criteria may be prescribed for: (a) different kinds of visa (however described); and

© 2016 THOMSON REUTERS

355

s 140O

Migration Act 1958

(b) different classes in relation to which a person may be, or may have been, approved as a sponsor. [Subs (4) subst Act 159 of 2008, s 3 and Sch 1 item 24, with effect from 14 Sep 2009] [S 140O am Act 159 of 2008; insrt Act 99 of 2003, s 3 and Sch 1 item 2]

140P Process for waiving a bar (1) The regulations may establish a process for the Minister to waive a bar placed on a person under section 140M. [Subs (1) am Act 159 of 2008, s 3 and Sch 1 item 25, with effect from 14 Sep 2009]

(2) Different processes may be prescribed for: (a) different kinds of visa (however described); and (b) different classes in relation to which a person may be, or may have been, approved as a sponsor. [Subs (2) subst Act 159 of 2008, s 3 and Sch 1 item 26, with effect from 14 Sep 2009] [S 140P am Act 159 of 2008; insrt Act 99 of 2003, s 3 and Sch 1 item 2]

140Q Civil penalty—failing to satisfy sponsorship obligations (1) A person contravenes this subsection if: (a) the regulations impose a sponsorship obligation on the person; and (b) the person fails to satisfy the sponsorship obligation in the manner (if any) or within the period (if any) prescribed by the regulations. Civil penalty: 60 penalty units. [Subs (1) am Act 10 of 2013, s 3 and Sch 1 item 8]

(2) A person contravenes this subsection if: (a) the person (other than a Minister) is a party to a work agreement; and (b) the terms of the work agreement: (i) vary a sponsorship obligation that would otherwise be imposed on the person by the regulations; or (ii) impose an obligation, identified in the agreement as a sponsorship obligation, on the person; and (c) the person fails to satisfy the sponsorship obligation in the manner (if any) or within the period (if any) specified in the work agreement. Civil penalty: 60 penalty units. [Subs (2) am Act 10 of 2013, s 3 and Sch 1 item 8] [S 140Q am Act 10 of 2013; subst Act 159 of 2008, s 3 and Sch 1 item 27, with effect from 14 Sep 2009; insrt Act 99 of 2003, s 3 and Sch 1 item 2]

140R

[Repealed]

[S 140R rep Act 10 of 2013, s 3 and Sch 1 item 9; subst Act 159 of 2008, s 3 and Sch 1 item 27, with effect from 14 Sep 2009; insrt Act 99 of 2003, s 3 and Sch 1 item 2]

140RA Enforceable undertakings Enforceable provision (1) Section 140H is enforceable, in relation to a sponsorship obligation, under Part 6 of the Regulatory Powers Act. Note: Part 6 of the Regulatory Powers Act creates a framework for accepting and enforcing undertakings relating to compliance with provisions.

356

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3A – Sponsorship (ss 140A–140ZK)

s 140SA

Authorised person (2) For the purposes of Part 6 of the Regulatory Powers Act, the Minister is an authorised person in relation to the provision mentioned in subsection (1). Relevant court (3) For the purposes of Part 6 of the Regulatory Powers Act, an eligible court is a relevant court in relation to the provision mentioned in subsection (1). Enforceable undertaking may be published on the internet (4) The authorised person in relation to the provision mentioned in subsection (1) may publish an undertaking given in relation to the provision on the Department’s website. Extension to external Territories (5) Part 6 of the Regulatory Powers Act, as it applies in relation to the provision mentioned in subsection (1), extends to a Territory to which this Act extends. Note: See section 7 of this Act. [S 140RA subst Act 122 of 2013, s 3 and Sch 5 item 11, with effect from 1 Oct 2014; insrt Act 122 of 2013, s 3 and Sch 5 item 4]

140RB Enforcing undertakings [Repealed] [S 140RB rep Act 122 of 2013, s 3 and Sch 5 item 11, with effect from 1 Oct 2014; insrt Act 122 of 2013, s 3 and Sch 5 item 4]

SUBDIVISION E – LIABILITY AND RECOVERY OF AMOUNTS (SS 140S–140U) [Subdiv E heading insrt Act 159 of 2008, s 3 and Sch 1 item 27, with effect from 14 Sep 2009]

140S Liability to pay amounts (1) This section applies if a person who is or was an approved sponsor is required to pay an amount of a kind prescribed in the regulations to the Commonwealth, a State or Territory or another person (the payee) in relation to a sponsorship obligation. (2) The payee may recover the amount as a debt due to the payee in an eligible court. (3) To avoid doubt, an amount may be recovered under this section if proceedings for a civil penalty order are brought under Part 8D and discontinued or completed without the court making an order of a kind referred to in subsection 486S(4) in relation to the amount. [Subs (3) am Act 10 of 2013, s 3 and Sch 1 items 10 and 11]

(4) For the purpose of paragraph (e) of the definition of eligible court, the regulations may prescribe a court of a State or Territory in which an amount may be recovered under this section. [S 140S am Act 10 of 2013; subst Act 159 of 2008, s 3 and Sch 1 item 27, with effect from 14 Sep 2009; insrt Act 99 of 2003, s 3 and Sch 1 item 2]

140SA Interest up to judgment (1) A party to proceedings under section 140S may apply to the eligible court for an order under subsection (2). (2) If an application is made under subsection (1), the eligible court must, unless good cause is shown to the contrary, either: (a) order that there be included in the sum for which judgment is given interest at such rate as the eligible court thinks fit on the whole or any part of the money for the whole or any part of the period between: (i) the date when the cause of action arose; and (ii) the date as of which judgment is entered; or

© 2016 THOMSON REUTERS

357

s 140SA

Migration Act 1958

(b) without proceeding to calculate interest in accordance with paragraph (a)—order that there be included in the sum for which judgment is given, a lump sum instead of any such interest. (3) Subsection (2) does not: (a) authorise the giving of interest upon interest or of a sum instead of such interest; or (b) apply in relation to any debt upon which interest is payable as of right, whether because of an agreement or otherwise; or (c) authorise the giving of interest, or a sum instead of interest, otherwise than by consent, upon any sum for which judgment is given by consent. [S 140SA insrt Act 159 of 2008, s 3 and Sch 1 item 27, with effect from 14 Sep 2009]

140SB Interest on judgment A judgment debt under a judgment of an eligible court under section 140S carries interest: (a) from the date as of which the judgment is entered; and (b) at the rate that would apply under section 52 of the Federal Court of Australia Act 1976 as if the debt were a judgment debt to which that section applies. [S 140SB insrt Act 159 of 2008, s 3 and Sch 1 item 27, with effect from 14 Sep 2009]

140SC Certain plaintiffs may choose small claims procedure in magistrates courts (1) This section applies if: (a) a person brings proceedings under section 140S in a magistrates court; and (b) the person indicates, in a manner prescribed by the regulations or by rules of court relating to that court, that the person wants a small claims procedure to apply in relation to the proceeding. (2) The procedure is governed by the following conditions: (a) the court may not award an amount exceeding $5,000 or such higher amount as is prescribed; (b) the court may act in an informal manner, is not bound by any rules of evidence, and may act without regard to legal forms and technicalities; (c) at any stage of the action, the court may amend the papers initiating the action if sufficient notice is given to any party adversely affected by the amendment; (d) a person is not entitled to legal representation unless allowed by the court. (3) If the court allows a person to have legal representation, the court may, if it thinks fit, do so subject to conditions designed to ensure that a party is not unfairly disadvantaged. (4) Despite paragraph (2)(d) and subsection (3): (a) in a case heard in a court of a State—if, in a particular proceeding (whatever the nature of the proceeding) the law of the State prohibits or restricts legal representation of the parties, the regulations may prohibit or restrict legal representation of the parties to the same extent as that law; and (b) in a case heard in a court of a Territory—the regulations may prohibit or restrict legal representation of the parties. [S 140SC insrt Act 159 of 2008, s 3 and Sch 1 item 27, with effect from 14 Sep 2009]

358

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3A – Sponsorship (ss 140A–140ZK)

s 140V

140T Notice regarding amount of debt or other amount (1) Where a debt, or other amount, that a person is required to pay to the Commonwealth becomes payable, the Minister may issue a notice in writing stating the amount of the debt or other amount. [Subs (1) am Act 159 of 2008, s 3 and Sch 1 item 28, with effect from 14 Sep 2009]

(2) In any proceedings a notice under this section is prima facie evidence that the amount of the debt or other amount is that stated in the notice. [S 140T am Act 159 of 2008; insrt Act 99 of 2003, s 3 and Sch 1 item 2]

140U Liability is in addition to any other liability Any liability created under this Division is in addition to any liability created under: (a) this or any other Act; or (b) regulations made under this or any other Act. [S 140U insrt Act 99 of 2003, s 3 and Sch 1 item 2]

SUBDIVISION F – INSPECTOR POWERS (SS 140UA–140XJ) [Subdiv F heading subst Act 122 of 2013, s 3 and Sch 6 item 2; insrt Act 159 of 2008, s 3 and Sch 1 item 30, with effect from 14 Sep 2009]

140UA Exercise of inspector powers (1) An inspector may exercise powers under this Subdivision for a purpose set out in section 140X. Note: Inspectors include Fair Work Inspectors (see section 140V).

(2) A Fair Work Inspector may, subject to section 706 of the Fair Work Act 2009, exercise compliance powers under Subdivision D of Division 3 of Part 5-2 of that Act for the purposes of this Subdivision. Note: Under paragraph 706(1)(d) of the Fair Work Act 2009, a Fair Work Inspector may exercise certain compliance powers for the purposes of a provision of another Act that confers functions or powers on Fair Work Inspectors. [S 140UA insrt Act 122 of 2013, s 3 and Sch 6 item 3 Cross-reference: Ministerial Directions: Exercise of powers by fair work inspectors (Direction No. 58): This Direction gives guidance to Fair Work and Fair Work Building Industry Inspectors, who may exercise powers pursuant to s 140UA.]

140V Inspectors Who is an inspector? (1A) For the purposes of this Act, each of the following is an inspector: (a) a person, or a member of a class of persons, appointed under subsection (1) (an appointed inspector); (b) a Fair Work Inspector. [Subs (1A) insrt Act 122 of 2013, s 3 and Sch 6 item 4]

Appointed inspectors (1) The Minister may, by written instrument: (a) appoint a person to be an inspector; or (b) appoint a class of persons to be inspectors. (2) An appointed inspector is appointed for the period specified in the instrument of appointment, which must not be longer than the period specified in regulations made for the purposes of this subsection. [Subs (2) am Act 122 of 2013, s 3 and Sch 6 item 5]

© 2016 THOMSON REUTERS

359

s 140V

Migration Act 1958

(3) An appointed inspector has the powers conferred on an inspector by this Division, or the regulations, that are specified in his or her instrument of appointment. [Subs (3) am Act 122 of 2013, s 3 and Sch 6 item 6]

Fair Work Inspectors (4) An inspector who is a Fair Work Inspector has the powers conferred on an inspector by this Division or the regulations. [Subs (4) insrt Act 122 of 2013, s 3 and Sch 6 item 7]

(5) A Fair Work Inspector continues to be an inspector for the purposes of this Act while he or she continues to be a Fair Work Inspector (under the Fair Work Act 2009). [Subs (5) insrt Act 122 of 2013, s 3 and Sch 6 item 7] Note: The Minister may give written directions specifying the manner in which, and any conditions and qualifications subject to which, powers conferred on inspectors are to be exercised: see section 499. [S 140V am Act 122 of 2013; subst Act 159 of 2008, s 3 and Sch 1 items 29 and 30, with effect from 14 Sep 2009; insrt Act 99 of 2003, s 3 and Sch 1 item 2]

140W Identity cards General (1A) An inspector’s identity card is: (a) for an appointed inspector—the identity card issued to the inspector under subsection (1); or (b) for an inspector who is a Fair Work Inspector—the identity card issued to the inspector under the Fair Work Act 2009 (see section 702 of that Act). [Subs (1A) insrt Act 122 of 2013, s 3 and Sch 6 item 8]

Identity cards—appointed inspectors (1) The Minister must issue an identity card to an appointed inspector. [Subs (1) am Act 122 of 2013, s 3 and Sch 6 items 9 and 10]

(2) An identity card for an appointed inspector: (a) must be in the form prescribed by the regulations; and (b) must contain a recent photograph of the inspector. [Subs (2) am Act 122 of 2013, s 3 and Sch 6 items 11 and 12]

Identity card to be carried (3) An inspector must carry the identity card at all times when exercising powers as an inspector. Offence (4) A person commits an offence if: (a) the person has been issued with an identity card under subsection (1); and (b) the person ceases to be an inspector; and (c) the person does not return his or her identity card to the Secretary within 14 days after ceasing to be an inspector. Penalty: 1 penalty unit. [Subs (4) am Act 122 of 2013, s 3 and Sch 6 item 13]

(5) An offence against subsection (4) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code.

(6) However, a person does not commit an offence against subsection (4) if the person’s identity card was lost or destroyed.

360

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3A – Sponsorship (ss 140A–140ZK)

s 140XC

Note: A defendant bears an evidential burden in relation to the matter in subsection (6): see subsection 13.3(3) of the Criminal Code. [S 140W am Act 122 of 2013; subst Act 159 of 2008, s 3 and Sch 1 items 29 and 30, with effect from 14 Sep 2009; insrt Act 99 of 2003, s 3 and Sch 1 item 2]

140X Purpose for which powers of inspectors may be exercised The powers of an inspector under this Subdivision may be exercised: (a) for the purpose of investigating whether a sponsorship obligation is being, or has been, complied with; or [Para (a) am Act 122 of 2013, s 3 and Sch 6 item 14]

(aa) for the purpose of investigating whether a person who is required under subsection 140H(1) to satisfy a sponsorship obligation has committed an offence, or contravened a civil penalty provision, under Subdivision C or D of Division 12 of this Part; or [Para (aa) am Act 161 of 2015, s 3 and Sch 1 item 5, with effect from 14 Dec 2015; insrt Act 122 of 2013, s 3 and Sch 6 item 15]

(b) for a purpose prescribed by the regulations. [S 140X am Act 161 of 2015; Act 122 of 2013; subst Act 54 of 2009, s 3 and Sch 12 item 4; Act 159 of 2008, s 3 and Sch 1 item 30, with effect from 14 Sep 2009; insrt Act 99 of 2003, s 3 and Sch 1 item 2]

140XA When powers of inspectors may be exercised An inspector may exercise powers under this Subdivision: (a) at any time during working hours; or (b) at any other time, if the inspector reasonably believes that it is necessary to do so for the purposes referred to in section 140X. [S 140XA insrt Act 54 of 2009, s 3 and Sch 12 item 4]

140XB Power of inspectors to enter premises or places (1) An inspector may, without force, enter business premises or another place, if the inspector reasonably believes that there are records or documents relevant to the purposes referred to in section 140X on the premises or at the place, or accessible from a computer on the premises or at the place. (2) The inspector must, either before or as soon as practicable after entering those premises or that place, show his or her identity card to the occupier, or another person who apparently represents the occupier, if the occupier or other person is present at the premises or place. [S 140XB insrt Act 54 of 2009, s 3 and Sch 12 item 4]

140XC Powers of inspectors while on premises or at a place (1) An inspector who enters premises or a place under section 140XB may exercise one or more of the following powers while on the premises or at the place: (a) inspect any work, process or object; (b) interview any person; (c) require a person to tell the inspector who has custody of, or access to, a record or document; (d) require a person who has the custody of, or access to, a record or document to produce the record or document to the inspector either while the inspector is on the premises or at the place, or within a specified period; (e) inspect, and make copies of, any record or document that: (i) is kept on the premises or at the place; or

© 2016 THOMSON REUTERS

361

s 140XC

Migration Act 1958

(ii)

is accessible from a computer that is kept on the premises or at the place.

[Subs (1) am Act 122 of 2013, s 3 and Sch 6 item 16]

(2) A Fair Work Inspector who enters premises or a place under the Fair Work Act 2009 for any compliance purpose under section 706 of that Act may, for a purpose mentioned in section 140X of this Act, exercise any of the powers mentioned in subsection (1) of this section while on the premises or at the place. [Subs (2) insrt Act 122 of 2013, s 3 and Sch 6 item 17] Note: See also sections 140XG, 140XH and 140XI (which deal with self-incrimination and produced documents etc.). [S 140XC am Act 122 of 2013; insrt Act 54 of 2009, s 3 and Sch 12 item 4]

140XD Persons assisting inspectors (1) A person (the assistant) may accompany an inspector onto premises or to a place mentioned in subsection 140XC(1) to assist the inspector if: (a) for any inspector—the Secretary or Australian Border Force Commissioner is satisfied that: (i) the assistance is necessary and reasonable; and (ii) the assistant has suitable qualifications and experience to properly assist the inspector; or (b) for an inspector who is a Fair Work Inspector—the assistant is authorised to accompany the inspector onto the premises or to the place under section 710 of the Fair Work Act 2009 for any compliance purpose under section 706 of that Act. [Subs (1) am Act 41 of 2015, s 3 and Sch 3 item 9, with effect from 1 Jul 2015; subst Act 122 of 2013, s 3 and Sch 6 item 18]

(2) The assistant: (a) may do such things on the premises or at the place as the inspector requires to assist the inspector to exercise powers under this Subdivision; but (b) must not do anything that the inspector does not have power to do. (3) Anything done by the assistant is taken for all purposes to have been done by the inspector. [S 140XD am Act 41 of 2015; Act 122 of 2013; insrt Act 54 of 2009, s 3 and Sch 12 item 4]

140XE Power to ask for person’s name and address (1) An inspector may require a person to tell the inspector the person’s name and address if the inspector reasonably believes that the person has contravened a civil penalty provision. (2) If the inspector reasonably believes that the name or address is false, the inspector may require the person to give evidence of its correctness. (3) A person contravenes this subsection if: (a) the inspector requires the person to do a thing referred to in subsection (1) or (2); and (b) the inspector advises the person that he or she may contravene a civil penalty provision if he or she fails to comply with the requirement; and (c) the inspector shows his or her identity card to the person; and (d) the person does not comply with the requirement. Civil penalty: 60 penalty units. [Subs (3) am Act 10 of 2013, s 3 and Sch 1 item 12]

(4) Subsection (3) does not apply if the person has a reasonable excuse. [S 140XE am Act 10 of 2013; insrt Act 54 of 2009, s 3 and Sch 12 item 4]

362

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3A – Sponsorship (ss 140A–140ZK)

s 140XI

140XF Power to require persons to produce records or documents (1) An inspector may require a person, by notice, to produce a record or document to the inspector. (2) The notice must: (a) be in writing; and (b) be served on the person; and (c) require the person to produce the record or document at a specified place within a specified period of at least 7 days. The notice may be served by sending the notice to the person’s fax number. (3) A person contravenes this subsection if: (a) the person is served with a notice to produce under subsection (1); and (b) the person fails to comply with the notice. Civil penalty: 60 penalty units. [Subs (3) am Act 10 of 2013, s 3 and Sch 1 item 12]

(4) Subsection (3) does not apply if the person has a reasonable excuse. [S 140XF am Act 10 of 2013; insrt Act 54 of 2009, s 3 and Sch 12 item 4]

140XG Self-incrimination (1) A person is not excused from producing a record or document under paragraph 140XC(1)(d), or subsection 140XF(1), on the ground that the production of the record or document might tend to incriminate the person or expose the person to a penalty. [Subs (1) am Act 31 of 2014, s 3 and Sch 1 item 49, with effect from 24 Jun 2014]

(2) However, in the case of an individual, none of the following are admissible in evidence against the individual in criminal proceedings: (a) the record or document produced; (b) producing the record or document; (c) any information, document or thing obtained as a direct or indirect consequence of producing the record or document; except in proceedings for an offence against section 137.1 or 137.2 of the Criminal Code (false or misleading information or documents) in relation to the information or document. [S 140XG am Act 31 of 2014; insrt Act 54 of 2009, s 3 and Sch 12 item 4]

140XH Certain records and documents are inadmissible The following are not admissible in evidence in criminal proceedings against an individual: (a) any record or document inspected or copied under paragraph 140XC(1)(e) of which the individual had custody, or to which the individual had access, when it was inspected or copied; [Para (a) am Act 31 of 2014, s 3 and Sch 1 item 50, with effect from 24 Jun 2014]

(b) any information, document or thing obtained as a direct or indirect consequence of inspecting or copying a record or document of which the individual had custody, or to which the individual had access, when it was inspected or copied under paragraph 140XC(1)(e). [Para (b) am Act 31 of 2014, s 3 and Sch 1 item 50, with effect from 24 Jun 2014] [S 140XH am Act 31 of 2014; insrt Act 54 of 2009, s 3 and Sch 12 item 4]

140XI Power to keep records or documents (1) If a record or document is produced to an inspector in accordance with this Subdivision, the inspector may:

© 2016 THOMSON REUTERS

363

s 140XI

Migration Act 1958

(a) inspect, and make copies of, the record or document; and (b) keep the record or document for such period as is necessary. (2) While an inspector keeps a record or document, the inspector must allow the following persons to inspect, or make copies of, the record or document at all reasonable times: (a) the person who produced the record or document; (b) any person otherwise entitled to possession of the record or document; (c) a person authorised by the person referred to in paragraph (b). [S 140XI insrt Act 54 of 2009, s 3 and Sch 12 item 4]

140XJ Disclosure of information by the Secretary or Australian Border Force Commissioner Information to which this section applies (1) This section applies to the following information: (a) information acquired by an inspector in the course of performing functions, or exercising powers, as an inspector under this Subdivision; (b) information acquired by a person in the course of assisting an inspector under section 140XD. Disclosure that is necessary or appropriate, or likely to assist administration or enforcement (2) The Secretary or Australian Border Force Commissioner may disclose, or authorise the disclosure of, the information if the Secretary or Australian Border Force Commissioner reasonably believes: (a) that it is necessary or appropriate to do so in the course of performing functions, or exercising powers, under Division 3A of Part 2 of this Act; or (b) that the disclosure is likely to assist in the administration or enforcement of a law of the Commonwealth, a State or a Territory. [Subs (2) am Act 41 of 2015, s 3 and Sch 3 item 11, with effect from 1 Jul 2015] [S 140XJ am Act 41 of 2015, s 3 and Sch 3 item 10, with effect from 1 Jul 2015; insrt Act 54 of 2009, s 3 and Sch 12 item 4]

[Editor’s note: Sections 140Y–140ZA were repealed by Act 54 of 2009, s 3 and Sch 12 item 4, and have not been reproduced] SUBDIVISION G – APPLICATION OF DIVISION TO PARTNERSHIPS AND UNINCORPORATED ASSOCIATIONS (SS 140ZB–140ZG) [Subdiv G heading insrt Act 159 of 2008, s 3 and Sch 1 item 30, with effect from 14 Sep 2009]

140ZB Partnerships—sponsorship rights and obligations (1) This Division, the regulations made under it and any other provision of this Act as far as it relates to this Division or the regulations, apply to a partnership as if it were a person, but with the changes set out in this section and sections 140ZC and 140ZD. (2) A sponsorship right that would otherwise be exercisable by the partnership is exercisable by each partner instead. (3) A sponsorship obligation that would otherwise be imposed on the partnership: (a) is imposed on each partner instead; but (b) may be discharged by any of the partners. (4) Subject to section 140ZC, the partners are jointly and severally liable to pay an amount in relation to a sponsorship obligation. [S 140ZB subst Act 159 of 2008, s 3 and Sch 1 item 30, with effect from 14 Sep 2009; insrt Act 99 of 2003, s 3 and Sch 1 item 2]

364

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3A – Sponsorship (ss 140A–140ZK)

s 140ZE

140ZC Partnerships—offences and civil penalties (1) An offence against this Division that would otherwise be committed by a partnership is taken to have been committed by each partner in the partnership, at the time the offence is committed, who: (a) did the relevant act or made the relevant omission; or (b) aided, abetted, counselled or procured the relevant act or omission; or (c) was in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly or whether by any act or omission of the partner). (2) A civil penalty provision of this Division that would otherwise be contravened by a partnership is taken to have been contravened by each partner in the partnership, at the time of the conduct constituting the contravention, who: (a) engaged in the conduct; or (b) aided, abetted, counselled or procured the conduct; or (c) was in any way knowingly concerned in, or party to, the conduct (whether directly or indirectly or whether by any act or omission of the partner). (3) If a partner in a partnership contravenes a civil penalty provision, the civil penalty that may be imposed on the partner must not exceed an amount equal to one-fifth of the maximum penalty that could be imposed on a body corporate for the same contravention. (4) For the purposes of subsections (1) and (2), to establish that a partnership engaged in particular conduct, it is sufficient to show that the conduct was engaged in by a partner: (a) in the ordinary course of the business of the partnership; or (b) within the scope of the actual or apparent authority of the partner. (5) For the purposes of subsection (1), to establish that a partnership had a particular state of mind when it engaged in particular conduct, it is sufficient to show that a relevant partner had the relevant state of mind. [S 140ZC subst Act 159 of 2008, s 3 and Sch 1 item 30, with effect from 14 Sep 2009; insrt Act 99 of 2003, s 3 and Sch 1 item 2]

140ZD Partnership ceases to exist (1) If a partnership ceases to exist, the persons who were partners immediately before the cessation must continue to satisfy any applicable sponsorship obligation. (2) Section 140ZB applies as if: (a) references to a partnership were to a partnership that ceases to exist; and (b) references to partners of the partnership were to the persons who were partners immediately before the cessation. (3) For the purpose of this section, a partnership ceases to exist if the dissolution of the partnership does not result in the creation of another partnership. [S 140ZD subst Act 159 of 2008, s 3 and Sch 1 item 30, with effect from 14 Sep 2009; insrt Act 99 of 2003, s 3 and Sch 1 item 2]

140ZE Unincorporated associations—sponsorship rights and obligations (1) This Division, the regulations made under it and any other provision of this Act as far as it relates to this Division or the regulations, apply to an unincorporated association as if it were a person, but with the changes set out in this section and sections 140ZF and 140ZG. (2) A sponsorship right that would otherwise be exercisable by the unincorporated association is exercisable by each member of the association’s committee of management instead.

© 2016 THOMSON REUTERS

365

s 140ZE

Migration Act 1958

(3) A sponsorship obligation that would otherwise be imposed on the unincorporated association: (a) is imposed on each member of the association’s committee of management instead; but (b) may be discharged by any of those members. (4) Subject to section 140ZF, the members are jointly and severally liable to pay an amount in relation to a sponsorship obligation. [S 140ZE subst Act 159 of 2008, s 3 and Sch 1 item 30, with effect from 14 Sep 2009; insrt Act 99 of 2003, s 3 and Sch 1 item 2]

140ZF Unincorporated associations—offences and civil penalties (1) An offence against this Division that would otherwise be committed by an unincorporated association is taken to have been committed by each member of the association’s committee of management, at the time the offence is committed, who: (a) did the relevant act or made the relevant omission; or (b) aided, abetted, counselled or procured the relevant act or omission; or (c) was in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly or whether by any act or omission of the member). (2) A civil penalty provision of this Division that would otherwise be contravened by an unincorporated association is taken to have been contravened by each member of the association’s committee of management, at the time of the conduct constituting the contravention, who: (a) engaged in the conduct; or (b) aided, abetted, counselled or procured the conduct; or (c) was in any way knowingly concerned in, or party to, the conduct (whether directly or indirectly or whether by any act or omission of the member). (3) If a member of an unincorporated association’s committee of management contravenes a civil penalty provision, the civil penalty that may be imposed on the member must not exceed an amount equal to one-fifth of the maximum penalty that could be imposed on a body corporate for the same contravention. (4) For the purposes of subsection (1), to establish that an unincorporated association had a particular state of mind when it engaged in particular conduct, it is sufficient to show that a relevant member of the association’s committee of management had the relevant state of mind. [S 140ZF subst Act 159 of 2008, s 3 and Sch 1 item 30, with effect from 14 Sep 2009; insrt Act 99 of 2003, s 3 and Sch 1 item 2]

140ZG Unincorporated association ceases to exist (1) If an unincorporated association ceases to exist, the persons who were members of the association’s committee of management immediately before the cessation must continue to satisfy any applicable sponsorship obligation. (2) Section 140ZE applies as if: (a) references to an unincorporated association were to an unincorporated association that ceases to exist; and (b) references to members of the association’s committee of management were to the persons who were members immediately before the cessation.

366

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 3A – Sponsorship (ss 140A–140ZK)

s 140ZH

(3) To avoid doubt, for the purpose of this section, an unincorporated association ceases to exist if the dissolution of the association does not result in the creation of another association. [S 140ZG subst Act 159 of 2008, s 3 and Sch 1 item 30, with effect from 14 Sep 2009; insrt Act 99 of 2003, s 3 and Sch 1 item 2]

SUBDIVISION H – MISCELLANEOUS (SS 140ZH–140ZK) [Subdiv H heading insrt Act 159 of 2008, s 3 and Sch 1 item 30, with effect from 14 Sep 2009]

140ZH Disclosure of personal information by Minister (1) The Minister may disclose personal information of a prescribed kind about a person mentioned in column 2 of the following table in relation to an item to the person or persons mentioned in column 3 of the table in relation to the item: To whom the Minister may disclose personal information Column 1 Column 2 Column 3 Item If the personal information of a then, the Minister may disclose prescribed kind is about ... that personal information to ... 1 a visa holder (a) an approved sponsor of the visa holder; or (b) a former approved sponsor of the visa holder; or (c) an agency of the Commonwealth or a State or Territory prescribed by the regulations 2 a former visa holder (a) an approved sponsor of the visa holder; or (b) a former approved sponsor of the visa holder; or (c) an agency of the Commonwealth or a State or Territory prescribed by the regulations 3 an approved sponsor of a visa (a) the visa holder; or holder or an approved sponsor of a former visa holder (b) a former visa holder; or (c) an agency of the Commonwealth or a State or Territory prescribed by the regulations (a) the visa holder; or 4 a former approved sponsor of a visa holder or a former approved sponsor of a former visa holder

© 2016 THOMSON REUTERS

367

s 140ZH

Migration Act 1958

To whom the Minister may disclose personal information Column 1 Column 2 Column 3 Item If the personal information of a then, the Minister may disclose prescribed kind is about ... that personal information to ... (b) a former visa holder; or (c) an agency of the Commonwealth or a State or Territory prescribed by the regulations (2) The regulations may prescribe circumstances in which the Minister may disclose the personal information. (3) The regulations may prescribe circumstances in which the recipient may use or disclose the personal information disclosed. (4) If the Minister discloses personal information under subsection (1) (other than to an agency of the Commonwealth or a State or Territory prescribed by the regulations), the Minister must give written notice to the person about whom the information is disclosed of: (a) the disclosure; and (b) the details of the personal information disclosed. [S 140ZH subst Act 159 of 2008, s 3 and Sch 1 item 30, with effect from 14 Sep 2009; insrt Act 99 of 2003, s 3 and Sch 1 item 2]

140ZI Disclosure of personal information to Minister (1) For the purposes of this Division, the Minister may request a person mentioned in column 2 of the following table in relation to an item to disclose to the Minister personal information of a prescribed kind about a person mentioned in column 3 of the table in relation to the item: From whom the Minister may request disclosure of personal information Column 1 Column 2 Column 3 Item The Minister may request ... to disclose personal information of a prescribed kind to the Minister about ... 1 an approved sponsor or former the visa holder approved sponsor of a visa holder 2 an approved sponsor or former the former visa holder approved sponsor of a former visa holder (2) For the purposes of: (a) paragraph 6.2(b) of Australian Privacy Principle 6; and (c) a provision of a law of a State or Territory that provides that information that is personal may be disclosed if the disclosure is authorised by law; the disclosure of information by a person in response to a request under this section is taken to be a disclosure that is authorised by this Act. [Subs (2) am Act 197 of 2012, s 3 and Sch 5 items 52 and 53]

368

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 4 – Criminal justice visitors (ss 141–164)

s 142

(3) Nothing in this section has the effect of authorising a disclosure that, despite subsection (2), is prevented by a law of the Commonwealth, a State or Territory. [S 140ZI am Act 197 of 2012; insrt Act 159 of 2008, s 3 and Sch 1 item 30, with effect from 14 Sep 2009]

140ZJ Unclaimed money (1) If a person who is or was an approved sponsor has not paid an amount in relation to a sponsorship obligation because the person does not know the location of the intended recipient, the person may pay the amount to the Commonwealth. (2) The Commonwealth holds the amount in trust for the intended recipient. (3) Payment of the amount to the Commonwealth is a sufficient discharge to the person, as against the intended recipient, for the amount paid. [S 140ZJ insrt Act 159 of 2008, s 3 and Sch 1 item 30, with effect from 14 Sep 2009]

140ZK Other regulation making powers not limited Regulations made for the purposes of this Division do not limit the power to make regulations under any other provision of this or any other Act. [S 140ZK insrt Act 159 of 2008, s 3 and Sch 1 item 30, with effect from 14 Sep 2009]

DIVISION 4 – CRIMINAL JUSTICE VISITORS (SS 141–164) [Div 4 insrt Act 184 of 1992, s 12, with effect from 1 Sep 1994]

SUBDIVISION A – PRELIMINARY (SS 141–144) 141 Object of Division This Division is enacted so that, if the administration of criminal justice requires the presence in Australia of a non-citizen, that non-citizen may be brought to, or allowed to stay in, Australia for the purposes of that administration. [S 141 am Act 60 of 1994, s 82 and Sch 1 item 58, with effect from 1 Sep 1994; subst Act 184 of 1992, s 12, with effect from 1 Sep 1994]

142 Interpretation In this Division: administration of criminal justice means: (a) an investigation to find out whether an offence has been committed; or (b) the prosecution of a person for an offence; or (c) the punishment by way of imprisonment of a person for the commission of an offence. Australia means the migration zone. authorised official, in relation to a State, means a person authorised under section 144 to be an authorised official for that State. criminal justice certificate means: (a) a criminal justice entry certificate; or (b) a criminal justice stay certificate. criminal justice entry certificate means: (a) a certificate given under section 145; or (b) a certificate given under subsection 146(1) and endorsed under subsection 146(2). criminal justice entry visa has the meaning given by section 155. criminal justice stay certificate means a certificate given under section 147 or 148.

© 2016 THOMSON REUTERS

369

s 142

Migration Act 1958

criminal justice stay visa has the meaning given by section 155. criminal justice stay warrant means a warrant described in section 151. criminal justice visa has the meaning given by section 38. State includes Territory. [S 142 subst Act 184 of 1992, s 12, with effect from 1 Sep 1994]

143 Delegation by Attorney-General (1) The Attorney-General may, in writing, delegate any of his or her powers under this Division to: (a) the Secretary of the Attorney-General’s Department; or (b) an SES employee, or acting SES employee, in that Department. [Subs (1) am Act 5 of 2011, s 3 and Sch 7 item 95, with effect from 19 Apr 2011; Act 146 of 1999, s 3 and Sch 1 item 607, with effect from 5 Dec 1999]

(2) Subject to subsection (3), the Attorney-General may, in writing, delegate his or her power under section 147 to a commissioned police officer (within the meaning of the Australian Federal Police Act 1979). [Subs (2) am Act 9 of 2000, s 3 and Sch 2 item 35, with effect from 2 Jul 2000; insrt Act 60 of 1994, s 48, with effect from 1 Sep 1994]

(3) A delegation under subsection (2) must provide that: (a) the power may only be exercised in relation to a person at a port; and (b) any certificate that is issued by the member is to remain in force for no longer than 5 days. [Subs (3) insrt Act 60 of 1994, s 48, with effect from 1 Sep 1994]

(4) The Attorney-General may, at any time, by written notice, revoke a certificate issued by a person exercising a power delegated under subsection (2). [Subs (4) insrt Act 60 of 1994, s 48, with effect from 1 Sep 1994] [S 143 am Act 5 of 2011; Act 9 of 2000; Act 146 of 1999; Act 60 of 1994; subst Act 184 of 1992, s 12, with effect from 1 Sep 1994]

144 Authorised officials The Attorney-General may, in writing, appoint as an authorised official for a State for the purposes of this Division: (a) the Attorney-General of the State; or (b) a person holding an office under a law of the State that is like the office of the Director of Public Prosecutions; or (c) the highest ranking member of the police force of the State. [S 144 subst Act 184 of 1992, s 12, with effect from 1 Sep 1994]

SUBDIVISION B – CRIMINAL JUSTICE CERTIFICATES FOR ENTRY (SS 145–146) 145 Commonwealth criminal justice entry certificate (1) If the Attorney-General considers that: (a) the temporary presence in Australia of a non-citizen who is outside Australia is required for the purposes of: (i) the Extradition Act 1988; or (ia) the International War Crimes Tribunals Act 1995; or (ib) the International Criminal Court Act 2002; or (ii) the Mutual Assistance in Criminal Matters Act 1987; or

370

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 4 – Criminal justice visitors (ss 141–164)

s 147

(iii)

the administration of criminal justice in relation to an offence against a law of the Commonwealth; and (b) the presence of the non-citizen in Australia for the relevant purposes would not hinder the national interest in any way to such an extent that the non-citizen should not be present in Australia; and (c) satisfactory arrangements have been made to make sure that the person or organisation who wants the non-citizen for the relevant purposes or the non-citizen or both will meet the cost of bringing the non-citizen to, keeping the non-citizen in, and removing the non-citizen from, Australia; the Attorney-General may give a certificate that the presence of the non-citizen in Australia is required for the administration of criminal justice. (2) For the purposes of paragraph (1)(c), the cost of keeping the non-citizen in Australia does not include the cost of immigration detention (if any). [Subs (2) insrt Act 85 of 2009, s 3 and Sch 1 item 2, with effect from 9 Nov 2009] [S 145 am Act 85 of 2009, s 3 and Sch 1 item 1, with effect from 9 Nov 2009; Act 42 of 2002, s 3 and Sch 4 item 1, with effect from 26 Sep 2002; Act 19 of 1995, s 3 and Sch (am Act 43 of 1996), with effect from 29 Mar 1995; subst Act 184 of 1992, s 12, with effect from 1 Sep 1994]

146 State criminal justice entry certificate (1) If an authorised official for a State considers that: (a) the temporary presence in Australia of a non-citizen who is outside Australia is required for the purposes of the administration of criminal justice in relation to an offence against a law of the State; and (b) satisfactory arrangements have been made to make sure that the person or organisation who wants the non-citizen for those purposes or the non-citizen or both will meet the cost of bringing the non-citizen to, keeping the non-citizen in, and removing the non-citizen from, Australia; the official may give a certificate that the presence of the non-citizen in Australia is required for the administration of criminal justice by the State. (2) If: (a) a certificate has been given under subsection (1) about a non-citizen; and (b) the Attorney-General considers that the temporary presence of the non-citizen in Australia in order to advance the administration of criminal justice by the State would not hinder the national interest in any way to such an extent that the non-citizen should not be present in Australia; the Attorney-General may endorse the certificate with a statement that it is to be a criminal justice certificate for the purposes of this Division. (3) For the purposes of paragraph (1)(b), the cost of keeping the non-citizen in Australia does not include the cost of immigration detention (if any). [Subs (3) am Act 85 of 2009, s 3 and Sch 1 item 3, with effect from 9 Nov 2009] [S 146 am Act 85 of 2009; subst Act 184 of 1992, s 12, with effect from 1 Sep 1994]

SUBDIVISION C – CRIMINAL JUSTICE CERTIFICATES ETC STAYING REMOVAL OR DEPORTATION (SS 147–154) 147 Commonwealth criminal justice stay certificate (1) If: (a) an unlawful non-citizen is to be, or is likely to be, removed or deported; and

© 2016 THOMSON REUTERS

371

s 147

Migration Act 1958

(b) the Attorney-General considers that the non-citizen should remain in Australia temporarily for the purposes of: (i) the Extradition Act 1988; or (ia) the International War Crimes Tribunals Act 1995; or (ib) the International Criminal Court Act 2002; or (ii) the Mutual Assistance in Criminal Matters Act 1987; or (iii) the administration of criminal justice in relation to an offence against a law of the Commonwealth; and (c) the Attorney-General considers that satisfactory arrangements have been made to make sure that the person or organisation who wants the non-citizen for the relevant purposes or the non-citizen or both will meet the cost of keeping the non-citizen in Australia; the Attorney-General may give a certificate that the stay of the non-citizen’s removal or deportation is required for the administration of criminal justice. (2) For the purposes of paragraph (1)(c), the cost of keeping the non-citizen in Australia does not include the cost of immigration detention (if any). [Subs (2) insrt Act 85 of 2009, s 3 and Sch 1 item 5, with effect from 9 Nov 2009] [S 147 am Act 85 of 2009, s 3 and Sch 1 item 4, with effect from 9 Nov 2009; Act 42 of 2002, s 3 and Sch 4 item 2, with effect from 26 Sep 2002; Act 19 of 1995, s 3 and Sch (am Act 43 of 1996), with effect from 29 Mar 1995; subst Act 184 of 1992, s 12, with effect from 1 Sep 1994]

148 State criminal justice stay certificate (1) If: (a) an unlawful non-citizen is to be, or is likely to be, removed or deported; and (b) an authorised official for a State considers that the non-citizen should remain in Australia temporarily for the purposes of the administration of criminal justice in relation to an offence against a law of the State; and (c) that authorised official considers that satisfactory arrangements have been made to make sure that the person or organisation who wants the non-citizen for those purposes or the non-citizen or both will meet the cost of keeping the non-citizen in Australia; the official may give a certificate that the stay of the non-citizen’s removal or deportation is required for the administration of criminal justice by the State. (2) For the purposes of paragraph (1)(c), the cost of keeping the non-citizen in Australia does not include the cost of immigration detention (if any). [Subs (2) insrt Act 85 of 2009, s 3 and Sch 1 item 7] [S 148 am Act 85 of 2009, s 3 and Sch 1 item 6; subst Act 184 of 1992, s 12, with effect from 1 Sep 1994]

149 Application for visa not to prevent certificate A criminal justice stay certificate for a non-citizen may be given even though an application for a visa for the non-citizen has been made but not finalised. [S 149 subst Act 184 of 1992, s 12, with effect from 1 Sep 1994]

150 Criminal justice stay certificates stay removal or deportation If a criminal justice stay certificate about a non-citizen is in force, the non-citizen is not to be removed or deported. [S 150 subst Act 184 of 1992, s 12, with effect from 1 Sep 1994]

372

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 4 – Criminal justice visitors (ss 141–164)

s 154

151 Certain warrants stay removal or deportation (1) If an unlawful non-citizen is to be, or is likely to be, removed or deported, this Act does not prevent a court issuing for the purposes of the administration of criminal justice in relation to an offence against a law a warrant to stay the removal or deportation. (2) If a criminal justice stay warrant about a non-citizen is in force, the non-citizen is not to be removed or deported. (3) If a court issues a criminal justice stay warrant about a non-citizen, the applicant for the warrant is responsible for the costs of any maintenance or accommodation (other than immigration detention) of the non-citizen while the warrant is in force. [Subs (3) am Act 85 of 2009, s 3 and Sch 1 item 9, with effect from 9 Nov 2009] [S 151 am Act 85 of 2009; subst Act 184 of 1992, s 12, with effect from 1 Sep 1994]

152 Certain subjects of stay certificates and stay warrants may be detained etc. If: (a) a criminal justice stay certificate or a criminal justice stay warrant about a non-citizen is in force; and (b) the non-citizen does not have a visa to remain in Australia; the certificate or warrant does not limit any power under this Act relating to the detention of the non-citizen. [S 152 subst Act 184 of 1992, s 12, with effect from 1 Sep 1994]

153 Removal or deportation not contempt etc. if no stay certificate or warrant (1) Subject to subsection (2), if: (a) this Act requires the removal or deportation of a non-citizen; and (b) there is no criminal justice stay certificate or criminal justice stay warrant about the non-citizen; any other law, or anything done under any other law, of the Commonwealth or a State (whether passed or made before or after the commencement of this section), not being an Act passed after that commencement expressed to be exempt from this section, does not prevent the removal or deportation. [Subs (1) am Act 60 of 1994, s 49(a), with effect from 1 Sep 1994]

(2) Subsection (1) does not permit the removal or deportation of a non-citizen if that removal or deportation would be in breach of an order of the High Court, the Federal Court or the Federal Circuit Court. [Subs (2) am Act 13 of 2013, s 3 and Sch 2 item 1; Act 157 of 2001, s 3 and Sch 1 item 4, with effect from 1 Oct 2001; insrt Act 60 of 1994, s 49(b), with effect from 1 Sep 1994] [S 153 am Act 13 of 2013; Act 157 of 2001; Act 60 of 1994; insrt Act 184 of 1992, s 12, with effect from 1 Sep 1994]

154 Officer not liable—criminal justice stay certificates or warrants An officer is not liable to any civil or criminal action for doing in good faith, or failing in good faith to do, any act or thing for the purpose of exercising a power under this Act to keep a person who is the subject of a criminal justice stay certificate or criminal justice stay warrant in immigration detention. [S 154 insrt Act 60 of 1994, s 50, with effect from 1 Sep 1994]

© 2016 THOMSON REUTERS

373

s 154

Migration Act 1958

SUBDIVISION D – CRIMINAL JUSTICE VISAS (SS 155–161) 155 Criminal justice visas (1) A criminal justice visa may be a visa permitting a non-citizen to travel to and enter, and remain temporarily in, Australia, to be known as a criminal justice entry visa. (2) A criminal justice visa may be a visa permitting a non-citizen to remain temporarily in Australia, to be known as a criminal justice stay visa. [S 155 insrt Act 184 of 1992, s 12, with effect from 1 Sep 1994]

156 Criterion for criminal justice entry visas A criterion for a criminal justice entry visa for a non-citizen is that a criminal justice entry certificate about the non-citizen is in force. [S 156 insrt Act 184 of 1992, s 12, with effect from 1 Sep 1994]

157 Criterion for criminal justice stay visas A criterion for a criminal justice stay visa for a non-citizen is that either: (a) a criminal justice stay certificate about the non-citizen is in force; or (b) a criminal justice stay warrant about the non-citizen is in force. [S 157 insrt Act 184 of 1992, s 12, with effect from 1 Sep 1994]

158 Criteria for criminal justice visas The criteria for a criminal justice visa for a non-citizen are, and only are: (a) the criterion required by section 156 or 157; and (b) the criterion that the Minister, having had regard to: (i) the safety of individuals and people generally; and (ii) in the case of a criminal justice entry visa, arrangements to ensure that if the non-citizen enters Australia, the non-citizen can be removed; and (iii) any other matters that the Minister considers relevant; has decided, in the Minister’s absolute discretion, that it is appropriate for the visa to be granted. [S 158 insrt Act 184 of 1992, s 12, with effect from 1 Sep 1994]

159 Procedure for obtaining criminal justice visa (1) If a criminal justice certificate, or a criminal justice stay warrant, in relation to a non-citizen is in force, the Minister may consider the grant of a criminal justice visa for the non-citizen. (2) If the Minister, after considering the grant of a criminal justice visa for a non-citizen, is satisfied that the criteria for it have been met, the Minister may, in his or her absolute discretion: (a) grant it by causing a record of it to be made; and (b) give such evidence of it as the Minister considers appropriate. [Subs (2) am Act 60 of 1994, s 82 and Sch 1 item 59, with effect from 1 Sep 1994] [S 159 am Act 60 of 1994; insrt Act 184 of 1992, s 12, with effect from 1 Sep 1994]

160 Conditions of criminal justice visa (1) The regulations may provide that criminal justice visas are subject to specified conditions. (2) It is a condition of a criminal justice entry visa for a non-citizen that the non-citizen must not do any work in Australia, whether for reward or otherwise. [Subs (2) am Act 113 of 1998, s 3 and Sch 6 item 10, with effect from 1 Mar 1999]

374

Migration Law

[137L.60]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 4 – Criminal justice visitors (ss 141–164)

s 162

(3) In subsection (2): work, in relation to a non-citizen, does not include work for the purposes for which there is a criminal justice certificate or criminal justice stay warrant about the non-citizen, including, if those purposes are or include the imprisonment of the non-citizen, work as a prisoner. [S 160 am Act 113 of 1998; insrt Act 184 of 1992, s 12, with effect from 1 Sep 1994]

161 Effect of criminal justice visas (1) A criminal justice entry visa for a non-citizen is permission for the non-citizen to travel to and enter and remain in Australia while it is in effect. [Subs (1) am Act 60 of 1994, s 82 and Sch 1 item 60, with effect from 1 Sep 1994]

(2) A criminal justice stay visa for a non-citizen: (a) is permission for the non-citizen to remain in Australia while it is in effect; and (b) if the non-citizen is in immigration detention, entitles the non-citizen to be released from that detention. [Subs (2) am Act 60 of 1994, s 82 and Sch 1 item 61, with effect from 1 Sep 1994]

(3) A criminal justice visa for a person does not prevent the non-citizen leaving Australia. (4) Subsection (3) does not limit the operation of any order or warrant of a court. (5) The holder of a criminal justice entry visa may not apply for a visa other than a protection visa. (6) If a non-citizen who has held a criminal justice entry visa remains in Australia when the visa is cancelled, the non-citizen may not make an application for a visa other than a protection visa. [S 161 am Act 60 of 1994; insrt Act 184 of 1992, s 12, with effect from 1 Sep 1994]

SUBDIVISION E – CANCELLATION ETC OF CRIMINAL JUSTICE CERTIFICATES AND CRIMINAL JUSTICE VISAS (SS 162–164) 162 Criminal justice certificates to be cancelled (1) If the presence in Australia of a non-citizen in respect of whom a criminal justice certificate has been given is no longer required for the purposes for which it was given, then: (a) if it was given under section 145 or 147, the Attorney-General; or (b) if it was given under section 146 or 148-an authorised official; is to cancel it. (2) Before cancelling the certificate, the Attorney-General or authorised official is, an adequate time before doing so, to tell the Secretary: (a) when it is to be cancelled; and (b) the expected whereabouts of the non-citizen when it is cancelled; and (c) the arrangements for the non-citizen’s departure from Australia. [S 162 insrt Act 184 of 1992, s 12, with effect from 1 Sep 1994]

SECTION 162 COMMENTARY Scope ................................................................................................................................................... [162.20] KEY CASE

Rules of natural justice do not apply to the cancellation of a criminal justice certificate or visa .... [162.40] Level of evidence necessary for the Attorney-General to make a cancellation decision ................. [162.60] © 2016 THOMSON REUTERS

375

s 162

Migration Act 1958

[162.20]

[162.20] Scope A criminal justice certificate is to be cancelled if the non-citizen, in respect of whom the criminal justice certificate was given, is no longer required for the purposes for which the certificate was given.

KEY CASE [162.40]

Rules of natural justice do not apply to the cancellation of a criminal justice certificate or visa In Minister for Immigration and Citizenship v Zhang (2009) 179 FCR 135; 111 ALD 531; [2009] FCAFC 129, Stone, Jacobson and Foster JJ considered whether the rules of natural justice applied to the cancellation of a criminal justice stay certificate and the requisite level of evidence necessary to cancel a certificate under s 162(1). Mr Zhang, a citizen of the People’s Republic of China, arrived in Australia on 16 June 2003. On 27 June 2003, he lodged an application for a protection visa, which was refused by a delegate of the Minister, and the former Refugee Review Tribunal affirmed this decision in January 2004. Subsequently, Mr Zhang gave information to the Department about the conduct of his migration agent and the Department considered that Mr Zhang was a person who could assist it in an investigation and possible prosecution of that migration agent for contraventions of provisions of the Act. A delegate of the Attorney-General issued Mr Zhang with a criminal justice stay certificate. A delegate of the Minister then granted Mr Zhang a criminal justice stay visa. The visa stated: “Your stay in Australia as a criminal justice stay visa holder has been approved until the criminal justice stay certificate is cancelled.” Subsequently, a delegate of the Attorney-General cancelled the criminal justice stay certificate because the Commonwealth Director of Public Prosecutions decided that Mr Zhang’s evidence would not be used. Since Mr Zhang’s criminal justice stay certificate was cancelled, a delegate of the Minister also cancelled Mr Zhang’s criminal justice stay visa. Mr Zhang was not afforded the opportunity of a hearing or to make submissions about why his criminal justice stay certificate or his criminal justice stay visa should not be cancelled. Stone, Jacobson and Foster JJ unanimously concluded at [96]–[97] that: the rules of natural justice do not apply to the exercise of the power to cancel a criminal justice certificate under s 162(1) of the Act. The entire focus and object of Division 4 is to facilitate the administration of criminal justice by securing the temporary presence in Australia of persons who would not otherwise be permitted to enter or remain in Australia.

Stone, Jacobson and Foster JJ stated continued at [105]–[106]: With respect to the remarks of Merkel J in Wasfi, we disagree with his Honour’s conclusion that the rules of natural justice are not excluded by Div 4. The whole tenor of the Division is to repose the decision making process in a relevant decision maker in the interests of the administration of criminal justice. The person affected by the grant of a certificate or its cancellation has no personal interests in it and no right to be heard. Even if, contrary to the views we have expressed, there is to be found an obligation of procedural fairness, it could have no content. The scheme laid down in Div 4 is inconsistent with any right, entitlement or interest of a person such as Mr Zhang to be involved in the consideration of the question of whether he could or should give evidence in the relevant proceeding.

[162.60]

Level of evidence necessary for the Attorney-General to make a cancellation decision In Minister for Immigration and Citizenship v Zhang (2009) 179 FCR 135; 111 ALD 531; [2009] FCAFC 129, Stone, Jacobson and Foster JJ also considered whether there was sufficient 376

Migration Law

[162.60]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 4 – Criminal justice visitors (ss 141–164)

s 163

foundation for the delegate of the Attorney-General to make the cancellation decision. Mr Zhang’s counsel submitted that before issuing a criminal justice certificate, the Attorney-General must form each of the opinions referred to in s 147(b) and (c), and then exercise the discretion to issue the certificate. It was proposed that in exercising the power under s 162 to cancel a certificate, the Attorney-General was required to consider the same factors as in s 147 when deciding whether to issue a certificate. It was submitted that more should have been said and proven than a brief assertion made by the Department to the effect that Mr Zhang was no longer required. Their Honours held that there was sufficient foundation for the cancellation decision. The Full Court of the Federal Court observed at [115]–[118] (emphasis in original): There is an important difference between the language of s 147 and that which is used in s 162. The use of the word “considers” in each of sub-pars (b) and (c) of s 147 requires the Attorney to reach a level of satisfaction about the specified matters. These preconditions are framed by reference to the Attorney’s state of mind. The word “considers” does not appear in s 162(1). The language of the sub-section is directed to a fact – whether the person’s presence is no longer required. If that fact is established, the Attorney is to cancel the certificate. No discretion is involved at that point. The language of the sub-section is not directed to the Attorney being satisfied of the correctness of the asserted fact. It is true that the fact to which attention is to be given under s 162(1) includes the notion that the presence of the person is no longer required for the purpose for which the certificate was given. But, whilst those words are obviously included in order to direct attention to the purposes for which the certificate was issued in the first place, they do not impose upon the Attorney an obligation in every case to go behind every request for cancellation in order to verify the truth of the assertions made by the requesting authority. It may be appropriate in some cases for the Attorney to make further enquiries and to seek additional information, but he will not be bound to do so in every case. Whether the necessary fact is established is a matter for the Attorney to determine. The means by which it is established may vary from case to case.

163 Stay warrant to be cancelled (1) If: (a) the presence in Australia of a non-citizen in respect of whom a criminal justice stay warrant has been given is no longer required for the purposes for which it was given; and (b) if the warrant is to expire at a certain time-that time has not been reached; a person entitled to apply for the warrant’s cancellation must apply to the court for the cancellation. (2) The applicant for a criminal justice stay warrant in respect of a non-citizen is to tell the Secretary a reasonable time before the warrant expires: (a) the time it will expire; and (b) the expected whereabouts of the non-citizen at the time of expiry; and (c) the arrangements for the non-citizen’s departure from Australia. (3) An applicant for the cancellation of a criminal justice stay warrant is to tell the Secretary, as soon as practicable: (a) the time of cancellation for which application will be made; and (b) if the time of cancellation is different from that applied for, the time of cancellation; and

© 2016 THOMSON REUTERS

377

s 163

Migration Act 1958

(c)

the expected whereabouts of the non-citizen at the expected time, and, if paragraph (b) applies, the time of cancellation; and (d) the arrangements for the non-citizen’s departure from Australia. [S 163 insrt Act 184 of 1992, s 12, with effect from 1 Sep 1994]

164 Effect of cancellation etc. on criminal justice visa If: (a) a criminal justice certificate is cancelled; or (b) a criminal justice stay warrant is cancelled or expires; any criminal justice visa granted because of the certificate or warrant is cancelled and the Minister is to make a record of the cancellation. [S 164 insrt Act 184 of 1992, s 12, with effect from 1 Sep 1994]

DIVISION 4A – ENFORCEMENT VISAS (SS 164A–164D) [Div 4A insrt Act 160 of 1999, s 3 and Sch 1 item 25]

164A Definitions In this Division: Commonwealth aircraft has the same meaning as in the Environment Protection and Biodiversity Conservation Act 1999. [Def insrt Act 165 of 2006, s 3 and Sch 1 item 861]

Commonwealth ship has the same meaning as in the Environment Protection and Biodiversity Conservation Act 1999. [Def insrt Act 165 of 2006, s 3 and Sch 1 item 862]

enforcement visa (environment matters) means an enforcement visa that is granted by section 164BA. [Def insrt Act 165 of 2006, s 3 and Sch 1 item 863]

enforcement visa (fisheries matters) means an enforcement visa that is granted by section 164B. [Def insrt Act 165 of 2006, s 3 and Sch 1 item 864]

environment detention means detention under Schedule 1 to the Environment Protection and Biodiversity Conservation Act 1999. [Def insrt Act 165 of 2006, s 3 and Sch 1 item 865]

fisheries detention means detention under: (a) Schedule 1A to the Fisheries Management Act 1991; or (b) Schedule 2 to the Torres Strait Fisheries Act 1984. [Def subst Act 103 of 2005, s 3 and Sch 2 item 10]

master [Repealed] [Def rep Act 16 of 2013, s 3 and Sch 4 item 9] [S 164A am Act 16 of 2013; Act 165 of 2006; Act 103 of 2005; insrt Act 160 of 1999, s 3 and Sch 1 item 25]

164B Grant of enforcement visas (fisheries matters) Non-citizen on foreign vessel outside migration zone (1) A non-citizen on a foreign vessel outside the migration zone is granted an enforcement visa when the vessel is detained under section 69 of the Maritime Powers Act 2013 in relation to a fisheries detention offence.

378

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 4A – Enforcement visas (ss 164A–164D)

s 164B

Note: The grant of an enforcement visa effectively cancels any temporary visa that the non-citizen may have held (see subsection 82(2A)). [Subs (1) subst Act 16 of 2013, s 3 and Sch 4 item 10; am Act 103 of 2005, s 3 and Sch 2 items 5–7]

(1A) [Repealed] [Subs (1A) rep Act 16 of 2013, s 3 and Sch 4 item 10; am Act 36 of 2008, s 3 and Sch 4 item 8; Act 36 of 2008, s 3 and Sch 3 item 69; insrt Act 160 of 1999, s 3 and Sch 1 item 32]

Non-citizen in migration zone (2) A non-citizen in the migration zone who does not already hold an enforcement visa is granted an enforcement visa when he or she is detained under Schedule 1A to the Fisheries Management Act 1991 or Schedule 2 to the Torres Strait Fisheries Act 1984. Note: The grant of an enforcement visa effectively cancels any temporary visa that the non-citizen may have held (see subsection 82(2A)). [Subs (2) am Act 16 of 2013, s 3 and Sch 4 item 11; Act 103 of 2005, s 3 and Sch 2 item 11]

Non-citizen in prescribed circumstances (3) An enforcement visa is granted to a non-citizen (who does not already hold an enforcement visa) when a fisheries officer or a maritime officer exercises under, or for the purposes of, the Fisheries Management Act 1991 or the Torres Strait Fisheries Act 1984 a prescribed power in prescribed circumstances in relation to the non-citizen. The visa is granted at the time the power is exercised. Note: The grant of an enforcement visa effectively cancels any temporary visa that the non-citizen may have held (see subsection 82(2A)). [Subs (3) subst Act 16 of 2013, s 3 and Sch 4 item 12; am Act 103 of 2005, s 3 and Sch 2 item 8]

Non-citizen on foreign vessel in prescribed circumstances (4) An enforcement visa is granted to a non-citizen (who does not already hold an enforcement visa) who is on a foreign vessel when a fisheries officer or a maritime officer exercises under, or for the purposes of, the Fisheries Management Act 1991 or the Torres Strait Fisheries Act 1984 a prescribed power in prescribed circumstances in relation to the vessel. The visa is granted at the time the power is exercised. Note: The grant of an enforcement visa effectively cancels any temporary visa that the non-citizen may have held (see subsection 82(2A)). [Subs (4) subst Act 16 of 2013, s 3 and Sch 4 item 12; am Act 103 of 2005, s 3 and Sch 2 item 8]

Enforcement visas granted by force of this section (5) To avoid doubt, an enforcement visa is granted by force of this section. Note: No administrative action under this Act is necessary to grant the visa.

Exception if Minister’s declaration in force (6) Despite subsections (1), (2), (3) and (4), a non-citizen is not granted an enforcement visa if a declaration under subsection (7) is in force in relation to: (a) the non-citizen; or (b) a class of persons of which the non-citizen is a member. Declaration (7) The Minister may make a written declaration, for the purposes of this section, that it is undesirable that a person, or any persons in a class of persons, travel to and enter Australia or remain in Australia.

© 2016 THOMSON REUTERS

379

s 164B

Migration Act 1958

Section does not apply to Australian residents (8) This section does not apply to non-citizens who are Australian residents as defined in the Fisheries Management Act 1991. [S 164B am Act 16 of 2013; Act 36 of 2008; Act 165 of 2006, s 3 and Sch 1 item 865; Act 103 of 2005; insrt Act 160 of 1999, s 3 and Sch 1 item 25]

164BA Grant of enforcement visas (environment matters) Non-citizen on vessel (environment matters) outside migration zone (1) A non-citizen on a vessel (environment matters) outside the migration zone is granted an enforcement visa when, because an environment officer, maritime officer or other person in command of a Commonwealth ship or a Commonwealth aircraft has reasonable grounds to suspect that the vessel has been used or otherwise involved in the commission of an environment detention offence, the environment officer, maritime officer or person in command: (a) exercises his or her power under paragraph 403(3)(a) of the Environment Protection and Biodiversity Conservation Act 1999 in relation to the vessel; or (b) makes a requirement of the person in charge of the vessel under paragraph 403(3)(b) of the Environment Protection and Biodiversity Conservation Act 1999; or (c) exercises powers under section 69 of the Maritime Powers Act 2013 in relation to the vessel; whichever occurs first. Note 1: Under paragraph 403(3)(a) of the Environment Protection and Biodiversity Conservation Act 1999, an environment officer, or the person in command of a Commonwealth ship or a Commonwealth aircraft, may bring a vessel into the migration zone. Under paragraph 403(3)(b) of that Act, an environment officer, or the person in command of a Commonwealth ship or a Commonwealth aircraft, may require the person in charge of a vessel to bring the vessel into the migration zone. Note 2: The grant of an enforcement visa effectively cancels any temporary visa that the non-citizen may have held (see subsection 82(2A)). [Subs (1) subst Act 16 of 2013, s 3 and Sch 4 item 13]

Non-citizen in migration zone (2) A non-citizen in the migration zone who does not already hold an enforcement visa is granted an enforcement visa when he or she is detained by an environment officer under Schedule 1 to the Environment Protection and Biodiversity Conservation Act 1999. Note: The grant of an enforcement visa effectively cancels any temporary visa that the non-citizen may have held (see subsection 82(2A)).

Non-citizen in prescribed circumstances (3) An enforcement visa is granted to a non-citizen (who does not already hold an enforcement visa) when an environment officer or a maritime officer exercises under, or for the purposes of, the Environment Protection and Biodiversity Conservation Act 1999 a prescribed power in prescribed circumstances in relation to the non-citizen. The visa is granted at the time the power is exercised. Note: The grant of an enforcement visa effectively cancels any temporary visa that the non-citizen may have held (see subsection 82(2A)). [Subs (3) subst Act 16 of 2013, s 3 and Sch 4 item 14]

Non-citizen on vessel or aircraft in prescribed circumstances (4) An enforcement visa is granted to a non-citizen (who does not already hold an enforcement visa) who is on a vessel (environment matters) or a foreign aircraft (environment matters) when an environment officer or maritime officer exercises under, or for the purposes

380

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 4A – Enforcement visas (ss 164A–164D)

s 164C

of, the Environment Protection and Biodiversity Conservation Act 1999 a prescribed power in prescribed circumstances in relation to the vessel or aircraft. The visa is granted at the time the power is exercised. Note: The grant of an enforcement visa effectively cancels any temporary visa that the non-citizen may have held (see subsection 82(2A)). [Subs (4) subst Act 16 of 2013, s 3 and Sch 4 item 14]

Enforcement visas granted by force of this section (5) To avoid doubt, an enforcement visa is granted by force of this section. Note: No administrative action under this Act is necessary to grant the visa.

Exception if Minister’s declaration in force (6) Despite subsections (1), (2), (3) and (4), a non-citizen is not granted an enforcement visa if a declaration under subsection (7) is in force in relation to: (a) the non-citizen; or (b) a class of persons of which the non-citizen is a member. Declaration (7) The Minister may make a written declaration, for the purposes of this section, that it is undesirable that a person, or any persons in a class of persons, travel to and enter Australia or remain in Australia. Section does not apply to Australian residents (8) This section does not apply to non-citizens who are Australian residents as defined in Schedule 1 to the Environment Protection and Biodiversity Conservation Act 1999. [S 164BA am Act 16 of 2013; insrt Act 165 of 2006, s 3 and Sch 1 item 866]

164C When enforcement visa ceases to be in effect Enforcement visa (fisheries matters)—non-citizen in fisheries detention (1) The enforcement visa (fisheries matters) of a non-citizen who is in fisheries detention ceases to be in effect: (a) at the time the non-citizen is released, or escapes, from fisheries detention; or (b) at the time the Minister makes a declaration under subsection 164B(7) in relation to the non-citizen, or a class of persons of which the non-citizen is a member; or (c) on the occurrence of a prescribed event; whichever occurs first. [Subs (1) am Act 165 of 2006, s 3 and Sch 1 item 867]

Enforcement visa (fisheries matters)—non-citizen not in fisheries detention (2) The enforcement visa (fisheries matters) of a non-citizen who is not in fisheries detention ceases to be in effect: (a) at the time a decision is made not to charge the non-citizen with a fisheries detention offence; or (b) at the time the Minister makes a declaration under subsection 164B(7) in relation to the non-citizen, or a class of persons of which the non-citizen is a member; or (c) on the occurrence of a prescribed event; whichever occurs first. [Subs (2) am Act 165 of 2006, s 3 and Sch 1 item 868]

© 2016 THOMSON REUTERS

381

s 164C

Migration Act 1958

Enforcement visa (environment matters)—non-citizen in environment detention (3) The enforcement visa (environment matters) of a non-citizen who is in environment detention ceases to be in effect: (a) at the time the non-citizen is released, or escapes, from environment detention; or (b) at the time the Minister makes a declaration under subsection 164BA(7) in relation to the non-citizen, or a class of persons of which the non-citizen is a member; or (c) on the occurrence of a prescribed event; whichever occurs first. [Subs (3) insrt Act 165 of 2006, s 3 and Sch 1 item 869]

Enforcement visa (environment matters)—non-citizen not in environment detention (4) The enforcement visa (environment matters) of a non-citizen who is not in environment detention ceases to be in effect: (a) at the time a decision is made not to charge the non-citizen with an environment detention offence; or (b) at the time the Minister makes a declaration under subsection 164BA(7) in relation to the non-citizen, or a class of persons of which the non-citizen is a member; or (c) on the occurrence of a prescribed event; whichever occurs first. [Subs (4) insrt Act 165 of 2006, s 3 and Sch 1 item 869] [S 164C am Act 165 of 2006; insrt Act 160 of 1999, s 3 and Sch 1 item 25]

164D Applying for other visas (1) The holder of an enforcement visa may not apply for a visa other than a protection visa while he or she is in Australia. (2) While a non-citizen who has held an enforcement visa remains in Australia when the visa ceases to be in effect, the non-citizen may not apply for a visa other than a protection visa. [S 164D insrt Act 160 of 1999, s 3 and Sch 1 item 25]

DIVISION 5 – IMMIGRATION CLEARANCE (SS 165–175B) [Former Div 4 renum Act 60 of 1994, s 83; insrt Act 184 of 1992, s 12; former Div 1C renum Act 59 of 1989, s 35]

165 Interpretation In this Division: clearance authority means: (a) a clearance officer; or (b) an authorised system. clearance officer means an officer, or other person, authorised by the Minister to perform duties for the purposes of this Division. eligible passport means a passport of a kind specified in a determination under section 175A. on-port, in relation to a person, means a port in Australia to which the person will travel after entering Australia at another port. overseas vessel means: (a) a vessel on which persons travel from outside Australia to a port and then to an on-port or ports; or

382

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 5 – Immigration clearance (ss 165–175B)

s 166

(b) a vessel on which persons travel from a port to another port or ports and then to a place outside Australia. [S 165 am Act 62 of 2007, s 3 and Sch 2 items 6 and 7; insrt Act 184 of 1992]

166 Persons entering to present certain evidence of identity etc. Requirement to be immigration cleared (1) A person, whether a citizen or a non-citizen, who enters Australia must, without unreasonable delay: (a) present the following evidence (which might include a personal identifier) to a clearance authority: (i) if the person is a citizen (whether or not the person is also the national of a country other than Australia)—the person’s Australian passport or prescribed other evidence of the person’s identity and Australian citizenship; (ii) if the person is a non-citizen—evidence of the person’s identity and of a visa that is in effect and is held by the person; and (b) provide to a clearance authority any information (including the person’s signature, but not any other personal identifier) required by this Act or the regulations; and (c) comply with any requirement, made by a clearance officer under section 257A before an event referred to in subparagraph 172(1)(a)(iii) or (b)(iii) or paragraph 172(1)(c) occurs, to provide one or more personal identifiers to a clearance authority; and (d) if under paragraph (a) the person presents evidence to an authorised system—provide to the authorised system a photograph or other image of the person’s face and shoulders. Note: A person might be taken to have complied with this section under subsection 167(3) or (4) or might not be required to comply under section 168 or 169. [Subs (1) am Act 115 of 2015, s 3 and Sch 1 items 13–15, with effect from 16 Feb 2016; Act 116 of 2014, s 3 and Sch 5 item 3, with effect from 4 Nov 2014; Act 60 of 1994, s 51(a) and (b)]

Who may use an authorised system (2) A person may comply with a requirement referred to in subsection (1) to present or provide evidence, information or personal identifiers to an authorised system only if: (a) the person holds an eligible passport; and (c) either: (i) before an event referred to in subparagraph 172(1)(a)(iii) or (b)(iii) or paragraph 172(1)(c) occurs, a clearance officer does not require the person to present or provide evidence, information or personal identifiers referred to in subsection (1) of this section (other than a passenger card) to a clearance officer; or (ii) if subparagraph (i) of this paragraph applies—a clearance officer determines that the person has complied with subsection (1) of this section. [Subs (2) am Act 116 of 2014, s 3 and Sch 5 items 4 and 5, with effect from 4 Nov 2014]

Complying with paragraphs (1)(a) and (b) (3) Subject to section 167, a person is to comply with paragraphs (1)(a) and (b) of this section in a prescribed way. [Subs (3) am Act 116 of 2014, s 3 and Sch 5 item 6, with effect from 4 Nov 2014; insrt Act 60 of 1994, s 51(c)]

(4) A person is taken to have complied with subparagraph (1)(a)(i) if a clearance officer knows or reasonably believes that the person is an Australian citizen.

© 2016 THOMSON REUTERS

383

s 166

Migration Act 1958

(5) [Repealed] [Subs (5) rep Act 115 of 2015, s 3 and Sch 1 item 16, with effect from 16 Feb 2016; am Act 116 of 2014, s 3 and Sch 5 items 7–9, with effect from 4 Nov 2014]

(6) [Repealed] [Subs (6) rep Act 116 of 2014, s 3 and Sch 5 item 10, with effect from 4 Nov 2014]

(7) [Repealed] [Subs (7) rep Act 115 of 2015, s 3 and Sch 1 item 16, with effect from 16 Feb 2016; subst Act 116 of 2014, s 3 and Sch 5 item 11, with effect from 4 Nov 2014]

(8) [Repealed] [Subs (8) rep Act 115 of 2015, s 3 and Sch 1 item 16, with effect from 16 Feb 2016; am Act 116 of 2014, s 3 and Sch 5 items 12 and 13, with effect from 4 Nov 2014] [S 166 am Act 115 of 2015; Act 116 of 2014; subst Act 62 of 2007, s 3 and Sch 2 item 9; am Act 2 of 2004; former s 54HM renum Act 60 of 1994, s 83; am Act 60 of 1994; insrt Act 184 of 1992, s 12]

167 When and where evidence to be presented (1) Subject to this section, a person required to comply with section 166 who enters Australia at a port must comply: (a) if paragraph (b) or (c) does not apply—at that port; or (b) if the person is required by an officer to comply at a particular on-port—at that on-port; or (c) if the person is allowed by an officer to comply at the port or a particular on-port—at either of them. (2) Subject to subsection (4), a person required to comply with section 166 who enters Australia otherwise than at a port must comply at a prescribed place within a prescribed period after entering. (3) If: (a) a person proposes to enter Australia; and (b) with the permission of a clearance officer, complies with paragraphs 166(1)(a), (b) and (c) on the vessel on which the person travels to Australia and before entering Australia; the person is taken to have complied with section 166. [Subs (3) am Act 62 of 2007, s 3 and Sch 2 item 10, with effect from 1 Jul 2007; Act 2 of 2004, s 3 and Sch 1 item 19, with effect from 27 Aug 2004]

(4) A person who travels to Australia on a pre-cleared flight: (a) must comply with paragraphs 166(1)(a) and (b) before beginning the flight; and (b) if he or she so complies, is taken to have complied with section 166. [S 167 am Act 62 of 2007, s 3 and Sch 2 item 10, with effect from 1 Jul 2007; Act 2 of 2004; former s 54HN renum Act 60 of 1994, s 83; insrt Act 184 of 1992, s 12, with effect from 1 Sep 1994]

168 Section 166 not to apply (1) An allowed inhabitant of the Protected Zone who enters a protected area in connection with the performance of traditional activities is not required to comply with section 166. (2) If an allowed inhabitant of the Protected Zone: (a) enters a protected area in connection with the performance of traditional activities; and (b) goes from the protected area to a part of the migration zone outside that area; he or she must comply with section 166 at a prescribed place within a prescribed period.

384

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 5 – Immigration clearance (ss 165–175B)

s 170

(3) A person in a prescribed class is not required to comply with section 166. [Former s 54HO renum Act 60 of 1994, s 83; insrt Act 184 of 1992, s 12, with effect from 1 Sep 1994]

169 Section 166 not usually to apply (1) If: (a) a person goes outside the migration zone; and (b) under section 80 is not taken to leave Australia; the person is not, on re-entering the migration zone, taken to enter Australia for the purposes of section 166 but may be directed by a clearance officer to comply with that section. [Subs (1) am Act 85 of 2008, s 3 and Sch 2 item 18, with effect from 15 Feb 2009]

International passenger cruise ships (2) However, subsection (1) does not apply if the person goes outside the migration zone on an international passenger cruise ship (see subsection (4)). Note: The effect of this subsection is that people on international passenger cruise ships are required to be immigration cleared under section 166 (unless the Minister or Secretary determines otherwise under subsection (3) of this section). [Subs (2) insrt Act 85 of 2008, s 3 and Sch 2 item 19, with effect from 15 Feb 2009]

(3) However, the Minister or Secretary may, in writing, determine that, despite subsection (2), subsection (1) does apply to a class of persons that includes the person. [Subs (3) insrt Act 85 of 2008, s 3 and Sch 2 item 19, with effect from 15 Feb 2009]

(4) In this section, a ship is an international passenger cruise ship if: (a) the ship has sleeping facilities for at least 100 persons (other than crew members); and (b) the ship is being used to provide a service of sea transportation of persons from a place outside Australia to a port in Australia; and (c) that service: (i) is provided in return for a fee payable by persons using the service; and (ii) is available to the general public. [Subs (4) insrt Act 85 of 2008, s 3 and Sch 2 item 19, with effect from 15 Feb 2009]

(5) A determination made under subsection (3) is not a legislative instrument. [Subs (5) insrt Act 85 of 2008, s 3 and Sch 2 item 19, with effect from 15 Feb 2009] [S 169 am Act 85 of 2008; former s 54HP renum Act 60 of 1994, s 83; am Act 60 of 1994; insrt Act 184 of 1992, s 12, with effect from 1 Sep 1994]

170 Certain persons to present evidence of identity Persons on overseas vessels may be required to present evidence of identity (1) A person, whether a citizen or a non-citizen, who travels, or appears to intend to travel, on an overseas vessel from a port to another port may be required by a clearance officer at either port or by officers at both ports: (a) to present to a clearance authority prescribed evidence (which might include a personal identifier) of the person’s identity; and (b) to provide to a clearance authority any information (including the person’s signature, but not any other personal identifier) required by this Act or the regulations; and (c) to comply with any requirement made by a clearance officer under section 257A to provide one or more personal identifiers to a clearance authority; and

© 2016 THOMSON REUTERS

385

s 170

Migration Act 1958

(d) if under paragraph (a) the person presents evidence to an authorised system—to provide to the authorised system a photograph or other image of the person’s face and shoulders. [Subs (1) am Act 115 of 2015, s 3 and Sch 1 items 17–19, with effect from 16 Feb 2016; Act 116 of 2014, s 3 and Sch 5 items 14 and 15, with effect from 4 Nov 2014; Act 62 of 2007, s 3 and Sch 2 item 11]

(2) A person is to comply with paragraphs (1)(a) and (b) in a prescribed way. [Subs (2) subst Act 115 of 2015, s 3 and Sch 1 item 20, with effect from 16 Feb 2016; am Act 116 of 2014, s 3 and Sch 5 item 16, with effect from 4 Nov 2014; Act 62 of 2007, s 3 and Sch 2 items 12 and 13; insrt Act 2 of 2004, s 3 and Sch 1 item 20]

Who may use an authorised system (2AA) A person may comply with a requirement referred to in subsection (1) to present or provide evidence, information or personal identifiers to an authorised system only if: (a) the person holds an eligible passport; and (c) either: (i) before the person leaves the port at which the requirement is made, a clearance officer does not require the person to present or provide evidence, information or personal identifiers referred to in subsection (1) (other than a passenger card) to a clearance officer; or (ii) if subparagraph (i) applies—a clearance officer determines that the person has complied with the requirement referred to in subsection (1). [Subs (2AA) am Act 116 of 2014, s 3 and Sch 5 items 17 and 18, with effect from 4 Nov 2014; insrt Act 62 of 2007, s 3 and Sch 2 item 14]

(2A) [Repealed] [Subs (2A) rep Act 115 of 2015, s 3 and Sch 1 item 21, with effect from 16 Feb 2016; am Act 116 of 2014, s 3 and Sch 5 items 19–21, with effect from 4 Nov 2014; Act 62 of 2007, s 3 and Sch 2 item 15; insrt Act 2 of 2004, s 3 and Sch 1 item 20]

(3) [Repealed] [Subs (3) rep Act 116 of 2014, s 3 and Sch 5 item 22, with effect from 4 Nov 2014; am Act 62 of 2007, s 3 and Sch 2 item 16; insrt Act 2 of 2004, s 3 and Sch 1 item 20]

(4) [Repealed] [Subs (4) rep Act 115 of 2015, s 3 and Sch 1 item 21, with effect from 16 Feb 2016; subst Act 116 of 2014, s 3 and Sch 5 item 23, with effect from 4 Nov 2014; insrt Act 2 of 2004, s 3 and Sch 1 item 20]

(5) [Repealed] [Subs (5) rep Act 115 of 2015, s 3 and Sch 1 item 21, with effect from 16 Feb 2016; am Act 116 of 2014, s 3 and Sch 5 items 24 and 25, with effect from 4 Nov 2014; insrt Act 2 of 2004, s 3 and Sch 1 item 20] [S 170 am Act 115 of 2015; Act 116 of 2014; Act 62 of 2007, s 3 and Sch 2 item 11; Act 2 of 2004; former s 54HQ renum Act 60 of 1994, s 83; insrt Act 184 of 1992, s 12]

171 Assistance with evidence If a person: (a) cannot comply with section 166 by presenting evidence; and [Para (a) am Act 62 of 2007, s 3 and Sch 2 item 17]

(b) requests the Department to assist him or her to obtain that evidence; that assistance may be given but only on payment of, or agreement to pay, a prescribed fee to meet the cost of doing so. [S 171 am Act 62 of 2007; former s 54HR renum Act 60 of 1994, s 83; insrt Act 184 of 1992, s 12]

386

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 5 – Immigration clearance (ss 165–175B)

s 172

172 Immigration clearance When a person is immigration cleared (1) A person is immigration cleared if, and only if: (a) the person: (i) enters Australia at a port; and (ii) complies with section 166; and (iii) leaves the port at which the person complied and so leaves with the permission of a clearance authority and otherwise than in immigration detention; or (b) the person: (i) enters Australia otherwise than at a port; and (ii) complies with section 166; and (iii) leaves the prescribed place at which the person complied and so leaves with the permission of a clearance authority and otherwise than in immigration detention; or (ba) the person: (i) enters Australia by virtue of the operation of section 10; and (ii) at the time of the person’s birth, had at least one parent who was immigration cleared on his or her last entry into Australia; or (c) the person is refused immigration clearance, or bypasses immigration clearance, and is subsequently granted a substantive visa; or (d) the person is in a prescribed class of persons. [Subs (1) am Act 85 of 2008, s 3 and Sch 3 items 1 and 3; Act 62 of 2007, s 3 and Sch 2 item 18; Subs (1) am Act 60 of 1994, s 52(a)]

When a person is in immigration clearance (2) A person is in immigration clearance if the person: (a) is with an officer or at an authorised system for the purposes of section 166; and (b) has not been refused immigration clearance. [Subs (2) am Act 62 of 2007, s 3 and Sch 2 item 19; Act 60 of 1994, s 52(b)]

When a person is refused immigration clearance (3) A person is refused immigration clearance if the person: (a) is with a clearance officer for the purposes of section 166; and (b) satisfies one or more of the following subparagraphs: (i) the person has his or her visa cancelled; (ii) the person refuses, or is unable, to present to a clearance officer evidence referred to in paragraph 166(1)(a); (iii) the person refuses, or is unable, to provide to a clearance officer information referred to in paragraph 166(1)(b); (iv) the person refuses, or is unable, to comply with any requirement referred to in paragraph 166(1)(c) to provide one or more personal identifiers to a clearance officer. [Subs (3) am Act 62 of 2007, s 3 and Sch 2 item 20; Act 2 of 2004, s 3 and Sch 1 item 21; Act 60 of 1994, s 52(c)]

When a person bypasses immigration clearance (4) A person, other than a person who is refused immigration clearance, bypasses immigration clearance if:

© 2016 THOMSON REUTERS

387

s 172

Migration Act 1958

(a)

the person: (i) enters Australia at a port; and (ii) is required to comply with section 166; and (iii) leaves that port without complying; or (b) the person: (i) enters Australia otherwise than at a port; and (ii) is required to comply with section 166; and (iii) does not comply within the prescribed period for doing so. [Subs (4) am Act 62 of 2007, s 3 and Sch 2 item 20] [S 172 am Act 85 of 2008; Act 62 of 2007; Act 2 of 2004; former s 54HS renum Act 60 of 1994, s 83; Act 60 of 1994; insrt Act 184 of 1992, s 12]

173 Visa ceases if holder enters in way not permitted (1) If the holder of a visa enters Australia in a way that contravenes section 43, or regulations to which that section is subject, the visa ceases to be in effect. [Subs (1) am Act 85 of 2008, s 3 and Sch 3 item 4, with effect from 15 Mar 2009; Act 73 of 2007, s 3 and Sch 1 item 15, with effect from 1 Jul 2007; Act 60 of 1994, s 82 and Sch 1 item 63, with effect from 1 Sep 1994]

(1A) A maritime crew visa held by a non-citizen does not cease to be in effect under subsection (1) if: (a) the non-citizen travels to and enters Australia by air; and (b) at the time the non-citizen travels to and enters Australia, the non-citizen holds another class of visa that is in effect. [Subs (1A) insrt Act 73 of 2007, s 3 and Sch 1 item 16, with effect from 1 Jul 2007]

(2) To avoid doubt, a non-citizen child who is taken to have been granted a visa or visas, at the time of the child’s birth, by virtue of the operation of section 78, is not to be taken, by virtue of that birth, to have entered Australia in a way that contravenes section 43 or regulations to which that section is subject. [Subs (2) insrt Act 85 of 2008, s 3 and Sch 3 item 5, with effect from 15 Mar 2009] [S 173 am Act 85 of 2008; Act 73 of 2007; former s 54HT renum Act 60 of 1994, s 83; am Act 60 of 1994; insrt Act 184 of 1992, s 12, with effect from 1 Sep 1994]

174 Visa ceases if holder remains without immigration clearance If the holder of a visa: (a) is required to comply with section 166; and (b) does not comply; the visa ceases to be in effect. [Former s 54HU renum Act 60 of 1994, s 83; am Act 60 of 1994, s 82 and Sch 1 item 64; insrt Act 184 of 1992, s 10]

175 Departing person to present certain evidence etc. Departing persons may be required to present evidence etc. (1) A clearance officer may require a person who is on board, or about to board, a vessel that is due to depart from a place in Australia to a place outside Australia (whether or not after calling at other places in Australia) to: (a) present the following evidence (which might include a personal identifier) to a clearance authority: (i) if the person is a citizen (whether or not the person is also the national of a country other than Australia)—the person’s Australian passport or prescribed other evidence of the person’s identity and Australian citizenship;

388

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 5 – Immigration clearance (ss 165–175B)

s 175

(ii)

if the person is a non-citizen—evidence of the person’s identity and permission to remain in Australia; and (b) provide to a clearance authority any information (including the person’s signature, but not any other personal identifier) required by this Act or the regulations; and (c) comply with any requirement made by a clearance officer under section 257A to provide one or more personal identifiers to a clearance authority; and (d) if under paragraph (a) the person presents evidence to an authorised systemprovide to the authorised system a photograph or other image of the person’s face and shoulders. [Subs (1) am Act 115 of 2015, s 3 and Sch 1 items 22–24, with effect from 16 Feb 2016; Act 116 of 2014, s 3 and Sch 5 items 26–28, with effect from 4 Nov 2014; Act 62 of 2007, s 3 and Sch 2 item 21]

(2) A person is to comply with paragraphs (1)(a) and (b) in a prescribed way. [Subs (2) subst Act 115 of 2015, s 3 and Sch 1 item 25, with effect from 16 Feb 2016; Act 116 of 2014, s 3 and Sch 5 item 29, with effect from 4 Nov 2014; am Act 62 of 2007, s 3 and Sch 2 items 22 and 23; insrt Act 2 of 2004, s 3 and Sch 1 item 22]

Who may use an authorised system (2AA) A person may comply with a requirement referred to in subsection (1) to present or provide evidence, information or personal identifiers to an authorised system only if: (a) the person holds an eligible passport; and (c) either: (i) before the vessel leaves Australia, a clearance officer does not require the person to present or provide evidence, information or personal identifiers referred to in subsection (1) (other than a passenger card) to a clearance officer; or (ii) if subparagraph (i) applies—a clearance officer determines that the person has complied with the requirement referred to in subsection (1). [Subs (2AA) am Act 116 of 2014, s 3 and Sch 5 items 30 and 31, with effect from 4 Nov 2014; insrt Act 62 of 2007, s 3 and Sch 2 item 24]

Personal identifiers provided under paragraph (1)(c) (2A) [Repealed] [Subs (2A) rep Act 115 of 2015, s 3 and Sch 1 item 26, with effect from 16 Feb 2016; am Act 116 of 2014, s 3 and Sch 5 items 32–34, with effect from 4 Nov 2014; Act 62 of 2007, s 3 and Sch 2 item 25; insrt Act 2 of 2004, s 3 and Sch 1 item 22]

(3) [Repealed] [Subs (3) rep Act 116 of 2014, s 3 and Sch 5 item 35, with effect from 4 Nov 2014; am Act 62 of 2007, s 3 and Sch 2 item 26; insrt Act 2 of 2004, s 3 and Sch 1 item 22]

(4) [Repealed] [Subs (4) rep Act 115 of 2015, s 3 and Sch 1 item 26, with effect from 16 Feb 2016; subst Act 116 of 2014, s 3 and Sch 5 item 36, with effect from 4 Nov 2014; insrt Act 2 of 2004, s 3 and Sch 1 item 22]

(5) [Repealed] [Subs (5) rep Act 115 of 2015, s 3 and Sch 1 item 26, with effect from 16 Feb 2016; am Act 116 of 2014, s 3 and Sch 5 items 37 and 38, with effect from 4 Nov 2014; insrt Act 2 of 2004, s 3 and Sch 1 item 22] [S 175 am Act 115 of 2015; Act 116 of 2014; Act 62 of 2007; Act 2 of 2004; former s 54HV renum Act 60 of 1994, s 83; insrt Act 184 of 1992, s 12]

© 2016 THOMSON REUTERS

389

s 175

Migration Act 1958

175A Determinations relating to kinds of passports For the purposes of this Division, the Minister or the Secretary may, by legislative instrument, determine that a specified kind of passport is an eligible passport. [S 175A insrt Act 62 of 2007, s 3 and Sch 2 item 27 Cross-reference: Legislative Instruments: IMMI 14/079 — Migration Act 1958 – Determination of Eligible Passports: This Determination operates to allow all passengers, with the exception of those listed in Sch A and Sch B of the Instrument, entering or departing Australia through an Australian international airport to be immigration cleared by automated border clearance technology rather than being manually cleared by a clearance officer.]

175B Collection, access and disclosure of information Collection of information (1) If a person presents or provides a document to a clearance authority under this Division, the clearance authority may collect information (including personal identifiers) in the document. Access to, and disclosure of, personal information (2) The following provisions: (a) section 336D (which authorises access to identifying information); (b) section 336E (other than subsection 336E(1)) and section 336F (which authorise disclosure of identifying information); (c) a provision of an instrument made under section 336D or 336F; apply to personal information (other than personal identifiers) collected under this Division in the same way as they apply to identifying information. Effect on interpretation (3) This section does not, by implication, affect the interpretation of any other provision of this Act or an instrument made under this Act. [S 175B insrt Act 116 of 2014, s 3 and Sch 5 item 39, with effect from 4 Nov 2014]

DIVISION 6 – CERTAIN NON-CITIZENS TO BE KEPT IN IMMIGRATION DETENTION (SS 176–187) [Div 6 heading subst Act 60 of 1994, s 82 and Sch 1 item 65; am Act 184 of 1992, s 38 and Sch] [Former Div 4B renum Act 60 of 1994, s 83; insrt Act 24 of 1992, s 3]

176 Reason for Division This Division is enacted because the Parliament considers that it is in the national interest that each non-citizen who is a designated person should be kept in immigration detention until he or she: (a) leaves Australia; or (b) is given a visa. [Para (b) am Act 60 of 1994, s 82 and Sch 1 item 66] [Former s 54J renum Act 60 of 1994, s 83; am Act 60 of 1994; Act 184 of 1992, s 38 and Sch; insrt Act 24 of 1992, s 3]

177 Interpretation In this Division: boat means a vessel of any description, but does not include an aircraft. commencement means the commencement of this Division. custody [Repealed] [Def rep Act 184 of 1992, s 38 and Sch]

390

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 6 – Certain non-citizens to be kept in immigration detention (ss 176–187)

s 179

designated person means a non-citizen who: (a) has been on a boat in the territorial sea of Australia after 19 November 1989 and before 1 September 1994; and (b) has not presented a visa; and (c) is in the migration zone; and (d) has not been granted a visa; and (e) is a person to whom the Department has given a designation by: (i) determining and recording which boat he or she was on; and (ii) giving him or her an identifier that is not the same as an identifier given to another non-citizen who was on that boat; and includes a non-citizen born in Australia whose mother is a designated person. [Def am Act 60 of 1994, s 82 and Sch 1 items 67 and 68; Act 59 of 1993, s 18; Act 235 of 1992, s 3; Act 184 of 1992, s 38 and Sch]

entry application, in relation to a person, means an application for: (a) a determination by the Minister that the person is a refugee; or (b) a visa for the person. [Def am Act 60 of 1994, s 82 and Sch 1 item 69; Act 184 of 1992, s 38 and Sch] [Former s 54K renum Act 60 of 1994, s 83; am Act 60 of 1994; Act 59 of 1993; Act 235 of 1992; Act 184 of 1992; insrt Act 24 of 1992, s 3]

178 Designated persons to be in immigration detention (1) Subject to subsection (2), after commencement, a designated person must be kept in immigration detention. [Subs (1) am Act 184 of 1992, s 38 and Sch]

(2) A designated person is to be released from immigration detention if, and only if, he or she is: (a) removed from Australia under section 181; or (b) granted a visa under section 65, 351 or 417. [Subs (2) am Act 60 of 2015, s 3 and Sch 2 item 16, with effect from 1 Jul 2015; Act 113 of 1998, s 3 and Sch 1 item 4; Act 60 of 1994, s 82 and Sch 1 item 70; Act 59 of 1993, s 35; am Act 184 of 1992, s 38 and Sch]

(3) This section is subject to section 182. (4) To avoid doubt and despite section 182, if subsection 181(3) applies to a designated person, the person must be kept in immigration detention until the person is removed from Australia under that subsection. [Subs (4) insrt Act 235 of 1992, s 4; am Act 184 of 1992, s 38 and Sch] [S 178 am Act 60 of 2015; Act 113 of 1998; former s 54L renum Act 60 of 1994, s 83; Act 60 of 1994; Act 59 of 1993; Act 235 of 1992; am Act 184 of 1992, s 38 and Sch; insrt Act 24 of 1992, s 3]

179 Beginning of immigration detention of certain designated persons (1) If, immediately after commencement, a designated person is in a place described in paragraph 11(a) (as in force at that time) or a processing area, he or she then begins to be in immigration detention for the purposes of section 178. [Subs (1) am Act 60 of 1994, s 82 and Sch 1 item 71; am Act 184 of 1992, s 38 and Sch]

(2) If, immediately after commencement, a designated person is in the company of, and restrained by, a person described in paragraph 11(b) (as in force at that time), the designated person then begins to be in immigration detention for the purposes of section 178. [Subs (2) am Act 60 of 1994, s 82 and Sch 1 item 72; am Act 184 of 1992, s 38 and Sch] [Former s 54M renum Act 60 of 1994, s 83; am Act 60 of 1994, Sch 3; am Act 184 of 1992, s 38 and Sch; insrt Act 24 of 1992, s 3]

© 2016 THOMSON REUTERS

391

s 179

Migration Act 1958

180 Detention of designated person (1) If a designated person is not in immigration detention immediately after commencement, an officer may, without warrant: (a) detain the person; and (b) take reasonable action to ensure that the person is kept in immigration detention for the purposes of section 178. [Subs (1) am Act 184 of 1992, s 38 and Sch]

(2) Without limiting the generality of subsection (1), that subsection even applies to a designated person who was held in a place described in paragraph 11(a) (as in force at that time) or a processing area before commencement and whose release was ordered by a court. [Subs (2) am Act 60 of 1994, s 82 and Sch 1 item 73]

(3) If a designated person escapes from immigration detention after commencement, an officer may, without warrant: (a) detain the person; and (b) take reasonable action to ensure that the person is kept in immigration detention for the purposes of section 178. [Subs (3) am Act 184 of 1992, s 38 and Sch] [Former s 54N renum Act 60 of 1994, s 83; am Act 60 of 1994; am Act 184 of 1992; insrt Act 24 of 1992, s 3]

181 Removal from Australia of designated persons (1) An officer must remove a designated person from Australia as soon as practicable if the designated person asks the Minister, in writing, to be removed. (2) An officer must remove a designated person from Australia as soon as practicable if: (a) the person has been in Australia for at least 2 months or, if a longer period is prescribed, at least that prescribed period; and (b) there has not been an entry application for the person. (3) An officer must remove a designated person from Australia as soon as practicable if: (a) there has been an entry application for the person; and (b) the grant of the visa has been refused; and (c) all appeals against, or reviews of, the refusal (if any) have been finalised. [Subs (3) am Act 60 of 1994, s 82 and Sch 1 item 74; Act 184 of 1992, s 38 and Sch]

(4) If: (a) 2 designated persons are liable to be removed from Australia under this section; and (b) they are the parents of another designated person in Australia who is under 18; the other designated person is to be removed from Australia. (5) If: (a) a designated person is liable to be removed from Australia under this section; and (b) he or she is the only parent in Australia of another designated person in Australia who is under 18; the other designated person is to be removed from Australia. (6) If: (a) 2 designated persons are liable to be removed from Australia under this section; and (b) they have the care and control of another designated person in Australia who: (i) is under 18; and

392

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 6 – Certain non-citizens to be kept in immigration detention (ss 176–187)

s 182

(ii) does not have a parent who is a designated person; the other designated person is to be removed from Australia. (7) If: (a) a designated person is liable to be removed from Australia under this section; and (b) he or she is the only person who has the care and control of another designated person in Australia who: (i) is under 18; and (ii) does not have a parent who is a designated person; the other designated person is to be removed from Australia. (8) This section is subject to section 182. [Former s 54P renum Act 60 of 1994, s 83; am Act 60 of 1994; insrt Act 24 of 1992, s 3]

182 No immigration detention or removal after certain period (1) Sections 178 and 181 cease to apply to a designated person who was in Australia on 27 April 1992 if the person has been in application immigration detention after commencement for a continuous period of, or periods whose sum is, 273 days. [Subs (1) am Act 184 of 1992, s 38 and Sch]

(2) Sections 178 and 181 cease to apply to a designated person who was not in Australia on 27 April 1992, if: (a) there has been an entry application for the person; and (b) the person has been in application immigration detention, after the making of the application, for a continuous period of, or periods whose sum is, 273 days. [Subs (2) am Act 184 of 1992, s 38 and Sch]

(3) For (a) (b) unless one (c)

the purposes of this section, a person is in application immigration detention if: the person is in immigration detention; and an entry application for the person is being dealt with; of the following is happening: the Department is waiting for information relating to the application to be given by a person who is not under the control of the Department; (d) the dealing with the application is at a stage whose duration is under the control of the person or of an adviser or representative of the person; (e) court or tribunal proceedings relating to the application have been begun and not finalised; (f) continued dealing with the application is otherwise beyond the control of the Department.

[Subs (3) am Act 184 of 1992, s 38 and Sch]

(4) To avoid doubt, an entry application that has been refused is not being dealt with within the meaning of paragraph (3)(b) because only there could be an appeal against, or an application for the review of, the refusal. [Subs (4) insrt Act 235 of 1992, s 5]

(5) If: (a) an entry application for a designated person has been refused; and

© 2016 THOMSON REUTERS

393

s 182

Migration Act 1958

(b) because of a direction or decision of a court or tribunal, the application is required to be considered further; whichever of subsection (1) or (2) applies to the designated person so applies as if the reference in it to 273 days were a reference to that number of days increased by 90 as well as by any number by which it has been increased under this subsection in relation to that entry application before. [Subs (5) insrt Act 235 of 1992, s 5]

(6) If: (a) an entry application for a designated person has been refused; and (b) apart from this subsection, section 178 would cease to apply to the person; and (c) the person begins court or tribunal proceedings in relation to the refusal; that section applies to the person during both these proceedings and the period of 90 days after they end, whether or not this subsection has applied to that entry application before. [Subs (6) insrt Act 235 of 1992, s 5] [Former s 54Q renum Act 60 of 1994, s 83; am Act 60 of 1994, Sch 3; am Act 235 of 1992; Act 184 of 1992; insrt Act 24 of 1992, s 3]

183 Courts must not release designated persons A court is not to order the release from immigration detention of a designated person. [Former s 54R renum Act 60 of 1994, s 83; am Act 184 of 1992, s 38 and Sch; insrt Act 24 of 1992, s 3]

184 No actions for certain unlawful custody [Repealed] [S 184 rep Act 102 of 1995, s 6, with effect from 24 Dec 1992; am Act 184 of 1992; insrt Act 235 of 1992, s 6, with effect from 24 Dec 1992]

185 Effect of Division on status etc. (1) This Division does not affect the other status that a designated person has under this Act except so far as the status is inconsistent with section 178, 179, 180, 181 or 183. (2) This Division does not affect the rights of a designated person under this Act except so far as they, or their exercise, are inconsistent with section 178, 179, 180, 181 or 183. [Subs (2) am Act 235 of 1992, s 7]

(3) This Division does not affect any application made by a designated person under this Act except so far as the application, or the success of the application, is inconsistent with section 178, 179, 180, 181 or 183. [Former s 54S renum Act 60 of 1994, s 83; am Act 235 of 1992; insrt Act 24 of 1992, s 3]

186 Division applies despite other laws If this Division is inconsistent with another provision of this Act or with another law in force in Australia, whether written or unwritten, other than the Constitution: (a) this Division applies; and (b) the other law only applies so far as it is capable of operating concurrently with this Division. [Former s 54T renum Act 60 of 1994, s 83; insrt Act 24 of 1992, s 3]

187 Evidence A statement by an officer, on oath or affirmation, that the Department has given a particular person a designation described in paragraph (e) of the definition of designated person in section 177 is conclusive evidence that the Department has given that person that designation. [Former s 54U renum Act 60 of 1994, s 83; insrt Act 24 of 1992, s 3]

394

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 7 – Detention of unlawful non-citizens (ss 188–197AG)

s 189

DIVISION 7 – DETENTION OF UNLAWFUL NON-CITIZENS (SS 188–197AG) [Former Div 4C renum Act 60 of 1994, s 83; insrt Act 184 of 1992, s 13]

SUBDIVISION A – GENERAL PROVISIONS (SS 188–197) [Subdiv A heading insrt Act 79 of 2005, s 3 and Sch 1 item 8]

188 Lawful non-citizen to give evidence of being so Offıcer may require evidence (1) An officer may require a person whom the officer knows or reasonably suspects is a non-citizen to: (a) present to the officer evidence (which might include a personal identifier) of being a lawful non-citizen; or (b) present to the officer evidence (which might include a personal identifier) of the person’s identity. [Subs (1) am Act 115 of 2015, s 3 and Sch 1 item 27, with effect from 16 Feb 2016; Act 62 of 2007, s 3 and Sch 2 item 28; subst Act 2 of 2004, s 3 and Sch 1 item 23]

(2) The person must comply with the requirement within a period specified by the officer, being a prescribed period or such further period as the officer allows. (3) Regulations prescribing a period for compliance may prescribe different periods and the circumstances in which a particular prescribed period is to apply which may be: (a) when the requirement is oral; or (b) when the requirement is in writing. (4) [Repealed] [Subs (4) rep Act 115 of 2015, s 3 and Sch 1 item 28, with effect from 16 Feb 2016; am Act 62 of 2007, s 3 and Sch 2 items 28 and 29; insrt Act 2 of 2004, s 3 and Sch 1 item 24]

(4A) [Repealed] [Subs (4A) rep Act 115 of 2015, s 3 and Sch 1 item 28, with effect from 16 Feb 2016; am Act 62 of 2007, s 3 and Sch 2 item 30; insrt Act 2 of 2004, s 3 and Sch 1 item 24]

(5) [Repealed] [Subs (5) rep Act 115 of 2015, s 3 and Sch 1 item 28, with effect from 16 Feb 2016; am Act 62 of 2007, s 3 and Sch 2 item 31; insrt Act 2 of 2004, s 3 and Sch 1 item 24]

(6) [Repealed] [Subs (6) rep Act 115 of 2015, s 3 and Sch 1 item 28, with effect from 16 Feb 2016; insrt Act 2 of 2004, s 3 and Sch 1 item 24]

(7) [Repealed] [Subs (7) rep Act 115 of 2015, s 3 and Sch 1 item 28, with effect from 16 Feb 2016; insrt Act 2 of 2004, s 3 and Sch 1 item 24] [S 188 am Act 115 of 2015; Act 62 of 2007; Act 2 of 2004; former s 54V renum Act 60 of 1994, s 83; insrt Act 184 of 1992, s 13]

189 Detention of unlawful non-citizens (1) If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person. [Subs (1) am Act 128 of 2001, s 3 and Sch 1 item 2]

(2) If an officer reasonably suspects that a person in Australia but outside the migration zone: (a) is seeking to enter the migration zone (other than an excised offshore place); and

© 2016 THOMSON REUTERS

395

s 189

[189.20]

Migration Act 1958

(b) would, if in the migration zone, be an unlawful non-citizen; the officer may detain the person. [Subs (2) am Act 35 of 2013, s 3 and Sch 1 item 15; Act 128 of 2001, s 3 and Sch 1 item 3; Act 60 of 1994, s 82 and Sch 1 item 75]

(3) If an officer knows or reasonably suspects that a person (other than a person referred to in subsection (3A)) in an excised offshore place is an unlawful non-citizen, the officer must detain the person. [Subs (3) am Act 113 of 2012, s 3 and Sch 1 items 11 and 12; insrt Act 128 of 2001, s 3 and Sch 1 item 4]

(3A) If an officer knows or reasonably suspects that a person in a protected area: (a) is a citizen of Papua New Guinea; and (b) is an unlawful non-citizen; the officer may detain the person. [Subs (3A) am Act 35 of 2013, s 3 and Sch 1 item 16; insrt Act 113 of 2012, s 3 and Sch 1 item 13]

(4) If an officer reasonably suspects that a person in Australia but outside the migration zone: (a) is seeking to enter an excised offshore place; and (b) would, if in the migration zone, be an unlawful non-citizen; the officer may detain the person. [Subs (4) insrt Act 128 of 2001, s 3 and Sch 1 item 4]

(5) In subsections (3), (3A) and (4) and any other provisions of this Act that relate to those subsections, officer means an officer within the meaning of section 5, and includes a member of the Australian Defence Force. [Subs (5) am Act 113 of 2012, s 3 and Sch 1 item 14; insrt Act 128 of 2001, s 3 and Sch 1 item 4] Note: See Subdivision B for the Minister’s power to determine that people who are required or permitted by this section to be detained may reside at places not covered by the definition of immigration detention in subsection 5(1). [S 189 am Act 35 of 2013; Act 113 of 2012; Act 79 of 2005, s 3 and Sch 1 item 9; Act 128 of 2001; former s 54W renum Act 60 of 1994, s 83; Act 60 of 1994; insrt Act 184 of 1992, s 13]

SECTION 189 COMMENTARY Scope ................................................................................................................................................... [189.20] KEY CASES

Where an unlawful non-citizen is detained for a specific purpose, the Minister must then proceed according to that purpose ............................................................................................................................ [189.40]

[189.20] Scope Section 189(1) requires that any person in the migration zone be detained, whom an officer reasonably suspects to be an unlawful non-citizen. Section 196(1) fixes the duration of that detention. As that provision suggests, the power to detain an unlawful non-citizen under s 189 is not unbounded and does not authorise a person to be detained at the will of the Executive: Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship (2013) 304 ALR 135; 88 ALJR 324; [2013] HCA 53 (Plaintiff M76) at [98] per Hayne J (French CJ, Crennan, Kiefel, Bell, Gageler and Keane JJ agreeing); Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 312 ALR 537; 88 ALJR 847; [2014] HCA 34 (Plaintiff S4) at [22] per French CJ, Hayne, Crennan, Kiefel and Keane JJ. Rather, for the detention to be lawful the purposes of a person’s detention must at all times, including from the outset, be ascertainable: Plaintiff M76 at [99]–[100] per Hayne J (French CJ, Crennan, Kiefel, Bell, Gageler and Keane JJ agreeing); Plaintiff S4 at [34] per French CJ, Hayne, Crennan, Kiefel 396

Migration Law

[189.40]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 7 – Detention of unlawful non-citizens (ss 188–197AG)

s 189

and Keane JJ. Further, upon fixing the basis on which a non-citizen is detained, the Executive is required to carry that purpose into effect as soon as reasonably possible. Departure from that purpose would render the detention unlawful: at [34].

KEY CASES [189.40]

Where an unlawful non-citizen is detained for a specific purpose, the Minister must then proceed according to that purpose In Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 312 ALR 537; 88 ALJR 847; [2014] HCA 34, the plaintiff had arrived at Christmas Island as an unlawful maritime arrival, and was lawfully taken into immigration detention. Section 46A(1) prevented the plaintiff from making a valid application for any visa unless the Minister decided under s 46A(2) to “lift the bar”. The plaintiff’s detention was prolonged by the Minister as he considered whether to exercise his power under s 46A(2) to permit the plaintiff to apply for a protection visa. The outcome of this process was that the Department determined that the plaintiff satisfied the requirements for the grant of a protection visa. However, the Minister did not exercise his power under s 46A(2) and, instead, exercised his power under s 195A(2) to grant the plaintiff a temporary safe haven visa and a temporary humanitarian concern visa. As a result, s 91K applied to the plaintiff, which meant that he could not validly apply for any visa other than a temporary safe haven visa. The plaintiff claimed that the exercise of power by the Minister under s 195A(2), and the subsequent visas he was granted, were invalid. French CJ, Hayne, Crennan, Kiefel and Keane JJ cited with approval at [25]–[26] the High Court’s earlier decision in Chu Keng Lim v Minister for Immigration Local Government and Ethnic Affairs (1992) 176 CLR 1; 110 ALR 97; 67 ALJR 125, which provided that the Executive could lawfully detain certain unlawful non-citizens where the statutory power to do so is an incident of the executive power to receive, investigate and determine an application by that person for permission to enter and remain in Australia. However, the High Court noted at [26] that “[i]t follows that detention under and for the purposes of the Act is limited by the purposes for which the detention is being effected”. In the plaintiff’s case, his detention was for the purposes of determining whether to permit a valid application for a visa being made and, thereafter, either for the processing of an application where the power under s 46A(2) is exercised, or for his removal from Australia under s 198. After considering the provisions of the Act which prescribe the duration of immigration detention, their Honours held at [34] that: It follows that the Executive’s consideration (while the plaintiff was in immigration detention) of whether he might seek and be granted a protection visa had to be undertaken within that framework. As already observed, the authority to detain the plaintiff is an incident of the power of the Executive to remove the plaintiff or to permit him to enter and remain in Australia, and the plaintiff’s detention is limited to what is reasonably capable of being seen as necessary to effect those purposes. The purpose for his detention had to be carried into effect as soon as reasonably practicable. Departure from that requirement would entail departure from the purpose for his detention and could be justified only if the Act were construed as permitting detention at the discretion of the Executive. The Act is not to be construed as permitting detention of that kind.

Accordingly, the High Court affirmed that, where the Minister decides to consider the exercise of power under s 46A (which, if so exercised, would permit the person to apply for any class of visa), the Minister cannot then exercise the power under s 195A, which would have the effect of limiting the classes of visa for which the person can then apply: at [45]. Relevantly, ss 46A and 195A are not independent of one another. The Minister cannot therefore circumvent s 46A by resorting to s 195A: at [46]. The majority then surmised at [47]: [T]he power which the Act provides to the Executive to prolong the detention of a detainee for consideration of the exercise of power under s 46A must be understood as abstracting from the © 2016 THOMSON REUTERS

397

s 190

Migration Act 1958

[189.40]

Minister’s power under s 195A(2) any power to grant the detainee a visa which is repugnant to the purpose for which prolongation of that detention was justified. When a person’s detention is prolonged for the purpose of considering the exercise of the power to permit the detainee to make a valid application for a visa, s 195A(2) does not give power to the Minister to grant a visa which, in effect, forbids the very thing which was the subject of uncompleted consideration warranting prolongation of the period of detention.

Having found that the Minister could not exercise other powers under the Act in a manner which would defeat the Minister’s consideration of the exercise of power under s 46A, and thereby deprive the prolongation of the plaintiff’s detention of its purpose, the High Court said certiorari should issue to quash the Minister’s decision made under s 195A. 190 Non-compliance with immigration clearance or requirement to provide personal identifier (1) For the purposes of section 189, an officer suspects on reasonable grounds that a person in Australia is an unlawful non-citizen if, but not only if, the officer knows, or suspects on reasonable grounds, that the person: (a) was required to comply with section 166; and (b) did one or more of the following: (i) bypassed, attempted to bypass, or appeared to attempt to bypass, immigration clearance; (ii) went to a clearance authority but was not able to present, or otherwise did not present, evidence required by section 166 to be presented; (iii) if a non-citizen—went to a clearance authority but was not able to provide, or otherwise did not provide, information required by section 166 to be provided; (iv) if a non-citizen—went to a clearance officer but was not able to comply with, or did not otherwise comply with, any requirement referred to in section 166 to provide one or more personal identifiers to the clearance officer. [Subs (1) am Act 62 of 2007, s 3 and Sch 2 item 32; Act 2 of 2004, s 3 and Sch 1 item 25; Act 60 of 1994, s 53]

(2) For the purposes of section 189, an officer suspects on reasonable grounds that a person in Australia is an unlawful non-citizen if, but not only if: (a) that person fails to provide a personal identifier, under section 257A, of a type or types prescribed; and (b) prescribed circumstances exist. [Subs (2) am Act 115 of 2015, s 3 and Sch 1 item 30, with effect from 16 Feb 2016; insrt Act 2 of 2004, s 3 and Sch 1 item 26] [S 190 am Act 115 of 2015, s 3 and Sch 1 item 29, with effect from 16 Feb 2016; Act 62 of 2007; Act 2 of 2004, s 3 and Sch 1 item 26; former s 54X renum Act 60 of 1994, s 83; Act 60 of 1994; insrt Act 184 of 1992, s 13]

191 End of certain detention (1) A person detained because of section 190 must be released from immigration detention if: (a) the person gives evidence of his or her identity and Australian citizenship; or (b) an officer knows or reasonably believes that the person is an Australian citizen; or (c) the person complies with section 166 and either: (i) presents to a clearance officer evidence of being a lawful non-citizen; or (ii) is granted a visa. [Subs (1) am Act 62 of 2007, s 3 and Sch 2 item 33; Act 60 of 1994, s 54]

398

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 7 – Detention of unlawful non-citizens (ss 188–197AG)

s 192

(2) A person detained because of subsection 190(2) must be released from immigration detention if: (a) the person provides to an authorised officer one or more personal identifiers of the type or types prescribed, and the officer is satisfied that the person is not an unlawful non-citizen; or (b) the person gives evidence of his or her identity and Australian citizenship; or (c) an officer knows or reasonably believes that the person is an Australian citizen; or (d) the officer becomes aware that the non-citizen’s visa is not one that may be cancelled under Subdivision C, D, FA or G of Division 3 or section 501 or 501A. [Subs (2) am Act 129 of 2014, s 3 and Sch 2 item 16, with effect from 11 Dec 2014; insrt Act 2 of 2004, s 3 and Sch 1 item 27] [S 191 am Act 129 of 2014; Act 62 of 2007; Act 2 of 2004; former s 54Y renum Act 60 of 1994, s 83; Act 60 of 1994; insrt Act 184 of 1992, s 13]

192 Detention of visa holders whose visas liable to cancellation (1) Subject to subsection (2), if an officer knows or reasonably suspects that a non-citizen holds a visa that may be cancelled under Subdivision C, D, FA or G of Division 3 or section 501 or 501A, the officer may detain the non-citizen. [Subs (1) am Act 129 of 2014, s 3 and Sch 2 item 17, with effect from 11 Dec 2014; Act 114 of 1998, s 3 and Sch 1 item 6]

(2) An unless the would: (a) (b)

officer must not detain an immigration cleared non-citizen under subsection (1) officer reasonably suspects that if the non-citizen is not detained, the non-citizen

attempt to evade the officer and other officers; or otherwise not co-operate with officers in their inquiries about the non-citizen’s visa and matters relating to the visa. (2A) [Repealed]

[Subs (2A) rep Act 115 of 2015, s 3 and Sch 1 item 31, with effect from 16 Feb 2016; insrt Act 2 of 2004, s 3 and Sch 1 item 28]

(2AA) [Repealed] [Subs (2AA) rep Act 115 of 2015, s 3 and Sch 1 item 31, with effect from 16 Feb 2016; insrt Act 2 of 2004, s 3 and Sch 1 item 28]

(2B) [Repealed] [Subs (2B) rep Act 115 of 2015, s 3 and Sch 1 item 31, with effect from 16 Feb 2016; insrt Act 2 of 2004, s 3 and Sch 1 item 28]

(2C) [Repealed] [Subs (2C) rep Act 115 of 2015, s 3 and Sch 1 item 31, with effect from 16 Feb 2016; insrt Act 2 of 2004, s 3 and Sch 1 item 28]

(3) An officer may question a non-citizen detained because of this section about the visa and matters relevant to the visa. (4) A non-citizen detained under subsection (1) must be released from questioning detention if the officer becomes aware that the non-citizen’s visa is not one that may be cancelled under Subdivision C, D, FA or G of Division 3 or section 501 or 501A. [Subs (4) am Act 129 of 2014, s 3 and Sch 2 item 17, with effect from 11 Dec 2014; Act 114 of 1998, s 3 and Sch 1 item 6]

© 2016 THOMSON REUTERS

399

s 192

Migration Act 1958

(5) A non-citizen detained under subsection (1) must be released from detention within 4 hours after being detained, unless the non-citizen is detained under section 189 because of subsection 190(2). [Subs (5) am Act 2 of 2004, s 3 and Sch 1 item 29]

(6) If the non-citizen has been detained because of subsection (1) more than once in any period of 48 hours, the 4 hours provided for by subsection (5) is reduced by so much of the earlier period of detention as occurred within that 48 hours. [Subs (6) am Act 60 of 1994, s 82 and Sch 1 item 76]

(7) In finding out whether 4 hours have passed since a non-citizen was detained, the following times are to be disregarded: (a) if the detainee is detained at a place that is inappropriate for questioning the detainee, the time that is reasonably required to take the detainee from that place to the nearest place that is appropriate; (b) any time during which the questioning is suspended or delayed to allow the detainee, or someone else on the detainee’s behalf, to communicate with a legal practitioner, friend, relative, guardian, interpreter or consular representative of the country of which the detainee is a citizen; (c) any time during which the questioning is suspended or delayed to allow a person so communicated with or an interpreter required by an officer to arrive at the place where the questioning is to take place; (d) any time during which the questioning is suspended or delayed to allow the detainee to receive medical attention; (e) any time during which the questioning is suspended or delayed because of the detainee’s intoxication; (f) any reasonable time during which the questioning is suspended or delayed to allow the detainee to rest or recuperate. Note: Section 5G may be relevant for determining relationships for the purposes of paragraph (7)(b). [Subs (7) am Act 144 of 2008, s 3 and Sch 10 item 38; Act 60 of 1994, s 82 and Sch 1 item 77]

(8) In paragraph (7)(b), guardian includes a person who is responsible, under a parenting order (within the meaning of the Family Law Act 1975), for the detainee’s long-term care, welfare and development. [Subs (8) subst Act 46 of 2006, s 3 and Sch 8 item 102; insrt Act 140 of 1995, s 3 and Sch 1 item 49] [S 192 am Act 115 of 2015; Act 129 of 2014; Act 144 of 2008; Act 46 of 2006; Act 2 of 2004; Act 114 of 1998; Act 140 of 1995; former s 54Z renum Act 60 of 1994, s 83; Act 60 of 1994; insrt Act 184 of 1992, s 13]

192A

Authorisation of identification tests in certain cases [Repealed]

[S 192A rep Act 115 of 2015, s 3 and Sch 1 item 32, with effect from 16 Feb 2016; insrt Act 2 of 2004, s 3 and Sch 1 item 30]

193 Application of law to certain non-citizens while they remain in immigration detention (1) Sections 194 and 195 do not apply to a person: (a) detained under subsection 189(1): (i) on being refused immigration clearance; or (ii) after bypassing immigration clearance; or (iii) after being prevented from leaving a vessel under section 249; or (iv) because of a decision the Minister has made personally under section 501, 501A or 501B to refuse to grant a visa to the person or to cancel a visa that has been granted to the person; or

400

Migration Law

[189.40]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 7 – Detention of unlawful non-citizens (ss 188–197AG)

s 194

(b) detained under subsection 189(1) who: (i) has entered Australia after 30 August 1994; and (ii) has not been immigration cleared since last entering; or (c) detained under subsection 189(2), (3), (3A) or (4); or (d) detained under section 189 who: (i) held an enforcement visa that has ceased to be in effect; and (ii) has not been granted a substantive visa since the enforcement visa ceased to be in effect. [Subs (1) am Act 113 of 2012, s 3 and Sch 1 item 15; Act 85 of 2008, s 3 and Sch 4 item 2; Act 128 of 2001, s 3 and Sch 1 item 5; Act 160 of 1999, s 3 and Sch 1 item 26; Act 114 of 1998, s 3 and Sch 1 item 7]

(2) Apart from section 256, nothing in this Act or in any other law (whether written or unwritten) requires the Minister or any officer to: (aa) give a person covered by subsection (1) an application form for a visa; or (a) advise a person covered by subsection (1) as to whether the person may apply for a visa; or (b) give a person covered by subsection (1) any opportunity to apply for a visa; or (c) allow a person covered by subsection (1) access to advice (whether legal or otherwise) in connection with applications for visas. [Subs (2) am Act 89 of 1999, s 3 and Sch 1 item 1]

(3) If: (a) a person covered by subsection (1) has not made a complaint in writing to the Australian Human Rights Commission, paragraph 20(6)(b) of the Australian Human Rights Commission Act 1986 does not apply to the person; and (b) [Repealed] (c) a person covered by subsection (1) has not made a complaint to the Postal Industry Ombudsman, paragraph 7(3)(b) of the Ombudsman Act 1976 (as that paragraph applies because of section 19R of that Act) does not apply to the person. [Subs (3) am Act 70 of 2009, s 3 and Sch 3 items 43 and 44; Act 25 of 2006, s 3 and Sch 1 items 15 and 16 (am Act 141 of 2005); Act 141 of 2005, s 3 and Sch 2 item 26; Act 89 of 1999, s 3 and Sch 1 item 3; insrt Act 89 of 1999, s 3 and Sch 1 item 2]

(4) This section applies to a person covered by subsection (1) for as long as the person remains in immigration detention. [Subs (4) insrt Act 89 of 1999, s 3 and Sch 1 item 2] [S 193 am Act 113 of 2012; Act 70 of 2009; Act 85 of 2008; Act 25 of 2006; Act 141 of 2005; Act 128 of 2001; Act 160 of 1999; Act 89 of 1999, s 3 and Sch 1 item 2; Act 114 of 1998; former s 54ZA renum Act 60 of 1994, s 83; subst Act 60 of 1994, s 55; insrt Act 184 of 1992, s 13]

194 Detainee to be told of consequences of detention As soon as reasonably practicable after an officer detains a person under section 189, the officer must ensure that the person is made aware of: (a) the provisions of sections 195 and 196; and (b) if a visa held by the person has been cancelled under section 137J—the provisions of section 137K. [S 194 subst Act 168 of 2000, s 3 and Sch 1 item 7; former s 54ZB renum Act 60 of 1994, s 83; insrt Act 184 of 1992, s 13]

© 2016 THOMSON REUTERS

401

s 195

Migration Act 1958

[194.20]

SECTION 194 COMMENTARY [194.20]

Scope

Under this section, the officer who detains a person under s 189, is the officer that is required to make the person aware of his or her rights to make an application for a visa, which includes the time limits for making the visa: Commonwealthv Fernando (2012) 200 FCR 1; 126 ALD 10; 287 ALR 267; [2012] FCAFC 18 at [72] per Gray, Rares and Tracey JJ; Yap v Minister for Immigration (2014) 291 FLR 54; [2014] FCCA 2476 [37]–[38] per Driver J. 195 Detainee may apply for visa (1) A detainee may apply for a visa: (a) within 2 working days after the day on which section 194 was complied with in relation to his or her detention; or (b) if he or she informs an officer in writing within those 2 working days of his or her intention to so apply—within the next 5 working days after those 2 working days. [Subs (1) am Act 60 of 1994, s 82 and Sch 1 item 78]

(2) A detainee who does not apply for a visa within the time allowed by subsection (1) may not apply for a visa, other than a bridging visa or a protection visa, after that time. [former s 54ZC renum Act 60 of 1994, s 83; am Act 60 of 1994; insrt Act 184 of 1992, s 13]

195A Minister may grant detainee visa (whether or not on application) Persons to whom section applies (1) This section applies to a person who is in detention under section 189. Minister may grant visa (2) If the Minister thinks that it is in the public interest to do so, the Minister may grant a person to whom this section applies a visa of a particular class (whether or not the person has applied for the visa). (3) In exercising the power under subsection (2), the Minister is not bound by Subdivision AA, AC or AF of Division 3 of this Part or by the regulations, but is bound by all other provisions of this Act. Minister not under duty to consider whether to exercise power (4) The Minister does not have a duty to consider whether to exercise the power under subsection (2), whether he or she is requested to do so by any person, or in any other circumstances. Minister to exercise power personally (5) The power under subsection (2) may only be exercised by the Minister personally. Tabling of information relating to the granting of visas (6) If the Minister grants a visa under subsection (2), he or she must cause to be laid before each House of the Parliament a statement that (subject to subsection (7)): (a) states that the Minister has granted a visa under this section; and (b) sets out the Minister’s reasons for granting the visa, referring in particular to the Minister’s reasons for thinking that the grant is in the public interest. (7) A statement under subsection (6) in relation to a decision to grant a visa is not to include: (a) the name of the person to whom the visa is granted; or

402

Migration Law

[195A.20]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 7 – Detention of unlawful non-citizens (ss 188–197AG)

s 195A

(b) any information that may identify the person to whom the visa is granted; 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 grant of the visa—the name of that other person or any information that may identify that other person. (8) A statement under subsection (6) is to be laid before each House of the Parliament within 15 sitting days of that House after: (a) if the decision to grant the visa is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or (b) if the decision to grant the visa is made between 1 July and 31 December (inclusive) in a year—1 January in the following year. [S 195A insrt Act 79 of 2005, s 3 and Sch 1 item 10]

SECTION 195A COMMENTARY Scope ................................................................................................................................................. [195A.20] CONCEPTS

Public interest ................................................................................................................................... [195A.40] The Minister does not have a duty to consider .............................................................................. [195A.60] KEY CASES

Common law rules of procedural fairness apply once the Minister has decided to consider whether or not to exercise the power under s 195A(2) ....................................................................................... [195A.80] Where an unlawful maritime arrival is detained for the purposes of considering the exercise of power under s 46A(2), the Minister cannot then exercise the power under s 195A(2) in order to circumvent s 46A: the interaction between s 46A and 195A ............................................................................. [195A.100] PRACTICE POINT

Consideration of matter in relation to s 195A .............................................................................. [195A.120] Writ of mandamus, prohibition or an injunction .......................................................................... [195A.130]

[195A.20] Scope Section 195A applies to any person who is in immigration detention under s 189: s 195A(1). Relevantly, s 195A(2) empowers the Minister to grant an unlawful non-citizen in detention a visa of any class, whether the unlawful non-citizen has applied for that visa or any other visa. Like the power in s 46A(2), the power in s 195A(2) may only be exercised by the Minister personally, and is non-compellable: s 195A(5) and (4), respectively. The power given by s 46A is, in effect, to determine that an offshore entry person may make a valid application for a visa of a specified class. The power given by s 195A, on the other hand, is to grant a visa without any valid application for that visa being made. As with s 46A(2), the only express condition placed upon the exercise of power under s 195A(2) is that the “Minister thinks that it is in the public interest to do so”. Further, the power is non-compellable in the sense that the Minister has no positive obligation to consider exercising the power conferred by s 195A(2). This carries the implication that mandamus and, therefore, certiorari will not (ordinarily) issue in respect of any legal error in the exercise of power: Plaintiff M61/2010 v Commonwealth (2010) 243 CLR 319; 272 ALR 14; [2010] HCA 41 (Offshore Processing Case) at [8], [62], [70], [100]. In the Offshore Processing Case, the High Court noted that the Act must be understood as empowering and enabling the Minister and the Department to respond to Australia’s protection obligations, including its non-refoulement obligations under the Refugees Convention. By © 2016 THOMSON REUTERS

403

s 195A

Migration Act 1958

[195A.40]

inserting ss 46A and 198A into the Act (since repealed), the High Court said that the legislature had expressed an intention to “adhere to that understanding of Australia’s obligations under the Refugees Convention and the Refugees Protocol that informed other provisions made by the Act”: at [34]. Although the High Court did not express as much, these comments would equally apply to s 195A, which was inserted by the Migration Amendment (Detention Arrangements) Act 2005 (Cth). Indeed, the High Court noted that s 198 should be read as accommodating the taking of steps for the purpose of informing the Minister of matters relevant to the possible exercise of power under either s 46A or 195A: at [35]–[36]. Relevantly, in the Offshore Processing Case, the High Court had cause to consider an announcement by the then Government on 29 July 2008 that people who attempted to enter Australia by an unauthorised boat would have their asylum claims processed on Christmas Island: at [37]–[40]. To this end, the Department developed a two-stage process (that is, an internal “Refugee Status Assessment” (or RSA) and an external “Independent Merits Review” (or IMR)) by which the Minister would be advised as to whether Australia’s protection obligations under the Refugees Convention were engaged in respect of each unauthorised maritime arrival. The High Court held that the RSA and the IMR processes were the first “steps” in the process of the Minister exercising the power under either s 46A or 195A and, therefore, those processes were required to be procedurally fair and by reference to correct legal principles, correctly applied: [77]–[78]. While the government’s policy in relation to ss 46A and 195A (and, indeed, any other provision of the Act) will continue to change over time, the case law that has developed regarding its interpretation will continue to apply where similar factual circumstances arise in the future (for instance, where past policies are revisited or revised). For the avoidance of doubt, the commentary in this section that is directed to s 46A applies equally to s 195A.

CONCEPTS [195A.40] Public interest The only condition expressly stated for the exercise of the Minister’s power under s 195A(2) is “[i]f the Minister thinks that it is in the public interest to do so”. In Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship (2013) 304 ALR 135; 88 ALJR 324; [2013] HCA 53 at [26] (Plaintiff M76), French CJ observed that the “public interest” in the context of s 46A(2) may allow the Minister to have regard to a range of considerations, consistent with the subject matter, scope and purpose of the Act: see also Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 496; [1948] 1 ALR 89; [1947] HCA 21 at 90 (ALR) per Latham CJ, at 94 - 95 (ALR) per Dixon J. French CJ noted that those considerations are not limited to the criteria for the grant of the type of visa being sought. However, Hayne J said in obiter, in Plaintiff M76, that while the “public interest” condition creates a wide discretion, the Minister chose to identify only one issue which would bear upon the decision whether or not to “lift the bar” – that is, whether or not the plaintiff in that case was a refugee: at [87]–[88]. His Honour went on to note at [91]: Having decided to consider whether to make a determination under s 46A(2), the Minister had to conclude that consideration. Having identified only one issue as relevant to the decision to lift the bar, the Minister could not make that decision by reference to any other consideration.

Hayne J added that, where a person has been detained for the purposes of the Minister considering whether or not to exercise the power under s 46A(2), if the Minister were permitted by the Act to subsequently refuse to conclude, or to stop, consideration of whether to lift the bar, the Act would thereby authorise detention of the person at the will of the Minister: at [93]–[94]. His Honour stated that such a construction of the Act should not be adopted. Hayne J further 404

Migration Law

[195A.80]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 7 – Detention of unlawful non-citizens (ss 188–197AG)

s 195A

said that “having decided to determine whether or not to lift the bar, the Minister should be held to be bound to make that decision and to do so within a reasonable time”: at [93]. While the other justices in Plaintiff M76 did not express any opinion on the matters addressed by Hayne J at [91] and [93]–[94], a majority of the High Court in Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 312 ALR 537; 88 ALJR 847; [2014] HCA 34 held that, where a person is detained for the purposes of the Minister considering whether or not to exercise the power under s 46A(2), the Minister must then consider the exercise of power and cannot exercise other powers under the Act in a manner which would defeat consideration of the exercise of power under s 46A: at [28] and [58] per French CJ, Hayne, Crennan, Kiefel and Keane JJ. These comments, taken together with the comments of Hayne J in Plaintiff M76, suggest that, at least for persons who are in migration detention, once the Minister has identified the “public interest” basis on which the power under s 195A(2) may or may not be exercised, the Minister is thereafter unable to consider exercising the power by reference to any other matter. [195A.60] The Minister does not have a duty to consider According to s 195A(4), the Minister has no duty, and may not be compelled, to consider whether to exercise the power given by s 195A(2). While that may be the case, where the Minister has undertaken to consider the exercise of power, the Minister must do so in a procedurally fair way, and by reference to correct legal principles, correctly applied: Plaintiff M61/2010 v Commonwealth; (2010) 243 CLR 319; 272 ALR 14; [2010] HCA 41 (Offshore Processing Case) at [77]–[78]. Further, in Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship (2013) 304 ALR 135; 88 ALJR 324; [2013] HCA 53 at [91] Hayne J said in obiter that where the Minister has decided to consider whether to make a determination under s 46A(2), he “must” then do so. Arguably, his Honour’s comments apply equally to s 195A(2). Nevertheless, given the Minister is not bound to exercise the power under s 195A(2) (see the Offshore Processing Case at [77]), he or she cannot be compelled by a writ of mandamus to exercise that power. Further, there would not (ordinarily) be any utility in a writ of certiorari to quash any recommendation made to the Minister regarding the possible exercise of power under s 195A(2): Offshore Processing Case at [8], [62], [70], [100]. However, as the court noted at [8] in that case, although mandamus and certiorari are not appropriate remedies in respect of a non-compellable exercise of power, a declaration would be available and, if it is anticipated that the Minister may make further decisions under the Act by relying on a recommendation affected by legal error (for instance, by removing an unlawful non-citizen), an injunction.

KEY CASES [195A.80] Common law rules of procedural fairness apply once the Minister has decided to consider whether or not to exercise the power under s 195A(2) In Plaintiff M61/2010 v Commonwealth (2010) 243 CLR 319; 272 ALR 14; [2010] HCA 41 (Offshore Processing Case), the High Court considered the effect of an announcement by the then government, on 29 July 2008, that, in future, people who attempted to enter Australia by an unauthorised boat would have their asylum claims processed on Christmas Island: at [37]–[40]. To implement this policy, the Department developed a two-stage process (that is, an internal “Refugee Status Assessment” (or RSA) and an external “Independent Merits Review” (or IMR)) by which the Minister would be advised as to whether Australia’s protection obligations under the Refugees Convention were engaged in respect of each unauthorised maritime arrival. If Australia’s protection obligations were assessed to be engaged, a submission would be made to the Minister recommending that the power under either s 46A(2) or 195A(2) be exercised. © 2016 THOMSON REUTERS

405

s 195A

Migration Act 1958

[195A.100]

The effect of the government’s announcement of 29 July 2008, and the implementation of the RSA and IMR processes, was said by the High Court to be a decision by the Minister that he would consider exercising the powers under ss 46A and 195A in the case of all unauthorised maritime arrivals. This equated with taking the first “steps” in making a decision under those provisions such that all unauthorised maritime arrivals could expect the Minister to consider exercising those powers. Accordingly, and given the rights and interests of each unauthorised maritime arrival was to be directly affected, the High Court held in the Offshore Processing Case that the RSA and the IMR processes, which were the first steps in the Minister exercising the power under either s 46A or 195A, were required to be procedurally fair and by reference to correct legal principles, correctly applied: at [77]–[78]. The High Court noted in the Offshore Processing Case that the code of procedural fairness that applied to the former Refugee Review Tribunal is not engaged in circumstances of the kind considered in this case: at [91]. Accordingly, procedural fairness obligations are not informed by those that the Act specifically requires of the former Refugee Review Tribunal, but by the common law: see also Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505; 132 ALD 269; 296 ALR 525; [2013] FCAFC 33 at [157] per Lander and Gordon JJ (Besanko, Flick and Jagot JJ agreeing). [195A.100] Where an unlawful maritime arrival is detained for the purposes of considering the exercise of power under s 46A(2), the Minister cannot then exercise the power under s 195A(2) in order to circumvent s 46A: the interaction between s 46A and 195A In Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 312 ALR 537; 88 ALJR 847; [2014] HCA 34, the plaintiff had arrived at Christmas Island as an unlawful maritime arrival, and was lawfully taken into immigration detention. Section 46A(1) prevented the plaintiff from making a valid application for any visa unless the Minister decided under s 46A(2) to “lift the bar”. The Minister prolonged the plaintiff’s detention as he considered whether to exercise his power under s 46A(2) to permit the plaintiff to apply for a protection visa. The outcome of this process was that the Department determined that the plaintiff satisfied the requirements for the grant of a protection visa. However, the Minister did not exercise his power under s 46A(2) but, instead, exercised his power under s 195A(2) to grant the plaintiff a temporary safe haven visa and a temporary humanitarian concern visa. As a result, s 91K applied to the plaintiff, which meant that he could not validly apply for any visa other than a temporary safe haven visa. The plaintiff claimed that the exercise of power by the Minister under s 195A(2), and the subsequent visas he was granted, were invalid. French CJ, Hayne, Crennan, Kiefel and Keane JJ cited with approval the High Court’s earlier decision in Chu Keng Lim v Minister for Immigration Local Government and Ethnic Affairs (1992) 176 CLR 1; 110 ALR 97; 67 ALJR 125, which provided that the Executive could lawfully detain certain unlawful non-citizens where the statutory power to do so is an incident of the executive power to receive, investigate and determine an application by that person for permission to enter and remain in Australia: at [25]–[26]. However, the High Court noted that “[i]t follows that detention under and for the purposes of the Act is limited by the purposes for which the detention is being effected”: at [26]. In the plaintiff’s case, his detention was for the purposes of determining whether to permit a valid application for a visa to be made and, thereafter, either for the processing of an application where the power under s 46A(2) is exercised, or for his removal from Australia under s 198. After considering the provisions of the Act which prescribe the duration of immigration detention, their Honours held at [34]: It follows that the Executive’s consideration (while the plaintiff was in immigration detention) of whether he might seek and be granted a protection visa had to be undertaken within that framework. As 406

Migration Law

[195A.130]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 7 – Detention of unlawful non-citizens (ss 188–197AG)

s 195A

already observed, the authority to detain the plaintiff is an incident of the power of the Executive to remove the plaintiff or to permit him to enter and remain in Australia, and the plaintiff’s detention is limited to what is reasonably capable of being seen as necessary to effect those purposes. The purpose for his detention had to be carried into effect as soon as reasonably practicable. Departure from that requirement would entail departure from the purpose for his detention and could be justified only if the Act were construed as permitting detention at the discretion of the Executive. The Act is not to be construed as permitting detention of that kind.

Accordingly, the High Court affirmed that, where the Minister decides to consider the exercise of power under s 46A, s 195A should be construed as not permitting the Minister to grant a visa which prevents the person making an application for any visa other than that of a specified class: at [45]. Relevantly, ss 46A and 195A are not independent of one another. The Minister cannot therefore circumvent s 46A by resorting to s 195A: at [46]. French CJ, Hayne, Crennan, Kiefel and Keane JJ then surmised at [47]: [T]he power which the Act provides to the Executive to prolong the detention of a detainee for consideration of the exercise of power under s 46A must be understood as abstracting from the Minister’s power under s 195A(2) any power to grant the detainee a visa which is repugnant to the purpose for which prolongation of that detention was justified. When a person’s detention is prolonged for the purpose of considering the exercise of the power to permit the detainee to make a valid application for a visa, s 195A(2) does not give power to the Minister to grant a visa which, in effect, forbids the very thing which was the subject of uncompleted consideration warranting prolongation of the period of detention.

Having found that the Minister could not exercise other powers under the Act in a manner which would defeat the Minister’s consideration of the exercise of power under s 46A and thereby deprive the prolongation of the plaintiff’s detention of its purpose, the High Court said certiorari should issue to quash the Minister’s decision made under s 195A. While the High Court was concerned in this case with the prolonged detention of the plaintiff for the purpose of the Minister deciding whether to consider the exercise of power under s 46A(2), the ratio which emerges would arguably apply equally where an unlawful non-citizen is detained for the purpose of s 195A(2). If that were the case, the Minister could not use the power under s 46A(2) to allow a person to apply for a visa of a specified class that is unrelated to the class of visa the Minister had otherwise decided to consider granting under s 195A(2).

PRACTICE POINTS [195A.120] Consideration of matter in relation to s 195A Neither the Federal Circuit Court nor the Federal Court has the power to consider a matter in relation to s 195A because: • pursuant to s 476(2)(d), the Federal Circuit Court does not have jurisdiction to consider matters which fall within s 474(7) (this section includes matters relating to s 195A); and • pursuant to s 476A(1), the Federal Court only has original jurisdiction in relation to the matters listed in that section (s 195A is not listed). [195A.130] Writ of mandamus, prohibition or an injunction Pursuant to s 75(v) of the Constitution, the High Court has original jurisdiction to hear matters in which a writ of mandamus, prohibition or an injunction is sought against an officer of the Commonwealth. Where an application for prerogative relief is filed in the High Court’s original jurisdiction challenging a matter in relation to the exercise (or non-exercise) of the discretion in s 195A, the granting of such relief would serve no useful purpose. This is because the power under this section is non-compellable, which means that the Minister is under no duty to © 2016 THOMSON REUTERS

407

s 196

Migration Act 1958

[195A.130]

exercise that power: Minister for Immigration and Multicultural and Indigenous Affairs; Re, Ex parte Applicants S134/2002 (2003) 211 CLR 441; 195 ALR 1; [2003] HCA 1 at [100] per Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ. 196 Duration of detention (1) An unlawful non-citizen detained under section 189 must be kept in immigration detention until: (a) he or she is removed from Australia under section 198 or 199; or (aa) an officer begins to deal with the non-citizen under subsection 198AD(3); or (b) he or she is deported under section 200; or (c) he or she is granted a visa. [Subs (1) am Act 113 of 2012, s 3 and Sch 1 items 16–20]

(2) To avoid doubt, subsection (1) does not prevent the release from immigration detention of a citizen or a lawful non-citizen. (3) To avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non-citizen from detention (otherwise than as referred to in paragraph (1)(a), (aa) or (b)) unless the non-citizen has been granted a visa. [Subs (3) am Act 113 of 2012, s 3 and Sch 1 item 21; Act 60 of 1994, s 82 and Sch 1 item 79]

(4) Subject to paragraphs (1)(a), (b) and (c), if the person is detained as a result of the cancellation of his or her visa under section 501, the detention is to continue unless a court finally determines that the detention is unlawful, or that the person detained is not an unlawful non-citizen. [Subs (4) insrt Act 90 of 2003, s 3 and Sch 1 item 1]

(4A) Subject to paragraphs (1)(a), (b) and (c), if the person is detained pending his or her deportation under section 200, the detention is to continue unless a court finally determines that the detention is unlawful. [Subs (4A) insrt Act 90 of 2003, s 3 and Sch 1 item 1]

(5) To avoid doubt, subsection (4) or (4A) applies: (a) whether or not there is a real likelihood of the person detained being removed from Australia under section 198 or 199, or deported under section 200, in the reasonably foreseeable future; and (b) whether or not a visa decision relating to the person detained is, or may be, unlawful. [Subs (5) insrt Act 90 of 2003, s 3 and Sch 1 item 1]

(5A) Subsections (4) and (4A) do not affect by implication the continuation of the detention of a person to whom those subsections do not apply. [Subs (5A) insrt Act 90 of 2003, s 3 and Sch 1 item 1]

(6) This section has effect despite any other law. [Subs (6) insrt Act 90 of 2003, s 3 and Sch 1 item 1]

(7) In this section: visa decision means a decision relating to a visa (including a decision not to grant the visa, to cancel the visa or not to reinstate the visa). [Subs (7) insrt Act 90 of 2003, s 3 and Sch 1 item 1] [S 196 am Act 113 of 2012; Act 90 of 2003, s 3 and Sch 1 item 1; former s 54ZD renum Act 60 of 1994, s 83; Act 60 of 1994; insrt Act 184 of 1992, s 13]

408

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 7 – Detention of unlawful non-citizens (ss 188–197AG)

s 197AC

197 Effect of escape from immigration detention If a non-citizen: (a) was in immigration detention; and (b) escaped from that detention; and (c) was taken back into that detention; then, for the purposes of sections 194 and 195, the non-citizen is taken not to have ceased to be in immigration detention. [Former s 54ZE renum Act 60 of 1994, s 83; insrt Act 184 of 1992, s 13]

SUBDIVISION B – RESIDENCE DETERMINATIONS (SS 197AA–197AG) [Subdiv B insrt Act 79 of 2005, s 3 and Sch 1 item 11]

197AA Persons to whom Subdivision applies This Subdivision applies to a person who is required or permitted by section 189 to be detained, or who is in detention under that section. [S 197AA insrt Act 79 of 2005, s 3 and Sch 1 item 11]

197AB Minister may determine that person is to reside at a specified place rather than being held in detention centre etc. (1) If the Minister thinks that it is in the public interest to do so, the Minister may make a determination (a residence determination) to the effect that one or more specified persons to whom this Subdivision applies are to reside at a specified place, instead of being detained at a place covered by the definition of immigration detention in subsection 5(1). (2) A residence determination must: (a) specify the person or persons covered by the determination by name, not by description of a class of persons; and (b) specify the conditions to be complied with by the person or persons covered by the determination. (3) A residence determination must be made by notice in writing to the person or persons covered by the determination. [S 197AB insrt Act 79 of 2005, s 3 and Sch 1 item 11]

197AC Effect of residence determination Act and regulations apply as if person were in detention in accordance with section 189 (1) While a residence determination is in force, this Act and the regulations apply (subject to subsection (3)) to a person who is covered by the determination and who is residing at the place specified in the determination as if the person were being kept in immigration detention at that place in accordance with section 189. (2) If: (a) a person covered by a residence determination is temporarily staying at a place other than the place specified in the determination; and (b) the person is not breaching any condition specified in the determination by staying there; then, for the purposes of subsection (1), the person is taken still to be residing at the place specified in the determination. Certain provisions do not apply to people covered by residence determinations (3) Subsection (1):

© 2016 THOMSON REUTERS

409

s 197AC

Migration Act 1958

(a)

does not apply for the purposes of section 197 or 197A, or any of sections 252AA to 252E; and (b) does not apply for the purposes of any other provisions of this Act or the regulations that are specified in regulations made for the purposes of this paragraph. What constitutes release from immigration detention? (4) If: (a) a residence determination is in force in relation to a person; and (b) a provision of this Act requires the person to be released from immigration detention, or this Act no longer requires or permits the person to be detained; then, at the time when paragraph (b) becomes satisfied, the residence determination, so far as it covers the person, is revoked by force of this subsection and the person is, by that revocation, released from immigration detention. Note: Because the residence determination is revoked, the person is no longer subject to the conditions specified in the determination.

(5) If a person is released from immigration detention by operation of subsection (4), the Secretary must, as soon as possible, notify the person that he or she has been so released. Secretary must ensure section 256 complied with (6) The Secretary must ensure that a person covered by a residence determination is given forms and facilities as and when required by section 256. [S 197AC insrt Act 79 of 2005, s 3 and Sch 1 item 11]

197AD Revocation or variation of residence determination (1) If the Minister thinks that it is in the public interest to do so, the Minister may, at any time, revoke or vary a residence determination in any respect (subject to subsection (2)). Note 1: If a person covered by a residence determination does not comply with a condition specified in the determination, the Minister may (subject to the public interest test) decide to revoke the determination, or to vary the determination by altering the conditions, whether by omitting or amending one or more existing conditions or by adding one or more additional conditions. Note 2: If the Minister revokes a residence determination (without making a replacement determination) and a person covered by the determination is a person whom section 189 requires to be detained, the person will then have to be taken into detention at a place that is covered by the definition of immigration detention in subsection 5(1).

(2) Any variation of a residence determination must be such that the determination, as varied, will comply with subsections 197AB(1) and (2). (3) A revocation or variation of a residence determination must be made by notice in writing to the person or persons covered by the determination. [S 197AD insrt Act 79 of 2005, s 3 and Sch 1 item 11]

197AE Minister not under duty to consider whether to exercise powers The Minister does not have a duty to consider whether to exercise the power to make, vary or revoke a residence determination, whether he or she is requested to do so by any person, or in any other circumstances. [S 197AE insrt Act 79 of 2005, s 3 and Sch 1 item 11]

197AF Minister to exercise powers personally The power to make, vary or revoke a residence determination may only be exercised by the Minister personally. [S 197AF insrt Act 79 of 2005, s 3 and Sch 1 item 11]

410

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 7A – Offences relating to immigration detention (ss 197A–197B)

s 197B

197AG Tabling of information relating to the making of residence determinations (1) If the Minister makes a residence determination, he or she must cause to be laid before each House of the Parliament a statement that (subject to subsection (2)): (a) states that the Minister has made a determination under this section; and (b) sets out the Minister’s reasons for making the determination, referring in particular to the Minister’s reasons for thinking that the determination is in the public interest. (2) A statement under subsection (1) in relation to a residence determination is not to include: (a) the name of any person covered by the determination; or (b) any information that may identify any person covered by the determination; or (c) the address, name or location of the place specified in the determination; or (d) any information that may identify the address, name or location of the place specified in the determination; or (e) 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 determination—the name of that other person or any information that may identify that other person. (3) A statement under subsection (1) is to be laid before each House of the Parliament within 15 sitting days of that House after: (a) if the residence determination is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or (b) if the residence determination is made between 1 July and 31 December (inclusive) in a year—1 January in the following year. [S 197AG insrt Act 79 of 2005, s 3 and Sch 1 item 11]

DIVISION 7A – OFFENCES RELATING TO IMMIGRATION DETENTION (SS 197A–197B) [Div 7A insrt Act 85 of 2001, s 3 and Sch 1 item 3, with effect from 27 Jul 2001]

197A Detainees must not escape from detention A detainee must not escape from immigration detention. Penalty: Imprisonment for 5 years. [S 197A insrt Act 85 of 2001, s 3 and Sch 1 item 3, with effect from 27 Jul 2001]

197B Manufacture, possession etc. of weapons by detainees (1) A detainee commits an offence if he or she manufactures, possesses, uses or distributes a weapon. Penalty: Imprisonment for 5 years. [Subs (1) am Act 4 of 2016, s 3 and Sch 4 item 207, with effect from 10 Mar 2016; Act 81 of 2011, s 3 and Sch 1 item 1, with effect from 26 Jul 2011]

(2) In this section: weapon includes: (a) a thing made or adapted for use for inflicting bodily injury; or (b) a thing where the detainee who has the thing intends or threatens to use the thing, or intends that the thing be used, to inflict bodily injury. [S 197B am Act 4 of 2016; Act 81 of 2011; insrt Act 85 of 2001, s 3 and Sch 1 item 3, with effect from 27 Jul 2001]

© 2016 THOMSON REUTERS

411

s 197B

Migration Act 1958

DIVISION 8 – REMOVAL OF UNLAWFUL NON-CITIZENS ETC. (SS 197C–199) [Div 8 heading subst Act 113 of 2012, s 3 and Sch 1 item 22] [Former Div 4D renum Act 60 of 1994, s 83; insrt Act 184 of 1992, s 13]

SUBDIVISION A – REMOVAL (SS 197C–198) [Subdiv A heading insrt Act 113 of 2012, s 3 and Sch 1 item 23]

197C Australia’s non-refoulement obligations irrelevant to removal of unlawful non-citizens under section 198 (1) For the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen. (2) An officer’s duty to remove as soon as reasonably practicable an unlawful non-citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia’s non-refoulement obligations in respect of the non-citizen. [S 197C insrt Act 135 of 2014, s 3 and Sch 5 item 2, with effect from 16 Dec 2014]

198 Removal from Australia of unlawful non-citizens Removal on request (1) An officer must remove as soon as reasonably practicable an unlawful non-citizen who asks the Minister, in writing, to be so removed. [Subs (1) am Act 135 of 2014, s 3 and Sch 6 item 4, with effect from 16 Dec 2014]

Removal of transitory persons brought to Australia for a temporary purpose (1A) In the case of an unlawful non-citizen who has been brought to Australia under section 198B for a temporary purpose, an officer must remove the person as soon as reasonably practicable after the person no longer needs to be in Australia for that purpose (whether or not the purpose has been achieved). Note: Some unlawful non-citizens are transitory persons. Section 198B provides for transitory persons to be brought to Australia for a temporary purpose. See the definition of transitory person in subsection 5(1). [Subs (1A) am Act 135 of 2014, s 3 and Sch 6 items 5 and 6, with effect from 16 Dec 2014; insrt Act 10 of 2002, s 3 and Sch 1 item 4]

(1B) Subsection (1C) applies if: (a) an unlawful non-citizen who is not an unauthorised maritime arrival has been brought to Australia under section 198B for a temporary purpose; and (b) the non-citizen gives birth to a child while the non-citizen is in Australia; and (c) the child is a transitory person within the meaning of paragraph (e) of the definition of transitory person in subsection 5(1). [Subs (1B) insrt Act 135 of 2014, s 3 and Sch 6 item 7, with effect from 16 Dec 2014]

(1C) An officer must remove the non-citizen and the child as soon as reasonably practicable after the non-citizen no longer needs to be in Australia for that purpose (whether or not that purpose has been achieved). [Subs (1C) insrt Act 135 of 2014, s 3 and Sch 6 item 7, with effect from 16 Dec 2014]

Removal of unlawful non-citizens in other circumstances (2) An officer must remove as soon as reasonably practicable an unlawful non-citizen: (a) who is covered by subparagraph 193(1)(a)(i), (ii) or (iii) or paragraph 193(1)(b), (c) or (d); and (b) who has not subsequently been immigration cleared; and (c) who either:

412

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 8 – Removal of unlawful non-citizens etc. (ss 197C–199)

s 198

(i)

has not made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; or (ii) has made a valid application for a substantive visa, that can be granted when the applicant is in the migration zone, that has been finally determined. [Subs (2) am Act 135 of 2014, s 3 and Sch 6 item 7, with effect from 16 Dec 2014; Act 160 of 1999, s 3 and Sch 1 items 27 and 64; Act 114 of 1998, s 3 and Sch 1 item 8; Act 60 of 1994, s 56(a)–(c)]

(2A) An officer must remove as soon as reasonably practicable an unlawful non-citizen if: (a) the non-citizen is covered by subparagraph 193(1)(a)(iv); and (b) since the Minister’s decision (the original decision) referred to in subparagraph 193(1)(a)(iv), the non-citizen has not made a valid application for a substantive visa that can be granted when the non-citizen is in the migration zone; and (c) in a case where the non-citizen has been invited, in accordance with section 501C, to make representations to the Minister about revocation of the original decision—either: (i) the non-citizen has not made representations in accordance with the invitation and the period for making representations has ended; or (ii) the non-citizen has made representations in accordance with the invitation and the Minister has decided not to revoke the original decision. Note: The only visa that the non-citizen could apply for is a protection visa or a visa specified in regulations under section 501E. [Subs (2A) insrt Act 114 of 1998, s 3 and Sch 1 item 9]

(3) The fact that an unlawful non-citizen is eligible to apply for a substantive visa that can be granted when the applicant is in the migration zone but has not done so does not prevent the application of subsection (2) or (2A) to him or her. [Subs (3) am Act 114 of 1998, s 3 and Sch 1 item 10; Act 60 of 1994, s 56(d) and (e)]

(4) [Repealed] [Subs (4) rep Act 89 of 1999, s 3 and Sch 1 item 4; am Act 114 of 1998, s 3 and Sch 1 item 11]

(5) An officer must remove as soon as reasonably practicable an unlawful non-citizen if the non-citizen: (a) is a detainee; and (b) neither applied for a substantive visa in accordance with subsection 195(1) nor applied under section 137K for revocation of the cancellation of a substantive visa; regardless of whether the non-citizen has made a valid application for a bridging visa. [Subs (5) am Act 106 of 2014, s 3 and Sch 2 item 1, with effect from 25 Sep 2014; Act 168 of 2000, s 3 and Sch 1 item 8]

(5A) Despite subsection (5), an officer must not remove an unlawful non-citizen if: (a) the non-citizen has made a valid application for a protection visa (even if the application was made outside the time allowed by subsection 195(1)); and (b) either: (i) the grant of the visa has not been refused; or (ii) the application has not been finally determined. [Subs (5A) insrt Act 106 of 2014, s 3 and Sch 2 item 2, with effect from 25 Sep 2014]

(6) An officer must remove as soon as reasonably practicable an unlawful non-citizen if: (a) the non-citizen is a detainee; and (b) the non-citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and

© 2016 THOMSON REUTERS

413

s 198

Migration Act 1958

(c)

(d) (7) An (a) (b) (c)

(d)

one of the following applies: (i) the grant of the visa has been refused and the application has been finally determined; (iii) the visa cannot be granted; and the non-citizen has not made another valid application for a substantive visa that can be granted when the applicant is in the migration zone. officer must remove as soon as reasonably practicable an unlawful non-citizen if: the non-citizen is a detainee; and Subdivision AI of Division 3 of this Part applies to the non-citizen; and either: (i) the non-citizen has not been immigration cleared; or (ii) the non-citizen has not made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and either: (i) the Minister has not given a notice under paragraph 91F(1)(a) to the non-citizen; or (ii) the Minister has given such a notice but the period mentioned in that paragraph has ended and the non-citizen has not, during that period, made a valid application for a substantive visa that can be granted when the applicant is in the migration zone.

[Subs (7) am Act 1 of 1995, s 3 and Sch items 3 and 4; insrt Act 136 of 1994, s 3 and Sch item 2]

(8) An (a) (b) (c)

officer must remove as soon as reasonably practicable an unlawful non-citizen if: the non-citizen is a detainee; and Subdivision AJ of Division 3 of this Part applies to the non-citizen; and either: (i) the Minister has not given a notice under subsection 91L(1) to the non-citizen; or (ii) the Minister has given such a notice but the period mentioned in that subsection has ended and the non-citizen has not, during that period, made a valid application for a substantive visa that can be granted when the applicant is in the migration zone.

[Subs (8) insrt Act 34 of 1999, s 3 and Sch 1 item 9]

(9) An (a) (b) (c)

officer must remove as soon as reasonably practicable an unlawful non-citizen if: the non-citizen is a detainee; and Subdivision AK of Division 3 of this Part applies to the non-citizen; and either: (i) the non-citizen has not been immigration cleared; or (ii) the non-citizen has not made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and (d) either: (i) the Minister has not given a notice under subsection 91Q(1) to the non-citizen; or (ii) the Minister has given such a notice but the period mentioned in that subsection has ended and the non-citizen has not, during that period, made a valid application for a substantive visa that can be granted when the applicant is in the migration zone.

[Subs (9) insrt Act 160 of 1999, s 3 and Sch 1 item 68]

414

Migration Law

[198.60]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 8 – Removal of unlawful non-citizens etc. (ss 197C–199)

s 198

(10) For the purposes of subsections (6) to (9), a valid application under section 137K for revocation of the cancellation of a visa is treated as though it were a valid application for a substantive visa that can be granted when the applicant is in the migration zone. [Subs (10) insrt Act 168 of 2000, s 3 and Sch 1 item 9]

(11) This section does not apply to an unauthorised maritime arrival to whom section 198AD applies. [Subs (11) am Act 35 of 2013, s 3 and Sch 1 item 17; insrt Act 113 of 2012, s 3 and Sch 1 item 24] [S 198 am Act 135 of 2014; Act 106 of 2014; Act 35 of 2013; Act 113 of 2012; Act 10 of 2002; Act 168 of 2000; Act 160 of 1999; Act 89 of 1999; Act 34 of 1999; Act 114 of 1998; Act 1 of 1995; Act 136 of 1994; former s 54ZF renum Act 60 of 1994, s 83; Act 60 of 1994; insrt Act 184 of 1992, s 13]

SECTION 198 COMMENTARY Scope ................................................................................................................................................... [198.20] CONCEPTS

Remove ................................................................................................................................................ [198.40] Reasonably practicable ........................................................................................................................ [198.60]

[198.20] Scope Section 198(1) – (9) set out the circumstances in which an officer is obliged to remove an unlawful non-citizen: M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 146; 199 ALR 290; [2003] FCAFC 131 at [24]. The obligation imposed on an officer to remove a non-citizen is subject to the removal being “reasonably practicable”. There have been a number of cases which have considered s 198 and have “led to broad and unintended interpretations of Australia’s protection obligations under the Refugees Convention and other international treaties”: Explanatory Memorandum to the Migration and Maritime Powers Legislation Amendments (Resolving the Asylum Legacy Caseload) Bill 2014 (Explanatory Memorandum) at [1133]. One of those interpretations being that the Minister is required to consider Australia’s non-refoulement obligations before removing an unlawful non-citizen under s 198. Those cases include, among others: Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144; 280 ALR 18; [2011] HCA 32; Plaintiff M61/2010 v Commonwealth (2010) 243 CLR 319; 272 ALR 14; [2010] HCA 41; Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505; 132 ALD 269; 296 ALR 525; [2013] FCAFC 33: Explanatory Memorandum at [1133]–[1135] and [1139]. As a result, s 197C was inserted by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) to make clear that the removal power under s 198 is “available independent of assessments of Australia’s non-refoulement obligations, where a non-citizen meets the circumstances specified in the express provisions” of s 198: Explanatory Memorandum at p 9 and [1130].

CONCEPTS [198.40] Remove Section 5(1) provides that “remove” means to remove from Australia. [198.60] Reasonably practicable An officer’s duty to remove a non-citizen under the various subsections of s 198 is conditioned by the requirement that it be “reasonably practicable” to do so. Whether it is reasonably © 2016 THOMSON REUTERS

415

s 198

Migration Act 1958

[198.60]

practicable, in a given case, to remove a non-citizen, may depend on a number of factors. These may include a person’s health, the availability of an operating airport, or the willingness of another country to allow the person to enter its territorial boundaries: see NATB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 506; 80 ALD 799; [2003] FCAFC 292 at [52] per Wilcox, Lindgren and Bennet JJ. Prior to 16 December 2014 (when s 197C was inserted), a factor which may have been relevant to the question of whether it was “reasonably practicable” to remove someone, was Australia’s “non-refoulement” obligation under the Refugees Convention. This obligation was described by Goldberg, Weinberg and Kenny JJ in M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 146; 199 ALR 290; [2003] FCAFC 131 at [38]: Article 33 of the Refugees Convention states the principle of non-refoulement, which applies to persons who are refugees within the meaning of Art 1. Although the definition of “refugee” in Art 1 and the identification of persons subject to the non-refoulement obligation in Art 33 differ, it is clear that the obligation against non-refoulement applies to persons who are determined to be refugees under Art 1.

Prior to the insertion of s 197C, the power to remove a detainee from Australia was subject to the “non-refoulement” obligation, which meant that the Minister had no power to remove a person from Australia to any country where the detainee would have a well-founded fear of persecution for grounds recognised in the Refugees Convention. In other words, where the detainee was found to be a refugee, an officer would not be authorised to remove the person under s 198(6) to the country where he or she would be exposed to harm: Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144; 280 ALR 18; [2011] HCA 32 at [54] per French CJ, at [214] per Kiefel J (Gummow, Hayne, Crennan and Bell JJ agreeing, Heydon J dissenting but silent on this point); Plaintiff M47-2012 v Director General of Security (2012) 292 ALR 243; 86 ALJR 1372; [2012] HCA 46 at [99], [150] per Gummow J, at [294] per Heydon J, at [509] per Bell J (French CJ, Hayne, Crennan and Kiefel JJ silent on this point); MZYYO v Minister for Immigration and Citizenship [2013] FCA 49 at [49], [65]. Section 197C was inserted to overcome various decisions which have held that the Act is “designed to address Australia’s non-refoulement obligations”: Explanatory Memorandum to the Migration and Maritime Powers Legislation Amendments (Resolving the Asylum Legacy Caseload) Bill 2014 (Explanatory Memorandum) at p 9. Generally, however, a person who claims to be a refugee under the Refugees Convention will have made an application for a protection visa under s 36. Section 198(5A)(b)(ii) and (6)(c)(i) prevent the removal of such a person unless and until the application has been “finally determined”. Where a protection visa has been refused and finally determined, Australia’s non-refoulement obligations will, in effect, have already been assessed: see, for example, M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 146; 199 ALR 290; [2003] FCAFC 131 at [70]–[71]. Prior to the amendments to the Act by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (MMP Act), it was possible in some circumstances that, after the Minister had determined a person not to be a refugee, a non-citizen may have new and additional claims, not previously considered, that would make their removal not reasonably practicable. Thus, in Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505; 132 ALD 269; 296 ALR 525; [2013] FCAFC 33, a majority of the Full Court of the Federal Court held that a detainee could not be removed in circumstances where their claims under the “Complementary Protection Regime” had not been considered (that regime having been introduced to s 36 after a delegate of the Minister had determined that SZQRB was not a refugee, but before SZQRB had been afforded a merits 416

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 8 – Removal of unlawful non-citizens etc. (ss 197C–199)

[198.60]

s 198AB

review) at [311] and [313] per Besanko and Jagot JJ. However, the Explanatory Memorandum makes it clear that this case is “no longer ‘good law’ for the purposes of removal of unlawful non-citizens under s 198”: at [1139]. Another possible factor is whether a person in detention has been given an opportunity to avail himself or herself of s 256, to obtain legal advice or to take legal proceedings in relation to his or her immigration detention. If such a reasonable opportunity has been given to a person then it may “not be inappropriate for the removal of that person to occur”: SZSPI v Minister for Immigration and Border Protection (2014) 317 ALR 1; [2014] FCAFC 140 at [40] per Allsop CJ, Mansfield and Besanko JJ. 198A

[Repealed]

[S 198A rep Act 113 of 2012, s 3 and Sch 1 item 25; insrt Act 128 of 2001, s 3 and Sch 1 item 6]

SUBDIVISION B – REGIONAL PROCESSING (SS 198AA–198AJ) [Subdiv B heading insrt Act 113 of 2012, s 3 and Sch 1 item 25]

198AA Reason for Subdivision This Subdivision is enacted because the Parliament considers that: (a) people smuggling, and its undesirable consequences including the resulting loss of life at sea, are major regional problems that need to be addressed; and (b) unauthorised maritime arrivals, including unauthorised maritime arrivals in respect of whom Australia has or may have protection obligations under the Refugees Convention as amended by the Refugees Protocol, should be able to be taken to any country designated to be a regional processing country; and [Para (b) am Act 35 of 2013, s 3 and Sch 1 item 18]

(c)

it is a matter for the Minister and Parliament to decide which countries should be designated as regional processing countries; and (d) the designation of a country to be a regional processing country need not be determined by reference to the international obligations or domestic law of that country. [S 198AA am Act 35 of 2013; insrt Act 113 of 2012, s 3 and Sch 1 item 25]

198AB Regional processing country (1) The Minister may, by legislative instrument, designate that a country is a regional processing country. (1A) A legislative instrument under subsection (1): (a) may designate only one country; and (b) must not provide that the designation ceases to have effect. (1B) Despite subsection 12(1) of the Legislation Act 2003, a legislative instrument under subsection (1) of this section commences at the earlier of the following times: (a) immediately after both Houses of the Parliament have passed a resolution approving the designation; (b) immediately after both of the following apply: (i) a copy of the designation has been laid before each House of the Parliament under section 198AC; (ii) 5 sitting days of each House have passed since the copy was laid before that House without it passing a resolution disapproving the designation. [Subs (1B) am Act 126 of 2015, s 3 and Sch 1 item 384, with effect from 5 Mar 2016]

© 2016 THOMSON REUTERS

417

s 198AB

Migration Act 1958

(2) The only condition for the exercise of the power under subsection (1) is that the Minister thinks that it is in the national interest to designate the country to be a regional processing country. (3) In considering the national interest for the purposes of subsection (2), the Minister: (a) must have regard to whether or not the country has given Australia any assurances to the effect that: (i) the country will not expel or return a person taken to the country under section 198AD to another country where his or her life or freedom would be threatened on account of his or her race, religion, nationality, membership of a particular social group or political opinion; and (ii) the country will make an assessment, or permit an assessment to be made, of whether or not a person taken to the country under that section is covered by the definition of refugee in Article 1A of the Refugees Convention as amended by the Refugees Protocol; and (b) may have regard to any other matter which, in the opinion of the Minister, relates to the national interest. (4) The assurances referred to in paragraph (3)(a) need not be legally binding. (5) The power under subsection (1) may only be exercised by the Minister personally. (6) If the Minister designates a country under subsection (1), the Minister may, by legislative instrument, revoke the designation. (7) The rules of natural justice do not apply to the exercise of the power under subsection (1) or (6). (9) In this section, country includes: (a) a colony, overseas territory or protectorate of a foreign country; and (b) an overseas territory for the international relations of which a foreign country is responsible. [S 198AB am Act 126 of 2015; insrt Act 113 of 2012, s 3 and Sch 1 item 25 Cross-reference: Legislative Instruments: • IMMI 12/115 — Migration Act 1958 – Instrument of Designation of the Independent State of Papua New Guinea as a Regional Processing Country under subsection 198AB(1) of the Migration Act 1958: This Instrument operates to designate Papua New Guinea as a regional processing country. • IMMI 12/100 — Migration Act 1958 – Instrument of Designation of the Republic of Nauru as a Regional Processing Country under subsection 198AB(1) of the Migration Act 1958: This Instrument operates to designate The Republic of Nauru as a regional processing country.]

198AC Documents to be laid before Parliament (1) This section applies if the Minister designates a country to be a regional processing country under subsection 198AB(1). (2) The Minister must cause to be laid before each House of the Parliament: (a) a copy of the designation; and (b) a statement of the Minister’s reasons for thinking it is in the national interest to designate the country to be a regional processing country, referring in particular to any assurances of a kind referred to in paragraph 198AB(3)(a) that have been given by the country; and (c) a copy of any written agreement between Australia and the country relating to the taking of persons to the country; and

418

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 8 – Removal of unlawful non-citizens etc. (ss 197C–199)

s 198AD

(d) a statement about the Minister’s consultations with the Office of the United Nations High Commissioner for Refugees in relation to the designation, including the nature of those consultations; and (e) a summary of any advice received from that Office in relation to the designation; and (f) a statement about any arrangements that are in place, or are to be put in place, in the country for the treatment of persons taken to the country. (3) The Minister must comply with subsection (2) within 2 sitting days of each House of the Parliament after the day on which the designation is made. (4) The sole purpose of laying the documents referred to in subsection (2) before the Parliament is to inform the Parliament of the matters referred to in the documents and nothing in the documents affects the validity of the designation. Similarly, the fact that some or all of those documents do not exist does not affect the validity of the designation. (5) A failure to comply with this section does not affect the validity of the designation. (6) In this section, agreement includes an agreement, arrangement or understanding: (a) whether or not it is legally binding; and (b) whether it is made before, on or after the commencement of this section. [S 198AC insrt Act 113 of 2012, s 3 and Sch 1 item 25]

198AD Taking unauthorised maritime arrivals to a regional processing country (1) Subject to sections 198AE, 198AF and 198AG, this section applies to an unauthorised maritime arrival who is detained under section 189. Note: For when this section applies to a transitory person, see section 198AH. [Subs (1) am Act 35 of 2013, s 3 and Sch 1 item 20]

(2) An officer must, as soon as reasonably practicable, take an unauthorised maritime arrival to whom this section applies from Australia to a regional processing country. [Subs (2) am Act 35 of 2013, s 3 and Sch 1 item 20]

(2A) However, subsection (2) does not apply in relation to a person who is an unauthorised maritime arrival only because of subsection 5AA(1A) or (1AA) if the person’s parent mentioned in the relevant subsection entered Australia before 13 August 2012. Note 1: Under subsection 5AA(1A) or (1AA) a person born in Australia or in a regional processing country may be an unauthorised maritime arrival in some circumstances. Note 2: This section does not apply in relation to a person who entered Australia by sea before 13 August 2012: see the Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012. [Subs (2A) insrt Act 135 of 2014, s 3 and Sch 6 item 8, with effect from 16 Dec 2014]

Powers of an offıcer (3) For the purposes of subsection (2) and without limiting that subsection, an officer may do any or all of the following things within or outside Australia: (a) place the unauthorised maritime arrival on a vehicle or vessel; (b) restrain the unauthorised maritime arrival on a vehicle or vessel; (c) remove the unauthorised maritime arrival from: (i) the place at which the unauthorised maritime arrival is detained; or (ii) a vehicle or vessel; (d) use such force as is necessary and reasonable. [Subs (3) am Act 35 of 2013, s 3 and Sch 1 items 21 and 22]

© 2016 THOMSON REUTERS

419

s 198AD

Migration Act 1958

(4) If, in the course of taking an unauthorised maritime arrival to a regional processing country, an officer considers that it is necessary to return the unauthorised maritime arrival to Australia: (a) subsection (3) applies until the unauthorised maritime arrival is returned to Australia; and (b) section 42 does not apply in relation to the unauthorised maritime arrival’s return to Australia. [Subs (4) am Act 35 of 2013, s 3 and Sch 1 items 23–25]

Ministerial direction (5) If there are 2 or more regional processing countries, the Minister must, in writing, direct an officer to take an unauthorised maritime arrival, or a class of unauthorised maritime arrivals, under subsection (2) to the regional processing country specified by the Minister in the direction. [Subs (5) am Act 35 of 2013, s 3 and Sch 1 items 26 and 27]

(6) If the Minister gives an officer a direction under subsection (5), the officer must comply with the direction. (7) The duty under subsection (5) may only be performed by the Minister personally. (8) The only condition for the performance of the duty under subsection (5) is that the Minister thinks that it is in the public interest to direct the officer to take an unauthorised maritime arrival, or a class of unauthorised maritime arrivals, under subsection (2) to the regional processing country specified by the Minister in the direction. [Subs (8) am Act 35 of 2013, s 3 and Sch 1 items 28 and 29]

(9) The rules of natural justice do not apply to the performance of the duty under subsection (5). (10) A direction under subsection (5) is not a legislative instrument. Not in immigration detention (11) An unauthorised maritime arrival who is being dealt with under subsection (3) is taken not to be in immigration detention (as defined in subsection 5(1)). [Subs (11) am Act 35 of 2013, s 3 and Sch 1 item 30]

Meaning of offıcer (12) In this section, officer means an officer within the meaning of section 5, and includes a member of the Australian Defence Force. [S 198AD am Act 135 of 2014; Act 35 of 2013, s 3 and Sch 1 item 19; insrt Act 113 of 2012, s 3 and Sch 1 item 25]

198AE Ministerial determination that section 198AD does not apply (1) If the Minister thinks that it is in the public interest to do so, the Minister may, in writing, determine that section 198AD does not apply to an unauthorised maritime arrival. Note: For specification by class, see the Acts Interpretation Act 1901. [Subs (1) am Act 35 of 2013, s 3 and Sch 1 item 30]

(1A) The Minister may, in writing, vary or revoke a determination made under subsection (1) if the Minister thinks that it is in the public interest to do so. [Subs (1A) insrt Act 35 of 2013, s 3 and Sch 1 item 31]

(2) The power under subsection (1) or (1A) may only be exercised by the Minister personally. [Subs (2) am Act 35 of 2013, s 3 and Sch 1 item 32]

420

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 8 – Removal of unlawful non-citizens etc. (ss 197C–199)

s 198AG

(3) The rules of natural justice do not apply to an exercise of the power under subsection (1) or (1A). [Subs (3) am Act 35 of 2013, s 3 and Sch 1 item 33]

(4) If the Minister makes a determination under subsection (1) or varies or revokes a determination under subsection (1A), the Minister must cause to be laid before each House of the Parliament a statement that: (a) sets out the determination, the determination as varied or the instrument of revocation; and (b) sets out the reasons for the determination, variation or revocation, referring in particular to the Minister’s reasons for thinking that the Minister’s actions are in the public interest. [Subs (4) am Act 35 of 2013, s 3 and Sch 1 items 34–36]

(5) A statement under subsection (4) must not include: (a) the name of the unauthorised maritime arrival; or (b) any information that may identify the unauthorised maritime arrival; 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. [Subs (5) am Act 35 of 2013, s 3 and Sch 1 item 37]

(6) A statement under subsection (4) must be laid before each House of the Parliament within 15 sitting days of that House after: (a) if the determination is made, varied or revoked between 1 January and 30 June (inclusive) in a year—1 July in that year; or (b) if the determination is made, varied or revoked between 1 July and 31 December (inclusive) in a year—1 January in the following year. [Subs (6) am Act 35 of 2013, s 3 and Sch 1 item 38]

(7) The Minister does not have a duty to consider whether to exercise the power under subsection (1) or (1A) in respect of any unauthorised maritime arrival, whether the Minister is requested to do so by the unauthorised maritime arrival or by any other person, or in any other circumstances. [Subs (7) am Act 35 of 2013, s 3 and Sch 1 items 39 and 40]

(8) An instrument under subsection (1) or (1A) is not a legislative instrument. [Subs (8) am Act 35 of 2013, s 3 and Sch 1 item 41] [S 198AE am Act 35 of 2013; insrt Act 113 of 2012, s 3 and Sch 1 item 25]

198AF No regional processing country Section 198AD does not apply to an unauthorised maritime arrival if there is no regional processing country. [S 198AF am Act 35 of 2013, s 3 and Sch 1 item 42; insrt Act 113 of 2012, s 3 and Sch 1 item 25]

198AG Non-acceptance by regional processing country Section 198AD does not apply to an unauthorised maritime arrival if the regional processing country, or each regional processing country (if there is more than one such country), has advised an officer, in writing, that the country will not accept the unauthorised maritime arrival. Note: For specification by class, see the Acts Interpretation Act 1901. [S 198AG am Act 35 of 2013, s 3 and Sch 1 item 42; insrt Act 113 of 2012, s 3 and Sch 1 item 25]

© 2016 THOMSON REUTERS

421

s 198AG

Migration Act 1958

198AH Application of section 198AD to certain transitory persons (1) Section 198AD applies, subject to sections 198AE, 198AF and 198AG, to a transitory person if, and only if, the person is covered by subsection (1A) or (1B). [Subs (1) subst Act 135 of 2014, s 3 and Sch 6 item 9, with effect from 16 Dec 2014; am Act 35 of 2013, s 3 and Sch 1 items 43–46]

(1A) A transitory person is covered by this subsection if: (a) the person is an unauthorised maritime arrival who is brought to Australia from a regional processing country under section 198B for a temporary purpose; and (b) the person is detained under section 189; and (c) the person no longer needs to be in Australia for the temporary purpose (whether or not the purpose has been achieved). [Subs (1A) insrt Act 135 of 2014, s 3 and Sch 6 item 9, with effect from 16 Dec 2014]

(1B) A transitory person (a transitory child) is covered by this subsection if: (a) a transitory person covered by subsection (1A) gives birth to the transitory child while in Australia; and (b) the transitory child is detained under section 189; and (c) the transitory child is a transitory person because of paragraph (e) of the definition of transitory person in subsection 5(1). [Subs (1B) insrt Act 135 of 2014, s 3 and Sch 6 item 9, with effect from 16 Dec 2014]

(2) Subsection (1) of this section applies whether or not the transitory person has been assessed to be covered by the definition of refugee in Article 1A of the Refugees Convention as amended by the Refugees Protocol. [Subs (2) insrt Act 35 of 2013, s 3 and Sch 1 item 47] [S 198AH am Act 135 of 2014; Act 35 of 2013; insrt Act 113 of 2012, s 3 and Sch 1 item 25]

198AHA Power to take action etc. in relation to arrangement or regional processing functions of a country (1) This section applies if the Commonwealth enters into an arrangement with a person or body in relation to the regional processing functions of a country. (2) The Commonwealth may do all or any of the following: (a) take, or cause to be taken, any action in relation to the arrangement or the regional processing functions of the country; (b) make payments, or cause payments to be made, in relation to the arrangement or the regional processing functions of the country; (c) do anything else that is incidental or conducive to the taking of such action or the making of such payments. (3) To avoid doubt, subsection (2) is intended to ensure that the Commonwealth has capacity and authority to take action, without otherwise affecting the lawfulness of that action. (4) Nothing in this section limits the executive power of the Commonwealth. (5) In this section: action includes: (a) exercising restraint over the liberty of a person; and (b) action in a regional processing country or another country. arrangement includes an arrangement, agreement, understanding, promise or undertaking, whether or not it is legally binding.

422

Migration Law

[198HA.40]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 8 – Removal of unlawful non-citizens etc. (ss 197C–199)

s 198AI

regional processing functions includes the implementation of any law or policy, or the taking of any action, by a country in connection with the role of the country as a regional processing country, whether the implementation or the taking of action occurs in that country or another country. [S 198AHA insrt Act 104 of 2015, s 3 and Sch 1 item 1, with effect from 18 Aug 2012]

SECTION 198AHA COMMENTARY SCOPE

Introduction ................................................................................................................................. [198AHA.20] KEY CASES

Valid law ..................................................................................................................................... [198AHA.40]

SCOPE [198HA.20] Introduction This section gives the Commonwealth the power to enter into an agreement with a person or body in relation to the regional processing functions of a country and to take any action, and make payments, in relation to the arrangement or the regional processing function of the country, or do anything incidental or conducive to taking such actions or making such payments.

KEY CASES [198HA.40] Valid law In Plaintiff M68-2015 v Minister for Immigration and Border Protection (2016) 327 ALR 369; [2016] HCA 1 (French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ), the plaintiff argued that s 198AHA of the Act was not supported by the aliens power in s 51(xix) of the Constitution on the basis it failed to direct attention to that class of persons in either its text or its practical operation and, further, that any connection between the head of power and s 198AHA of the Act was too remote or insubstantial. French CJ, Kiefel and Nettle JJ rejected the plaintiff’s submission, finding that s 198AHA of the Act concerns the functions of the place to which an alien is removed for the purpose of their claim to refugee status being determined and, therefore, has a connection with the subject matter of aliens that is more than insubstantial, tenuous or distant: at [42]. As their Honours held that it was within the executive power to enter into the agreement (pursuant to prerogative power), they found that s 198AHA(2) of the Act authorised the Commonwealth to give effect to that arrangement including by exercising restraint over a transferee: at [46] However, French CJ, Kiefel and Nettle JJ warned that any exercise of power under s 198AHA of the Act would be subject to proportionality testing, so that the Commonwealth would not be authorised by the provision to support an offshore detention regime which is not reasonably necessary to achieve the purpose of allowing the asylum claims of a transferee to be assessed: at [46] Bell, Gageler and Keane JJ essentially agreed with the plurality’s findings in this regard: [66], [71], [95]–[99] per Bell J; [177]–[185] per Gageler J; [242]–[247], [259]–[262] per Keane J. 198AI Ministerial report The Minister must, as soon as practicable after 30 June in each year, cause to be laid before each House of Parliament a report setting out:

© 2016 THOMSON REUTERS

423

s 198AI

Migration Act 1958

(a)

the activities conducted under the Bali Process during the year ending on 30 June; and (b) the steps taken in relation to people smuggling, trafficking in persons and related transnational crime to support the Regional Cooperation Framework during the year ending on 30 June; and (c) the progress made in relation to people smuggling, trafficking in persons and related transnational crime under the Regional Cooperation Framework during the year ending on 30 June. [S 198AI insrt Act 35 of 2013, s 3 and Sch 1 item 47A]

198AJ Reports about unauthorised maritime arrivals (1) The Minister must cause to be laid before each House of the Parliament, within 15 sitting days of that House after the end of a financial year, a report on the following: (a) arrangements made by regional processing countries during the financial year for unauthorised maritime arrivals who make claims for protection under the Refugees Convention as amended by the Refugees Protocol, including arrangements for: (i) assessing those claims in those countries; and (ii) the accommodation, health care and education of those unauthorised maritime arrivals in those countries; (b) the number of those claims assessed in those countries in the financial year; (c) the number of unauthorised maritime arrivals determined in those countries in the financial year to be covered by the definition of refugee in Article 1A of the Refugees Convention as amended by the Refugees Protocol. (2) However, a report under this section need deal with a particular regional processing country in accordance with subsection (1) only so far as information provided by the country makes it reasonably practicable for the report to do so. (3) A report under this section must not include: (a) the name of a person who is or was an unauthorised maritime arrival; or (b) any information that may identify such a person; or (c) the name of any other person connected in any way with any person covered by paragraph (a); or (d) any information that may identify that other person. [S 198AJ insrt Act 35 of 2013, s 3 and Sch 1 item 47A]

SUBDIVISION C – TRANSITORY PERSONS ETC. (SS 198B–199) [Subdiv C heading insrt Act 113 of 2012, s 3 and Sch 1 item 25]

198B Power to bring transitory persons to Australia (1) An officer may, for a temporary purpose, bring a transitory person to Australia from a country or place outside Australia. (2) The power under subsection (1) includes the power to do any of the following things within or outside Australia: (a) place the person on a vehicle or vessel; (b) restrain the person on a vehicle or vessel; (c) remove the person from a vehicle or vessel; (d) use such force as is necessary and reasonable.

424

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 9 – Deportation (ss 200–206)

s 201

(3) In this section, officer means an officer within the meaning of section 5, and includes a member of the Australian Defence Force. [S 198B insrt Act 10 of 2002, s 3 and Sch 1 item 5]

[Editor’s note: Sections 198C and 198D were repealed by Act 35 of 2013, s 3 and Sch 1 item 48, and have not been reproduced] 199 Dependants of removed non-citizens (1) If: (a) an officer removes, or is about to remove, an unlawful non-citizen; and (b) the spouse or de facto partner of that non-citizen requests an officer to also be removed from Australia; an officer may remove the spouse or de facto partner as soon as reasonably practicable. [Subs (1) am Act 144 of 2008, s 3 and Sch 10 item 39]

(2) If: (a) an officer removes, or is about to remove an unlawful non-citizen; and (b) the spouse or de facto partner of that non-citizen requests an officer to also be removed from Australia with a dependent child or children of that non-citizen; an officer may remove the spouse or de facto partner and dependent child or children as soon as reasonably practicable. [Subs (2) am Act 144 of 2008, s 3 and Sch 10 item 39]

(3) If: (a) an officer removes, or is about to remove, an unlawful non-citizen; and (b) that non-citizen requests an officer to remove a dependent child or children of the non-citizen from Australia; an officer may remove the dependent child or children as soon as reasonably practicable. (4) In paragraphs (1)(a), (2)(a) and (3)(a), a reference to remove includes a reference to take to a regional processing country. [Subs (4) insrt Act 113 of 2012, s 3 and Sch 1 item 27] [S 199 am Act 113 of 2012; Act 144 of 2008; former s 54ZG renum Act 60 of 1994, s 83; insrt Act 184 of 1992, s 13]

DIVISION 9 – DEPORTATION (SS 200–206) [Former Div 5 renum Act 60 of 1994, s 83; former Div 2 renum Act 59 of 1989, s 35]

200 Deportation of certain non-citizens The Minister may order the deportation of a non-citizen to whom this Division applies. [Former s 55A renum Act 60 of 1994, s 83; insrt Act 184 of 1992, s 14 Cross-reference: Ministerial Directions: Australia’s Criminal Deportation Policy – Criminal Deportation under section 200 (Direction No. 9 of 1998): This General Direction provides guidance to decision makers in considering the making of deportation decisions under ss 200 and 201. Legislative Instruments: Migration Act 1958 – General Direction under section 499 – Australia’s Criminal Deportation Policy – Criminal Deportation under section 200: This Direction provides guidance to decision makers in considering the making of deportation decisions under ss 200 and 201.]

201 Deportation of non-citizens in Australia for less than 10 years who are convicted of crimes Where: (a) a person who is a non-citizen has, either before or after the commencement of this section, been convicted in Australia of an offence; (b) when the offence was committed the person was a non-citizen who:

© 2016 THOMSON REUTERS

425

s 201

Migration Act 1958

(i)

had been in Australia as a permanent resident; (A) for a period of less than 10 years; or (B) for periods that, when added together, total less than 10 years; or (ii) was a citizen of New Zealand who had been in Australia as an exempt non-citizen or a special category visa holder: (A) for a period of less than 10 years as an exempt non-citizen or a special category visa holder; or (B) for periods that, when added together, total less than 10 years, as an exempt non-citizen or a special category visa holder or in any combination of those capacities; and [Para (b) subst Act 60 of 1994, s 57, with effect from 1 Sep 1994]

(c)

the offence is an offence for which the person was sentenced to death or to imprisonment for life or for a period of not less than one year; section 200 applies to the person. [S 201 am Act 60 of 1994; Act 184 of 1992, s 38 and Sch, with effect from 1 Sep 1994; subst Act 112 of 1983, s 10, with effect from 2 Apr 1984 Cross-reference: Ministerial Directions: Australia’s Criminal Deportation Policy – Criminal Deportation under section 200 (Direction No. 9 of 1998): This General Direction provides guidance to decision makers in considering the making of deportation decisions under ss 200 and 201. Legislative Instruments: Migration Act 1958 – General Direction under section 499 – Australia’s Criminal Deportation Policy – Criminal Deportation under section 200: This Direction provides guidance to decision makers in considering the making of deportation decisions under ss 200 and 201.]

202 Deportation of non-citizens upon security grounds (1) Where: (a) it appears to the Minister that the conduct (whether in Australia or elsewhere and either before or after the commencement of this subsection) of a non-citizen referred to in paragraph 201(b) constitutes, or has constituted, a threat to security; and (b) the Minister has been furnished with an adverse security assessment in respect of the non-citizen by the Organisation, being an assessment made for the purposes of this subsection; then, subject to this section, section 200 applies to the non-citizen. [Subs (1) am Act 144 of 2005, s 3 and Sch 10 item 31, with effect from 14 Dec 2005; Act 161 of 1999, s 3 and Sch 3 item 40, with effect from 10 Dec 1999; Act 60 of 1994, s 58, with effect from 1 Sep 1994; Act 184 of 1992, s 38 and Sch, with effect from 1 Sep 1994]

(2) Where: (a) subsection (1) applies in relation to a non-citizen; (b) the adverse security assessment made in respect of the non-citizen is not an assessment to which a certificate given in accordance with paragraph 38(2)(a) of the Australian Security Intelligence Organisation Act 1979 applies; and (c) the non-citizen applies to the Tribunal for a review of the security assessment before the end of 30 days after the receipt by the non-citizen of notice of the assessment and the Tribunal, after reviewing the assessment, finds that the security assessment should not have been an adverse security assessment; section 200 does not apply to the non-citizen. [Subs (2) am Act 161 of 1999, s 3 and Sch 3 item 40, with effect from 10 Dec 1999; Act 184 of 1992, s 38 and Sch, with effect from 1 Sep 1994]

(3) Where: (a) subsection (1) applies in relation to a non-citizen;

426

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 9 – Deportation (ss 200–206)

s 203

(b) the adverse security assessment made in respect of the non-citizen is an assessment to which a certificate given in accordance with paragraph 38(2)(a) of the Australian Security Intelligence Organisation Act 1979 applies; and (c) the Attorney-General has, in accordance with section 65 of that Act, required the Tribunal to review the assessment; section 200 does not apply to the non-citizen unless, following the receipt by the Attorney-General of the findings of the Tribunal, the Attorney-General advises the Minister that the Tribunal has confirmed the assessment. [Subs (3) am Act 161 of 1999, s 3 and Sch 3 item 40, with effect from 10 Dec 1999; Act 184 of 1992, s 38 and Sch, with effect from 1 Sep 1994]

(4) A notice given by the Minister pursuant to subsection 38(1) of the Australian Security Intelligence Organisation Act 1979 informing a person of the making of an adverse security assessment, being an assessment made for the purposes of subsection (1) of this section, shall contain a statement to the effect that the assessment was made for the purposes of subsection (1) of this section and that the person may be deported under section 200 because of section 202. [Subs (4) am Act 161 of 1999, s 3 and Sch 3 item 41, with effect from 10 Dec 1999; Act 184 of 1992, s 38 and Sch, with effect from 1 Sep 1994]

(5) Despite subsection 29(7) of the Administrative Appeals Tribunal Act 1975, the Tribunal must not extend beyond the period of 28 days referred to in subsection 29(2) of that Act the time within which a person may apply to the Tribunal for a review of an adverse security assessment made for the purposes of subsection (1) of this section. [Subs (5) subst Act 175 of 1995, s 3 and Sch 1 item 61, with effect from 16 Dec 1995]

(6) In this section: adverse security assessment, security assessment and Tribunal have the same meanings as they have in Part IV of the Australian Security Intelligence Organisation Act 1979; [Def am Act 161 of 1999, s 3 and Sch 3 item 42, with effect from 10 Dec 1999]

Organisation means the Australian Security Intelligence Organisation. [Def am Act 161 of 1999, s 3 and Sch 3 item 43, with effect from 10 Dec 1999]

security has the meaning given by section 4 of the Australian Security Intelligence Organisation Act 1979. [Def insrt Act 144 of 2005, s 3 and Sch 10 item 32, with effect from 14 Dec 2005] [S 202 am Act 144 of 2005; Act 161 of 1999; Act 175 of 1995; Act 60 of 1994; Act 184 of 1992; reinsrt Act 102 of 1986, s 21, with effect from 1 Feb 1987; rep Act 112 of 1983, s 10, with effect from 2 Apr 1984]

203 Deportation of non-citizens who are convicted of certain serious offences (1) Where: (a) a person who is a non-citizen has, either before or after the commencement of this subsection, been convicted in Australia of an offence; (b) at the time of the commission of the offence the person was not an Australian citizen; and (c) the offence is: (i) an offence against section 24AA, 24AB, 25 or 26 of the Crimes Act 1914; or (ia) an offence against Division 80 of the Criminal Code; or (ii) an offence against section 6 of the Crimes Act 1914 that relates to an offence mentioned in subparagraph (i) or (ia) of this paragraph; or (iia) an offence against section 11.1 or 11.5 of the Criminal Code that relates to an offence mentioned in subparagraph (i) or (ia) of this paragraph; or

© 2016 THOMSON REUTERS

427

s 203

Migration Act 1958

(iii)

an offence against a law of a State or of any internal or external Territory that is a prescribed offence for the purposes of this subparagraph; then, subject to this section, section 200 applies to the non-citizen. [Subs (1) am Act 144 of 2005, s 3 and Sch 7 items 13 and 14, with effect from 11 Jan 2006; Act 65 of 2002, s 3 and Sch 1 items 14–17, with effect from 6 Jul 2002; Act 97 of 2001, s 3 and Sch 1 items 9 and 10, with effect from 19 Sep 2001; Act 184 of 1992, s 38 and Sch, with effect from 1 Sep 1994]

(2) Section 200 does not apply to a non-citizen because of this section unless the Minister has first served on the non-citizen a notice informing the non-citizen that he or she proposes to order the deportation of the non-citizen, on the ground specified in the notice, unless the non-citizen requests, by notice in writing to the Minister, within 30 days after receipt by him or her of the Minister’s notice, that his or her case be considered by a Commissioner appointed for the purposes of this section. [Subs (2) am Act 184 of 1992, s 38 and Sch, with effect from 1 Sep 1994; subst Act 112 of 1983, s 11(a), with effect from 2 Apr 1984]

(3) If a non-citizen on whom a notice is served by the Minister under subsection (2) duly requests, in accordance with the notice, that his or her case be considered by a Commissioner appointed for the purposes of this section, the Minister may, by notice in writing, summon the non-citizen to appear before a Commissioner specified in the notice at the time and place specified in the notice. [Subs (3) am Act 59 of 1989, s 34 and Sch 2, with effect from 19 Dec 1989; Act 112 of 1983, s 11(b), with effect from 2 Apr 1984]

(4) A Commissioner for the purposes of this section shall be appointed by the Governor-General and shall be a person who is or has been a Judge of a Federal Court or of the Supreme Court of a State or Territory, or a barrister or solicitor of the High Court or of the Supreme Court of a State or Territory of not less than 5 years’ standing. [Subs (4) am Act 59 of 1989, s 34 and Sch 2, with effect from 19 Dec 1989; Act 112 of 1983, s 11(b), with effect from 2 Apr 1984]

(5) The Commissioner shall, after investigation in accordance with subsection (6), report to the Minister whether he or she considers that the ground specified in the notice under subsection (2) has been established. (6) The Commissioner shall make a thorough investigation of the matter with respect to which he or she is required to report, without regard to legal forms, and shall not be bound by any rules of evidence but may inform himself or herself on any relevant matter in such manner as he or she thinks fit. [Subs (6) am Act 59 of 1989, s 34 and Sch 2, with effect from 19 Dec 1989]

(7) Where a notice has been served on a non-citizen under subsection (2), section 200 does not apply to the non-citizen because of this section unless: (a) the non-citizen does not request, in accordance with the notice, that his or her case be considered by a Commissioner; (b) the non-citizen, having been summoned under this section to appear before a Commissioner, fails so to appear at the time and place specified in the summons; or (c) a Commissioner reports under this section in relation to the non-citizen that he or she considers that the ground specified in the notice has been established. [Subs (7) am Act 184 of 1992, s 38 and Sch, with effect from 1 Sep 1994; Act 86 of 1991, s 26 and Sch, with effect from 26 Jun 1991; Act 59 of 1989, s 34 and Sch 2, with effect from 19 Dec 1989] [S 203 am Act 144 of 2005; Act 65 of 2002; Act 97 of 2001; Act 184 of 1992; Act 86 of 1991; Act 59 of 1989; Act 102 of 1986; Act 112 of 1983]

428

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 9 – Deportation (ss 200–206)

s 205

204 Determination of time for sections 201 and 202 (1) Where a person has been convicted of any offence (other than an offence the conviction in respect of which was subsequently quashed) the period (if any) for which the person was confined in a prison for that offence shall be disregarded in determining, for the purposes of section 201 and subsection 202(1), the length of time that that person has been present in Australia as a permanent resident or as an exempt non-citizen or a special category visa holder. [Subs (1) am Act 60 of 1994, s 59, with effect from 1 Sep 1994; Act 102 of 1986, s 23, with effect from 1 Feb 1987]

(2) In section 201 and subsection 202(1): permanent resident means a person (including an Australian citizen) whose continued presence in Australia is not subject to any limitation as to time imposed by law, but does not include: (a) in relation to any period before 2 April 1984 – a person who was, during that period, a prohibited immigrant within the meaning of this Act as in force at that time; or (b) in relation to any period starting on or after 2 April 1984 and ending on or before 19 December 1989 – the person who was, during that period, a prohibited non-citizen within the meaning of this Act as in force in that period; or (c) in relation to any period starting on or after 20 December 1989 and ending before the commencement of section 7 of the Migration Reform Act 1992 – the person who was, during that period, an illegal entrant within the meaning of this Act as in force in that period; or (d) in relation to any later period – the person who is, during that later period, an unlawful non-citizen. [Def am Act 184 of 1992, s 38 and Sch, with effect from 1 Sep 1994] [Subs (2) subst Act 59 of 1989, s 34 and Sch 4, with effect from 19 Dec 1989; am Act 102 of 1986, s 23, with effect from 1 Feb 1987]

(3) For the purposes of this section: (a) a reference to a prison includes a reference to any custodial institution at which a person convicted of an offence may be required to serve the whole or a part of any sentence imposed upon him or her by reason of that conviction; and (b) a reference to a period during which a person was confined in a prison includes a reference to a period: (i) during which the person was an escapee from a prison; or (ii) during which the person was undergoing a sentence of periodic detention in a prison. [Subs (3) am Act 59 of 1989, s 34 and Sch 2, with effect from 19 Dec 1989] [S 204 am Act 60 of 1994; Act 184 of 1992; Act 59 of 1989; Act 102 of 1986; insrt Act 112 of 1983, s 12, with effect from 2 Apr 1984]

205 Dependants of deportee (1) Where the Minister makes or has made an order for the deportation of a person who has a spouse or de facto partner, the Minister may, at the request of the spouse or de facto partner of that person, remove: (a) the spouse or de facto partner; or (b) the spouse or de facto partner and a dependent child or children; of that person. [Subs (1) am Act 144 of 2008, s 3 and Sch 10 item 39; Act 184 of 1992, s 38 and Sch; Act 117 of 1979, s 11]

© 2016 THOMSON REUTERS

429

s 205

Migration Act 1958

(2) Where the Minister makes or has made an order for the deportation of a person who does not have a spouse or de facto partner but who does have a dependent child or children, the Minister may, at the person’s request, remove a dependent child or children of the person. [Subs (2) am Act 144 of 2008, s 3 and Sch 10 item 39; Act 184 of 1992, s 38 and Sch; Act 117 of 1979, s 11] [S 205 am Act 144 of 2008; former s 62 renum Act 60 of 1994, s 83; am Act 184 of 1992; former s 19 renum Act 59 of 1989, s 35; subst Act 59 of 1989, s 10 (am Act 159 of 1989); am Act 117 of 1979]

206 Deportation order to be executed (1) Where the Minister has made an order for the deportation of a person, that person shall, unless the Minister revokes the order, be deported accordingly. [Subs (1) am Act 184 of 1992, s 15]

(2) The validity of an order for the deportation of a person shall not be affected by any delay in the execution of that order. [Subs (2) insrt Act 112 of 1983, s 16]

(3) [Repealed] [Subs (3) rep Act 184 of 1992, s 15; insrt Act 86 of 1991, s 16] [Former s 63 renum Act 60 of 1994, s 83; am Act 184 of 1992; Act 86 of 1991; former s 20 renum Act 59 of 1989, s 35 (am Act 159 of 1989); am Act 112 of 1983]

DIVISION 10 – COSTS ETC. OF REMOVAL AND DEPORTATION (SS 207–224) [Div 10 heading subst Act 85 of 2009, s 3 and Sch 1 item 10; Former Div 5A heading renum Act 60 of 1994, s 83; insrt Act 184 of 1992, s 16]

207 Interpretation In this Division: carrier, in relation to an unlawful non-citizen, means a controller of the vessel on which the non-citizen was last brought to Australia. controller, in relation to a vessel, means the master, owner, agent or charterer of the vessel. costs means the fares and other costs to the Commonwealth of transporting: (a) a non-citizen; and (b) a custodian of the non-citizen; from Australia to the place outside Australia to which the non-citizen is removed or deported. [Def subst Act 85 of 2009, s 3 and Sch 1 item 11, with effect from 9 Nov 2009]

daily maintenance amount [Repealed] [Def rep Act 85 of 2009, s 3 and Sch 1 item 12, with effect from 9 Nov 2009] [S 207 am Act 85 of 2009; former s 64 renum Act 60 of 1994, s 83; subst Act 184 of 1992, s 16, with effect from 1 Sep 1994; am Act 24 of 1992; former s 21 renum Act 59 of 1989, s 35; am Act 59 of 1989; Act 112 of 1983 (am Act 165 of 1984); Act 51 of 1982; Act 216 of 1973]

[Editor’s note: Sections 208 and 209 were repealed by Act 85 of 2009, s 3 and Sch 1 item 13, and have not been reproduced] 210 Removed or deported non-citizen liable for costs of removal or deportation Subject to section 212, a non-citizen who is removed or deported, other than an unlawful non-citizen who came to Australia on a criminal justice visa, is liable to pay the Commonwealth the costs of his or her removal or deportation. [Former s 66A renum Act 60 of 1994, s 83; am Act 60 of 1994, s 82 and Sch 1 item 81; insrt Act 184 of 1992, s 16]

430

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 10 – Costs etc. of removal and deportation (ss 207–224)

211

s 213

Costs of detained spouses, de facto partners and dependants [Repealed]

[S 211 rep Act 85 of 2009, s 3 and Sch 1 item 13; am Act 144 of 2008, s 3 and Sch 10 item 40; former s 66B renum Act 60 of 1994, s 83; insrt Act 184 of 1992, s 16]

212 Costs of removed or deported spouses, de facto partners and dependants (1) If: (a) 2 persons are spouses or de facto partners of each other; and (b) either: (i) they are both removed or deported; or (ii) one of them is deported and the other is removed; each of them is liable to pay the Commonwealth the costs of their removals, their deportations, or the deportation and removal. [Subs (1) am Act 144 of 2008, s 3 and Sch 10 item 44]

(2) If: (a) 2 persons are spouses or de facto partners of each other; and (b) either: (i) they are both removed or deported; or (ii) one is deported and the other is removed; and (c) their dependent child, or dependent children, within the meaning of the regulations are also removed; then: (d) the child or children are not liable to pay the Commonwealth the costs of the child’s or children’s removal; and (e) the persons are liable to pay the Commonwealth those costs. [Subs (2) am Act 144 of 2008, s 3 and Sch 10 item 44]

(3) If: (a) a non-citizen is removed or deported; and (b) the non-citizen either: (i) does not have a spouse or de facto partner; or (ii) does not have a spouse, or a de facto partner, who is deported or removed; and (c) the non-citizen has a dependent child, or dependent children, within the meaning of the regulations who are removed; then: (d) the child or children are not liable to pay the Commonwealth the costs of their removal; and (e) the non-citizen is liable to pay the Commonwealth those costs. [Subs (3) am Act 144 of 2008, s 3 and Sch 10 items 45 and 46] [S 212 am Act 144 of 2008, s 3 and Sch 10 item 44; former s 66C renum Act 60 of 1994, s 83; insrt Act 184 of 1992, s 16]

213 Carriers may be liable for costs of removal and deportation (1) If a non-citizen who enters Australia: (a) is required to comply with section 166 (immigration clearance); and (b) either: (i) does not comply; or

© 2016 THOMSON REUTERS

431

s 213

Migration Act 1958

(ii) on complying, is detained under section 189 as an unlawful non-citizen; then, as soon as practicable after the Secretary or Australian Border Force Commissioner becomes aware that paragraphs (a) and (b) apply to the non-citizen, the Secretary or Australian Border Force Commissioner may give a carrier of the non-citizen a written notice requiring the carriers of the non-citizen to pay the costs of the non-citizen’s removal, or deportation, from Australia should that happen. [Subs (1) am Act 41 of 2015, s 3 and Sch 3 item 12, with effect from 1 Jul 2015; Act 85 of 2009, s 3 and Sch 1 item 14]

(2) The notice is to: (a) give particulars of the calculation of the costs; and (b) state that an account for the costs will be given to at least one of the carriers of the non-citizen when they have been incurred. (3) If a notice is given, each carrier of the non-citizen is liable to pay the Commonwealth the costs described in the notice and for which an account is given. [S 213 am Act 41 of 2015; Act 85 of 2009; former s 66D renum Act 60 of 1994, s 83; insrt Act 184 of 1992, s 16]

214 Non-citizens and carriers jointly liable If, under this Division, 2 or more persons are liable to pay the Commonwealth the costs of a non-citizen’s removal or deportation they are jointly and severally liable to pay those costs. [S 214 am Act 85 of 2009, s 3 and Sch 1 item 15; former s 66E renum Act 60 of 1994, s 83; insrt Act 184 of 1992, s 16]

215 Costs are debts due to the Commonwealth Without limiting any other provision of this Act, costs payable by a person to the Commonwealth under this Division may be recovered by the Commonwealth as a debt due to the Commonwealth in a court of competent jurisdiction. [Former s 66F renum Act 60 of 1994, s 83; insrt Act 184 of 1992, s 16]

216 Use of existing ticket for removal or deportation If: (a) a non-citizen is to be removed or deported; and (b) the non-citizen or another person holds a ticket for the conveyance of the non-citizen from a place within Australia to a place outside Australia; the Secretary or Australian Border Force Commissioner may, on behalf of the ticket holder arrange (with or without the ticket holder’s consent) for the ticket to be applied for or towards the conveyance of the non-citizen. [S 216 am Act 41 of 2015, s 3 and Sch 3 item 13, with effect from 1 Jul 2015; former s 66G renum Act 60 of 1994, s 83; insrt Act 184 of 1992, s 16]

217 Vessels required to convey certain removees (1) If a person covered by subsection 193(1) is to be removed, the Secretary or Australian Border Force Commissioner may give the controller of the vessel on which the person travelled to and entered Australia written notice requiring the controller to transport the person from Australia. [Subs (1) am Act 41 of 2015, s 3 and Sch 3 item 14, with effect from 1 Jul 2015]

(2) Subject to section 219, the controller must comply with the notice within 72 hours of the giving of the notice or such further time as the Secretary or Australian Border Force Commissioner allows. Penalty: 100 penalty units. [Subs (2) am Act 41 of 2015, s 3 and Sch 3 item 14, with effect from 1 Jul 2015]

432

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 10 – Costs etc. of removal and deportation (ss 207–224)

s 220

(3) An offence against subsection (2) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. [Subs (3) insrt Act 97 of 2001, s 3 and Sch 1 item 11, with effect from 19 Sep 2001] [S 217 am Act 41 of 2015; Act 97 of 2001; former s 66GA renum Act 60 of 1994, s 83; insrt Act 60 of 1994, s 60]

218 Vessels required to convey deportees or other removees (1) Subject to section 217, if a person is to be removed or deported, the Secretary or Australian Border Force Commissioner may give the controller of a vessel or vessels a written notice requiring the controller to transport the person from Australia to a destination of the vessel or one of the vessels specified in the notice. [Subs (1) am Act 41 of 2015, s 3 and Sch 3 item 15, with effect from 1 Jul 2015; Act 60 of 1994, s 61(a)]

(2) Subject to sections 219 and 220, the controller must comply with the notice within 72 hours of the giving of the notice or such further time as the Secretary or Australian Border Force Commissioner allows. Penalty: 100 penalty units. [Subs (2) am Act 41 of 2015, s 3 and Sch 3 item 15, with effect from 1 Jul 2015; Act 60 of 1994, s 61(b) and (c)]

(3) An offence against subsection (2) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. [Subs (3) insrt Act 97 of 2001, s 3 and Sch 1 item 12, with effect from 19 Sep 2001] [S 218 am Act 41 of 2015; Act 97 of 2001; former s 66H renum Act 60 of 1994, s 83; am Act 60 of 1994; insrt Act 184 of 1992, s 16]

219 Exemption from complying It is a defence to a prosecution for an offence against section 217 or 218 of failing to comply with a notice to transport a non-citizen if the defendant proves: (a) that the defendant was prevented from complying with the notice because of stress of weather or other reasonable cause; or (b) the defendant gave reasonable notice to the Secretary or Australian Border Force Commissioner of the person’s willingness to receive the non-citizen on board a specified vessel at a specified port on a specified day within 72 hours of the giving of the notice for removal or deportation, but the non-citizen was not made available at that port on that date for boarding the vessel. [Para (b) am Act 41 of 2015, s 3 and Sch 3 item 16, with effect from 1 Jul 2015] Note: A defendant bears a legal burden in relation to the matters in this section (see section 13.4 of the Criminal Code). [S 219 am Act 41 of 2015; Act 97 of 2001, s 3 and Sch 1 items 13 and 14, with effect from 19 Sep 2001; former s 66J renum Act 60 of 1994, s 83; insrt Act 184 of 1992, s 16]

220 Waiver of requirement (1) If: (a) a notice has been given under section 218 requiring the transport of an unlawful non-citizen to a country; and (b) the government of that country notifies the Minister that the non-citizen would not be permitted to enter that country; the Minister is to give the controller written notice revoking the notice under that section. (2) The revocation of a notice does not prevent another notice under section 218 or affect any liability for costs. [Former s 66K renum Act 60 of 1994, s 83; insrt Act 184 of 1992, s 16]

© 2016 THOMSON REUTERS

433

s 220

Migration Act 1958

221 Cost of removal under notice (1) If: (a) the controller of a vessel is given a notice under section 218 to transport a non-citizen; and (b) the controller was a carrier of the non-citizen; and (c) paragraphs 213(1)(a) and (b) apply to the non-citizen; then the Commonwealth is not liable for the costs of transporting the non-citizen. (2) If: (a) the controller of a vessel is given a notice under section 218 to transport a non-citizen; and (b) subsection (1) does not apply; then: (c) the Commonwealth is liable to pay the controller’s costs of the transport; and (d) sections 210 to 216 apply to the transport and those costs. [Former s 66L renum Act 60 of 1994, s 83; insrt Act 184 of 1992, s 16]

222 Orders restraining certain non-citizens from disposing etc. of property (1) Where, on an application by the Secretary or Australian Border Force Commissioner relating to property of a non-citizen, a court is satisfied that: (a) the non-citizen is liable, or may, on deportation or removal, become liable, to pay the Commonwealth an amount under section 210 or 212; and (b) if the court does not make an order under this subsection there is a risk that the Commonwealth will not be able to recover the whole or a part of any amount that the non-citizen is, or becomes, liable to pay to the Commonwealth under section 210 or 212; the court may make an order restraining any dealing with the property, or such part of the property as is specified in the order. [Subs (1) am Act 41 of 2015, s 3 and Sch 3 item 17, with effect from 1 Jul 2015; Act 85 of 2009, s 3 and Sch 1 item 16, with effect from 9 Nov 2009; Act 184 of 1992, s 38 and Sch, with effect from 1 Sep 1994]

(2) The Secretary or Australian Border Force Commissioner may apply to a court for an order under subsection (1) in respect of: (a) any of a non-citizen’s property that is in Australia; or (b) specified property of a non-citizen that is in Australia. [Subs (2) am Act 41 of 2015, s 3 and Sch 3 item 17, with effect from 1 Jul 2015; Act 184 of 1992, s 38 and Sch (am Act 43 of 1996), with effect from 1 Sep 1994]

(3) Where an application is made for an order under subsection (1), the court may, before considering the application, grant an interim order, being an order of the kind applied for that is expressed to have effect pending the determination of the application. (4) An order under subsection (1) has effect for the period specified in the order. (5) A court may rescind, vary or discharge an order made by it under this section. (6) A court may suspend the operation of an order made by it under this section. (7) An order under subsection (1) may be made subject to such conditions as the court thinks fit and, without limiting the generality of this, may make provision for meeting, out of the property or a specified part of the property to which the order relates, either or both of the following: (a) the non-citizen’s reasonable living expenses (including the reasonable living expenses of the non-citizen’s dependants (if any));

434

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 10 – Costs etc. of removal and deportation (ss 207–224)

s 223

(b) reasonable legal expenses incurred by the non-citizen in relation to a matter arising under this Act. [Subs (7) am Act 100 of 1995, s 3 and Sch 1 item 7, with effect from 1 Sep 1994; Act 184 of 1992, s 38 and Sch (am Act 43 of 1996), with effect from 1 Sep 1994]

(8) A person shall not contravene an order under this section. Penalty: Imprisonment for 2 years. [Subs (8) am Act 97 of 2001, s 3 and Sch 1 item 15, with effect from 19 Sep 2001; Act 24 of 1992, s 6 and Sch 2, with effect from 6 Nov 1992]

(8A) Subsection (8) does not apply if the person has a reasonable excuse. Note: A defendant bears an evidential burden in relation to the matter in subsection (8A) (see subsection 13.3(3) of the Criminal Code). [Subs (8A) insrt Act 97 of 2001, s 3 and Sch 1 item 16, with effect from 19 Sep 2001]

(9) In this section: court means a court of competent jurisdiction. deportee [Repealed] [Def rep Act 184 of 1992, s 38 and Sch, with effect from 1 Sep 1994]

property means real or personal property of every description, whether tangible or intangible, that is situated in Australia, and includes an interest in any such real or personal property. [S 222 am Act 41 of 2015; Act 85 of 2009; Act 97 of 2001; Act 100 of 1995; former s 67 renum Act 60 of 1994, s 83; am Act 184 of 1992; Act 24 of 1992; former s 21C renum Act 59 of 1989, s 35; insrt Act 59 of 1989, s 12, with effect from 19 Dec 1989]

223 Secretary or Australian Border Force Commissioner may give direction about valuables of detained non-citizens (1) This section applies in relation to a person who has been detained. [Subs (1) subst Act 184 of 1992, s 38 and Sch, with effect from 1 Sep 1994]

(2) Where the Secretary or Australian Border Force Commissioner is satisfied that: (a) the detainee is an unlawful non-citizen or a deportee; (b) the detainee is liable, or may, on deportation or removal, become liable, to pay the Commonwealth an amount under section 210 or 212; and (c) if the Secretary or Australian Border Force Commissioner does not give a notice under this section there is a risk that the Commonwealth will not be able to recover the whole or a part of any amount that the detainee is, or becomes, liable to pay to the Commonwealth under section 210 or 212; the Secretary or Australian Border Force Commissioner may, in writing, notify the detainee that his or her valuables are liable to be taken under this section. [Subs (2) am Act 41 of 2015, s 3 and Sch 3 item 19, with effect from 1 Jul 2015; Act 85 of 2009, s 3 and Sch 1 item 17, with effect from 9 Nov 2009; Act 184 of 1992, s 38 and Sch, with effect from 1 Sep 1994]

(3) Where the Secretary or Australian Border Force Commissioner gives a notice under subsection (2), subsections (4) to (13) apply. [Subs (3) am Act 41 of 2015, s 3 and Sch 3 item 19, with effect from 1 Jul 2015]

(4) The Secretary or Australian Border Force Commissioner shall cause a copy of the notice to be served on the detainee as prescribed. [Subs (4) am Act 41 of 2015, s 3 and Sch 3 item 19, with effect from 1 Jul 2015; Act 184 of 1992, s 38 and Sch, with effect from 1 Sep 1994]

(5) At any time after a copy of the notice has been served on the detainee and while the notice remains in force, the Secretary or Australian Border Force Commissioner may take

© 2016 THOMSON REUTERS

435

s 223

Migration Act 1958

possession of any valuables that the Secretary or Australian Border Force Commissioner believes, on reasonable grounds, to belong to the detainee. [Subs (5) am Act 41 of 2015, s 3 and Sch 3 item 19, with effect from 1 Jul 2015; Act 184 of 1992, s 38 and Sch, with effect from 1 Sep 1994]

(6) A copy of the notice may be served on: (a) any bank; (b) any other financial institution; or (c) any other person. (7) A bank or other financial institution served with a copy of the notice shall not, while the notice remains in force, without the written consent of the Secretary or Australian Border Force Commissioner, process any transaction attempted in relation to any account held by the detainee, whether alone or jointly with another person or other persons, and whether for his or her own benefit or as a trustee. Penalty: $30,000. [Subs (7) am Act 41 of 2015, s 3 and Sch 3 item 19, with effect from 1 Jul 2015; Act 184 of 1992, s 38 and Sch, with effect from 1 Sep 1994; Act 24 of 1992, s 6 and Sch 2, with effect from 6 Nov 1992]

(7A) An offence against subsection (7) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. [Subs (7A) insrt Act 97 of 2001, s 3 and Sch 1 item 17, with effect from 19 Sep 2001]

(8) Where a copy of the notice is served on a person, not being a bank or other financial institution, who owes a debt to the detainee, that first-mentioned person shall not, while the notice remains in force, without the written consent of the Secretary or Australian Border Force Commissioner, make any payment to the detainee in respect of that debt. Penalty: Imprisonment for 2 years. [Subs (8) am Act 41 of 2015, s 3 and Sch 3 item 19, with effect from 1 Jul 2015; Act 97 of 2001, s 3 and Sch 1 item 18, with effect from 19 Sep 2001; Act 184 of 1992, s 38 and Sch, with effect from 1 Sep 1994; Act 24 of 1992, s 6 and Sch 2, with effect from 6 Nov 1992]

(9) The notice stops being in force at the end of the third working day after it is given unless, before the end of that day, the Secretary or Australian Border Force Commissioner has applied to a court for an order confirming the notice. [Subs (9) am Act 41 of 2015, s 3 and Sch 3 item 19, with effect from 1 Jul 2015]

(10) A court shall, on application by the Secretary or Australian Border Force Commissioner, confirm the notice if and only if it is satisfied: (a) that the detainee is an unlawful non-citizen or a deportee; (b) that the detainee is liable, or may, on deportation or removal, become liable, to pay the Commonwealth an amount under section 210 or 212; and (c) that, if the court does not confirm the notice, there is a risk that the Commonwealth will not be able to recover the whole or a part of any amount that the detainee is, or becomes, liable to pay to the Commonwealth under section 210 or 212. [Subs (10) am Act 41 of 2015, s 3 and Sch 3 item 19, with effect from 1 Jul 2015; Act 85 of 2009, s 3 and Sch 1 item 18, with effect from 9 Nov 2009; Act 184 of 1992, s 38 and Sch, with effect from 1 Sep 1994]

(11) If the court confirms the notice, the court may make an order directing the Secretary or Australian Border Force Commissioner to make provision, whether by returning valuables to which the notice relates or otherwise, for the meeting of either or both of the following: (a) the detainee’s reasonable living expenses (including the reasonable living expenses of the detainee’s dependants (if any));

436

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 10 – Costs etc. of removal and deportation (ss 207–224)

s 224

(b) reasonable legal expenses incurred by the detainee in relation to a matter arising under this Act. [Subs (11) am Act 41 of 2015, s 3 and Sch 3 item 19, with effect from 1 Jul 2015; Act 184 of 1992, s 38 and Sch, with effect from 1 Sep 1994]

(12) If the notice is confirmed by the court, it remains in force for such period, not exceeding 12 months, as is specified by the court. (13) If the court refuses to confirm the notice, it thereupon stops being in force. (14) The Secretary or Australian Border Force Commissioner may issue to an officer a search warrant in accordance with the prescribed form. [Subs (14) am Act 41 of 2015, s 3 and Sch 3 item 19, with effect from 1 Jul 2015]

(15) A search warrant shall be expressed to remain in force for a specified period not exceeding 3 months and stops being in force at the end of that period. (16) An officer having with him or her a search warrant that was issued to him or her under subsection (14) and that is in force may, at any time in the day or night, and with such assistance, and using such reasonable force, as the officer thinks necessary: (a) enter and search any building, premises, vehicle, vessel or place in which the officer has reasonable cause to believe there may be found any valuables to which a notice in force under this section relates; and (b) may seize any such valuables found in the course of such a search. [Subs (16) am Act 184 of 1992, s 38 and Sch, with effect from 1 Sep 1994]

(17) An officer who has seized valuables under subsection (16) shall deal with those valuables in accordance with the directions of the Secretary or Australian Border Force Commissioner. [Subs (17) am Act 41 of 2015, s 3 and Sch 3 item 19, with effect from 1 Jul 2015]

(18) For the purposes of the exercise of his or her powers under subsection (16) an officer may stop any vehicle or vessel. [Subs (18) am Act 184 of 1992, s 38 and Sch, with effect from 1 Sep 1994]

(19) An officer who, in good faith, on behalf of the Secretary or Australian Border Force Commissioner or as a delegate of the Secretary or Australian Border Force Commissioner, does any act or thing for the purpose of the exercise of the power under subsection (5) to take possession of valuables is not liable to any civil or criminal action in respect of the doing of that act or thing. [Subs (19) am Act 41 of 2015, s 3 and Sch 3 item 19, with effect from 1 Jul 2015]

(20) In this section: court means a court of competent jurisdiction. valuables includes: (a) gold, jewellery, negotiable instruments, travellers cheques and cash; and (b) bank books and other documentary evidence of debts owed to the detainee. [Def am Act 184 of 1992, s 38 and Sch, with effect from 1 Sep 1994] [S 223 am Act 41 of 2015, s 3 and Sch 3 item 18, with effect from 1 Jul 2015; Act 85 of 2009; Act 97 of 2001; former s 68 renum Act 60 of 1994, s 83; am Act 184 of 1992, s 38 and Sch, with effect from 1 Sep 1994; Act 24 of 1992; former s 21D renum Act 59 of 1989, s 35; insrt Act 59 of 1989, s 12, with effect from 19 Dec 1989]

224 Dealing with seized valuables (1) Where the Secretary or Australian Border Force Commissioner takes possession of valuables pursuant to subsection 223(5), the provisions of this section have effect. [Subs (1) am Act 41 of 2015, s 3 and Sch 3 item 19, with effect from 1 Jul 2015]

© 2016 THOMSON REUTERS

437

s 224

Migration Act 1958

(2) The Secretary or Australian Border Force Commissioner shall arrange for the valuables to be kept until they are dealt with in accordance with a provision of this section, and shall ensure that all reasonable steps are taken to preserve the valuables while they are so kept. [Subs (2) am Act 41 of 2015, s 3 and Sch 3 item 19, with effect from 1 Jul 2015]

(3) The Secretary or Australian Border Force Commissioner shall arrange for the valuables to be returned to the person from whom they were taken if: (a) the authorising notice stops being in force; (b) the notified detainee: (i) is granted a visa; or (ii) stops being a deportee; (c) the notified detainee is not, when the authorising notice is given, liable to pay an amount to the Commonwealth under section 210 or 212, and does not, within 6 months after the giving of that notice, becomes so liable; or (d) all amounts that the notified detainee is or becomes liable to pay to the Commonwealth under section 210 or 212 are paid to the Commonwealth. [Subs (3) am Act 41 of 2015, s 3 and Sch 3 item 19, with effect from 1 Jul 2015; Act 85 of 2009, s 3 and Sch 1 item 19; Act 184 of 1992, s 38 and Sch]

(4) If, when the Secretary or Australian Border Force Commissioner takes possession of valuables, the notified detainee is liable under section 210 or 212 to pay an amount to the Commonwealth, the Secretary or Australian Border Force Commissioner shall, unless he or she is required to arrange for the return of the valuables because of paragraph (3)(d): (a) apply the valuables towards the payment of the amount owed to the Commonwealth; and (b) return any surplus to the person from whom the valuables were taken. [Subs (4) am Act 41 of 2015, s 3 and Sch 3 item 19, with effect from 1 Jul 2015; Act 85 of 2009, s 3 and Sch 1 item 20; Act 184 of 1992, s 38 and Sch]

(5) If, while valuables are being kept pursuant to subsection (2), the notified detainee becomes liable under section 210 or 212 to pay an amount to the Commonwealth, the Secretary or Australian Border Force Commissioner shall, unless he or she is required to arrange for the return of the valuables because of paragraph (3)(d): (a) apply the valuables towards the payment of the amount owed to the Commonwealth; and (b) return any surplus to the person from whom the valuables were taken. [Subs (5) am Act 41 of 2015, s 3 and Sch 3 item 19, with effect from 1 Jul 2015; Act 85 of 2009, s 3 and Sch 1 item 20; Act 184 of 1992, s 38 and Sch]

(6) In this section: notified detainee means the person served with the notice under section 223. authorising notice means the notice pursuant to which the Secretary or Australian Border Force Commissioner took possession of the valuables. [Def am Act 41 of 2015, s 3 and Sch 3 item 19, with effect from 1 Jul 2015] [Subs (6) am Act 184 of 1992, s 38 and Sch] [S 224 am Act 41 of 2015; Act 85 of 2009; former s 69 renum Act 60 of 1994, s 83; Act 184 of 1992; Act 24 of 1992; Act 86 of 1991; former s 21E renum Act 59 of 1989, s 35; subst Act 59 of 1989, s 12]

438

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 11 – Duties of masters in relation to crews (ss 225–228)

s 226

DIVISION 11 – DUTIES OF MASTERS IN RELATION TO CREWS (SS 225–228) [Former Div 6 renum Act 60 of 1994, s 83; former Div 3 renum Act 59 of 1989, s 35]

225 Production of identity documents and mustering of crew (1) This section applies to a vessel, other than a vessel of the regular armed forces of a government recognised by the Commonwealth, which has entered Australia from overseas. (2) On the arrival of a vessel at a port, an officer may require the master of the vessel to muster the vessel’s crew in the presence of the officer. (3) An officer may require the master of a vessel to muster the vessel’s crew in the presence of the officer before the vessel departs from a port. (4) An officer may require a member of the crew of a vessel to produce his or her identity documents to the officer for inspection. (5) A person must not fail to comply with a requirement made under this section. Penalty: $4,000. [Subs (5) am Act 97 of 2001, s 3 and Sch 1 item 19, with effect from 19 Sep 2001]

(6) Subsection (5) does not apply if the person has a reasonable excuse. Note: A defendant bears an evidential burden in relation to the matter in subsection (6) (see subsection 13.3(3) of the Criminal Code). [Subs (6) insrt Act 97 of 2001, s 3 and Sch 1 item 20, with effect from 19 Sep 2001]

(7) An offence against subsection (5) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. [Subs (7) insrt Act 97 of 2001, s 3 and Sch 1 item 20, with effect from 19 Sep 2001] [S 225 am Act 97 of 2001; former s 71 renum Act 60 of 1994, s 83; subst Act 220 of 1992, s 5, with effect from 24 Dec 1992; Act 24 of 1992; former s 23 renum Act 59 of 1989, s 35; am Act 59 of 1989; Act 112 of 1983; Act 117 of 1979; Act 10 of 1966]

226 Production of identity documents by persons on board resources installation (1) This section applies to a resources installation that has been brought into Australian waters from a place outside the outer limits of Australian waters for the purpose of being attached to the Australian seabed. [Subs (1) am Act 104 of 1987, s 37(a)]

(2) On the arrival of a resources installation at the place where it is to be attached to the Australian seabed, an officer may require the person in charge of the installation to muster, in the presence of the officer, all of the people on board the installation. [Subs (2) am Act 104 of 1987, s 37(a)]

(3) An officer may require the person in charge of a resources installation to muster, in the presence of the officer, all of the people on board the installation before the installation is detached from the Australian seabed for the purpose of being taken to a place outside the outer limits of Australian waters. [Subs (3) am Act 104 of 1987, s 37(a)]

(4) An officer may require a person on board a resources installation that is attached to the Australian seabed or to another resources installation that is so attached to produce to the officer for inspection the person’s identity documents. [Subs (4) am Act 104 of 1987, s 37(a) and (b)]

© 2016 THOMSON REUTERS

439

s 226

Migration Act 1958

(5) A person must not fail to comply with a requirement made under this section. Penalty: $4,000. [Subs (5) am Act 97 of 2001, s 3 and Sch 1 item 21, with effect from 19 Sep 2001]

(6) Subsection (5) does not apply if the person has a reasonable excuse. Note: A defendant bears an evidential burden in relation to the matter in subsection (6) (see subsection 13.3(3) of the Criminal Code). [Subs (6) insrt Act 97 of 2001, s 3 and Sch 1 item 22, with effect from 19 Sep 2001]

(7) An offence against subsection (5) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. [Subs (7) insrt Act 97 of 2001, s 3 and Sch 1 item 22, with effect from 19 Sep 2001] [S 226 am Act 97 of 2001; former s 72 renum Act 60 of 1994, s 83; subst Act 220 of 1992, s 5, with effect from 24 Dec 1992; Act 24 of 1992; former s 23A renum Act 59 of 1989, s 35; am Act 59 of 1989, s 34 and Sch 1; Act 104 of 1987; insrt Act 51 of 1982, s 48]

227 Production of identity documents by persons on board sea installation (1) This section applies to a sea installation that has been brought into Australian waters from a place outside the outer limits of Australian waters for the purpose of being installed in an adjacent area or in a coastal area. (2) On the arrival of a sea installation at its proposed location, an officer may require the person in charge of the installation to muster, in the presence of the officer, all of the people on board the installation. (3) An officer may require the person in charge of a sea installation to muster, in the presence of the officer, all of the people on board the installation before the installation is detached from its location for the purpose of being taken to a place outside the outer limits of Australian waters. (4) An officer may require a person on board a sea installation that is installed in an adjacent area or in a coastal area to produce to the officer for inspection the person’s identity documents. (5) A person must not fail to comply with a requirement made under this section. Penalty: $4,000. [Subs (5) am Act 97 of 2001, s 3 and Sch 1 item 23, with effect from 19 Sep 2001]

(6) Subsection (5) does not apply if the person has a reasonable excuse. Note: A defendant bears an evidential burden in relation to the matter in subsection (6) (see subsection 13.3(3) of the Criminal Code). [Subs (6) insrt Act 97 of 2001, s 3 and Sch 1 item 24, with effect from 19 Sep 2001]

(7) An offence against subsection (5) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. [Subs (7) insrt Act 97 of 2001, s 3 and Sch 1 item 24, with effect from 19 Sep 2001] [S 227 am Act 97 of 2001; former s 73 renum Act 60 of 1994, s 83; subst Act 220 of 1992, s 5, with effect from 24 Dec 1992; Act 24 of 1992; former s 23B renum Act 59 of 1989, s 35; am Act 59 of 1989, s 34 and Sch 1; insrt Act 104 of 1987, s 38]

228 Master to report absences (1) Where a member of the crew of a vessel, other than a vessel of the regular armed forces of a government recognized by the Commonwealth, that has entered Australia from overseas was on board the vessel at the time of its arrival at a port and is absent from the vessel at the

440

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Div 12 - Offences etc. in relation to entry into, and remaining in, Australia (ss 228A-245AY) s 228B

time of its departure from the port, the master of the vessel shall, at that departure, deliver to an officer a written report: (a) specifying the name of the member; and (b) stating: (i) that the member was a member of the crew of the vessel on board the vessel at the time of its arrival at that port; and (ii) that the member is absent from the vessel at the time of its departure from that port; and (c) stating whether the member left the vessel at that port with leave or without leave. Penalty: $4,000. [Subs (1) am Act 220 of 1992, s 6, with effect from 24 Dec 1992]

(2) An offence against subsection (1) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. [Subs (2) insrt Act 97 of 2001, s 3 and Sch 1 item 25, with effect from 19 Sep 2001] [S 228 am Act 97 of 2001; former s 74 renum Act 60 of 1994, s 83; am Act 220 of 1992; Act 24 of 1992; former s 24 renum Act 59 of 1989, s 35; am Act 59 of 1989, s 34 and Sch 1, with effect from 19 Dec 1989; Act 117 of 1979, s 29 and Sch, with effect from 1 Nov 1979; subst Act 10 of 1966, s 7, with effect from 6 May 1966]

DIVISION 12 – OFFENCES ETC. IN RELATION TO ENTRY INTO, AND REMAINING IN, AUSTRALIA (SS 228A–245AY) [Div 12 heading subst Act 10 of 2013, s 3 and Sch 1 item 13, with effect from 1 Jun 2013; Act 117 of 1979, s 14, with effect from 29 Oct 1979]

SUBDIVISION A – PEOPLE SMUGGLING AND RELATED OFFENCES (SS 228A–236F) [Subdiv A heading subst Act 50 of 2010, s 3 and Sch 1 item 7, with effect from 1 Jun 2010 insrt Act 196 of 1991, s 7]

228A Application of Subdivision This Subdivision applies in and outside Australia. [S 228A insrt Act 160 of 1999, s 3 and Sch 1 item 38, with effect from 16 Dec 1999]

228B Circumstances in which a non-citizen has no lawful right to come to Australia (1) For the purposes of this Subdivision, a non-citizen has, at a particular time, no lawful right to come to Australia if, at that time: (a) the non-citizen does not hold a visa that is in effect; and (b) the non-citizen is not covered by an exception referred to in subsection 42(2) or (2A); and (c) the non-citizen is not permitted by regulations under subsection 42(3) to travel to Australia without a visa that is in effect. (2) To avoid doubt, a reference in subsection (1) to a non-citizen includes a reference to a non-citizen seeking protection or asylum (however described), whether or not Australia has, or may have, protection obligations in respect of the non-citizen because the non-citizen is or may be a refugee, or for any other reason [Subs (2) am Act 135 of 2014, s 3 and Sch 5 item 13, with effect from 18 Apr 2015] [S 228B am Act 135 of 2014; insrt Act 135 of 2011, s 3 and Sch 1 item 1]

© 2016 THOMSON REUTERS

441

s 228B

Migration Act 1958

229 Carriage of non-citizens to Australia without documentation (1) The master, owner, agent, charterer and operator of a vessel on which a non-citizen is brought into Australia on or after 1 November 1979 each commit an offence against this section if the non-citizen, when entering Australia: (a) is not in possession of evidence of a visa that is in effect and that permits him or her to travel to and enter Australia; and (b) does not hold a special purpose visa; and (c) is not eligible for a special category visa; and (d) does not hold an enforcement visa; and (e) is a person to whom subsection 42(1) applies. [Subs (1) am Act 4 of 2016, s 3 and Sch 4 item 402, with effect from 10 Mar 2016; Act 85 of 2008, s 3 and Sch 3 items 7 and 8, with effect from 15 Sep 2008; Act 160 of 1999, s 3 and Sch 1 items 28, 39 and 40, with effect from 16 Dec 1999; Act 60 of 1994, s 62(a)–(d), with effect from 1 Sep 1994; Act 86 of 1991, s 17, with effect from 26 Jun 1991]

(1A) A person commits an offence if: (a) the person is a master, owner, agent, charterer or operator of an aircraft; and (b) the person brings a non-citizen into Australia by air on the aircraft; and (c) the non-citizen is the holder of a maritime crew visa that is in effect. [Subs (1A) insrt Act 73 of 2007, s 3 and Sch 1 item 11, with effect from 1 Jul 2007]

(2) A person who commits an offence against this section is liable, upon conviction, to a fine not exceeding $10,000. [Subs (2) am Act 4 of 2016, s 3 and Sch 4 item 207, with effect from 10 Mar 2016]

(3) An offence against subsection (1) or (1A) is an offence of absolute liability. Note: For absolute liability, see section 6.2 of the Criminal Code [Subs (3) am Act 73 of 2007, s 3 and Sch 1 item 12, with effect from 1 Jul 2007; insrt Act 97 of 2001, s 3 and Sch 1 item 26, with effect from 19 Sep 2001]

(4) For the purposes of subsection (1), the defendant bears an evidential burden in relation to establishing that subsection 42(1) does not apply to a person because of subsection 42(2) or (2A) or regulations made under subsection 42(3). Note: For evidential burden, see section 13.3 of the Criminal Code. [Subs (4) insrt Act 85 of 2008, s 3 and Sch 3 item 9, with effect from 15 Sep 2008]

(5) It is a defence to a prosecution for an offence against subsection (1) in relation to the bringing of a non-citizen into Australia on a vessel if it is established: (a) that the non-citizen was, when he or she boarded or last boarded the vessel for travel to Australia, in possession of evidence of a visa that was in effect and that permitted him or her to travel to and enter Australia, being a visa that: (i) did not appear to have been cancelled; and (ii) was expressed to continue in effect until, or at least until, the date of the non-citizen’s expected entry into Australia; (b) that the master of the vessel had reasonable grounds for believing that, when the non-citizen boarded or last boarded the vessel for travelling to and entering Australia, the non-citizen: (i) was eligible for a special category visa; or (ii) was the holder of a special purpose visa; or (iii) would, when entering Australia, be the holder of a special purpose visa; or (iv) was the holder of an enforcement visa; or (v) would, when entering Australia, be the holder of an enforcement visa; or

442

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Div 12 - Offences etc. in relation to entry into, and remaining in, Australia (ss 228A-245AY)

(c)

that (i) (ii) (iii)

s 230

the vessel entered Australia from overseas only because of: the illness of a person on board the vessel; stress of weather; or other circumstances beyond the control of the master.

[Subs (5) am Act 160 of 1999, s 3 and Sch 1 item 29, with effect from 16 Dec 1999; Act 60 of 1994, s 62(h)–(m), with effect from 1 Sep 1994]

(5A) It is a defence to a prosecution for an offence against subsection (1A) in relation to the bringing of a non-citizen into Australia on an aircraft if it is established that: (a) the non-citizen was, when he or she boarded or last boarded the aircraft for travel to Australia, in possession of evidence of another class of visa that was in effect and that permitted him or her to travel to and enter Australia, being a visa that: (i) did not appear to have been cancelled; and (ii) was expressed to continue in effect until, or at least until, the date of the non-citizen’s expected entry into Australia; or (b) the aircraft entered Australia from overseas only because of: (i) the illness of a person on board the aircraft; or (ii) stress of weather; or (iii) other circumstances beyond the control of the master. [Subs (5A) insrt Act 73 of 2007, s 3 and Sch 1 item 13, with effect from 1 Jul 2007]

(6) A defendant bears a legal burden in relation to the matters in subsection (5) or (5A). [Subs (6) am Act 73 of 2007, s 3 and Sch 1 item 14, with effect from 1 Jul 2007; insrt Act 97 of 2001, s 3 and Sch 1 item 27, with effect from 19 Sep 2001] [S 229 am Act 4 of 2016; Act 85 of 2008; Act 73 of 2007; Act 97 of 2001; Act 160 of 1999; Act 60 of 1994; Act 184 of 1992; Act 86 of 1991; insrt Act 59 of 1989, s 13, with effect from 19 Dec 1989]

230 Carriage of concealed persons to Australia (1) The master, owner, agent and charterer of a vessel each commit an offence against this section if an unlawful non-citizen is concealed on the vessel when it arrives in the migration zone. [Subs (1) am Act 4 of 2016, s 3 and Sch 4 item 402, with effect from 10 Mar 2016; Act 160 of 1999, s 3 and Sch 1 item 42, with effect from 16 Dec 1999; Act 184 of 1992, s 38 and Sch, with effect from 1 Sep 1994]

(1A) The master, owner, agent and charterer of a vessel each commit an offence against this section if: (a) a person is concealed on the vessel when it arrives in Australia; and (b) the person would, if in the migration zone, be an unlawful non-citizen. [Subs (1A) am Act 4 of 2016, s 3 and Sch 4 item 402, with effect from 10 Mar 2016; insrt Act 160 of 1999, s 3 and Sch 1 item 43, with effect from 16 Dec 1999]

(1B) An offence against subsection (1) or (1A) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. [Subs (1B) insrt Act 97 of 2001, s 3 and Sch 1 item 28, with effect from 19 Sep 2001]

(2) Subsection (1) does not apply if the master of the vessel: (a) as soon as it arrives in the migration zone, gives notice to an officer that the non-citizen is on board; and (b) prevents the non-citizen from landing without an officer having had an opportunity to question the non-citizen.

© 2016 THOMSON REUTERS

443

s 230

Migration Act 1958

Note: A defendant bears an evidential burden in relation to the matters in subsection (2) (see subsection 13.3(3) of the Criminal Code). [Subs (2) am Act 97 of 2001, s 3 and Sch 1 item 29, with effect from 19 Sep 2001; Act 160 of 1999, s 3 and Sch 1 items 44 and 45, with effect from 16 Dec 1999; Act 184 of 1992, s 38 and Sch, with effect from 1 Sep 1994]

(2A) Subsection (1A) does not apply if the master of the vessel: (a) as soon as it arrives in Australia, gives notice to an officer that the person is on board; and (b) prevents the person from leaving the vessel without an officer having had an opportunity to question the person. Penalty: $10,000. [Subs (2A) am Act 97 of 2001, s 3 and Sch 1 item 30, with effect from 19 Sep 2001; insrt Act 160 of 1999, s 3 and Sch 1 item 46, with effect from 16 Dec 1999] Note: A defendant bears an evidential burden in relation to the matters in subsection (2A) (see subsection 13.3(3) of the Criminal Code). [S 230 am Act 4 of 2016; Act 97 of 2001; Act 160 of 1999; Act 184 of 1992; subst Act 184 of 1992, s 17, with effect from 1 Sep 1994; am Act 24 of 1992; Act 59 of 1989; Act 123 of 1984; Act 22 of 1984; Act 112 of 1983; Act 117 of 1979; Act 10 of 1966]

231 Master of vessel to comply with certain requests (1) The master of a vessel arriving in Australia must comply with any request by an authorised officer to: (a) give the authorised officer a list of all persons on the vessel and prescribed particulars of each of them; or (b) gather together those persons or such of them as are specified by the officer; or (c) make sure of the disembarkation from the vessel of those persons or such of them as are specified by the officer. (2) If: (a) a person is on a vessel that has arrived in Australia; and (b) that person’s name is not on a list of persons on the vessel given under subsection (1); the person is taken, for the purposes of section 230, to have been concealed on the vessel when it arrived. [S 231 insrt Act 184 of 1992, s 17, with effect from 1 Sep 1994]

232 Penalty on master, owner, agent and charterer of vessel (1) Where: (a) a non-citizen: (i) enters Australia on a vessel; and (ii) because he or she is not the holder of a visa that is in effect, or because of section 173, becomes upon entry an unlawful non-citizen; and (iii) is a person to whom subsection 42(1) applies; or (b) a removee or deportee who has been placed on board a vessel for removal or deportation leaves the vessel in Australia otherwise than in immigration detention under this Act; the master, owner, agent and charterer of the vessel are each taken to commit an offence against this Act punishable by a fine not exceeding 100 penalty units. [Subs (1) am Act 4 of 2016, s 3 and Sch 4 item 403, with effect from 10 Mar 2016; Act 160 of 1999, s 3 and Sch 1 items 47 and 48, with effect from 16 Dec 1999; Act 60 of 1994, s 82 and Sch 1 items 82 and 83, with effect from 1 Sep 1994; Act 184 of 1992, s 38 and Sch, with effect from 1 Sep 1994]

444

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Div 12 - Offences etc. in relation to entry into, and remaining in, Australia (ss 228A-245AY) s 233A

(1A) An offence against subsection (1) is an offence of absolute liability. Note: For absolute liability, see section 6.2 of the Criminal Code. [Subs (1A) insrt Act 97 of 2001, s 3 and Sch 1 item 31, with effect from 19 Sep 2001]

(1B) For the purposes of paragraph (1)(a), the defendant bears an evidential burden in relation to establishing that subsection 42(1) does not apply to a person because of subsection 42(2) or (2A) or regulations made under subsection 42(3). Note: For evidential burden, see section 13.3 of the Criminal Code. [Subs (1B) insrt Act 85 of 2008, s 3 and Sch 3 item 10, with effect from 15 Sep 2008]

(2) It is a defence to a prosecution for an offence against subsection (1) in relation to the entry of a non-citizen to Australia on a vessel if it is established: (a) that the non-citizen was, when he or she boarded or last boarded the vessel for travel to Australia, in possession of evidence of a visa that was in effect and that permitted him or her to travel to and enter Australia, being a visa that: (i) did not appear to have been cancelled; and (ii) was expressed to continue in effect until, or at least until, the date of the non-citizen’s expected entry into Australia; or (b) that the master of the vessel had reasonable grounds for believing that, when the non-citizen boarded or last boarded the vessel for travelling to and entering Australia, the non-citizen: (i) was eligible for a special category visa; or (ii) was the holder of a special purpose visa; or (iii) would, when entering Australia, be the holder of a special purpose visa; or (iv) was the holder of an enforcement visa; or (v) would, when entering Australia, be the holder of an enforcement visa; or (c) that the vessel entered Australia from overseas only because of: (i) the illness of a person on board the vessel; or (ii) stress of weather; or (iii) other circumstances beyond the control of the master. [Subs (2) insrt Act 160 of 1999, s 3 and Sch 1 item 49, with effect from 16 Dec 1999]

(3) A defendant bears a legal burden in relation to the matters in subsection (2). [Subs (3) insrt Act 97 of 2001, s 3 and Sch 1 item 32, with effect from 19 Sep 2001] [S 232 am Act 4 of 2016; Act 85 of 2008; Act 97 of 2001; Act 160 of 1999; Act 60 of 1994; Act 184 of 1992; Act 24 of 1992; Act 59 of 1989; Act 112 of 1983; Act 10 of 1966]

[Editor’s note: Sections 232A and 233 were repealed by Act 50 of 2010, s 3 and Sch 1 item 8, with effect from 1 Jun 2010, and have not been reproduced] 233A Offence of people smuggling (1) A person (the first person) commits an offence if: (a) the first person organises or facilitates the bringing or coming to Australia, or the entry or proposed entry into Australia, of another person (the second person); and (b) the second person is a non-citizen; and (c) the second person had, or has, no lawful right to come to Australia. Penalty: Imprisonment for 10 years or 1,000 penalty units, or both. (2) Absolute liability applies to paragraph (1)(b). Note: For absolute liability, see section 6.2 of the Criminal Code.

© 2016 THOMSON REUTERS

445

s 233A

Migration Act 1958

[233A.20]

(3) For the purposes of this Act, an offence against subsection (1) is to be known as the offence of people smuggling. [S 233A subst Act 50 of 2010, s 3 and Sch 1 item 8, with effect from 1 Jun 2010; am Act 126 of 2001; insrt Act 89 of 1999, s 3 and Sch 1 item 7, with effect from 22 Jul 1999]

SECTION 233A COMMENTARY Scope ................................................................................................................................................. [233A.20] CONCEPTS

Organises or facilitates ..................................................................................................................... [233A.40] Second person is a non-citizen ........................................................................................................ [233A.60] No lawful right to come to Australia .............................................................................................. [233A.80] KEY CASE

Magaming v The Queen ................................................................................................................ [233A.100]

[233A.20] Scope Section 233A provides that it is a criminal offence to organise or facilitate the bringing or coming to Australia of a non-citizen who does not have a lawful right to come to Australia. The offence is in relation to the smuggling of one person, unlike s 233C, which is in relation to the smuggling of at least five persons. An offence against s 233A(1) is known as “people smuggling”: s 233A(3). According to the Explanatory Memorandum to the Anti-People Smuggling and Other Measures Bill 2010 (Cth) p 1, the purpose of this section, along with this subdivision, is to: strengthen the Commonwealth’s anti-people smuggling legislative framework by ensuring that an appropriate range of offences are available to target and deter people smuggling activity and by creating greater harmonisation across Commonwealth legislation.

This section is aligned with the people smuggling offence contained in s 73.1 of the Criminal Code Act 1995 (Cth) (Criminal Code). According to item 8 of the Explanatory Memorandum to the Anti-People Smuggling and Other Measures Bill 2010 (Cth), there are three physical elements to this offence: • the conduct element of organising or facilitating the bringing or coming to Australia, or the unlawful entry or proposed entry into Australia of a second person who is an unlawful non-citizen: s 233A(1)(a); • the second person is a non-citizen: s 233A(1)(b); and • the second person has or had no lawful right to come to Australia: s 233A(1)(c).

CONCEPTS [233A.40] Organises or facilitates According to s 233A(1)(a), the first physical element to this offence is the organising or facilitating of the bringing or coming to Australia, or the unlawful entry or proposed entry into Australia, of a second person who is an unlawful non-citizen. The terms “organises” and “facilitates” cover all conduct associated with people smuggling and the fault element of intention attaches to this conduct by operation of the default elements in s 5.6 of the Criminal Code: see item 8 of the Explanatory Memorandum to the Anti-People Smuggling and Other Measures Bill 2010 (Cth). 446

Migration Law

[233A.100]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Div 12 - Offences etc. re: entry into, and remaining in, Australia (ss 228A-245AY)

s 233B

[233A.60] Second person is a non-citizen Section 233A(1)(b) states that the second physical element to this offence is that the second person is a non-citizen of Australia. By way of s 233A(2), absolute liability applies to this aspect; therefore, the prosecution will not need to establish a fault element, only that the second person was not a person who had a lawful right to come to Australia. The defence of mistake of fact is not available: item 8 of the Explanatory Memorandum to the Anti-People Smuggling and Other Measures Bill 2010 (Cth). [233A.80] No lawful right to come to Australia Section 233A(1)(c) establishes that the third physical element to this offence is that the second person has or had no lawful right to come to Australia. That is, the bringing or coming to Australia of the second person does not, and would not, comply with Australia’s entry requirement laws: item 8 of the Explanatory Memorandum to the Anti-People Smuggling and Other Measures Bill 2010 (Cth). By operation of the default elements in s 5.6 of the Criminal Code, recklessness attaches to this element: item 8 of the Explanatory Memorandum to the Anti-People Smuggling and Other Measures Bill 2010 (Cth). According to s 5.4(1) of the Criminal Code, a person is reckless if he or she is aware of a substantial risk that the circumstance exists, or will exist, and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

KEY CASE [233A.100] Magaming v The Queen In Magaming v The Queen (2013) 302 ALR 462; 87 ALJR 1060; [2013] HCA 40, the appellant, Mr Magaming, submitted that ss 233A and 233C were identical save for the number of unlawful non-citizens concerned, and that therefore these sections were coextensive. On that basis, the provisions were incompatible with the separation of judicial prosecutorial functions, they were incompatible with the institutional integrity of the courts and required a court to impose sentences that were arbitrary and non-judicial. French CJ, Hayne, Crennan, Kiefel and Bell JJ dismissed the appeal and held that the provisions were not invalid: at [4] and [53]. Their Honours stated at [17]: The offences created by ss 233A and 233C overlapped but they were not coextensive. Proof of an offence under s 233C required proof of an element different from, and additional to, the elements of the offence under s 233A. Proof of an offence under s 233C required proof that a group of five or more unlawful non-citizens was to be brought to Australia. Proof of an offence under s 233A required only proof that one unlawful non-citizen was to be brought to Australia.

Their Honours further stated at [40]: It is enough to conclude that the availability or exercise of a choice between charging an accused with the aggravated offence created by s 233C, rather than one or more counts of the simple offence created by s 233A, is neither incompatible with the separation of judicial and prosecutorial functions nor incompatible with the institutional integrity of the courts.

233B Aggravated offence of people smuggling (danger of death or serious harm etc.) (1) A person (the first person) commits an offence against this section if the first person commits the offence of people smuggling (the underlying offence) in relation to another person (the victim) and either or both of the following apply: (a) [Repealed]

© 2016 THOMSON REUTERS

447

s 233B

[233B.20]

Migration Act 1958

(b) in committing the underlying offence, the first person subjects the victim to cruel, inhuman or degrading treatment (within the ordinary meaning of that expression); (c) in committing the underlying offence: (i) the first person’s conduct gives rise to a danger of death or serious harm to the victim; and (ii) the first person is reckless as to the danger of death or serious harm to the victim that arises from the conduct. Penalty: Imprisonment for 20 years or 2,000 penalty units, or both. Note: Sections 236A and 236B limit conviction and sentencing options for offences against this section. [Subs (1) am Act 6 of 2013, s 3 and Sch 2 items 4 and 5, with effect from 8 Mar 2013]

(2) There is no fault element for the physical element of conduct described in subsection (1), that the first person commits the underlying offence, other than the fault elements (however described), if any, for the underlying offence. (3) To avoid doubt, the first person may be convicted of an offence against this section even if the first person has not been convicted of the underlying offence. (4) In this section: exploit [Repealed] [Def rep Act 6 of 2013, s 3 and Sch 2 item 6, with effect from 8 Mar 2013]

forced labour [Repealed] [Def rep Act 6 of 2013, s 3 and Sch 2 item 7, with effect from 8 Mar 2013]

serious harm has the same meaning as in the Criminal Code. sexual servitude [Repealed] [Def rep Act 6 of 2013, s 3 and Sch 2 item 8, with effect from 8 Mar 2013]

slavery [Repealed] [Def rep Act 6 of 2013, s 3 and Sch 2 item 9, with effect from 8 Mar 2013] [S 233B am Act 6 of 2013, s 3 and Sch 2 item 3, with effect from 8 Mar 2013; subst Act 50 of 2010, s 3 and Sch 1 item 8, with effect from 1 Jun 2010; insrt Act 126 of 2001, s 3 and Sch 2 item 5, with effect from 27 Sep 2001]

SECTION 233B COMMENTARY Scope ................................................................................................................................................. [233B.20] CONCEPTS

Cruel, inhuman or degrading treatment ........................................................................................... [233B.40] Danger of death or serious harm ..................................................................................................... [233B.60]

[233B.20] Scope Section 233B states that it is a criminal offence to organise or facilitate the bringing or coming to Australia of a non-citizen who does not have a lawful right to come to Australia, in circumstances where the person subjects another person (the victim) to cruel, inhuman or degrading treatment or in circumstances where this conduct gives rise to a danger of death or serious harm to the victim, and the person is reckless to this. According to the Explanatory Memorandum to the Anti-People Smuggling and Other Measures Bill 2010 (Cth) p 1, the purpose of this section, along with this subdivision, is to: strengthen the Commonwealth’s anti-people smuggling legislative framework by ensuring that an appropriate range of offences are available to target and deter people smuggling activity and by creating greater harmonisation across Commonwealth legislation. 448

Migration Law

[233B.60]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Div 12 - Offences etc. re: entry into, and remaining in, Australia (ss 228A-245AY)

s 233C

This section is equivalent to s 73.2 of the Criminal Code. According to item 8 of the Explanatory Memorandum to the Anti-People Smuggling and Other Measures Bill 2010 (Cth), this aggravated offence will exist where the elements of the people smuggling offence in s 233A exist and the offence occurred in the following prescribed aggravating circumstances: • the person subjected another person (the victim) to cruel, inhuman or degrading treatment; or • the people smuggling conduct gave rise to a danger of death or serious harm to the victim and the person was reckless to this. The circumstances described above derive from Art 6 of the Protocol Against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention Against Transnational Organized Crime (2000) (Smuggling Protocol): Anti-People Smuggling and Other Measures Bill 2010 (Cth), Explanatory Memorandum, item 8. Other than the fault elements for the offence of people smuggling under s 233A, there are no fault elements for the physical elements described in s 233B(1): see s 233B(2).

CONCEPTS [233B.40] Cruel, inhuman or degrading treatment Section 233B(1)(b) states that one of the elements of the offence of people smuggling is for a person to subject the smuggled person to cruel, inhuman or degrading treatment, while commissioning people smuggling. According to item 8 of the Explanatory Memorandum to the Anti-People Smuggling and Other Measures Bill 2010 (Cth): Whether or not certain conduct constitutes cruel, inhuman or degrading treatment will be a matter determined by the trier of fact on the facts of the relevant case. The words “within the ordinary meaning of that expression” have been included so that any similar definition of that expression contained in the Migration Act will not apply. This is consistent with the Criminal Code in which it is the trier of fact that will determine whether or not conduct constitutes cruel, inhumane or degrading treatment.

[233B.60] Danger of death or serious harm Section 233B(1)(c) provides that one of the elements of the offence of people smuggling is for the person who is commissioning people smuggling to engage in conduct which gives rise to a danger of death or serious harm occurring to the smuggled person and the person is reckless to the danger of death or serious harm. Pursuant to s 5.4(2) of the Criminal Code, a person is reckless if he or she is aware of a substantial risk that the result will occur and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk: Heydarkhani v The Queen [2014] WASCA 52 at [33] per McLure P. According to item 8 of the Explanatory Memorandum to the Anti-People Smuggling and Other Measures Bill 2010 (Cth): As with subsection 73.2(1)(c) of the Criminal Code, this proposed subsection draws on the endangerment offences in sections 5.1.25 and 5.1.26 of the Model Criminal Code (Non Fatal Offences Against the Person Report, September 1998).

233C Aggravated offence of people smuggling (at least 5 people) (1) A person (the first person) commits an offence if: (a) the first person organises or facilitates the bringing or coming to Australia, or the entry or proposed entry into Australia, of a group of at least 5 persons (the other persons); and (b) at least 5 of the other persons are non-citizens; and

© 2016 THOMSON REUTERS

449

s 233C

[233C.20]

Migration Act 1958

(c)

the persons referred to in paragraph (b) who are non-citizens had, or have, no lawful right to come to Australia. Penalty: Imprisonment for 20 years or 2,000 penalty units, or both. Note: Sections 236A and 236B limit conviction and sentencing options for offences against this section.

(2) Absolute liability applies to paragraph (1)(b). Note: For absolute liability, see section 6.2 of the Criminal Code.

(3) If, on a trial for an offence against subsection (1), the trier of fact: (a) is not satisfied that the defendant is guilty of that offence; and (b) is satisfied beyond reasonable doubt that the defendant is guilty of the offence of people smuggling; the trier of fact may find the defendant not guilty of an offence against subsection (1) but guilty of the offence of people smuggling, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt. [S 233C subst Act 50 of 2010, s 3 and Sch 1 item 8, with effect from 1 Jun 2010; am Act 41 of 2003; insrt Act 126 of 2001, s 3 and Sch 2 item 5, with effect from 27 Sep 2001]

SECTION 233C COMMENTARY Scope ................................................................................................................................................. [233C.20] CONCEPTS

Organises or facilitates ..................................................................................................................... [233C.40] At least five of the other persons are non-citizens ......................................................................... [233C.60] No lawful right to come to Australia ............................................................................................... [233C.80] KEY CASE

Magaming v The Queen ................................................................................................................. [233C.100]

[233C.20] Scope Section 233C states that it is a criminal offence to organise or facilitate the bringing or coming to Australia of at least five non-citizens who do not have a lawful right to come to Australia. The offence is in relation to the smuggling of a group of at least five people, unlike s 233A, which is in relation to the smuggling of only one person. According to the Explanatory Memorandum to the Anti-People Smuggling and Other Measures Bill 2010 (Cth) p 1, the purpose of this section, along with this subdivision, is to: strengthen the Commonwealth’s anti-people smuggling legislative framework by ensuring that an appropriate range of offences are available to target and deter people smuggling activity and by creating greater harmonisation across Commonwealth legislation.

The Explanatory Memorandum to the Anti-People Smuggling and Other Measures Bill 2010 (Cth) item 8 states that the physical and fault elements are mirrored between ss 233A and 233C. There are three physical elements to this offence: • the conduct element of organising or facilitating the bringing or coming to Australia, or the unlawful entry or proposed entry into Australia of a group of at least five people who are unlawful non-citizens: s 233C(1)(a); • at least five of the people are non-citizens: s 233C(1)(b); and • the other people have or had no lawful right to come to Australia: s 233C(1)(c). 450

Migration Law

[233C.100]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Div 12 - Offences etc. re: entry into, and remaining in, Australia (ss 228A-245AY)

s 233C

CONCEPTS [233C.40] Organises or facilitates According to s 233C(1)(a), the first physical element to this offence is the organising or facilitating of the bringing or coming to Australia, or the unlawful entry or proposed entry into Australia, of a group of at least five people who are unlawful non-citizens. The terms “organises” and “facilitates” cover all conduct associated with people smuggling and the fault element of intention attaches to this conduct by operation of the default elements in s 5.6 of the Criminal Code: Anti-People Smuggling and Other Measures Bill 2010 (Cth), Explanatory Memorandum, item 8. [233C.60] At least five of the other persons are non-citizens The second physical element to this offence is that at least five of the other persons are non-citizens of Australia: s 233C(1)(b). By way of s 233C(2), absolute liability applies to this aspect; therefore, the prosecution will not need to establish a fault element, only that the other persons were not persons who had a lawful right to come to Australia. The defence of mistake of fact is not available: Anti-People Smuggling and Other Measures Bill 2010 (Cth), Explanatory Memorandum, item 8. [233C.80] No lawful right to come to Australia Section 233C(1)(c) states that the third physical element to this offence is that the other persons have or had no lawful right to come to Australia. That is, the bringing or coming to Australia of the other persons did not, and would not, comply with Australia’s entry requirement laws. Further, by operation of the default elements in s 5.6 of the Criminal Code, recklessness attaches to this element: Anti-People Smuggling and Other Measures Bill 2010 (Cth), Explanatory Memorandum, item 8. Pursuant to s 5.4(1) of the Criminal Code, a person is reckless if he or she is aware of a substantial risk that the circumstance exists or will exist and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

KEY CASE [233C.100] Magaming v The Queen In Magaming v The Queen (2013) 302 ALR 462; 87 ALJR 1060; [2013] HCA 40, the appellant, Mr Magaming, submitted that ss 233A and 233C were identical save for the number of unlawful non-citizens concerned, and that therefore these sections were coextensive. On that basis, the provisions were incompatible with the separation of judicial prosecutorial functions, they were incompatible with the institutional integrity of the courts and required a court to impose sentences that were arbitrary and non-judicial. French CJ, Hayne, Crennan, Kiefel and Bell JJ dismissed the appeal and held that the provisions were not invalid: at [4] and [53]. Their Honours stated at [17]: The offences created by ss 233A and 233C overlapped but they were not coextensive. Proof of an offence under s 233C required proof of an element different from, and additional to, the elements of the offence under s 233A. Proof of an offence under s 233C required proof that a group of five or more unlawful non-citizens was to be brought to Australia. Proof of an offence under s 233A required only proof that one unlawful non-citizen was to be brought to Australia.

French CJ, Hayne, Crennan, Kiefel and Bell JJ further stated at [40]: It is enough to conclude that the availability or exercise of a choice between charging an accused with the aggravated offence created by s 233C, rather than one or more counts of the simple offence created by s 233A, is neither incompatible with the separation of judicial and prosecutorial functions nor incompatible with the institutional integrity of the courts.

© 2016 THOMSON REUTERS

451

s 233D

Migration Act 1958

[233D.20]

233D Supporting the offence of people smuggling (1) A person (the first person) commits an offence if: (a) the first person provides material support or resources to another person or an organisation (the receiver); and (b) the support or resources aids the receiver, or a person or organisation other than the receiver, to engage in conduct constituting the offence of people smuggling. Penalty: Imprisonment for 10 years or 1,000 penalty units, or both. (2) Subsection (1) does not apply if the conduct constituting the offence of people smuggling relates, or would relate, to: (a) the first person; or (b) a group of persons that includes the first person. (3) To avoid doubt, the first person commits an offence against subsection (1) even if the offence of people smuggling is not committed. [S 233D insrt Act 50 of 2010, s 3 and Sch 1 item 8, with effect from 1 Jun 2010]

SECTION 233D COMMENTARY Scope ................................................................................................................................................. [233D.20] CONCEPTS

Material support or resources .......................................................................................................... [233D.40]

[233D.20] Scope According to s 233D, it is a criminal offence to provide material support or resources to another person or organisation and the provision of that support or resources aids the commission of the offence of people smuggling, as set out in s 233A. According to the Explanatory Memorandum to the Anti-People Smuggling and Other Measures Bill 2010 (Cth) p 1, the purpose of this section, along with this subdivision, is to: strengthen the Commonwealth’s anti-people smuggling legislative framework by ensuring that an appropriate range of offences are available to target and deter people smuggling activity and by creating greater harmonisation across Commonwealth legislation.

Item 8 of the Explanatory Memorandum to the Anti-People Smuggling and Other Measures Bill 2010 (Cth) further states in respect of the purpose of this sectionand subdivision: This offence targets those involved in supporting and facilitating people smuggling. This is an important strategy in tackling serious and organised crime. Organised criminal syndicates depend on enablers and facilitators who play a vital role in supporting the criminal economy. Targeting those who organise, finance and provide other material support to people smuggling operations is an important element of a strong anti-people smuggling framework.

The offence does not apply to those who have paid a smuggler to either help them, or a family member, gain entry into Australia. However, it will apply to those already in Australia who pay a smuggler to help bring either a family member or friend to Australia: Anti-People Smuggling and Other Measures Bill 2010 (Cth), Explanatory Memorandum, item 8. The Explanatory Memorandum to the Anti-People Smuggling and Other Measures Bill 2010 (Cth) item 8 continues: Section 5.6 of the Criminal Code will apply automatic fault elements to the physical elements of the offence set out in paragraphs 233D(1)(a) and (b). To establish this offence, the prosecution would need to prove beyond reasonable doubt that: 452

Migration Law

[233D.40]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Div 12 - Offences etc. re: entry into, and remaining in, Australia (ss 228A-245AY)

s 233E

• the person intentionally provided material support or resources to an another person or an organisation (the receiver), and • the person was reckless as to the circumstance that the provision of support or resources aided the receiver or another person or organisation to engage in conduct constituting a people smuggling offence. Section 5.4 of the Criminal Code provides that a person is reckless with respect to a circumstance if he or she is aware of a substantial risk that the circumstance exists or will exist and, having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

CONCEPTS [233D.40] Material support or resources The expression “material support or resources” is not defined under the Act or in Commonwealth legislation. However, according to item 8 of the Explanatory Memorandum to the Anti-People Smuggling and Other Measures Bill 2010 (Cth): drawing reference from section 2339A of the United States of America Criminal Code, “material support or resources” may include, but is not limited to: property, tangible or intangible, or service, finances including currency or monetary instruments of financial securities, financial services, false documentation or identification, communications equipment, facilities and transportation. The term “material support” has been used in accordance with a recommendation by the Parliamentary Joint Committee on Intelligence and Security (PJCIS) made in their Review of Security and Counter-Terrorism Legislation in December 2006. The PJCIS recommended that the terrorism offence in section 102.7 of the Criminal Code be amended to provide for “material support” to remove any ambiguity. For consistency across Commonwealth legislation, the term “material support” has been used to make clear that the level of support required to commit the offence goes beyond mere support and is support that is real and concrete.

233E Concealing and harbouring non-citizens etc. (1) A person (the first person) commits an offence if: (a) the first person conceals another person (the second person); and (b) the second person is a non-citizen; and (c) the first person engages in the conduct with the intention that the second person will enter Australia in contravention of this Act. Penalty: Imprisonment for 10 years or 1,000 penalty units, or both. (2) A person (the first person) commits an offence if: (a) the first person conceals another person (the second person); and (b) the second person is an unlawful non-citizen or a deportee; and (c) the first person engages in the conduct with the intention of preventing discovery by an officer of the second person. Penalty: Imprisonment for 10 years or 1,000 penalty units, or both. (3) A person (the first person) commits an offence if: (a) the first person harbours another person (the second person); and (b) the second person is an unlawful non-citizen, a removee or a deportee. Penalty: Imprisonment for 10 years or 1,000 penalty units, or both. [S 233E insrt Act 50 of 2010, s 3 and Sch 1 item 8, with effect from 1 Jun 2010]

© 2016 THOMSON REUTERS

453

s 233E

Migration Act 1958

234 False documents and false or misleading information etc. relating to non-citizens (1) A person shall not, in connexion with the entry, proposed entry or immigration clearance, of a non-citizen (including that person himself or herself) into Australia or with an application for a visa or a further visa permitting a non-citizen (including that person himself or herself) to remain in Australia: (a) present, or cause to be presented, to an officer or a person exercising powers or performing functions under this Act a document which is forged or false; (b) make, or cause to be made, to an officer or a person exercising powers or performing functions under this Act a statement that, to the person’s knowledge, is false or misleading in a material particular; or (c) deliver, or cause to be delivered, to an officer or a person exercising powers or performing functions under this Act, or otherwise furnish, or cause to be furnished for official purposes of the Commonwealth, a document containing a statement or information that is false or misleading in a material particular. [Subs (1) am Act 60 of 1994, s 82 and Sch 1 item 85, with effect from 1 Sep 1994; Act 184 of 1992, s 38 and Sch, with effect from 1 Sep 1994; Act 112 of 1983, s 20, with effect from 2 Apr 1984; Act 175 of 1980, s 8, with effect from 14 Jan 1981; Act 117 of 1979, s 18(a), with effect from 29 Oct 1979]

(2) A person shall not transfer or part with possession of a document: (a) with intent that the document be used to help a person, being a person not entitled to use it, to gain entry, or to remain in, Australia or to be immigration cleared; or (b) where the person has reason to suspect that the document may be so used. Penalty: Imprisonment for 10 years or 1,000 penalty units, or both. [Subs (2) am Act 184 of 1992, s 38 and Sch, with effect from 1 Sep 1994; Act 10 of 1966, s 11 and Sch, with effect from 6 May 1966] [S 234 am Act 50 of 2010, s 3 and Sch 1 item 8, with effect from 1 Jun 2010; Act 89 of 1999, s 3 and Sch 1 item 8, with effect from 22 Jul 1999; Act 60 of 1994; Act 184 of 1992; Act 24 of 1992, s 6 and Sch 2, with effect from 6 Nov 1992; Act 59 of 1989, s 34 and Sch 1, with effect from 19 Dec 1989; Act 112 of 1983; Act 175 of 1980; Act 118 of 1979; Act 117 of 1979, s 18(b), with effect from 29 Oct 1979; Act 10 of 1966]

234A Aggravated offence of false documents and false or misleading information etc. relating to non-citizens (at least 5 people) (1) A person must not, in connection with: (a) the entry or proposed entry into Australia, or the immigration clearance, of a group of 5 or more non-citizens (which may include that person), or of any member of such a group; or (b) an application for a visa or a further visa permitting a group of 5 or more non-citizens (which may include that person), or any member of such a group, to remain in Australia; do any of the following: (c) present, or cause to be presented, to an officer or a person exercising powers or performing functions under this Act a document that the person knows is forged or false; (d) make, or cause to be made, to an officer or a person exercising powers or performing functions under this Act a statement that the person knows is false or misleading in a material particular;

454

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Div 12 - Offences etc. re: entry into, and remaining in, Australia (ss 228A-245AY)

s 235

(e)

deliver, or cause to be delivered, to an officer or a person exercising powers or performing functions under this Act, or otherwise give, or cause to be given, for official purposes of the Commonwealth, a document containing a statement or information that the person knows is false or misleading in a material particular. Penalty: Imprisonment for 20 years or 2,000 penalty units, or both. Note: Sections 236A and 236B limit conviction and sentencing options for offences against this section.

(2) A person must not transfer or part with possession of a document or documents: (a) with the intention that the document or documents be used to help a group of 5 or more people, none of whom are entitled to use the document or documents, or any member of such a group, to gain entry into or remain in Australia, or to be immigration cleared; or (b) if the person has reason to suspect that the document or documents may be so used. Penalty: Imprisonment for 20 years or 2,000 penalty units, or both. Note: Sections 236A and 236B limit conviction and sentencing options for offences against this section. [S 234A insrt Act 50 of 2010, s 3 and Sch 1 item 9, with effect from 1 Jun 2010]

235 Offences in relation to work (1) If: (a) the temporary visa held by a non-citizen is subject to a prescribed condition restricting the work that the non-citizen may do in Australia; and (b) the non-citizen contravenes that condition; the non-citizen commits an offence against this section. Note: Subdivision C of this Division also contains offences relating to work by a non-citizen in breach of a visa condition. [Subs (1) am Act 7 of 2007, s 3 and Sch 2 item 2, with effect from 19 Aug 2007; subst Act 59 of 1989, s 16(1)(a) (am Act 159 of 1989), with effect from 19 Dec 1989; am Act 112 of 1983, s 37 and Sch, with effect from 2 Apr 1984]

(2) For the purposes of subsection (1), a condition restricts the work that a non-citizen may do if, but not only if, it prohibits the non-citizen doing: (a) any work; or (b) work other than specified work; or (c) specified work. [Subs (2) am Act 59 of 1989, s 16(1)(b) and (c), with effect from 19 Dec 1989; Act 112 of 1983, s 37 and Sch, with effect from 2 Apr 1984]

(3) An unlawful non-citizen who performs work in Australia whether for reward or otherwise commits an offence against this subsection. Note: Subdivision C of this Division also contains offences relating to work by an unlawful non-citizen. [Subs (3) am Act 7 of 2007, s 3 and Sch 2 item 3, with effect from 19 Aug 2007; Act 59 of 1989, s 16(1)(e), with effect from 19 Dec 1989]

(4) If: (a) there is a criminal justice certificate or a criminal justice stay warrant about a non-citizen; and (b) the person does any work within the meaning of subsection 160(2), in Australia, whether for reward or otherwise; then without limiting the operation of any other provision of this Act, the person commits an offence against this subsection. [Subs (4) am Act 59 of 1989, s 16(1)(f), with effect from 19 Dec 1989; Act 86 of 1987, s 3 and Sch, with effect from 5 Jun 1987]

© 2016 THOMSON REUTERS

455

s 235

[235.20]

Migration Act 1958

(4A) Subsection (4) does not apply to a non-citizen who holds a criminal justice stay visa, but this subsection does not affect the operation of subsection (1). Note: A defendant bears an evidential burden in relation to the matters in subsection (4A) (see subsection 13.3(3) of the Criminal Code). [Subs (4A) am Act 97 of 2001, s 3 and Sch 1 item 34, with effect from 19 Sep 2001; insrt Act 113 of 1998, s 3 and Sch 6 item 11, with effect from 1 Mar 1999]

(4B) An offence against subsection (1), (3) or (4) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. [Subs (4B) insrt Act 97 of 2001, s 3 and Sch 1 item 35, with effect from 19 Sep 2001]

(5) The penalty for an offence against subsection (1), (3) or (4) is a fine not exceeding $10,000. [Subs (5) am Act 184 of 1992, s 38 and Sch, with effect from 1 Sep 1994; Act 24 of 1992, s 6 and Sch 2, with effect from 6 Nov 1992; Act 59 of 1989, s 16(1)(g)–(j), with effect from 19 Dec 1989; Act 86 of 1987, s 3 and Sch, with effect from 5 Jun 1987; Act 112 of 1983, s 37 and Sch, with effect from 2 Apr 1984]

(6) For the purposes of this section, a reference in a visa, and the reference in subsection (3), to the performance of any work in Australia by a person, shall each be read as not including a reference to the performance by the person of any work of a prescribed kind or of work in prescribed circumstances. (7) To avoid doubt, for the purposes of this section, a reference in a visa, and the reference in subsection (3), to the performance of any work in Australia by a person, does not refer to engaging in: (a) an activity in which a person who is a detainee in immigration detention voluntarily engages where the activity is of a kind approved in writing by the Secretary for the purposes of this paragraph; or (b) an activity in which a person who is a prisoner in a prison or remand centre of the Commonwealth, a State or a Territory engages as a prisoner; or (c) an activity in which a person engages in compliance with: (i) a sentence passed, or an order made, under subsection 20AB(1) of the Crimes Act 1914 (community service orders etc.); or (ii) a community service order, a work order, a sentence of periodic detention, an attendance centre order, a sentence of weekend detention, an attendance order, or a similar sentence or order, passed or made under the law of a State or Territory. [Subs (7) insrt Act 7 of 2007, s 3 and Sch 2 item 4, with effect from 19 Aug 2007]

(8) [Repealed] [Subs (8) rep Act 184 of 1992, s 38 and Sch, with effect from 1 Sep 1994] [S 235 am Act 7 of 2007; Act 97 of 2001; Act 113 of 1998; Act 184 of 1992; Act 24 of 1992; Act 59 of 1989; Act 86 of 1987; Act 112 of 1983; insrt Act 117 of 1979, s 19, with effect from 29 Oct 1979 Cross-reference: Legislative Instruments: IMMI 10/019 — Migration Act 1958 – Approval under paragraphs 235(7)(a) and 245AF(a) – Approval of Activities – June 2010: This Approval specifies the list of approved activities that a person in immigration detention is able to participate in.]

SECTION 235 COMMENTARY [235.20] Scope Section 235 provides that an offence is committed in the following circumstances: • when a non-citizen, on a temporary visa that has a no-work condition on that visa, contravenes that condition and works: s 235(1); or 456

Migration Law

[235.20]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Div 12 - Offences etc. re: entry into, and remaining in, Australia (ss 228A-245AY)

s 236

• when an unlawful non-citizen performs work: s 235(3); However, a reference to work, in relation to an unlawful non-citizen, does not include a reference to work of a prescribed kind or work in prescribed circumstances: s 235(6). Under reg 5.32A of the Migration Regulations 1994 (Cth) (Regulations), this is taken to be work performed by an unlawful non-citizen in relation to work allocated to that non-citizen by an officer at the detention centre. In addition to this, s 235(7) sets out the circumstances in which a non-citizen will not be taken to have engaged in work for the purposes of s 235(3). According to legislative instrument Secretary to the Department of Immigration and Citizenship No IMMI 10/019 – Approval under paragraphs 235(7)(a) and 245AF(a) – Approval of Activities (3 June 2010), these circumstances are: an activity that a detained unlawful non-citizen voluntarily engages in of a kind approved in writing. The approved activities are: cleaning for personal purposes, cooking, educational classes and activities, computing, cultural activities, excursions, religious services and activities, arts and crafts, voluntary community activities and recreational activities including but not limited to: games, gardening, physical fitness activities, reading, music, sport and sporting competitions and television and movies.

Given it is an offence under s 235(3) for an unlawful non-citizen to perform work in Australia, it is not possible for an unlawful non-citizen to enter into an employment contract. This is because s 235(3) impliedly prohibits the making of such a contract and renders any such contract void: Australia Meat Holding Pty Ltd v Kazi [2004] 2 Qd R 459; [2004] QCA 147 at [34] per Davies JA. 236 Offences relating to visas (1) A person commits an offence if: (a) the person uses a visa with the intention of: (i) travelling to Australia; or (ii) remaining in Australia; or (iii) identifying himself or herself; and (b) the visa is a visa that was granted to another person. Penalty: Imprisonment for 10 years or 1,000 penalty units, or both. [Subs (1) am Act 4 of 2016, s 3 and Sch 4 item 207, with effect from 10 Mar 2016]

(2) A person commits an offence if: (a) the person has a visa in his or her possession or under his or her control; and (b) the visa is a visa that was not granted to the person. Penalty: Imprisonment for 10 years or 1,000 penalty units, or both. [Subs (2) am Act 4 of 2016, s 3 and Sch 4 item 207, with effect from 10 Mar 2016]

(3) Subsection (2) does not apply if the person has a reasonable excuse. Note: A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).

(4) The fault element for paragraph (2)(a) is intention. Note: Section 5.2 of the Criminal Code defines intention. [S 236 am Act 4 of 2016; subst Act 97 of 2001, s 3 and Sch 1 item 36, with effect from 19 Sep 2001; am Act 89 of 1999, s 3 and Sch 1 item 9, with effect from 22 Jul 1999; insrt Act 213 of 1992, s 3, with effect from 24 Dec 1992]

© 2016 THOMSON REUTERS

457

s 236

Migration Act 1958

[235.20]

236A No discharge without conviction for certain offences The court may only make an order under section 19B of the Crimes Act 1914 (discharge of offenders without conviction) in respect of a charge for an offence against section 233B, 233C or 234A if the person charged was aged under 18 when the offence was alleged to have been committed. Note: See also section 236D, which relates to age. [S 236A subst Act 74 of 2013, s 3 and Sch 3 item 3; insrt Act 50 of 2010, s 3 and Sch 1 item 10, with effect from 1 Jun 2010]

236B Mandatory minimum penalties for certain offences (1) This section applies if a person is convicted of an offence against section 233B, 233C or 234A. (2) This section does not apply if it is established on the balance of probabilities that the person was aged under 18 years when the offence was committed. (3) The court must impose a sentence of imprisonment of at least: (a) if the conviction is for an offence against section 233B—8 years; or (b) if the conviction is for a repeat offence—8 years; or (c) in any other case—5 years. (4) The court must also set a non-parole period of at least: (a) if the conviction is for an offence to which paragraph (3)(a) or (b) applies—5 years; or (b) in any other case—3 years. (5) A person’s conviction for an offence is for a repeat offence if: (a) in proceedings after the commencement of this section (whether in the same proceedings as the proceedings relating to the offence, or in previous proceedings), a court: (i) has convicted the person of another offence, being an offence against section 233B, 233C or 234A of this Act; or (ii) has found, without recording a conviction, that the person has committed another such offence; or (b) in proceedings after the commencement of the Border Protection (Validation and Enforcement Powers) Act 2001 (whether in the same proceedings as the proceedings relating to the offence, or in previous proceedings), a court: (i) has convicted the person of another offence, being an offence against section 232A or 233A of this Act as in force before the commencement of this section; or (ii) has found, without recording a conviction, that the person has committed another such offence. (6) In this section: non-parole period has the same meaning as it has in Part IB of the Crimes Act 1914. [S 236B insrt Act 50 of 2010, s 3 and Sch 1 item 10, with effect from 1 Jun 2010]

SECTION 236B COMMENTARY Scope ................................................................................................................................................. [236B.20] CONCEPT

Repeat offence .................................................................................................................................. [236B.40] 458

Migration Law

[236B.60]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Div 12 - Offences etc. re: entry into, and remaining in, Australia (ss 228A-245AY)

s 236C

KEY CASE

Magaming v The Queen ................................................................................................................... [236B.60]

[236B.20] Scope Section 236B provides for certain mandatory minimum penalties which a court must impose if a person has been found guilty of a certain offence or offences. Those offences are: • aggravated offence of people smuggling (danger of death or serious harm etc): s 233B; • aggravated offence of people smuggling (at least five people): s 233C; and • aggravated offence of false documents and false or misleading information etc relating to non-citizens (at least five people): s 234A. According to item 10 of the Explanatory Memorandum to the Anti-People Smuggling and Other Measures Bill 2010 (Cth): Mandatory minimum penalties reflect the seriousness of the offences and only apply to those offences in the Migration Act which carry a maximum penalty of 20 years imprisonment. Mandatory minimum penalties still provide a court with discretion when determining the appropriate sentence, providing that the court does not go below the mandatory minimum sentence and non-parole period. This allows the court to have regard to the circumstances of both the offence and the offender. The court also has discretion to impose higher sentences on the offender depending on the person’s culpability so long as they do not exceed the maximum penalty prescribed for the offence.

CONCEPT [236B.40] Repeat offence Section 236B(5) defines the term “repeat offence”, for which a conviction carries a higher mandatory minimum penalty. The operative date for the “repeat offence” is the date of conviction of that previous offence: Nafi v The Queen (2012) 32 NTLR 124; 225 A Crim R 55; [2012] NTCCA 13 at [17] and [20] per Riley CJ and Barr J.

KEY CASE [236B.60] Magaming v The Queen In Magaming v The Queen (2013) 302 ALR 462; 87 ALJR 1060; [2013] HCA 40, the appellant, Mr Magaming, submitted that ss 233A and 233C were identical save for the number of unlawful non-citizens concerned, and that therefore these sections were coextensive. On that basis, the provisions were incompatible with the separation of judicial prosecutorial functions, they were incompatible with the institutional integrity of the courts and required a court to impose sentences that were arbitrary and non-judicial. Relevantly, the appellant submitted that the mandatory minimum penalty prescribed by s 236B for offences against s 233C were arbitrary and non-judicial – that is, that the prescription of a mandatory minimum penalty for an offence created by s 233C contravened Ch III of the Constitution. French CJ, Hayne, Crennan, Kiefel and Bell JJ dismissed the appeal and held that ss 233A, 233C and 236B were valid: at [4] and [53]. 236C Time in immigration detention counts for sentencing etc. (1) This section applies to the court when imposing a sentence on, or setting a non-parole period for, a person convicted of an offence against this Subdivision. (2) The court must take into account any period that the person has spent in immigration detention during the period:

© 2016 THOMSON REUTERS

459

s 236C

Migration Act 1958

(a) starting when the offence was committed; and (b) ending when the person is sentenced for the offence. Note: This enables the court to take into account time spent while not in punitive detention.

(3) Neither section 236B nor this section prevents section 16E of the Crimes Act 1914 from applying to the imposition of the sentence or the setting of the non-parole period. Note: Section 16E of the Crimes Act 1914 applies State law to aspects of sentencing for federal offences, subject to specified exceptions. [S 236C insrt Act 74 of 2013, s 3 and Sch 3 item 4]

236D Burden and standard of proof in relation to age If, in proceedings relating to an offence against this Subdivision: (a) the defendant claims to have been aged under 18 at the time the offence was alleged to have been, or was, committed, and (b) the prosecution disputes this claim; the prosecution bears the burden of proving, on the balance of probabilities, that the defendant was aged 18 or over at that time. [S 236D insrt Act 74 of 2013, s 3 and Sch 3 item 4]

236E Evidentiary certificates in proceedings for offences Issuing a certificate (1) A written certificate may be issued under this subsection if an authorisation authorises the exercise of maritime powers in relation to a vessel or aircraft (the target vessel or aircraft). The certificate may be issued by: (a) the authorising officer who gave the authorisation; or (b) a maritime officer who boards the target vessel or aircraft in accordance with the authorisation. Note: For definitions for this section, see subsection (6). [Subs (1) subst Act 74 of 2013, s 3 and Sch 3 item 6]

Certificate is prima facie evidence of the matters in it (2) The certificate is to be received in proceedings for an offence against this Subdivision as prima facie evidence of the matters stated in the certificate. Matters that can be specified in a certificate (3) The certificate may specify one or more of the following: (a) the location of the target vessel or aircraft during the exercise of those maritime powers; (b) the location, during the exercise of those maritime powers, of a Commonwealth ship or Commonwealth aircraft from which the exercise of those maritime powers was directed or coordinated; (c) the contents of any list of passengers on board the target vessel or aircraft, or passenger cards relating to passengers on board the target vessel or aircraft; (d) the number of passengers on board the target vessel or aircraft; (e) the number of crew on board the target vessel or aircraft; (f) details about anything a maritime officer did under subsection 64(1), or section 66, of the Maritime Powers Act 2013 (about securing things) in the exercise of those maritime powers; (g) [Repealed] (h) [Repealed] (i) [Repealed]

460

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Div 12 - Offences etc. re: entry into, and remaining in, Australia (ss 228A-245AY)

(j)

s 236F

any other matter prescribed under subsection (5).

[Subs (3) am Act 74 of 2013, s 3 and Sch 3 item 7]

(4) Subsection (2) does not apply to so much of the certificate as specifies whether a person is the master, owner, agent or charterer of the target vessel or aircraft. [Subs (4) am Act 74 of 2013, s 3 and Sch 3 item 8]

(5) The Minister may, by legislative instrument, prescribe other matters that may be specified in a certificate issued under subsection (1). Definitions (6) In this section: authorisation has the same meaning as in the Maritime Powers Act 2013. authorising officer has the same meaning as in the Maritime Powers Act 2013. Commonwealth aircraft has the same meaning as in the Maritime Powers Act 2013. Commonwealth ship has the same meaning as in the Maritime Powers Act 2013. maritime powers has the same meaning as in the Maritime Powers Act 2013. [Subs (6) subst Act 74 of 2013, s 3 and Sch 3 item 9] [S 236E am Act 74 of 2013; insrt Act 74 of 2013, s 3 and Sch 3 item 4]

236F Evidentiary certificates—procedural matters (1) A certificate issued under subsection 236E(1) must not be admitted in evidence in proceedings for an offence unless: (a) the person charged with the offence; or (b) a lawyer who has appeared for the person in those proceedings; has, at least 28 days before the certificate is sought to be so admitted, been given a copy of the certificate together with notice of the intention to produce the certificate as evidence in the proceedings. (2) If, under section 236E, a certificate is admitted in evidence in proceedings for an offence, the person charged with the offence may require the person who signed the certificate to be: (a) called as a witness for the prosecution; and (b) cross-examined as if the person who signed the certificate had given evidence of the matters stated in the certificate. (3) However, subsection (2) does not entitle the person charged to require the person who signed the certificate to be called as a witness for the prosecution unless: (a) the prosecutor has been given at least 21 days’ notice of the person’s intention to require the person who signed the certificate to be so called; and (b) the court, by order, allows the person charged to require the person who signed the certificate to be so called. (4) Any evidence given in support, or in rebuttal, of a matter stated in a certificate issued under subsection 236E(1) must be considered on its merits, and the credibility and probative value of such evidence must be neither increased nor diminished by reason of this section. [S 236F insrt Act 74 of 2013, s 3 and Sch 3 item 4]

SUBDIVISION B – OFFENCES RELATING TO ABUSE OF LAWS ALLOWING SPOUSES ETC OF AUSTRALIAN CITIZENS OR OF PERMANENT RESIDENTS TO BECOME PERMANENT RESIDENTS (SS 237–245) [Subdiv B insrt Act 196 of 1991, s 8 (am Act 175 of 1992), with effect from 15 Jan 1992]

© 2016 THOMSON REUTERS

461

s 237

Migration Act 1958

237 Reason for Subdivision This Subdivision was enacted because: (a) under the regulations, a person satisfies a criterion for certain visas that give, or might lead to, authorisation for the person’s permanent residence in Australia if the person is is the spouse or de facto partner of, and has a genuine and continuing relationship, involving a shared life to the exclusion of all others with, either an Australian citizen or a permanent resident of Australia; and [Para (a) am Act 144 of 2008, s 3 and Sch 10 item 48, with effect from 1 Jul 2009; Act 184 of 1992, s 38 and Sch, with effect from 1 Sep 1994]

(b) [Repealed] [Para (b) rep Act 144 of 2008, s 3 and Sch 10 item 49, with effect from 1 Jul 2009; am Act 184 of 1992, s 38 and Sch, with effect from 1 Sep 1994]

(c)

some persons attempt to get permanent residence under the regulations by: (i) entering into a married relationship that is not intended to be a genuine and continuing relationship involving a shared life to the exclusion of all others; or (ii) pretending to be a de facto partner of another person.

[Para (c) am Act 144 of 2008, s 3 and Sch 10 item 50, with effect from 1 Jul 2009] [S 237 am Act 144 of 2008; Act 184 of 1992; insrt Act 196 of 1991, s 8, with effect from 15 Jan 1992]

238 Interpretation In this Subdivision: criterion includes part of a criterion. interdependency relationship [Repealed] [Def rep Act 144 of 2008, s 3 and Sch 10 item 51, with effect from 1 Jul 2009]

preliminary permit [Repealed] [Def rep Act 184 of 1992, s 38 and Sch, with effect from 1 Sep 1994]

preliminary visa, means a visa that is usually applied for by persons applying, or intending to apply, for a permanent visa. [Def insrt Act 184 of 1992, s 38 and Sch, with effect from 1 Sep 1994]

stay permit [Repealed] [Def rep Act 184 of 1992, s 38 and Sch, with effect from 1 Sep 1994]

stay visa means: (a) a permanent visa; or (b) a preliminary visa. [Def insrt Act 184 of 1992, s 38 and Sch, with effect from 1 Sep 1994] [S 238 am Act 144 of 2008; Act 184 of 1992; insrt Act 196 of 1991, s 8, with effect from 15 Jan 1992]

239 Application of Subdivision (1) This Subdivision applies in and outside Australia. (2) This Subdivision applies to marriages solemnized outside Australia as well as those solemnized in Australia. [S 239 insrt Act 196 of 1991, s 8, with effect from 15 Jan 1992]

462

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Div 12 - Offences etc. re: entry into, and remaining in, Australia (ss 228A-245AY)

s 243

240 Offence to arrange marriage to obtain permanent residence (1) A person must not arrange a marriage between other persons with the intention of assisting one of those other persons to get a stay visa by satisfying a criterion for the visa because of the marriage. [Subs (1) am Act 97 of 2001, s 3 and Sch 1 item 37, with effect from 19 Sep 2001; Act 184 of 1992, s 38 and Sch, with effect from 1 Sep 1994]

(2) Subsection (1) applies whether or not the intention is achieved. [Subs (2) am Act 97 of 2001, s 3 and Sch 1 item 38, with effect from 19 Sep 2001]

(3) It is a defence to an offence against subsection (1) if the defendant proves that, although one purpose of the marriage was to assist a person to get a stay visa, the defendant believed on reasonable grounds that the marriage would result in a genuine and continuing marital relationship. Penalty: $100,000 or imprisonment for 10 years, or both. Note: A defendant bears a legal burden in relation to the matter in subsection (3) (see section 13.4 of the Criminal Code). [Subs (3) am Act 97 of 2001, s 3 and Sch 1 item 39, with effect from 19 Sep 2001; Act 184 of 1992, s 38 and Sch, with effect from 1 Sep 1994] [S 240 am Act 97 of 2001; Act 184 of 1992; insrt Act 196 of 1991, s 8, with effect from 15 Jan 1992]

241 Offence to arrange pretended de facto relationship to obtain permanent residence (1) If a person knows or believes on reasonable grounds that 2 other persons are not de facto partners of each other, the person must not make arrangements that make, or help to make, it look as if those other persons are such de facto partners with the intention of assisting one of those other persons to get a stay visa by appearing to satisfy a criterion for the visa because of being such de facto partners. [Subs (1) am Act 144 of 2008, s 3 and Sch 10 items 52 and 53, with effect from 1 Jul 2009; Act 97 of 2001, s 3 and Sch 1 item 40, with effect from 19 Sep 2001; Act 184 of 1992, s 38 and Sch, with effect from 1 Sep 1994]

(2) Subsection (1) applies whether or not the intention is achieved. [Subs (2) am Act 97 of 2001, s 3 and Sch 1 item 41, with effect from 19 Sep 2001]

Penalty: $100,000 or imprisonment for 10 years, or both. [S 241 am Act 144 of 2008; Act 97 of 2001; Act 184 of 1992; insrt Act 196 of 1991, s 8, with effect from 15 Jan 1992]

242 Offence to arrange pretended interdependency relationship to obtain permanent residence [Repealed] [S 242 rep Act 144 of 2008, s 3 and Sch 10 item 54, with effect from 1 Jul 2009; am Act 97 of 2001; Act 184 of 1992; insrt Act 196 of 1991, s 8, with effect from 15 Jan 1992]

243 Offences relating to application for permanent residence because of marriage or de facto relationship (1) A person must not apply for a stay visa on the basis of satisfying a criterion for the visa because of being the spouse or de facto partner of another person if, at the time of the application, the applicant does not intend to live permanently with the other person in a married relationship (within the meaning of subsection 5F(2)) or de facto relationship (within the meaning of subsection 5CB(2)), as appropriate. [Subs (1) am Act 144 of 2008, s 3 and Sch 10 items 55 and 56, with effect from 1 Jul 2009; Act 184 of 1992, s 38 and Sch, with effect from 1 Sep 1994]

(2) A non-citizen in Australia convicted of an offence under subsection (1) becomes an unlawful non-citizen.

© 2016 THOMSON REUTERS

463

s 243

Migration Act 1958

(3) A person must not nominate an applicant for a stay visa on the basis of the applicant satisfying a criterion for the visa because of being the spouse or de facto partner of the person if, at the time of the application, the person does not intend to live permanently with the applicant in a married relationship (within the meaning of subsection 5F(2)) or de facto relationship (within the meaning of subsection 5CB(2)), as appropriate. [Subs (3) am Act 144 of 2008, s 3 and Sch 10 items 57 and 58, with effect from 1 Jul 2009; Act 184 of 1992, s 38 and Sch, with effect from 1 Sep 1994]

Penalty: Imprisonment for 2 years. [S 243 am Act 144 of 2008; Act 184 of 1992; insrt Act 196 of 1991, s 8, with effect from 15 Jan 1992]

244 Offences relating to an application for permanent residence because of interdependency relationship [Repealed] [S 244 rep Act 144 of 2008, s 3 and Sch 10 item 59, with effect from 1 Jul 2009; am Act 184 of 1992; insrt Act 196 of 1991, s 8, with effect from 15 Jan 1992]

245 Offences of making false or unsupported statements (1) A person must not make a statement, or give information, in writing, to an officer in relation to the consideration for the purposes of this Act or the regulations of any of the following questions: (a) whether or not other persons are in a married relationship (within the meaning of subsection 5F(2)); (b) whether or not other persons are in a de facto relationship (within the meaning of subsection 5CB(2)) with one another; (c) [Repealed] if: (d) the person knows that the statement or information is false or misleading in a material particular; and (e) the statement is made, or the information is given, in a document that describes, and shows the penalty for, an offence against this subsection. Penalty: Imprisonment for 12 months. [Subs (1) am Act 144 of 2008, s 3 and Sch 10 items 60 and 61, with effect from 1 Jul 2009; Act 97 of 2001, s 3 and Sch 1 item 44, with effect from 19 Sep 2001]

(2) [Repealed] [Subs (2) rep Act 97 of 2001, s 3 and Sch 1 item 45, with effect from 19 Sep 2001]

(3) A person must not make a statement, or give information, in writing, to an officer in relation to the consideration for the purposes of this Act or the regulations of any of the following questions: (a) whether or not other persons are in a married relationship (within the meaning of subsection 5F(2)); (b) whether or not other persons are in a de facto relationship (within the meaning of subsection 5CB(2)) with one another; (c) [Repealed] if: (d) the statement or information is false or misleading in a material particular; and (e) the person making the statement, or giving the information, did not make appropriate inquiries to satisfy himself or herself that the statement or information was neither false nor misleading; and

464

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Div 12 - Offences etc. re: entry into, and remaining in, Australia (ss 228A-245AY)

(f)

s 245AB

the statement is made, or the information is given, in a document that describes, and shows the penalty for, an offence against this subsection.

[Subs (3) am Act 144 of 2008, s 3 and Sch 10 items 62 and 63, with effect from 1 Jul 2009; Act 97 of 2001, s 3 and Sch 1 item 46, with effect from 19 Sep 2001]

(4) [Repealed] [Subs (4) rep Act 97 of 2001, s 3 and Sch 1 item 47, with effect from 19 Sep 2001]

Penalty: $12,000. [S 245 am Act 144 of 2008; Act 97 of 2001; insrt Act 196 of 1991, s 8, with effect from 15 Jan 1992]

SUBDIVISION C – OFFENCES AND CIVIL PENALTIES IN RELATION TO WORK BY NON-CITIZENS (SS 245AA–245AP) [Subdiv C heading subst Act 10 of 2013, s 3 and Sch 1 item 14] [Subdiv C insrt Act 7 of 2007, s 3 and Sch 1 item 1, with effect from 19 Aug 2007]

245AA Overview (1) This Subdivision creates offences, and provides for civil penalties, to deal with the following situations: (a) where a person allows an unlawful non-citizen to work, or refers an unlawful non-citizen for work; (b) where a person allows a non-citizen to work, or refers a non-citizen for work, in breach of the non-citizen’s visa conditions. [Subs (1) am Act 10 of 2013, s 3 and Sch 1 item 15]

(2) This Subdivision uses a number of terms that are defined in the following sections: (a) section 14 (defines unlawful non-citizen); (b) section 245AG (defines work and allows to work); (c) section 245AH(defines exploited). [Subs (2) am Act 10 of 2013, s 3 and Sch 1 item 16; Act 6 of 2013, s 3 and Sch 2 items 10 and 11, with effect from 8 Mar 2013]

(3) To avoid doubt, section 245AF sets out some circumstances in which this Subdivision does not apply. (4) Section 235 also contains offences relating to work by an unlawful non-citizen and a non-citizen in breach of a visa condition. [S 245AA am Act 10 of 2013; Act 6 of 2013; insrt Act 7 of 2007, s 3 and Sch 1 item 1, with effect from 19 Aug 2007]

245AB Allowing an unlawful non-citizen to work (1) A person (the first person) contravenes this subsection if: (a) the first person allows, or continues to allow, another person (the worker) to work; and (b) the worker is an unlawful non-citizen. (2) Subsection (1) does not apply if the first person takes reasonable steps at reasonable times to verify that the worker is not an unlawful non-citizen, including (but not limited to) either of the following steps: (a) using a computer system prescribed by the regulations to verify that matter; (b) doing any one or more things prescribed by the regulations. Offence (3) A person commits an offence if the person contravenes subsection (1). The physical elements of the offence are set out in that subsection. Penalty: 2 years imprisonment.

© 2016 THOMSON REUTERS

465

s 245AB

Migration Act 1958

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

(4) For the purposes of subsection (3), the fault element for paragraph (1)(b) is knowledge or recklessness by the first person. Civil penalty provision (5) A person is liable to a civil penalty if the person contravenes subsection (1). Civil penalty: 90 penalty units. Note: It is not necessary to prove a person’s state of mind in proceedings for a civil penalty order (see section 486ZF).

(6) A person who wishes to rely on subsection (2) in proceedings for a civil penalty order bears an evidential burden in relation to the matter in that subsection. [S 245AB subst Act 10 of 2013, s 3 and Sch 1 item 17; insrt Act 7 of 2007, s 3 and Sch 1 item 1, with effect from 19 Aug 2007]

245AC Allowing a lawful non-citizen to work in breach of a work-related condition (1) A person (the first person) contravenes this subsection if: (a) the first person allows, or continues to allow, another person (the worker) to work; and (b) the worker is a lawful non-citizen; and (c) the worker holds a visa that is subject to a work-related condition; and (d) the worker is in breach of the work-related condition solely because of doing the work referred to in paragraph (a). (2) Subsection (1) does not apply if the first person takes reasonable steps at reasonable times to verify that the worker is not in breach of the work-related condition solely because of doing the work referred to in paragraph (1)(a), including (but not limited to) either of the following steps: (a) using a computer system prescribed by the regulations to verify that matter; (b) doing any one or more things prescribed by the regulations. Offence (3) A person commits an offence if the person contravenes subsection (1). The physical elements of the offence are set out in that subsection. Penalty: 2 years imprisonment. Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

(4) For the purposes of subsection (3), the fault element for paragraphs (1)(b), (c) and (d) is knowledge or recklessness by the first person. Civil penalty provision (5) A person is liable to a civil penalty if the person contravenes subsection (1). Civil penalty: 90 penalty units. Note: It is not necessary to prove a person’s state of mind in proceedings for a civil penalty order (see section 486ZF).

(6) A person who wishes to rely on subsection (2) in proceedings for a civil penalty order bears an evidential burden in relation to the matter in that subsection. [S 245AC subst Act 10 of 2013, s 3 and Sch 1 item 17; insrt Act 7 of 2007, s 3 and Sch 1 item 1, with effect from 19 Aug 2007]

466

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Div 12 - Offences etc. re: entry into, and remaining in, Australia (ss 228A-245AY)

s 245AE

245AD Aggravated offences if a person allows, or continues to allow, another person to work Allowing an unlawful non-citizen to work (1) A person (the first person) commits an offence if: (a) the first person allows, or continues to allow, another person (the worker) to work; and (b) the worker is an unlawful non-citizen; and (c) the worker is being exploited; and (d) the first person knows of, or is reckless as to, the circumstances mentioned in paragraphs (b) and (c). Penalty: 5 years imprisonment. Note: See section 245AH for when a person is being exploited.

Allowing a lawful non-citizen to work in breach of a work-related condition (2) A person (the first person) commits an offence if: (a) the first person allows, or continues to allow, another person (the worker) to work; and (b) the worker is a lawful non-citizen; and (c) the worker holds a visa that is subject to a work-related condition; and (d) the worker is in breach of the work-related condition solely because of doing the work referred to in paragraph (a); and (e) the worker is being exploited; and (f) the first person knows of, or is reckless as to, the circumstances mentioned in paragraphs (b), (c), (d) and (e). Penalty: 5 years imprisonment. Note: See section 245AH for when a person is being exploited. [S 245AD subst Act 10 of 2013, s 3 and Sch 1 item 17; insrt Act 7 of 2007, s 3 and Sch 1 item 1, with effect from 19 Aug 2007]

245AE Referring an unlawful non-citizen for work (1) A person (the first person) contravenes this subsection if: (a) the first person operates a service, whether for reward or otherwise, referring other persons to third persons for work; and (b) the first person refers another person (the prospective worker) to a third person for work; and (c) at the time of the referral, the prospective worker is an unlawful non-citizen. (2) Subsection (1) does not apply if the first person takes reasonable steps at reasonable times before the referral to verify that the prospective worker is not an unlawful non-citizen, including (but not limited to) either of the following steps: (a) using a computer system prescribed by the regulations to verify that matter; (b) doing any one or more things prescribed by the regulations. Offence (3) A person commits an offence if the person contravenes subsection (1). The physical elements of the offence are set out in that subsection. Penalty: 2 years imprisonment. Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

© 2016 THOMSON REUTERS

467

s 245AE

Migration Act 1958

(4) For the purposes of subsection (3), the fault element for paragraph (1)(c) is knowledge or recklessness by the first person. Civil penalty provision (5) A person is liable to a civil penalty if the person contravenes subsection (1). Civil penalty: 90 penalty units. Note: It is not necessary to prove a person’s state of mind in proceedings for a civil penalty order (see section 486ZF).

(6) A person who wishes to rely on subsection (2) in proceedings for a civil penalty order bears an evidential burden in relation to the matter in that subsection. [S 245AE subst Act 10 of 2013, s 3 and Sch 1 item 17; insrt Act 7 of 2007, s 3 and Sch 1 item 1, with effect from 19 Aug 2007]

245AEA Referring a lawful non-citizen for work in breach of a work-related condition (1) A person (the first person) contravenes this subsection if: (a) the first person operates a service, whether for reward or otherwise, referring other persons to third persons for work; and (b) the first person refers another person (the prospective worker) to a third person for work; and (c) at the time of the referral: (i) the prospective worker is a lawful non-citizen; and (ii) the prospective worker holds a visa that is subject to a work-related condition; and (iii) the prospective worker will be in breach of the work-related condition solely because of doing the work in relation to which he or she is referred. (2) Subsection (1) does not apply if the first person takes reasonable steps at reasonable times before the referral to verify that the prospective worker will not be in breach of the work-related condition solely because of doing the work in relation to which he or she is referred, including (but not limited to) either of the following steps: (a) using a computer system prescribed by the regulations to verify that matter; (b) doing any one or more things prescribed by the regulations. Offence (3) A person commits an offence if the person contravenes subsection (1). The physical elements of the offence are set out in that subsection. Penalty: 2 years imprisonment. Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

(4) For the purposes of subsection (3), the fault element for paragraph (1)(c) is knowledge or recklessness by the first person. Civil penalty provision (5) A person is liable to a civil penalty if the person contravenes subsection (1). Civil penalty: 90 penalty units. Note: It is not necessary to prove a person’s state of mind in proceedings for a civil penalty order (see section 486ZF).

(6) A person who wishes to rely on subsection (2) in proceedings for a civil penalty order bears an evidential burden in relation to the matter in that subsection. [S 245AEA insrt Act 10 of 2013, s 3 and Sch 1 item 17]

468

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Div 12 - Offences etc. re: entry into, and remaining in, Australia (ss 228A-245AY)

s 245AF

245AEB Aggravated offences if a person refers another person to a third person for work Referring an unlawful non-citizen for work (1) A person (the first person) commits an offence if: (a) the first person operates a service, whether for reward or otherwise, referring other persons to third persons for work; and (b) the first person refers another person (the prospective worker) to a third person for work; and (c) at the time of the referral, the prospective worker is an unlawful non-citizen; and (d) the prospective worker will be exploited in doing that work, or any other work, for the third person; and (e) the first person knows of, or is reckless as to, the circumstances mentioned in paragraphs (c) and (d). Penalty: 5 years imprisonment. Note: See section 245AH for when a person will be exploited.

Referring a lawful non-citizen for work in breach of a work-related condition (2) A person (the first person) commits an offence if: (a) the first person operates a service, whether for reward or otherwise, referring other persons to third persons for work; and (b) the first person refers another person (the prospective worker) to a third person for work; and (c) at the time of the referral: (i) the prospective worker is a lawful non-citizen; and (ii) the prospective worker holds a visa that is subject to a work-related condition; and (iii) the prospective worker will be in breach of the work-related condition solely because of doing the work in relation to which he or she is referred; and (d) the prospective worker will be exploited in doing the work in relation to which he or she is referred, or in doing any other work, for the third person; and (e) the first person knows of, or is reckless as to, the circumstances mentioned in paragraphs (c) and (d). Penalty: 5 years imprisonment. Note: See section 245AH for when a person will be exploited. [S 245AEB insrt Act 10 of 2013, s 3 and Sch 1 item 17]

245AF Circumstances in which this Subdivision does not apply To avoid doubt, this Subdivision does not apply where: (a) a detainee in immigration detention voluntarily engages in an activity of a kind approved in writing by the Secretary for the purposes of this paragraph; or (b) a prisoner in a prison or remand centre of the Commonwealth, a State or a Territory engages in an activity as a prisoner; or (c) a person engages in an activity in compliance with: (i) a sentence passed, or an order made, under subsection 20AB(1) of the Crimes Act 1914 (community service orders etc.); or

© 2016 THOMSON REUTERS

469

s 245AF

Migration Act 1958

(ii)

a community service order, a work order, a sentence of periodic detention, an attendance centre order, a sentence of weekend detention, an attendance order, or a similar sentence or order, passed or made under the law of a State or Territory.

[S 245AF insrt Act 7 of 2007, s 3 and Sch 1 item 1, with effect from 19 Aug 2007]

245AG Meaning of work and allows to work (1) In this Subdivision: work means any work, whether for reward or otherwise. (2) In this Subdivision, a person allows a person to work if, and only if: (a) the first person employs the second person under a contract of service; or (b) the first person engages the second person, other than in a domestic context, under a contract for services; or (ba) the first person participates in an arrangement, or any arrangement included in a series of arrangements, for the performance of work by the second person for: (i) the first person; or (ii) another participant in the arrangement or any such arrangement; or (c) the first person bails or licenses a chattel to the second person or another person with the intention that the second person will use the chattel to perform a transportation service; or (d) the first person leases or licenses premises, or a space within premises, to the second person or another person with the intention that the second person will use the premises or space to perform sexual services within the meaning of the Criminal Code (see the Dictionary to the Criminal Code); or (e) the prescribed circumstances exist. [Subs (2) am Act 10 of 2013, s 3 and Sch 1 items 18 and 19; Act 6 of 2013, s 3 and Sch 2 item 12, with effect from 8 Mar 2013]

(3) In paragraph (2)(d): 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. [S 245AG am Act 10 of 2013; Act 6 of 2013; insrt Act 7 of 2007, s 3 and Sch 1 item 1, with effect from 19 Aug 2007]

245AH Meaning of exploited For the purposes of this Subdivision, a person is exploited if the person is subjected to exploitation within the meaning of the Criminal Code (see section 271.1A of the Criminal Code). [S 245AH subst Act 6 of 2013, s 3 and Sch 2 item 13, with effect from 8 Mar 2013; insrt Act 7 of 2007, s 3 and Sch 1 item 1, with effect from 19 Aug 2007]

245AI

Meaning of other terms [Repealed]

[S 245AI rep Act 6 of 2013, s 3 and Sch 2 item 13, with effect from 8 Mar 2013; insrt Act 7 of 2007, s 3 and Sch 1 item 1, with effect from 19 Aug 2007]

245AJ Criminal liability of executive officers of bodies corporate (1) An executive officer of a body corporate commits an offence if: (a) the body commits an offence (the work-related offence) against this Subdivision; and

470

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Div 12 - Offences etc. re: entry into, and remaining in, Australia (ss 228A-245AY)

s 245AK

(b) the officer knew that, or was reckless or negligent as to whether, the work-related offence would be committed; and (c) the officer was in a position to influence the conduct of the body in relation to the work-related offence; and (d) the officer failed to take all reasonable steps to prevent the work-related offence being committed. (2) An offence against subsection (1) is punishable on conviction by a pecuniary penalty not exceeding one-fifth of the maximum pecuniary penalty that a court could impose on the body corporate for the work-related offence. Reasonable steps to prevent the offence (3) In determining whether the executive officer of the body corporate failed to take all reasonable steps to prevent the work-related offence being committed by the body, a court must have regard to: (a) what action (if any) the officer took towards ensuring that the body’s employees, agents and contractors had a reasonable knowledge and understanding of the requirements to comply with this Subdivision, insofar as those requirements affected the employees, agents or contractors concerned; and (b) what action (if any) the officer took when he or she became aware that the body was committing the work-related offence. (4) Subsection (3) does not limit subsection (1). Definition (5) In this section: executive officer of a body corporate means: (a) a director of the body corporate; or (b) the chief executive officer (however described) of the body corporate; or (c) the chief financial officer (however described) of the body corporate; or (d) the secretary of the body corporate. [S 245AJ subst Act 10 of 2013, s 3 and Sch 1 item 20; insrt Act 7 of 2007, s 3 and Sch 1 item 1, with effect from 19 Aug 2007]

245AK Civil liability of executive officers of bodies corporate (1) An executive officer of a body corporate contravenes this subsection if: (a) the body contravenes (the work-related contravention) a civil penalty provision in this Subdivision; and (b) the officer knew that, or was reckless or negligent as to whether, the work-related contravention would occur; and (c) the officer was in a position to influence the conduct of the body in relation to the work-related contravention; and (d) the officer failed to take all reasonable steps to prevent the work-related contravention. Civil penalty provision (2) An executive officer of a body corporate is liable to a civil penalty if the officer contravenes subsection (1). Civil penalty: 90 penalty units. Note: Section 486ZF (which provides that a person’s state of mind does not need to be proven in proceedings for a civil penalty order) does not apply in relation to this subsection.

© 2016 THOMSON REUTERS

471

s 245AK

Migration Act 1958

Reasonable steps to prevent the contravention (3) In determining whether the executive officer of the body corporate failed to take all reasonable steps to prevent the work-related contravention by the body, a court must have regard to: (a) what action (if any) the officer took towards ensuring that the body’s employees, agents and contractors had a reasonable knowledge and understanding of the requirements to comply with this Subdivision, insofar as those requirements affected the employees, agents or contractors concerned; and (b) what action (if any) the officer took when he or she became aware that the body was engaging in the work-related contravention. (4) Subsection (3) does not limit subsection (1). Definitions (5) In this section: executive officer of a body corporate means: (a) a director of the body corporate; or (b) the chief executive officer (however described) of the body corporate; or (c) the chief financial officer (however described) of the body corporate; or (d) the secretary of the body corporate. negligent: an executive officer of a body corporate is negligent as to whether a work-related contravention would occur if the officer’s conduct involves: (a) such a great falling short of the standard of care that a reasonable person would exercise in the circumstances; and (b) such a high risk that the work-related contravention would occur; that the conduct merits the imposition of a pecuniary penalty. reckless: an executive officer of a body corporate is reckless as to whether a work-related contravention would occur if: (a) the officer is aware of a substantial risk that the work-related contravention would occur; and (b) having regard to the circumstances known to the officer, it is unjustifiable to take the risk. [S 245AK subst Act 10 of 2013, s 3 and Sch 1 item 20; insrt Act 7 of 2007, s 3 and Sch 1 item 1, with effect from 19 Aug 2007]

245AL Contravening civil penalty provisions (1) This section applies if a civil penalty provision in this Subdivision provides that a person contravening another provision of this Subdivision (the conduct rule provision) is liable to a civil penalty. (2) For the purposes of this Act, the person is taken to contravene the civil penalty provision if the person contravenes the conduct rule provision. [S 245AL insrt Act 10 of 2013, s 3 and Sch 1 item 20]

245AM Geographical scope of offence and civil penalty provisions Offences (1) Section 15.2 of the Criminal Code (extended geographical jurisdiction—category B) applies to an offence against this Subdivision.

472

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Div 12 - Offences etc. re: entry into, and remaining in, Australia (ss 228A-245AY)

s 245AM

Contraventions of civil penalty provisions (2) An order must not be made against a person in civil proceedings relating to a contravention by the person of a civil penalty provision in this Subdivision unless: (a) the person’s conduct that allegedly contravenes the provision occurs: (i) wholly or partly in Australia; or (ii) wholly or partly on board an Australian aircraft or an Australian ship; or (b) the person’s conduct that allegedly contravenes the provision occurs wholly outside Australia and, at the time of the alleged contravention, the person is: (i) an Australian citizen; or (ii) a resident of Australia; or (iii) a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; or (c) all of the following conditions are satisfied: (i) the person’s conduct allegedly contravenes the provision because of section 486ZD (the ancillary contravention); (ii) the conduct occurs wholly outside Australia; (iii) the conduct constituting the primary contravention to which the ancillary contravention relates occurs, or is intended by the person to occur, wholly or partly in Australia or wholly or partly on board an Australian aircraft or an Australian ship. Defences relating to contraventions of civil penalty provisions (3) In civil proceedings relating to a primary contravention by a person, it is a defence if: (a) the conduct constituting the alleged primary contravention occurs wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and (b) the person is neither: (i) an Australian citizen; nor (ii) a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; and (c) there is not in force in: (i) the foreign country where the conduct constituting the alleged primary contravention occurs; or (ii) the part of the foreign country where the conduct constituting the alleged primary contravention occurs; a law of that foreign country, or a law of that part of that foreign country, that provides for a pecuniary or criminal penalty for such conduct. (4) In civil proceedings relating to a contravention (the ancillary contravention) by a person of a civil penalty provision in this Subdivision because of section 486ZD, it is a defence if: (a) the conduct constituting the alleged ancillary contravention occurs wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and (b) the conduct (the primary conduct) constituting the primary contravention to which the ancillary contravention relates occurs, or is intended by the person to occur, wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and (c) the person is neither: (i) an Australian citizen; nor

© 2016 THOMSON REUTERS

473

s 245AM

Migration Act 1958

(ii)

a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; and (d) there is not in force in: (i) the foreign country where the primary conduct occurs or is intended by the person to occur; or (ii) the part of the foreign country where the primary conduct occurs or is intended by the person to occur; a law of that foreign country, or a law of that part of that foreign country, that provides for a pecuniary or criminal penalty for the primary conduct. (5) A defendant bears an evidential burden in relation to the matter in subsection (3) or (4). Attorney-General’s consent needed for certain proceedings (6) Civil proceedings relating to a contravention of a civil penalty provision in this Subdivision must not be commenced without the Attorney-General’s written consent if: (a) the conduct constituting the alleged contravention occurs wholly in a foreign country; and (b) at the time of the alleged contravention, the person alleged to have contravened the provision is neither: (i) an Australian citizen; nor (ii) a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory. When conduct taken to occur partly in Australia (7) For the purposes of this section, if a person sends a thing, or causes a thing to be sent: (a) from a point outside Australia to a point in Australia; or (b) from a point in Australia to a point outside Australia; that conduct is taken to have occurred partly in Australia. (8) For the purposes of this section, if a person sends, or causes to be sent, an electronic communication: (a) from a point outside Australia to a point in Australia; or (b) from a point in Australia to a point outside Australia; that conduct is taken to have occurred partly in Australia. Definitions (9) In this section: Australian aircraft has the same meaning as in the Criminal Code. Australian ship has the same meaning as in the Criminal Code. electronic communication has the same meaning as in the Criminal Code. foreign country has the same meaning as in the Criminal Code. point has the same meaning as in section 16.2 of the Criminal Code. primary contravention means a contravention of a civil penalty provision in this Subdivision other than because of section 486ZD. resident of Australia has the same meaning as in the Criminal Code. [S 245AM insrt Act 10 of 2013, s 3 and Sch 1 item 20]

245AN Charge and trial for an aggravated offence (1) If the prosecution intends to prove an offence against subsection 245AD(1) or (2), the charge must allege that the worker referred to in that subsection has been exploited.

474

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Div 12 - Offences etc. re: entry into, and remaining in, Australia (ss 228A-245AY)

s 245AP

(2) If the prosecution intends to prove an offence against subsection 245AEB(1) or (2), the charge must allege that the prospective worker referred to in that subsection has been or will be exploited: (a) in doing the work in relation to which the prospective worker was referred; or (b) in doing other work for the person to whom the prospective worker was referred. (3) On a trial for an offence against section 245AD, the trier of fact may find the defendant not guilty of that offence but guilty of an offence against section 245AB or 245AC if: (a) the trier of fact is not satisfied that the defendant is guilty of an offence against section 245AD; and (b) the trier of fact is satisfied that the defendant is guilty of an offence against section 245AB or 245AC; and (c) the defendant has been accorded procedural fairness in relation to that finding of guilt. (4) On a trial for an offence against section 245AEB, the trier of fact may find the defendant not guilty of that offence but guilty of an offence against section 245AE or 245AEA if: (a) the trier of fact is not satisfied that the defendant is guilty of an offence against section 245AEB; and (b) the trier of fact is satisfied that the defendant is guilty of an offence against section 245AE or 245AEA; and (c) the defendant has been accorded procedural fairness in relation to that finding of guilt. [S 245AN insrt Act 10 of 2013, s 3 and Sch 1 item 20]

245AO Treatment of partnerships (1) This Subdivision, and any other provision of this Act to the extent that it relates to this Subdivision, apply to a partnership as if it were a person, but with the changes set out in this section. (2) An offence against this Subdivision that would otherwise be committed by a partnership is taken to have been committed by each partner in the partnership, at the time the offence is committed, who: (a) did the relevant act; or (b) aided, abetted, counselled or procured the relevant act; or (c) was in any way knowingly concerned in, or party to, the relevant act (whether directly or indirectly or whether by any act of the partner). (3) A civil penalty provision in this Subdivision that would otherwise be contravened by a partnership is taken to have been contravened by each partner in the partnership, at the time of the conduct constituting the contravention, who: (a) engaged in the conduct; or (b) aided, abetted, counselled or procured the conduct; or (c) was in any way knowingly concerned in, or party to, the conduct (whether directly or indirectly or whether by any act of the partner). [S 245AO insrt Act 10 of 2013, s 3 and Sch 1 item 20]

245AP Treatment of unincorporated associations (1) This Subdivision, and any other provision of this Act to the extent that it relates to this Subdivision, apply to an unincorporated association as if it were a person, but with the changes set out in this section.

© 2016 THOMSON REUTERS

475

s 245AP

Migration Act 1958

(2) An offence against this Subdivision that would otherwise be committed by an unincorporated association is taken to have been committed by each member of the association’s committee of management, at the time the offence is committed, who: (a) did the relevant act; or (b) aided, abetted, counselled or procured the relevant act; or (c) was in any way knowingly concerned in, or party to, the relevant act (whether directly or indirectly or whether by any act of the member). (3) A civil penalty provision in this Subdivision that would otherwise be contravened by an unincorporated association is taken to have been contravened by each member of the association’s committee of management, at the time of the conduct constituting the contravention, who: (a) engaged in the conduct; or (b) aided, abetted, counselled or procured the conduct; or (c) was in any way knowingly concerned in, or party to, the conduct (whether directly or indirectly or whether by any act of the member). [S 245AP insrt Act 10 of 2013, s 3 and Sch 1 item 20]

SUBDIVISION D – OFFENCES AND CIVIL PENALTIES IN RELATION TO SPONSORED VISAS (SS 245AQ–245AY) [Subdiv D insrt Act 161 of 2015, s 3 and Sch 1 item 6, with effect from 14 Dec 2015]

245AQ Definitions In this Subdivision: benefit includes: (a) a payment or other valuable consideration; and (b) a deduction of an amount; and (c) any kind of real or personal property; and (d) an advantage; and (e) a service; and (f) a gift. executive officer of a body corporate means: (a) a director of the body corporate; or (b) the chief executive officer (however described) of the body corporate; or (c) the chief financial officer (however described) of the body corporate; or (d) the secretary of the body corporate. sponsor class means a prescribed class of sponsor. sponsored visa means a visa of a prescribed kind (however described). sponsorship-related event means any of the following events: (a) a person applying for approval as a sponsor under section 140E in relation to a sponsor class; (b) a person applying for a variation of a term of an approval as a sponsor under section 140E in relation to a sponsor class; (c) a person becoming, or not ceasing to be, a party to a work agreement; (d) a person agreeing to be, or not withdrawing his or her agreement to be, an approved sponsor in relation to an applicant or proposed applicant for a sponsored visa;

476

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Div 12 - Offences etc. re: entry into, and remaining in, Australia (ss 228A-245AY)

(e)

(f) (g)

(h)

(i)

(j)

(k) (l)

s 245AR

a person making a nomination under section 140GB in relation to a holder of, or an applicant or proposed applicant for, a sponsored visa, or including another person in such a nomination; a person not withdrawing a nomination made under section 140GB in relation to a holder of, or an applicant or proposed applicant for, a sponsored visa; a person applying under the regulations for approval of the nomination of a position in relation to the holder of, or an applicant or proposed applicant for, a sponsored visa, or including another person in such a nomination; a person not withdrawing the nomination under the regulations of a position in relation to the holder of, or an applicant or proposed applicant for, a sponsored visa; a person employing or engaging, or not terminating the employment or engagement of, a person to work in an occupation or position in relation to which a sponsored visa has been granted, has been applied for or is to be applied for; a person engaging, or not terminating the engagement of, a person to undertake a program, or carry out an activity, in relation to which a sponsored visa has been granted, has been applied for or is to be applied for; the grant of a sponsored visa; a prescribed event.

[S 245AQ insrt Act 161 of 2015, s 3 and Sch 1 item 6, with effect from 14 Dec 2015]

245AR Prohibition on asking for or receiving a benefit in return for the occurrence of a sponsorship-related event (1) A person (the first person) contravenes this subsection if: (a) the first person asks for, or receives, a benefit from another person; and (b) the first person asks for, or receives, the benefit in return for the occurrence of a sponsorship-related event. (2) To avoid doubt, the first person contravenes subsection (1) even if the sponsorshiprelated event does not occur. (3) Subsection (1) does not apply if the benefit is a payment of a reasonable amount for a professional service that has been provided, or is to be provided, by the first person or a third 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).

Offence (4) A person commits an offence if the person contravenes subsection (1). The physical elements of the offence are set out in that subsection. Penalty: Imprisonment for 2 years or 360 penalty units, or both. Civil penalty provision (5) A person is liable to a civil penalty if a person contravenes subsection (1). Civil penalty: 240 penalty units. (6) A person who wishes to rely on subsection (3) in proceedings for a civil penalty order bears an evidential burden in relation to the matter in that subsection. Note: It is not necessary to prove a person’s state of mind in proceedings for a civil penalty order (see section 486ZF). [S 245AR insrt Act 161 of 2015, s 3 and Sch 1 item 6, with effect from 14 Dec 2015]

© 2016 THOMSON REUTERS

477

s 245AR

Migration Act 1958

245AS Prohibition on offering to provide or providing a benefit in return for the occurrence of a sponsorship-related event (1) A person (the first person) contravenes this subsection if: (a) the first person offers to provide, or provides, a benefit to another person (the second person); and (b) the first person offers to provide, or provides, the benefit in return for the occurrence of a sponsorship-related event. Civil penalty: 240 penalty units. (2) To avoid doubt, the first person contravenes subsection (1) even if the sponsorshiprelated event does not occur. (3) Subsection (1) does not apply if the benefit is a payment of a reasonable amount for a professional service that has been provided, or is to be provided, by the second person or a third person. (4) A person who wishes to rely on subsection (3) in proceedings for a civil penalty order bears an evidential burden in relation to the matter in that subsection. Note: It is not necessary to prove a person’s state of mind in proceedings for a civil penalty order (see section 486ZF). [S 245AS insrt Act 161 of 2015, s 3 and Sch 1 item 6, with effect from 14 Dec 2015]

245AT Criminal liability of executive officers of bodies corporate (1) An executive officer of a body corporate commits an offence if: (a) the body commits an offence (the sponsorship-related offence) against this Subdivision; and (b) the officer knew that, or was reckless or negligent as to whether, the sponsorship-related offence would be committed; and (c) the officer was in a position to influence the conduct of the body in relation to the sponsorship-related offence; and (d) the officer failed to take all reasonable steps to prevent the sponsorship-related offence being committed. Penalty: 360 penalty units. (2) In determining whether the executive officer of the body corporate failed to take all reasonable steps to prevent the sponsorship-related offence being committed by the body, a court must have regard to: (a) what action (if any) the officer took towards ensuring that the body’s employees, agents and contractors had a reasonable knowledge and understanding of the requirements to comply with this Subdivision, insofar as those requirements affected the employees, agents or contractors concerned; and (b) what action (if any) the officer took when he or she became aware that the body was committing the sponsorship-related offence. (3) Subsection (2) does not limit subsection (1). [S 245AT insrt Act 161 of 2015, s 3 and Sch 1 item 6, with effect from 14 Dec 2015]

245AU Civil liability of executive officers of bodies corporate (1) An executive officer of a body corporate contravenes this subsection if: (a) the body contravenes (the sponsorship-related contravention) a civil penalty provision in this Subdivision; and (b) the officer knew that, or was reckless or negligent as to whether, the sponsorship-related contravention would occur; and

478

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Div 12 - Offences etc. re: entry into, and remaining in, Australia (ss 228A-245AY)

s 245AV

(c)

the officer was in a position to influence the conduct of the body in relation to the sponsorship-related contravention; and (d) the officer failed to take all reasonable steps to prevent the sponsorship-related contravention. Note: Section 486ZF (which provides that a person’s state of mind does not need to be proven in proceedings for a civil penalty order) does not apply in relation to a contravention of this subsection.

Civil penalty provision (2) An executive officer of a body corporate is liable to a civil penalty if the officer contravenes subsection (1). Civil penalty: 240 penalty units. Reasonable steps to prevent the contravention (3) In determining whether the executive officer of the body corporate failed to take all reasonable steps to prevent the sponsorship-related contravention by the body, a court must have regard to: (a) what action (if any) the officer took towards ensuring that the body’s employees, agents and contractors had a reasonable knowledge and understanding of the requirements to comply with this Subdivision, insofar as those requirements affected the employees, agents or contractors concerned; and (b) what action (if any) the officer took when he or she became aware that the body was engaging in the sponsorship-related contravention. (4) Subsection (3) does not limit subsection (1). Definitions (5) In this section: negligent: an executive officer of a body corporate is negligent as to whether a sponsorship-related contravention would occur if the officer’s conduct involves: (a) such a great falling short of the standard of care that a reasonable person would exercise in the circumstances; and (b) such a high risk that the sponsorship-related contravention would occur; that the conduct merits the imposition of a pecuniary penalty. reckless: an executive officer of a body corporate is reckless as to whether a sponsorship-related contravention would occur if: (a) the officer is aware of a substantial risk that the sponsorship-related contravention would occur; and (b) having regard to the circumstances known to the officer, it is unjustifiable to take the risk. [S 245AU insrt Act 161 of 2015, s 3 and Sch 1 item 6, with effect from 14 Dec 2015]

245AV Contravening civil penalty provisions (1) This section applies if a civil penalty provision in this Subdivision provides that a person contravening another provision of this Subdivision (the conduct rule provision) is liable to a civil penalty. (2) For the purposes of this Act, the person is taken to contravene the civil penalty provision if the person contravenes the conduct rule provision. [S 245AV insrt Act 161 of 2015, s 3 and Sch 1 item 6, with effect from 14 Dec 2015]

© 2016 THOMSON REUTERS

479

s 245AV

Migration Act 1958

245AW Geographical scope of offence and civil penalty provisions Offences (1) Section 15.2 of the Criminal Code (extended geographical jurisdiction—category B) applies to an offence against this Subdivision. Contraventions of civil penalty provisions (2) An order must not be made against a person in civil proceedings relating to a contravention by the person of a civil penalty provision in this Subdivision unless: (a) the person’s conduct that allegedly contravenes the provision occurs: (i) wholly or partly in Australia; or (ii) wholly or partly on board an Australian aircraft or an Australian ship; or (b) the person’s conduct that allegedly contravenes the provision occurs wholly outside Australia and, at the time of the alleged contravention, the person is: (i) an Australian citizen; or (ii) a resident of Australia; or (iii) a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; or (c) all of the following conditions are satisfied: (i) the person’s conduct allegedly contravenes the provision because of section 486ZD (the ancillary contravention); (ii) the conduct occurs wholly outside Australia; (iii) the conduct constituting the primary contravention to which the ancillary contravention relates occurs, or is intended by the person to occur, wholly or partly in Australia or wholly or partly on board an Australian aircraft or an Australian ship. Defences relating to contraventions of civil penalty provisions (3) In civil proceedings relating to a primary contravention by a person, it is a defence if: (a) the conduct constituting the alleged primary contravention occurs wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and (b) the person is neither: (i) an Australian citizen; nor (ii) a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; and (c) there is not in force in: (i) the foreign country where the conduct constituting the alleged primary contravention occurs; or (ii) the part of the foreign country where the conduct constituting the alleged primary contravention occurs; a law of that foreign country, or a law of that part of that foreign country, that provides for a pecuniary or criminal penalty for such conduct. (4) In civil proceedings relating to a contravention (the ancillary contravention) by a person of a civil penalty provision in this Subdivision because of section 486ZD, it is a defence if: (a) the conduct constituting the alleged ancillary contravention occurs wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and

480

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Div 12 - Offences etc. re: entry into, and remaining in, Australia (ss 228A-245AY)

s 245AW

(b) the conduct (the primary conduct) constituting the primary contravention to which the ancillary contravention relates occurs, or is intended by the person to occur, wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and (c) the person is neither: (i) an Australian citizen; nor (ii) a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; and (d) there is not in force in: (i) the foreign country where the primary conduct occurs or is intended by the person to occur; or (ii) the part of the foreign country where the primary conduct occurs or is intended by the person to occur; a law of that foreign country, or a law of that part of that foreign country, that provides for a pecuniary or criminal penalty for the primary conduct. (5) A defendant bears an evidential burden in relation to the matter in subsection (3) or (4). Attorney-General’s consent needed for certain proceedings (6) Civil proceedings relating to a contravention of a civil penalty provision in this Subdivision must not be commenced without the Attorney-General’s written consent if: (a) the conduct constituting the alleged contravention occurs wholly in a foreign country; and (b) at the time of the alleged contravention, the person alleged to have contravened the provision is neither: (i) an Australian citizen; nor (ii) a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory. When conduct taken to occur partly in Australia (7) For the purposes of this section, if a person sends a thing, or causes a thing to be sent: (a) from a point outside Australia to a point in Australia; or (b) from a point in Australia to a point outside Australia; that conduct is taken to have occurred partly in Australia. (8) For the purposes of this section, if a person sends, or causes to be sent, an electronic communication: (a) from a point outside Australia to a point in Australia; or (b) from a point in Australia to a point outside Australia; that conduct is taken to have occurred partly in Australia. Definitions (9) In this section: Australian aircraft has the same meaning as in the Criminal Code. Australian ship has the same meaning as in the Criminal Code. electronic communication has the same meaning as in the Criminal Code. foreign country has the same meaning as in the Criminal Code. point has the same meaning as in section 16.2 of the Criminal Code. primary contravention means a contravention of a civil penalty provision in this Subdivision other than because of section 486ZD.

© 2016 THOMSON REUTERS

481

s 245AW

Migration Act 1958

resident of Australia has the same meaning as in the Criminal Code. [S 245AW insrt Act 161 of 2015, s 3 and Sch 1 item 6, with effect from 14 Dec 2015]

245AX Treatment of partnerships (1) This Subdivision, and any other provision of this Act to the extent that it relates to this Subdivision, apply to a partnership as if it were a person, but with the changes set out in this section. (2) An offence against this Subdivision that would otherwise be committed by a partnership is taken to have been committed by each partner in the partnership, at the time the offence is committed, who: (a) did the relevant act; or (b) aided, abetted, counselled or procured the relevant act; or (c) was in any way knowingly concerned in, or party to, the relevant act (whether directly or indirectly or whether by any act of the partner). (3) A civil penalty provision in this Subdivision that would otherwise be contravened by a partnership is taken to have been contravened by each partner in the partnership, at the time of the conduct constituting the contravention, who: (a) engaged in the conduct; or (b) aided, abetted, counselled or procured the conduct; or (c) was in any way knowingly concerned in, or party to, the conduct (whether directly or indirectly or whether by any act of the partner). [S 245AX insrt Act 161 of 2015, s 3 and Sch 1 item 6, with effect from 14 Dec 2015]

245AY Treatment of unincorporated associations (1) This Subdivision, and any other provision of this Act to the extent that it relates to this Subdivision, apply to an unincorporated association as if it were a person, but with the changes set out in this section. (2) An offence against this Subdivision that would otherwise be committed by an unincorporated association is taken to have been committed by each member of the association’s committee of management, at the time the offence is committed, who: (a) did the relevant act; or (b) aided, abetted, counselled or procured the relevant act; or (c) was in any way knowingly concerned in, or party to, the relevant act (whether directly or indirectly or whether by any act of the member). (3) A civil penalty provision in this Subdivision that would otherwise be contravened by an unincorporated association is taken to have been contravened by each member of the association’s committee of management, at the time of the conduct constituting the contravention, who: (a) engaged in the conduct; or (b) aided, abetted, counselled or procured the conduct; or (c) was in any way knowingly concerned in, or party to, the conduct (whether directly or indirectly or whether by any act of the member). [S 245AY insrt Act 161 of 2015, s 3 and Sch 1 item 6, with effect from 14 Dec 2015]

DIVISION 12A – CHASING, BOARDING ETC. AIRCRAFT (SS 245A–245FA) [Div 12A heading subst Act 16 of 2013, s 3 and Sch 4 item 15, with effect from 27 Mar 2014] [Div 12A insrt Act 160 of 1999, s 3 and Sch 1 item 2, with effect from 16 Dec 1999]

482

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 12A – Chasing, boarding etc. aircraft (ss 245A–245FA)

s 245E

245A Definitions In this Division, unless the contrary intention appears: aircraft includes aeroplanes, seaplanes, airships, balloons or any other means of aerial locomotion. Australian aircraft means an aircraft that: (a) is an Australian aircraft as defined in the Civil Aviation Act 1988; or (b) is not registered under the law of a foreign country and is either wholly owned by, or solely operated by: (i) one or more residents of Australia; or (ii) one or more Australian nationals; or (iii) one or more residents of Australia and one or more Australian nationals. For the purposes of this definition, Australian national and resident of Australia have the same meanings as in the Shipping Registration Act 1981. Australian ship [Repealed] [Def rep Act 16 of 2013, s 3 and Sch 4 item 16, with effect from 27 Mar 2014]

Commonwealth aircraft means an aircraft that is in the service of the Commonwealth and displaying the ensign or insignia prescribed for the purposes of the definition of “Commonwealth aircraft” in subsection 4(1) of the Customs Act 1901. Commonwealth ship [Repealed] [Def rep Act 16 of 2013, s 3 and Sch 4 item 17, with effect from 27 Mar 2014]

contiguous zone [Repealed] [Def rep Act 46 of 2011, s 3 and Sch 2 item 762, with effect from 27 Dec 2011]

foreign ship [Repealed] [Def rep Act 16 of 2013, s 3 and Sch 4 item 18, with effect from 27 Mar 2014]

goods includes a document. ship [Repealed] [Def rep Act 16 of 2013, s 3 and Sch 4 item 19, with effect from 27 Mar 2014]

territorial sea [Repealed] [Def rep Act 16 of 2013, s 3 and Sch 4 item 20, with effect from 27 Mar 2014]

this Act includes regulations made under this Act. UNCLOS [Repealed] [Def rep Act 16 of 2013, s 3 and Sch 4 item 21, with effect from 27 Mar 2014] Note: The text of the Convention is set out in Australian Treaty Series 1994 No 31. [S 245A am Act 16 of 2013; Act 46 of 2011; insrt Act 160 of 1999, s 3 and Sch 1 item 2, with effect from 16 Dec 1999 Cross-reference: Legislative Instruments: IMMI 10/019 — Migration Act 1958 – Approval under paragraphs 235(7)(a) and 245AF(a) – Approval of Activities: This Approval specifies the list of approved activities that a person in immigration detention is able to participate in.]

[Editor’s note: Sections 245B–245D were repealed by Act 16 of 2013, s 3 and Sch 4 item 22, with effect from 27 Mar 2014, and have not been reproduced] 245E Identifying an aircraft and requesting it to land for boarding Application of section (1) This section allows the commander of a Commonwealth aircraft to make requests of the pilot of another aircraft that:

© 2016 THOMSON REUTERS

483

s 245E

Migration Act 1958

(a)

if the other aircraft is an Australian aircraft – is over anywhere except a foreign country; and (b) if the other aircraft is not an Australian aircraft – is over Australia. Requesting information to identify an aircraft (2) If the commander cannot identify the other aircraft, the commander may: (a) use his or her aircraft to intercept the other aircraft in accordance with the practices recommended in Annex 2 (headed “Rules of the Air”) to the Convention on International Civil Aviation done at Chicago on 7 December 1944 (that was adopted in accordance with that Convention); and (b) request the pilot of the other aircraft to disclose to the commander: (i) the identity of the other aircraft; and (ii) the identity of all persons on the other aircraft; and (iii) the flight path of the other aircraft; and (iv) the flight plan of the other aircraft. Requesting aircraft to land for boarding (3) The commander may request the pilot of the other aircraft to land it at the nearest proclaimed airport, or at the nearest suitable landing field, in Australia for boarding for the purposes of this Act if: (a) the pilot does not comply with a request under subsection (2); or (b) the commander reasonably suspects that the other aircraft is or has been involved in a contravention, or attempted contravention, of this Act. Note: Section 245F gives power to board the aircraft and search it once it has landed.

Means of making request (4) Any reasonable means may be used to make a request under this section. Request still made even if pilot did not receive etc. request (5) To avoid doubt, a request is still made under this section even if the pilot did not receive or understand the request. Pilot must comply with request (6) The pilot of the other aircraft must comply with a request made under this section. Penalty: Imprisonment for 2 years. [Subs (6) am Act 97 of 2001, s 3 and Sch 1 item 50, with effect from 19 Sep 2001]

(7) Subsection (6) does not apply if the pilot has a reasonable excuse. Note: A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code). [Subs (7) insrt Act 97 of 2001, s 3 and Sch 1 item 51, with effect from 19 Sep 2001] [S 245E am Act 97 of 2001; insrt Act 160 of 1999, s 3 and Sch 1 item 2, with effect from 16 Dec 1999]

245F Power to board and search etc. aircraft Application of section to ships (1) [Repealed] [Subs (1) rep Act 16 of 2013, s 3 and Sch 4 item 24, with effect from 27 Mar 2014]

Application of section to aircraft (2) This section applies to an aircraft that has landed in Australia for boarding as a result of a request made under section 245E.

484

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 12A – Chasing, boarding etc. aircraft (ss 245A–245FA)

s 245F

Offıcer’s powers (3) An officer may: (a) board and search the aircraft; and (b) search and examine any goods found on the aircraft; and (c) secure any goods found on the aircraft; and (d) require all persons found on the aircraft to answer questions, and produce any documents in their possession, in relation to the following: (i) the aircraft and its flight, cargo, stores, crew and passengers; (ii) the identity and presence of those persons on the aircraft; (iii) a contravention, an attempted contravention or an involvement in a contravention or attempted contravention, either in or outside Australia, of this Act; and (e) copy, or take extracts from, any document: (i) found on the aircraft; or (ii) produced by a person found on the aircraft as required under paragraph (d); and (f) arrest without warrant any person found on the aircraft if the officer reasonably suspects that the person has committed, is committing or attempting to commit, or is involved in the commission of, an offence, either in or outside Australia, against this Act. [Subs (3) am Act 16 of 2013, s 3 and Sch 4 items 25–30, with effect from 27 Mar 2014]

(4) [Repealed] [Subs (4) rep Act 16 of 2013, s 3 and Sch 4 item 31, with effect from 27 Mar 2014]

Help to search (5) Without limiting the generality of paragraph (3)(a), an officer may use a dog to assist in searching the aircraft. [Subs (5) am Act 16 of 2013, s 3 and Sch 4 item 32, with effect from 27 Mar 2014]

Help to examine goods (6) In the exercise of the power under paragraph (3)(b) to examine goods, the officer may do, or arrange for another officer or other person having the necessary experience to do, whatever is reasonably necessary to permit the examination of the goods. Examples of examining goods (7) Without limiting the generality of subsection (6), examples of what may be done in the examination of goods include the following: (a) opening any package in which goods are or may be contained; (b) using a device, such as an X-ray machine or ion scanning equipment, on the goods; (c) if the goods are a document – reading the document either directly or with the use of an electronic device; (d) using a dog to assist in examining the goods. Power to detain and move aircraft (8) An officer may detain the aircraft and bring it, or cause it to be brought, to a port, or to another place, that he or she considers appropriate if the officer reasonably suspects that the aircraft is or has been involved in a contravention, either in or outside Australia, of this Act. [Subs (8) subst Act 16 of 2013, s 3 and Sch 4 item 33, with effect from 27 Mar 2014; am Act 126 of 2001, s 3 and Sch 2 item 7, with effect from 27 Sep 2001]

© 2016 THOMSON REUTERS

485

s 245F

Migration Act 1958

(8AA) [Repealed] [Subs (8AA) rep Act 16 of 2013, s 3 and Sch 4 item 33, with effect from 27 Mar 2014; insrt Act 25 of 2004, s 3 and Sch 2 item 36, with effect from 25 Mar 2004]

People on detained aircraft (8A) If an officer detains an aircraft under this section, any restraint on the liberty of any person found on the aircraft that results from the detention of the aircraft is not unlawful, and proceedings, whether civil or criminal, in respect of that restraint may not be instituted or continued in any court against the Commonwealth, the officer or any person assisting the officer in detaining the aircraft. [Subs (8A) am Act 16 of 2013, s 3 and Sch 4 items 34–36, with effect from 27 Mar 2014; insrt Act 126 of 2001, s 3 and Sch 2 item 8, with effect from 27 Sep 2001]

Jurisdiction of High Court (8B) Nothing in subsection (8A) is intended to affect the jurisdiction of the High Court under section 75 of the Constitution. [Subs (8B) insrt Act 126 of 2001, s 3 and Sch 2 item 8, with effect from 27 Sep 2001]

Powers of offıcers in respect of people found on detained aircraft (9) If an officer detains an aircraft under this section, the officer may: (a) detain any person found on the aircraft and bring the person, or cause the person to be brought, to the migration zone; or (b) take the person, or cause the person to be taken, to a place outside Australia. [Subs (9) am Act 16 of 2013, s 3 and Sch 4 items 37–39, with effect from 27 Mar 2014; subst Act 126 of 2001, s 3 and Sch 2 item 8, with effect from 27 Sep 2001]

Powers to move people (9A) For the purpose of moving a person under subsection (9), an officer may, within or outside Australia: (a) place the person on a ship or aircraft; or (b) restrain the person on a ship or aircraft; or (c) remove the person from a ship or aircraft. [Subs (9A) insrt Act 126 of 2001, s 3 and Sch 2 item 8, with effect from 27 Sep 2001]

Protection if offıcers etc. act in good faith (9B) Proceedings, whether civil or criminal, may not be instituted or continued, in respect of any action taken under subsection (9A), against the Commonwealth, an officer or any person assisting an officer if the officer or person who took the action acted in good faith and used no more force than was authorised by subsection (10). [Subs (9B) insrt Act 126 of 2001, s 3 and Sch 2 item 8, with effect from 27 Sep 2001]

Use of necessary and reasonable force (10) An officer may use such force as is necessary and reasonable in the exercise of a power under this section. Limit on use of force to board and search aircraft (11) In boarding and searching the aircraft and searching or examining goods found on the aircraft, an officer must not damage the aircraft or goods by forcing open a part of the aircraft or goods unless: (a) the person (if any) apparently in charge of the aircraft has been given a reasonable opportunity to open that part or the goods; or (b) it is not reasonably practicable to give that person such an opportunity.

486

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 12A – Chasing, boarding etc. aircraft (ss 245A–245FA)

s 245F

This subsection has effect despite paragraphs (3)(a) and (b) and subsection (10). [Subs (11) am Act 16 of 2013, s 3 and Sch 4 items 40–43, with effect from 27 Mar 2014]

Limit on use of force to arrest or detain person on aircraft (12) In arresting or detaining a person found on the aircraft, an officer: (a) must not use more force, or subject the person to greater indignity, than is necessary and reasonable to make the arrest or detention, or to prevent the person escaping after the arrest or detention; and (b) must not do anything likely to cause the person grievous bodily harm unless the officer believes on reasonable grounds that doing the thing is necessary to protect life or prevent serious injury of another person (including the officer). This subsection has effect despite paragraph (3)(f) and subsection (10). [Subs (12) am Act 16 of 2013, s 3 and Sch 4 items 44 and 45, with effect from 27 Mar 2014]

Limit on use of force to arrest fleeing person (13) In arresting a person found on the aircraft who is fleeing to escape arrest, an officer must not do anything likely to cause the person grievous bodily harm unless: (a) the person has, if practicable, been called on to surrender and the officer believes on reasonable grounds that the person cannot be apprehended in any other way; or (b) the officer believes on reasonable grounds that doing the thing is necessary to protect life or prevent serious injury of another person (including the officer). This subsection applies in addition to subsection (12) and has effect despite paragraph (3)(f) and subsection (10). [Subs (13) am Act 16 of 2013, s 3 and Sch 4 item 45, with effect from 27 Mar 2014]

If ship covered by agreement, offıcer may exercise other powers [Repealed] (14) [Repealed] [Subs (14) rep Act 16 of 2013, s 3 and Sch 4 item 46, with effect from 27 Mar 2014]

Complying with requirement by offıcer (15) A person must not refuse or fail to comply with a requirement made by an officer under this section. Penalty: 100 penalty units. [Subs (15) am Act 97 of 2001, s 3 and Sch 1 item 52, with effect from 19 Sep 2001]

(15A) Subsection (15) does not apply if the person has a reasonable excuse. Note: A defendant bears an evidential burden in relation to the matter in subsection (15A) (see subsection 13.3(3) of the Criminal Code). [Subs (15A) insrt Act 97 of 2001, s 3 and Sch 1 item 53, with effect from 19 Sep 2001]

(15B) An offence against subsection (15) is an offence of strict liability. [Subs (15B) insrt Act 97 of 2001, s 3 and Sch 1 item 53, with effect from 19 Sep 2001] Note: For strict liability, see section 6.1 of the Criminal Code.

Evidence may be used in prosecutions etc. (16) To avoid doubt, if, when exercising powers under this section, an officer obtains evidence of the commission of an offence against a law of the Commonwealth, a State or a Territory, then that evidence may be used, or given to another body for use, in: (a) investigating the offence; or (b) proceedings for the prosecution for the offence.

© 2016 THOMSON REUTERS

487

s 245F

Migration Act 1958

However, this subsection does not override or limit the operation of a law of a State about the evidence that may be used in proceedings for the prosecution for an offence against a law of that State. Section not to limit offıcer’s other powers (17) This section does not limit the use by an officer of any other powers under this Act. Definition of officer (18) In this section, officer means an officer within the meaning of section 5, and includes: (a) any person who is in command, or a member of the crew, of the aircraft from which the relevant request under section 245E was made; and (b) a member of the Australian Defence Force. [Subs (18) am Act 16 of 2013, s 3 and Sch 4 item 47, with effect from 27 Mar 2014]

Interpretation (19) In this section: (a) a reference to a person found on the aircraft includes a reference to a person suspected on reasonable grounds by an officer of having landed from or left the aircraft; and (b) a reference to goods found on the aircraft includes a reference to goods suspected on reasonable grounds by an officer of having been removed from the aircraft. [Subs (19) am Act 16 of 2013, s 3 and Sch 4 item 48, with effect from 27 Mar 2014] [S 245F am Act 16 of 2013, s 3 and Sch 4 item 23, with effect from 27 Mar 2014; Act 25 of 2004; Act 126 of 2001; Act 97 of 2001; insrt Act 160 of 1999, s 3 and Sch 1 item 2, with effect from 16 Dec 1999]

245FA Searches of people on certain ships or aircraft (1) For the purposes set out in subsection (2), a person, and the person’s clothing and any property under the immediate control of the person, may, without warrant, be searched if the person: (a) is on an aircraft that has been detained under subsection 245F(8); or (b) has been placed on a ship or aircraft under subsection 245F(9A). Note: Division 13 of Part 2 provides search powers in respect of persons who are in immigration detention. [Subs (1) am Act 16 of 2013, s 3 and Sch 4 item 49, with effect from 27 Mar 2014]

(2) The purpose for which a person, and the person’s clothing and any property under the immediate control of the person, may be searched under this section is to find out whether the person is carrying, or there is hidden on the person, in the clothing or in the property, a weapon or other thing capable of being used to inflict bodily injury or to help the person to escape. (3) If, in the course of a search under this section, a weapon or other thing referred to in subsection (2) is found, an officer: (a) may take possession of the weapon or other thing; and (b) may retain the weapon or other thing for such time as he or she thinks necessary for the purposes of this Act. (4) This section does not authorise an officer, or another person conducting a search pursuant to subsection (5), to remove any of the person’s clothing, or to require a person to remove any of his or her clothing, except the person’s outer garments (including but not limited to the person’s overcoat, coat, jacket, gloves, shoes and head covering). (5) A search under this section of a person, and the person’s clothing, must be conducted by: (a) an officer of the same sex as the person; or

488

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 12B – Reporting on passengers and crew of aircraft and ships (ss 245I–245N)

s 245I

(b) in a case where an officer of the same sex as the person is not available to conduct the search – any other person who is of the same sex and: (i) is requested by an officer; and (ii) agrees; to conduct the search. (6) An action or proceeding, whether civil or criminal, does not lie against a person who, at the request of an officer, conducts a search under this section if the person acts in good faith and does not contravene subsection (7). (7) An officer or other person who conducts a search under this section must not use more force, or subject a person to greater indignity, than is reasonably necessary in order to conduct the search. (8) In this section, officer has the same meaning as it has in section 245F. [S 245FA am Act 16 of 2013; insrt Act 126 of 2001, s 3 and Sch 2 item 9, with effect from 27 Sep 2001]

[Editor’s note: Sections 245FB–245H were repealed by Act 16 of 2013, s 3 and Sch 4 item 50, with effect from 27 Mar 2014, and have not been reproduced] DIVISION 12B – REPORTING ON PASSENGERS AND CREW OF AIRCRAFT AND SHIPS (SS 245I–245N) [Div 12B insrt Act 64 of 2002, s 3 and Sch 6 item 9, with effect from 5 Jan 2003]

245I Definitions (1) In this Division: approved fall-back reporting system means a system approved under section 245K. approved primary reporting system means a system approved under section 245J. approved primary reporting system for crew, for an aircraft or ship of a kind to which this Division applies, means the system approved under section 245J for reporting on crew on an aircraft or ship of that kind. approved primary reporting system for passengers, for an aircraft or ship of a kind to which this Division applies, means the system approved under section 245J for reporting on passengers on an aircraft or ship of that kind. arrival means: (a) in relation to an aircraft – the aircraft coming to a stop after landing; or (b) in relation to a ship – the securing of the ship for the loading or unloading of passengers, cargo or ship’s stores. kind of aircraft or ship to which this Division applies means a kind of aircraft or ship specified in the regulations as a kind of aircraft or ship to which this Division applies. Note: Kind has a meaning affected by subsection (2).

operator of an aircraft or ship for a particular flight or voyage means: (a) the airline or shipping line responsible for the operation of the aircraft or ship for the flight or voyage; or (b) if there is no such airline or shipping line, or no such airline or shipping line that is represented by a person in Australia – the pilot of the aircraft or the master of the ship. (2) For the purposes of this Division (and of regulations and approvals made for the purposes of provisions of this Division), a kind of aircraft or ship may be identified by reference to matters including all or any of the following:

© 2016 THOMSON REUTERS

489

s 245I

Migration Act 1958

(a) the type, size or capacity of the aircraft or ship; (b) the kind of operation or service the aircraft or ship is engaged in on the flight or voyage to or from Australia; (c) other circumstances related to the aircraft or ship or its use, or related to the operator of the aircraft or ship. [Subs (2) am Act 116 of 2014, s 3 and Sch 6 item 3, with effect from 1 Jul 2015] [S 245I am Act 116 of 2014; insrt Act 64 of 2002, s 3 and Sch 6 item 9, with effect from 5 Jan 2003]

245J Approval of primary reporting systems (1) The Secretary must, for each kind of aircraft or ship to which this Division applies, by legislative instrument, approve a system for the purposes of reporting under this Division. The system may be an electronic system or a system requiring reports to be provided in documentary form. Note 1: An approval under this subsection can be varied or revoked under subsection 33(3) of the Acts Interpretation Act 1901. Note 2: It is anticipated that, ultimately, documentary systems will be phased out and all approved systems will be electronic systems. [Subs (1) am Act 141 of 2005, s 3 and Sch 4 item 3, with effect from 12 Dec 2005]

(2) Under subsection (1), the Secretary may, for a kind of aircraft or ship, approve a single system for reporting on both passengers and crew or may approve one system for reporting on passengers, and another system for reporting on crew. (2A) The information about passengers or crew that is to be reported by a system must be about: (a) if the system is for reporting on passengers—passengers individually; or (b) if the system is for reporting on crew—members of the crew individually; or (c) if the system is for reporting on both passengers and crew—passengers individually and members of the crew individually. [Subs (2A) insrt Act 85 of 2008, s 3 and Sch 2 item 10, with effect from 15 Mar 2009]

(3) The instrument of approval of a system for reporting on passengers or crew must also specify the information (including personal identifiers) about passengers or crew that is to be reported by that system. [Subs (3) am Act 116 of 2014, s 3 and Sch 6 item 4, with effect from 1 Jul 2015]

(4) [Repealed] [Subs (4) rep Act 141 of 2005, s 3 and Sch 4 item 4, with effect from 12 Dec 2005] [S 245J am Act 116 of 2014; Act 85 of 2008; Act 141 of 2005; insrt Act 64 of 2002, s 3 and Sch 6 item 9, with effect from 5 Jan 2003 Cross-reference: Legislative Instruments: • IMMI 15/016 — Migration Act 1958 – Instrument of Approval of Primary Reporting Systems (International Passenger Aircraft – Crew) 2015: This Instrument specifies the primary reporting systems for the purpose of reporting on the crew of international passenger aircrafts. • IMMI 15/019 — Migration Act 1958 – Instrument of Approval of Primary Reporting Systems (International Passenger Aircraft – Passengers) 2015: This Instrument specifies the primary reporting system for the purposes of reporting on passengers of international passenger aircraft. • IMMI 15/022 — Migration Act 1958 – Instrument of Approval of Primary Reporting Systems (International Passenger Cruise Ship – Crew) 2015: This Instrument specifies the primary reporting system for the purposes of reporting on crew of international passenger cruise ships. • IMMI 15/023 — Migration Act 1958 – Instrument Of Approval Of Primary Reporting Systems (International Passenger Cruise Ship – Passengers) 2015: This Instrument specifies the primary reporting system for the purposes of reporting on passengers of international passenger cruise ships.]

490

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 12B – Reporting on passengers and crew of aircraft and ships (ss 245I–245N)

s 245L

245K Approval of fall-back reporting systems (1) The Secretary must, by legislative instrument, approve one or more systems as fall-back reporting systems. A system may be an electronic system or a system requiring reports to be provided in documentary form. Note: An approval under this subsection can be varied or revoked under subsection 33(3) of the Acts Interpretation Act 1901. [Subs (1) am Act 141 of 2005, s 3 and Sch 4 item 5, with effect from 12 Dec 2005]

(1A) The information about passengers or crew that is to be reported by a system must be about: (a) if the system is for reporting on passengers—passengers individually; or (b) if the system is for reporting on crew—members of the crew individually; or (c) if the system is for reporting on both passengers and crew—passengers individually and members of the crew individually. [Subs (1A) insrt Act 85 of 2008, s 3 and Sch 2 item 11, with effect from 15 Mar 2009]

(2) The instrument of approval of a system must also specify the information (including personal identifiers) about passengers or crew that is to be reported by that system. [Subs (2) am Act 116 of 2014, s 3 and Sch 6 item 4, with effect from 1 Jul 2015]

(3) [Repealed] [Subs (3) rep Act 141 of 2005, s 3 and Sch 4 item 6, with effect from 12 Dec 2005] [S 245K am Act 116 of 2014; Act 85 of 2008; Act 141 of 2005; insrt Act 64 of 2002, s 3 and Sch 6 item 9, with effect from 5 Jan 2003 Cross-reference: Legislative Instruments: • IMMI 15/020 — Migration Act 1958 – Instrument of Approval of Fall-Back Reporting Systems (International Passenger Aircraft – Crew) 2015: This Instrument specifies the fall-back reporting systems for the purposes of reporting on crew of international passenger aircraft. • IMMI 15/021 — Migration Act 1958 – Instrument of Approval of Fall-Back Reporting Systems (International Passenger Aircraft – Passengers) 2015: This Instrument specifies the fall-back reporting systems for the purposes of reporting on passengers of international passenger aircraft. • IMMI 15/024 — Migration Act 1958 – Instrument Of Approval Of Fall-Back Reporting Systems (International Passenger Cruise Ship – Passengers and Crew) 2015: This Instrument specifies the fall-back reporting systems for the purposes of reporting on passengers and crew of international passenger cruise ships.]

245L Obligation to report on persons arriving in Australia Aircraft and ships to which section applies (1) This section applies to an aircraft or ship of a kind to which this Division applies that is due to arrive at a place in Australia from a place outside Australia. [Subs (1) am Act 116 of 2014, s 3 and Sch 6 item 6, with effect from 1 Jul 2015]

Obligation to report on passengers and crew (2) The operator of the aircraft or ship must, in accordance with this section: (a) report to the Department, using the approved primary reporting system for passengers, on each passenger who will be on board the aircraft or ship at the time of its arrival at the place in Australia; and (b) report to the Department, using the approved primary reporting system for crew, on each member of the crew who will be on board the aircraft or ship at the time of its arrival at the place in Australia. Note 1: This obligation must be complied with even if the information concerned is personal information.

© 2016 THOMSON REUTERS

491

s 245L

Migration Act 1958

Note 2: Section 245N contains an offence for failure to comply with this subsection. [Subs (2) am Act 116 of 2014, s 3 and Sch 6 items 7 and 8, with effect from 1 Jul 2015; Act 159 of 2008, s 3 and Sch 1 item 31, with effect from 14 Sep 2009; Act 85 of 2008, s 3 and Sch 2 items 12 and 13, with effect from 15 Feb 2009]

Information to be reported (3) A report on passengers or crew under subsection (2) must include the information relating to those passengers or crew that is specified, as mentioned in subsection 245J(3), in relation to the relevant approved primary reporting system. Deadline for reporting—aircraft (4) A report on passengers or crew on an aircraft must be given not later than: (a) if the flight from the last place outside Australia is likely to take not less than 3 hours—3 hours before the aircraft’s likely time of arrival at the place in Australia; or (b) if the flight from the last place outside Australia is likely to take less than 3 hours—one hour before the aircraft’s likely time of arrival at the place in Australia. [Subs (4) am Act 116 of 2014, s 3 and Sch 6 item 9, with effect from 1 Jul 2015]

Deadline for reporting—ships (5) A report on passengers or crew on a ship must be given not later than: (a) the start of the prescribed period before the ship’s estimated time of arrival at the place in Australia; or (b) if the journey is of a kind described in regulations made for the purposes of this paragraph—the start of the shorter period specified in those regulations before the ship’s estimated time of arrival at the place in Australia. [Subs (5) am Act 116 of 2014, s 3 and Sch 6 item 10, with effect from 1 Jul 2015; subst Act 85 of 2008, s 3 and Sch 2 item 14, with effect from 15 Feb 2009]

(5A) Regulations made for the purposes of paragraph (5)(b) may prescribe matters of a transitional nature (including prescribing any saving or application provisions) arising out of the making of regulations for those purposes. [Subs (5A) insrt Act 85 of 2008, s 3 and Sch 2 item 14, with effect from 15 Feb 2009]

Obligation to pass on information [Repealed] (6) [Repealed] [Subs (6) rep Act 116 of 2014, s 3 and Sch 6 item 11, with effect from 1 Jul 2015; am Act 33 of 2009, s 3 and Sch 2 item 42, with effect from 23 May 2009]

Purpose for which information obtained [Repealed] (7) [Repealed] [Subs (7) rep Act 116 of 2014, s 3 and Sch 6 item 11, with effect from 1 Jul 2015] [S 245L am Act 116 of 2014, s 3 and Sch 6 item 5, with effect from 1 Jul 2015; Act 33 of 2009, s 3 and Sch 2 item 42, with effect from 23 May 2009; Act 159 of 2008; Act 85 of 2008; insrt Act 64 of 2002, s 3 and Sch 6 item 9, with effect from 5 Jan 2003]

245LA Obligation to report on persons departing from Australia Aircraft and ships to which section applies (1) This section applies to an aircraft or ship of a kind to which this Division applies that is due to depart from a place in Australia on a flight or voyage to a place outside Australia (whether or not after calling at other places in Australia).

492

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 12B – Reporting on passengers and crew of aircraft and ships (ss 245I–245N)

s 245LB

Obligation to report on passengers and crew (2) The operator of the aircraft or ship must, in accordance with this section: (a) report to the Department, using the approved primary reporting system for passengers, on each passenger who is on, or is expected to be on, the flight or voyage (including any part of the flight or voyage); and (b) report to the Department, using the approved primary reporting system for crew, on each member of the crew who is on, or is expected to be on, the flight or voyage (including any part of the flight or voyage). Note 1: This obligation must be complied with even if the information concerned is personal information. Note 2: Section 245N contains an offence for failure to comply with this subsection.

(3) However, if: (a) on the flight or voyage, the aircraft or ship calls at one or more places in Australia before departing to the place outside Australia; and (b) the regulations prescribe that a report under subsection (2) must only relate to the part of the flight or voyage that is from the last place in Australia to the place outside Australia; then the report must be on each passenger or crew member who is on, or is expected to be on, that part of the flight or voyage. Information to be reported (4) A report on a passenger or crew member under subsection (2) must include the information relating to the passenger or crew member that is specified, as mentioned in subsection 245J(3), in relation to the relevant approved primary reporting system. Deadline for providing a report (5) A report on a passenger or crew member under subsection (2) must be provided: (a) if the regulations prescribe a period or periods before the aircraft’s or ship’s departure from a place for the giving of a report under subsection (2) in relation to the passenger or crew member—not later than the start of that period or each of those periods; and (b) if the regulations prescribe an event or events for the giving of a report under subsection (2) in relation to the passenger or crew member—at the time of that event or each of those events; and (c) if the regulations prescribe a time or times for the giving of a report under subsection (2) in relation to the passenger or crew member—at that time or each of those times. (6) To avoid doubt, more than one report may be required to be provided under subsection (2) in relation to a passenger or crew member. Note: For example, if regulations made for the purposes of subsection (5) prescribe a period of 48 hours before the aircraft’s or ship’s departure from a place on the flight or voyage and also prescribe an event of the passenger or crew member checking-in for the flight or voyage, then 2 reports would be required to be provided under this section in relation to the passenger or crew member. [S 245LA insrt Act 116 of 2014, s 3 and Sch 6 item 12, with effect from 1 Jul 2015]

245LB Dealing with information collected under this Division etc. Collection of personal information (1) The Department may collect information (including personal identifiers) in a report provided under this Division.

© 2016 THOMSON REUTERS

493

s 245LB

Migration Act 1958

Access to, and disclosure of, personal information (2) The following provisions: (a) section 336D (which authorises access to identifying information); (b) section 336E (other than subsection 336E(1)) and section 336F (which authorise disclosure of identifying information); (c) a provision of an instrument made under section 336D or 336F; apply to personal information (other than personal identifiers) collected under this Division in the same way as they apply to identifying information. [Subs (2) am Act 41 of 2015, s 3 and Sch 8 item 8, with effect from 1 Jul 2015]

(3) [Repealed] [Subs (3) rep Act 41 of 2015, s 3 and Sch 8 item 9, with effect from 1 Jul 2015]

Effect on interpretation (4) This section does not, by implication, affect the interpretation of any other provision of this Act or an instrument made under this Act. [S 245LB am Act 41 of 2015; insrt Act 116 of 2014, s 3 and Sch 6 item 13, with effect from 1 Jul 2015]

245M Approved fall-back reporting systems may be used in certain circumstances (1) This section applies if: (a) the approved primary reporting system for reporting on passengers or crew on an aircraft or ship is an electronic system; and (b) either: (i) the operator of the aircraft or ship cannot report on some or all of the passengers or crew (the relevant passengers or crew) using the approved primary reporting system because the system is not working; or (ii) the Secretary permits the operator of the aircraft or ship to report on some or all of the passengers or crew (the relevant passengers or crew) using an approved fall-back reporting system. (2) Sections 245L and 245LA apply in relation to the relevant passengers or crew as if: (a) the reference in subsections 245L(2) and 245LA(2) to the approved primary reporting system for passengers, or the approved primary reporting system for crew, were instead a reference to an approved fall-back reporting system; and (b) the reference in subsections 245L(3) and 245LA(4) to the information that is specified, as mentioned in subsection 245J(3), in relation to the relevant approved primary reporting system were instead a reference to the information that is specified, as mentioned in subsection 245K(2), in relation to the approved fall-back reporting system that the operator uses in relation to the relevant passengers or crew. [Subs (2) am Act 116 of 2014, s 3 and Sch 6 items 14–16, with effect from 1 Jul 2015] [S 245M am Act 116 of 2014; insrt Act 64 of 2002, s 3 and Sch 6 item 9, with effect from 5 Jan 2003]

245N Offence for failure to comply with reporting obligations (1) An operator of an aircraft or ship who intentionally contravenes subsection 245L(2) or 245LA(2) commits an offence punishable, on conviction, by a penalty not exceeding 120 penalty units. [Subs (1) am Act 116 of 2014, s 3 and Sch 6 item 17, with effect from 1 Jul 2015]

(2) An operator of an aircraft or ship who contravenes subsection 245L(2) or 245LA(2) commits an offence punishable, on conviction, by a penalty not exceeding 60 penalty units.

494

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 13 – Examination, search, detention and identification (ss 246–261)

s 247

Note: See also paragraph 504(1)(jaa) (which deals with the payment of a penalty as an alternative to prosecution). [Subs (2) am Act 116 of 2014, s 3 and Sch 6 item 17, with effect from 1 Jul 2015; Act 85 of 2008, s 3 and Sch 2 item 16, with effect from 15 Mar 2009]

(3) An offence against subsection (2) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code.

(4) An operator of an aircraft or ship commits a separate offence under subsection (1) or (2) in relation to each passenger or member of the crew in relation to whom the operator contravenes subsection 245L(2) or 245LA(2). [Subs (4) am Act 116 of 2014, s 3 and Sch 6 item 17, with effect from 1 Jul 2015; insrt Act 85 of 2008, s 3 and Sch 2 item 16A, with effect from 15 Mar 2009] [S 245N am Act 116 of 2014; Act 85 of 2008; insrt Act 64 of 2002, s 3 and Sch 6 item 9, with effect from 5 Jan 2003]

DIVISION 13 – EXAMINATION, SEARCH, DETENTION AND IDENTIFICATION (SS 246–261) [Div 13 heading subst Act 115 of 2015, s 3 and Sch 1 item 33, with effect from 16 Feb 2016]

246 Appointment of boarding stations (1) The Governor-General may, by Proclamation, appoint a place in a port to be the boarding station for that port for the purposes of this Act. (2) Where a boarding station for a port is for the time being appointed or continued under the Customs Act 1901-1957, that boarding station shall be deemed to be appointed under this section as the boarding station for that port for the purposes of this Act. 247 Vessels to enter ports and be brought to boarding stations (1) The master of a vessel which has entered Australia from overseas shall not suffer the vessel to enter any place other than a port. Penalty: 200 penalty units. [Subs (1) am Act 97 of 2001, s 3 and Sch 1 item 54, with effect from 19 Sep 2001; Act 60 of 1994, s 82 and Sch 1 item 86, with effect from 1 Sep 1994; Act 24 of 1992, s 6 and Sch 2, with effect from 6 Nov 1992; Act 59 of 1989, s 34 and Sch 1, with effect from 19 Dec 1989; Act 117 of 1979, s 29 and Sch, with effect from 1 Nov 1979; Act 10 of 1966, s 11 and Sch, with effect from 6 May 1966]

(2) The master of a vessel (other than an aircraft) from overseas bound to or calling at a port: (a) shall, if so required by the Secretary or Australian Border Force Commissioner, bring the vessel (other than an aircraft) to for boarding under this Act at the boarding station appointed for that port; and (b) shall not move the vessel (other than an aircraft) from that boarding station until permitted to do so by the Secretary or Australian Border Force Commissioner. Penalty: 200 penalty units. [Subs (2) am Act 41 of 2015, s 3 and Sch 3 item 20, with effect from 1 Jul 2015; Act 97 of 2001, s 3 and Sch 1 item 55, with effect from 19 Sep 2001; Act 60 of 1994, s 82 and Sch 1 items 87 and 88, with effect from 1 Sep 1994; Act 24 of 1992, s 6 and Sch 2, with effect from 6 Nov 1992; Act 59 of 1989, s 34 and Sch 1, with effect from 19 Dec 1989; Act 117 of 1979, s 29 and Sch, with effect from 1 Nov 1979; Act 10 of 1966, s 11 and Sch, with effect from 6 May 1966]

(2A) Subsection (2) does not apply if the master moves the vessel from the boarding station with the intention of leaving the port. Note: A defendant bears an evidential burden in relation to the matter in subsection (2A) (see subsection 13.3(3) of the Criminal Code). [Subs (2A) insrt Act 97 of 2001, s 3 and Sch 1 item 56, with effect from 19 Sep 2001]

(3) The master of an aircraft from overseas arriving in Australia shall not suffer the aircraft to land at any other proclaimed airport until the aircraft has first landed:

© 2016 THOMSON REUTERS

495

s 247

Migration Act 1958

(a)

at such proclaimed airport for which a boarding station is appointed as is nearest to the place at which the aircraft entered Australia; or (b) at such other airport for which a boarding station is appointed as has been approved by the Secretary or Australian Border Force Commissioner, in writing, as an airport at which that aircraft, or a class of aircraft in which that aircraft is included, may land on arriving in Australia from overseas. Penalty: 200 penalty units. [Subs (3) am Act 41 of 2015, s 3 and Sch 3 item 20, with effect from 1 Jul 2015; Act 60 of 1994, s 82 and Sch 1 item 88, with effect from 1 Sep 1994; Act 24 of 1992, s 6 and Sch 2, with effect from 6 Nov 1992; Act 59 of 1989, s 34 and Sch 1, with effect from 19 Dec 1989; Act 117 of 1979, s 29 and Sch, with effect from 1 Nov 1979; Act 10 of 1966, s 11 and Sch, with effect from 6 May 1966]

(4) The master of an aircraft which is engaged on an air service or flight from a place overseas to a place in Australia: (a) shall not suffer the aircraft to land at a proclaimed airport for which a boarding station is not appointed; (b) shall, as soon as practicable after the aircraft lands at a proclaimed airport, bring the aircraft for boarding to the boarding station appointed for that airport; and (c) shall not move the aircraft from that boarding station until permitted to do so by the Secretary or Australian Border Force Commissioner. Penalty: 200 penalty units. [Subs (4) am Act 41 of 2015, s 3 and Sch 3 item 20, with effect from 1 Jul 2015; Act 60 of 1994, s 82 and Sch 1 item 88, with effect from 1 Sep 1994; Act 24 of 1992, s 6 and Sch 2, with effect from 6 Nov 1992; Act 59 of 1989, s 34 and Sch 1, with effect from 19 Dec 1989; Act 117 of 1979, s 29 and Sch, with effect from 1 Nov 1979; Act 10 of 1966, s 11 and Sch, with effect from 6 May 1966]

(5) It is a defence to a prosecution for an offence against subsection (1), (3) or (4) if the person charged proves that he or she was prevented from complying with the subsection by stress of weather or other reasonable cause. Note: A defendant bears a legal burden in relation to the matters in subsection (5) (see section 13.4 of the Criminal Code). [Subs (5) am Act 97 of 2001, s 3 and Sch 1 items 57–59, with effect from 19 Sep 2001; Act 112 of 1983, s 37 and Sch, with effect from 2 Apr 1984]

(5A) An offence against any of subsections (1) to (4) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. [Subs (5A) insrt Act 97 of 2001, s 3 and Sch 1 item 60, with effect from 19 Sep 2001]

(6) While a vessel is at a boarding station, an officer may go and remain on board the vessel for the purposes of this Act. (7) The master of a vessel shall do all things reasonably required by an officer to facilitate the boarding of the vessel under this section and the performance by the officer of duties for the purposes of this Act. Penalty for any contravention of this subsection: 100 penalty units. [Subs (7) am Act 60 of 1994, s 82 and Sch 1 item 89, with effect from 1 Sep 1994; Act 24 of 1992, s 6 and Sch 2, with effect from 6 Nov 1992; Act 59 of 1989, s 34 and Sch 1, with effect from 19 Dec 1989; Act 117 of 1979, s 29 and Sch, with effect from 1 Nov 1979; Act 10 of 1966, s 11 and Sch, with effect from 6 May 1966]

(8) An offence against subsection (7) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. [Subs (8) insrt Act 97 of 2001, s 3 and Sch 1 item 61, with effect from 19 Sep 2001] [S 247 am Act 41 of 2015; Act 97 of 2001; Act 60 of 1994; Act 24 of 1992; Act 59 of 1989; Act 112 of 1983; Act 117 of 1979; Act 10 of 1966]

496

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 13 – Examination, search, detention and identification (ss 246–261)

s 250

248 Exemption Where the Minister is satisfied that it is no longer necessary for the purposes of this Act that a provision of section 247 should continue to apply in relation to a vessel, the Minister shall, by writing under his or her hand, exempt the master of that vessel from liability to comply with that provision. [S 248 am Act 59 of 1989, s 34 and Sch 2, with effect from 19 Dec 1989; Act 112 of 1983, s 37 and Sch, with effect from 2 Apr 1984]

249 Certain persons may be prevented from entering or landing (1) An officer may: (a) prevent a person whom the officer reasonably suspects to be an unlawful non-citizen from leaving a vessel on which the person arrived in Australia; or (b) prevent a removee or deportee from leaving a vessel on which he or she has been placed; and may take such action and use such force as are necessary for that purpose. [Subs (1) am Act 160 of 1999, s 3 and Sch 1 item 52, with effect from 16 Dec 1999; Act 184 of 1992, s 38 and Sch, with effect from 1 Sep 1994; Act 59 of 1989, s 34 and Sch 2, with effect from 19 Dec 1989]

(1AA) An officer may prevent a person from leaving a vessel on which the person arrived in Australia if the officer reasonably suspects that the person: (a) is seeking to enter the migration zone; and (b) would, if in the migration zone, be an unlawful non-citizen. [Subs (1AA) insrt Act 160 of 1999, s 3 and Sch 1 item 53, with effect from 16 Dec 1999]

(1A) To avoid doubt, and without limiting the generality of subsections (1) and (1AA), if a person of a kind referred to in paragraph (1)(a) or subsection (1AA) is on board a vessel (other than an aircraft), the actions that may be taken by an officer under subsections (1) and (1AA) include: (a) requiring the vessel to travel to a port; and (b) requiring the person to remain on the vessel until it arrives at the port. [Subs (1A) am Act 160 of 1999, s 3 and Sch 1 items 54 and 55, with effect from 16 Dec 1999; insrt Act 102 of 1995, s 8, with effect from 1 Nov 1989]

(2) The master of a vessel may, in relation to persons on board the vessel, do all things which an officer is, under subsections (1) and (1AA), authorized to do. [Subs (2) am Act 160 of 1999, s 3 and Sch 1 item 56, with effect from 16 Dec 1999; Act 112 of 1983, s 37 and Sch, with effect from 2 Apr 1984] [S 249 am Act 160 of 1999; Act 102 of 1995; Act 184 of 1992; Act 59 of 1989; Act 112 of 1983]

250 Detention of suspected offenders (1) In this section: suspect means a non-citizen who: (a) travelled, or was brought, to the migration zone; and (b) is believed by an authorised officer on reasonable grounds to have been on board a vessel (not being an aircraft) when it was used in connection with the commission of an offence against a law in force in the whole or any part of Australia. (2) For the purposes of section 189, an officer has a suspicion described in that section about a person if, but not only if, the person is a suspect. (3) A non-citizen detained because of subsection (2) may be kept in immigration detention for:

© 2016 THOMSON REUTERS

497

s 250

Migration Act 1958

(a)

such period as is required for: (i) the making of a decision whether to prosecute the suspect in connection with the offence concerned; or (ii) instituting such a prosecution; and (b) if such a prosecution is instituted within that period – such further period as is required for the purposes of the prosecution. (4) Without limiting the generality of paragraph (3)(b), the period that is required for the purposes of a prosecution includes any period required for: (a) any proceedings in connection with the prosecution; and (b) the serving of any custodial sentence imposed because of the prosecution; and (c) the institution of, and any proceedings in connection with, any appeal from any decision in relation to the prosecution. (5) If the period for which a person may be kept in immigration detention under subsection (3) ends, he or she: (a) must, unless he or she has become the holder of a visa, that is in effect, to remain in Australia, be expeditiously removed from Australia under section 198; and (b) may, at the direction of an authorised officer, continue to be detained under section 189 until so removed. [Subs (5) am Act 60 of 1994, s 82 and Sch 1 item 90, with effect from 1 Sep 1994] [S 250 am Act 102 of 1995; Act 60 of 1994; subst Act 184 of 1992, s 19, with effect from 1 Sep 1994; Act 86 of 1991; Act 59 of 1989; Act 112 of 1983; Act 51 of 1982; Act 117 of 1979]

251 Powers of entry and search (1) An officer may at any time board and search a vessel if the officer reasonably suspects there is on board the vessel: (a) an unlawful non-citizen; or (b) a person seeking to enter the migration zone who would, if in the migration zone, be an unlawful non-citizen. [Subs (1) subst Act 16 of 2013, s 3 and Sch 4 item 51, with effect from 27 Mar 2014; Act 160 of 1999, s 3 and Sch 1 item 3, with effect from 16 Dec 1999; am Act 184 of 1992, s 38 and Sch, with effect from 1 Sep 1994; Act 59 of 1989, s 34 and Sch 4, with effect from 19 Dec 1989; Act 59 of 1989, s 34 and Sch 2, with effect from 19 Dec 1989; Act 112 of 1983, s 25(a), with effect from 2 Apr 1984; Act 117 of 1979, s 22(1)(a), with effect from 29 Oct 1979; Act 10 of 1966, s 11 and Sch, with effect from 6 May 1966]

(2) The master of a vessel shall do all things reasonably required by an officer to facilitate the boarding and searching of the vessel by the officer under subsection (1). Penalty: $10,000. [Subs (2) am Act 59 of 1989, s 34 and Sch 1, with effect from 19 Dec 1989]

(2A) An offence against subsection (2) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. [Subs (2A) insrt Act 97 of 2001, s 3 and Sch 1 items 62, with effect from 19 Sep 2001]

(3) A reference in subsection (1) or (2) to a vessel includes a reference to an Australian resources installation and to an Australian sea installation. [Subs (3) am Act 59 of 1989, s 34 and Sch 3, with effect from 19 Dec 1989]

(4) The Secretary or Australian Border Force Commissioner may issue to an officer a search warrant in accordance with the prescribed form. [Subs (4) am Act 41 of 2015, s 3 and Sch 3 item 21, with effect from 1 Jul 2015]

498

Migration Law

[251.20]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 13 – Examination, search, detention and identification (ss 246–261)

s 251

(5) A search warrant shall be expressed to remain in force for a specified period not exceeding 3 months and ceases to be in force at the expiration of the specified period. [Subs (5) am Act 59 of 1989, s 34 and Sch 4, with effect from 19 Dec 1989; Act 59 of 1989, s 34 and Sch 2, with effect from 19 Dec 1989; Act 112 of 1983, s 25(b)–(d), with effect from 2 Apr 1984; Act 117 of 1979, s 22(1)(b)–(e), with effect from 29 Oct 1979]

(6) An officer having with him or her a search warrant issued to him or her under this section and remaining in force may, at any time in the day or night with such assistance as the officer thinks necessary, enter and search any building, premises, vessel, vehicle or place in which the officer has reasonable cause to believe there may be found: (a) an unlawful non-citizen, a removee or a deportee; (b) a person to whom a temporary visa has been issued subject to a condition with respect to the work that is to be performed by that person; (c) any document, book or paper relating to the entry or proposed entry into Australia of a person in circumstances in which that person: (i) would have become a prohibited immigrant within the meaning of this Act as in force from time to time before the commencement of the Migration Amendment Act 1983; or (ii) would have become a prohibited non-citizen within the meaning of this Act as in force from time to time after the commencement of the Migration Amendment Act 1983 but before the commencement of section 4 of the Migration Legislation Amendment Act 1989; or (iii) would have been an illegal entrant within the meaning of the Act as in force from time to time after the commencement of section 4 of the Migration Legislation Amendment Act 1989 but before 1 September 1994; or (iv) would have become, or would become, an unlawful non-citizen; or (d) any passport or document of identity of, or any ticket for the conveyance from a place within Australia to a place outside Australia of an unlawful non-citizen, a removee or a deportee; and may seize any such document, book, paper, passport, document of identity or ticket, as the case may be, and impound and detain it for such time as the officer thinks necessary. [Subs (6) am Act 59 of 1993, s 19, with effect from 1 Sep 1994; Act 184 of 1992, s 38 and Sch, with effect from 1 Sep 1994; Act 59 of 1989, s 34 and Sch 2, with effect from 19 Dec 1989]

(7) For the purposes of the exercise of his or her powers under this section an officer may stop any vessel or vehicle. [Subs (7) am Act 59 of 1989, s 34 and Sch 2, with effect from 19 Dec 1989]

(8) An officer may use such reasonable force as is necessary for the exercise of his or her powers under this section. [S 251 am Act 41 of 2015; Act 16 of 2013; Act 97 of 2001; Act 160 of 1999; Act 59 of 1993; Act 184 of 1992; Act 24 of 1992; Act 59 of 1989; Act 104 of 1987; Act 112 of 1983; Act 51 of 1982; Act 117 of 1979; Act 10 of 1966]

SECTION 251 COMMENTARY [251.20] Scope For the purpose of s 251(4), the prescribed form is contained in Sch 10 of the Regulations.

© 2016 THOMSON REUTERS

499

s 252

Migration Act 1958

[251.20]

252 Searches of persons (1) For the purposes set out in subsection (2), a person, and the person’s clothing and any property under the immediate control of the person, may, without warrant, be searched if: (a) the person is detained in Australia; or (b) the person is a non-citizen who has not been immigration cleared and an authorised officer has reasonable grounds for suspecting there are reasonable grounds for cancelling the person’s visa. [Subs (1) am Act 16 of 2013, s 3 and Sch 4 item 52, with effect from 27 Mar 2014; Act 160 of 1999, s 3 and Sch 1 item 4, with effect from 16 Dec 1999; Act 184 of 1992, s 38 and Sch, with effect from 1 Sep 1994]

(2) The purposes for which a person, and the person’s clothing and any property under the immediate control of the person, may be searched under this section are as follows: (a) to find out whether there is hidden on the person, in the clothing or in the property, a weapon or other thing capable of being used to inflict bodily injury or to help the person to escape from immigration detention; (b) to find out whether there is hidden on the person, in the clothing or in the property, a document or other thing that is, or may be, evidence for grounds for cancelling the person’s visa. [Subs (2) am Act 60 of 1994, s 82 and Sch 1 item 91, with effect from 1 Sep 1994; Act 184 of 1992, s 38 and Sch, with effect from 1 Sep 1994]

(3) An authorised officer may detain a person for the purpose of searching the person in accordance with this section. (4) If, in the course of a search under this section, a weapon or other thing referred to in paragraph (2)(a), or a document or other thing referred to in paragraph (2)(b), is found, an authorised officer: (a) may take possession of the weapon, document or other thing; and (b) may retain the weapon, document or other thing for such time as he or she thinks necessary for the purposes of this Act. (5) This section does not authorise an authorised officer, or another person conducting a search pursuant to subsection (6) to remove any of the person’s clothing, or to require a person to remove any of his or her clothing. (6) A search under this section of a person, and the person’s clothing, shall be conducted by: (a) an authorised officer of the same sex as the person; or (b) in a case where an authorised officer of the same sex as the person is not available to conduct the search – any other person who is of the same sex and: (i) is requested by an authorised officer; and (ii) agrees; to conduct the search. (7) An action or proceeding, whether civil or criminal, does not lie against a person who, at the request of an authorised officer, conducts a search under this section if the person acts in good faith and does not contravene subsection (8). (8) An authorised officer or other person who conducts a search under this section shall not use more force, or subject a person to greater indignity, than is reasonably necessary in order to conduct the search.

500

Migration Law

[252AA.20]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 13 – Examination, search, detention and identification (ss 246–261)

s 252AA

(9) To avoid doubt, a search of a person may be conducted under this section irrespective of whether a screening procedure is conducted in relation to the person under section 252AA or a strip search of the person is conducted under section 252A. [Subs (9) insrt Act 105 of 2001, s 3 and Sch 1 item 1, with effect from 28 Sep 2001] [S 252 am Act 16 of 2013; Act 105 of 2001; Act 160 of 1999; Act 60 of 1994; Act 184 of 1992; insrt Act 59 of 1989, s 18, with effect from 19 Dec 1989]

252AA Power to conduct a screening procedure (1) A screening procedure in relation to a detainee, other than a detainee to whom section 252F applies, may be conducted by an authorised officer, without warrant, to find out whether there is hidden on the detainee, in his or her clothing or in a thing in his or her possession a weapon, or other thing, capable of being used: (a) to inflict bodily injury; or (b) to help the detainee, or any other detainee, to escape from immigration detention. (2) An authorised officer who conducts a screening procedure under this section must not use greater force, or subject the detainee to greater indignity, than is reasonably necessary in order to conduct the screening procedure. (3) This section does not authorise an authorised officer to remove any of the detainee’s clothing, or to require a detainee to remove any of his or her clothing. (4) To avoid doubt, a screening procedure may be conducted in relation to a detainee under this section irrespective of whether a search of the detainee is conducted under section 252 or 252A. (5) In this section: conducting a screening procedure, in relation to a detainee, means: (a) causing the detainee to walk, or to be moved, through screening equipment; or (b) passing hand-held screening equipment over or around the detainee or around things in the detainee’s possession; or (c) passing things in the detainee’s possession through screening equipment or examining such things by X-ray. screening equipment means a metal detector or similar device for detecting objects or particular substances. [S 252AA insrt Act 105 of 2001, s 3 and Sch 1 item 2, with effect from 28 Sep 2001 Cross-reference: Ministerial Directions: Screening procedures in relation to immigration detainees (Direction No. 60): This Direction gives guidance to authorised officers who conduct screening procedures in relation to immigration detainees under s 252AA.]

SECTION 252AA COMMENTARY [252AA.20] Scope When conducting a screening under s 252AA, regard should be had to the Direction made under s 499: Minister for Immigration and Multicultural Affairs (Cth), Direction [26] -Screening Procedures in Relation to Immigration Detainees (27 September 2001). The Direction gives guidance to authorised officers who may, pursuant to s 252AA, conduct a screening procedure, without warrant, in relation to an immigration detainee.

© 2016 THOMSON REUTERS

501

s 252A

Migration Act 1958

[252AA.20]

252A Power to conduct a strip search (1) A strip search of a detainee, other than a detainee to whom section 252F applies, may be conducted by an authorised officer, without warrant, to find out whether there is hidden on the detainee, in his or her clothing or in a thing in his or her possession a weapon, or other thing, capable of being used: (a) to inflict bodily injury; or (b) to help the detainee, or any other detainee, to escape from immigration detention. Note: Section 252B sets out rules for conducting a strip search under this section.

(2) A strip search of a detainee means a search of the detainee, of his or her clothing or of a thing in his or her possession. It may include: (a) requiring the detainee to remove some or all of his or her clothing; and (b) an examination of that clothing and of the detainee’s body (but not of the detainee’s body cavities). (3) A strip search of a detainee may be conducted by an authorised officer only if: (a) an officer suspects on reasonable grounds that there is hidden on the detainee, in his or her clothing or in a thing in his or her possession a weapon or other thing described in subsection (1); and (b) the officer referred to in paragraph (a) suspects on reasonable grounds that it is necessary to conduct a strip search of the detainee to recover that weapon or other thing; and (c) the strip search is authorised as follows: (i) if the detainee is at least 18 – the Secretary or Australian Border Force Commissioner, or an SES Band 3 employee in the Department (who is not the officer referred to in paragraphs (a) and (b) nor the authorised officer conducting the strip search), authorises the strip search because he or she is satisfied that there are reasonable grounds for those suspicions; (ii) if the detainee is at least 10 but under 18 – a magistrate orders the strip search because he or she is satisfied that there are reasonable grounds for those suspicions. [Subs (3) am Act 41 of 2015, s 3 and Sch 3 item 22, with effect from 1 Jul 2015]

(3A) An officer may form a suspicion on reasonable grounds for the purposes of paragraph (3)(a) on the basis of: (a) a search conducted under section 252 (whether by that officer or another officer); or (b) a screening procedure conducted under section 252AA (whether by that officer or another officer); or (c) any other information that is available to the officer. (4) An authorisation of a strip search given for the purposes of paragraph (3)(c): (a) may be given by telephone, fax or other electronic means; and (b) must be recorded in writing, and signed by the person giving the authorisation, within one business day after it is given. (5) A failure to comply with paragraph (4)(b) does not affect the validity of a strip search conducted on the basis of that authorisation. (6) The power to authorise a strip search under paragraph (3)(c) cannot be delegated to any other person. (6A) A power conferred on a magistrate by this section is conferred on the magistrate in a personal capacity and not as a court or a member of a court.

502

Migration Law

[252A.20]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 13 – Examination, search, detention and identification (ss 246–261)

s 252A

(6B) The magistrate need not accept the power conferred. (6C) A magistrate exercising a power under this section 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. (7) To avoid doubt, a strip search of a detainee may be conducted under this section irrespective of whether a search of the detainee is conducted under section 252 or a screening procedure is conducted in relation to the detainee under section 252AA. (8) In this section: business day means a day that is not a Saturday, Sunday or public holiday in the place where the authorisation is given. SES Band 3 employee means an SES employee with a classification of Senior Executive Band 3, and includes an SES employee who has been temporarily assigned duties that have been allocated a classification of Senior Executive Band 3. SES employee [Repealed] [Def rep Act 31 of 2014, s 3 and Sch 8 item 27, with effect from 24 Jun 2014] [S 252A am Act 41 of 2015; Act 31 of 2014; insrt Act 105 of 2001, s 3 and Sch 1 item 1, with effect from 28 Sep 2001 Cross-reference: Ministerial Directions: Strip search of immigration detainees (Direction No. 51): This Direction applies to officers and magistrates who pursuant to ss 252A, 252B, 252C, 252D and 252E may authorise or conduct a strip search of immigration detainees.]

SECTION 252A COMMENTARY Scope ................................................................................................................................................. [252A.20] Concept

Reasonable grounds .......................................................................................................................... [252A.40]

[252A.20] Scope The purpose of this s 252A is to assist with the “good order and security of detention centres as well as the safety of detainees, staff and other persons located there”: Explanatory Memorandum to the Migration Legislation Amendment (Immigration Detainees) Bill 2001 (Cth) at [33]. The Explanatory Memorandum stated at [2]–[4]: The measures in the Bill promote the good order and security of immigration detention centres, as well as the safety of detainees, staff and other persons located there. The measures also give effect to the Government’s policy of controlling, preventing and deterring inappropriate behaviour by immigration detainees.

When conducting a strip search under s 252A, regard should be had to the Direction made under s 499 – that is, Minister for Immigration and Citizenship (Cth), Direction [51] - Strip Search of Immigration Detainees (2 October 2012). The Direction gives guidance to officers who may, pursuant to s 252A, conduct a strip search in relation to an immigration detainee. Section 252B sets out the rules for conducting a strip search, which does not include “an examination of a detainee’s body cavities”: Explanatory Memorandum to the Migration Legislation Amendment (Immigration Detainees) Bill 2001 (Cth) at [37].

© 2016 THOMSON REUTERS

503

s 252B

Migration Act 1958

[252A.40]

CONCEPT [252A.40] Reasonable grounds Pursuant to s 252A(3), an authorised officer may conduct a strip search of a detainee if the officer suspects on reasonable grounds that there is hidden on the detainee a weapon or thing described in s 252A(1). The expression “reasonable grounds” is not defined in the Act or Regulations. 252B Rules for conducting a strip search (1) A strip search of a detainee under section 252A: (a) must not subject the detainee to greater indignity than is reasonably necessary to conduct the strip search; and (b) must be conducted in a private area; and (c) must be conducted by an authorised officer of the same sex as the detainee; and (d) subject to subsections (2), (3) and (5), must not be conducted in the presence or view of a person who is of the opposite sex to the detainee; and (e) subject to subsections (2), (3) and (5), must not be conducted in the presence or view of a person whose presence is not necessary for the purposes of the strip search; and (f) must not be conducted on a detainee who is under 10; and (g) if the detainee is at least 10 but under 18, or is incapable of managing his or her affairs – must be conducted in the presence of: (i) the detainee’s parent or guardian if that person is in immigration detention with the detainee and is readily available at the same place; or (ii) if that is not acceptable to the detainee or subparagraph (i) does not apply – another person (other than an authorised officer) who is capable of representing the detainee’s interests and who, as far as is practicable in the circumstances, is acceptable to the detainee; and (h) subject to subsection (4), if the detainee is at least 18, and is not incapable of managing his or her affairs – must be conducted in the presence of another person (if any) nominated by the detainee, if that other person is readily available at the same place as the detainee, and willing to attend the strip search within a reasonable time; and (i) must not involve a search of the detainee’s body cavities; and (j) must not involve the removal of more items of clothing, or more visual inspection, than the authorised officer conducting the search believes on reasonable grounds to be necessary to determine whether there is hidden on the detainee, in his or her clothing or in a thing in his or her possession a weapon or other thing described in subsection 252A(1); and (k) must not be conducted with greater force than is reasonably necessary to conduct the strip search. (2) Paragraphs (1)(d) and (e) do not apply to a parent or guardian, or person present because of subparagraph (1)(g)(ii), if the detainee has no objection to that person being present. (3) Paragraphs (1)(d) and (e) do not apply to a person nominated by the detainee under paragraph (1)(h) to attend the strip search. (4) Neither:

504

Migration Law

[252B.20]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 13 – Examination, search, detention and identification (ss 246–261)

s 252C

(a)

a detainee’s refusal or failure to nominate a person under paragraph (1)(h) within a reasonable time; nor (b) a detainee’s inability to nominate a person under that paragraph who is readily available at the same place as the detainee and willing to attend the strip search within a reasonable time; prevents a strip search being conducted. (5) A strip search of a detainee may be conducted with the assistance of another person if the authorised officer conducting the strip search considers that to be necessary for the purposes of conducting it. That person must not be of the opposite sex to the detainee unless: (a) the person is a medical practitioner; and (b) a medical practitioner of the same sex as the detainee is not available within a reasonable time. (6) An action or proceeding, whether civil or criminal, does not lie against a person who, at the request of an authorised officer, assists in conducting a strip search if the person acts in good faith and does not contravene this section. (7) A detainee must be provided with adequate clothing if during or as a result of a strip search any of his or her clothing is: (a) damaged or destroyed; or (b) retained under section 252C. [S 252B insrt Act 105 of 2001, s 3 and Sch 1 item 2, with effect from 28 Sep 2001 Cross-reference: Ministerial Directions: Strip search of immigration detainees (Direction No. 51): This Direction applies to officers and magistrates who pursuant to ss 252A, 252B, 252C, 252D and 252E may authorise or conduct a strip search of immigration detainees.]

SECTION 252B COMMENTARY [252B.20] Scope When conducting a strip search, regard should be had to the Direction made under s 499 – that is, Minister for Immigration and Citizenship (Cth), Direction [51] - Strip Search of Immigration Detainees (2 October 2012). The Direction gives guidance to officers who may, pursuant to s 252A, conduct a strip search in relation to an immigration detainee. 252C Possession and retention of certain things obtained during a screening procedure or strip search (1) An authorised officer may take possession of and retain a thing found in the course of conducting a screening procedure under section 252AA or conducting a strip search under section 252A if the thing: (a) might provide evidence of the commission of an offence against this Act; or (b) is forfeited or forfeitable to the Commonwealth. (2) A weapon or other thing described in subsection 252AA(1) or 252A(1) that is found in the course of conducting a screening procedure under section 252AA or a strip search under section 252A is forfeited to the Commonwealth. (3) An authorised officer must not return a thing that is forfeited or forfeitable to the Commonwealth. Instead, the authorised officer must, as soon as practicable, give the thing to a constable (within the meaning of the Crimes Act 1914).

© 2016 THOMSON REUTERS

505

s 252C

Migration Act 1958

[252C.20]

(4) An authorised officer must take reasonable steps to return any other thing retained under subsection (1) to the person from whom it was taken, or to the owner if that person is not entitled to possess it, if one of the following happens: (a) it is decided that the thing is not to be used in evidence; (b) the period of 60 days after the authorised officer takes possession of the thing ends. (5) However, the authorised officer does not have to take those steps if: (a) in a paragraph (4)(b) case: (i) proceedings in respect of which the thing might provide evidence have been instituted before the end of the 60 day period 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 252E; 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 or Territory) to retain, destroy or dispose of the thing. [S 252C insrt Act 105 of 2001, s 3 and Sch 1 item 2, with effect from 28 Sep 2001 Cross-reference: Ministerial Directions: Strip search of immigration detainees (Direction No. 51): This Direction applies to officers and magistrates who pursuant to ss 252A, 252B, 252C, 252D and 252E may authorise or conduct a strip search of immigration detainees.]

SECTION 252C COMMENTARY [252C.20] Scope Pursuant to s 252C, when conducting a strip search, regard should be had to the Direction made under s 499 – that is, Minister for Immigration and Citizenship (Cth), Direction [51] - Strip Search of Immigration Detainees (2 October 2012). The Direction gives guidance to officers in relation to the possession and retention of certain things obtained during a screening or strip search. 252D Authorised officer may apply for a thing to be retained for a further period (1) This section applies if an authorised officer has taken possession of a thing referred to in subsection 252C(4) and proceedings in respect of which the thing might provide evidence have not commenced before the end of: (a) 60 days after the authorised officer takes possession of the thing; or (b) a period previously specified in an order of a magistrate under section 252E. (2) The authorised officer may apply to a magistrate 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 authorised officer believes to be such a person of the proposed application. [S 252D insrt Act 105 of 2001, s 3 and Sch 1 item 2, with effect from 28 Sep 2001 Cross-reference: Ministerial Directions: Strip search of immigration detainees (Direction No. 51): This Direction applies to officers and magistrates who pursuant to ss 252A, 252B, 252C, 252D and 252E may authorise or conduct a strip search of immigration detainees.]

506

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 13 – Examination, search, detention and identification (ss 246–261)

s 252G

252E Magistrate may order that thing be retained (1) The magistrate may order that the authorised officer who made an application under section 252D may retain the thing if the magistrate is satisfied that it is necessary for the authorised 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 authorised officer may retain the thing. (3) A power conferred on a magistrate by this section is conferred on the magistrate in a personal capacity and not as a court or a member of a court. (4) The magistrate need not accept the power conferred. (5) A magistrate exercising a power under this section 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. [S 252E insrt Act 105 of 2001, s 3 and Sch 1 item 2, with effect from 28 Sep 2001 Cross-reference: Ministerial Directions: Strip search of immigration detainees (Direction No. 51): This Direction applies to officers and magistrates who pursuant to ss 252A, 252B, 252C, 252D and 252E may authorise or conduct a strip search of immigration detainees.]

252F Detainees held in State or Territory prisons or remand centres (1) This section applies to a detainee if: (a) he or she is held in immigration detention in a prison or remand centre of a State or Territory; and (b) a law of that State or Territory confers a power to search persons, or things in the possession of persons, serving sentences or being held in the prison or remand centre. (2) To the extent that the State or Territory law confers that power, or affects the exercise of that power, it applies to the detainee as though it were a law of the Commonwealth. (3) Sections 252AA and 252A of this Act do not apply to a detainee to whom this section applies. [S 252F insrt Act 105 of 2001, s 3 and Sch 1 item 2, with effect from 28 Sep 2001]

252G Powers concerning entry to a detention centre (1) An officer may request that a person about to enter a detention centre established under this Act do one or more of the following: (a) walk through screening equipment; (b) allow an officer to pass hand-held screening equipment over or around the person or around things in the person’s possession; (c) allow things in the person’s possession to pass through screening equipment or to be examined by X-ray. (2) Screening equipment means a metal detector or similar device for detecting objects or particular substances. (3) If an authorised officer suspects on reasonable grounds that a person about to enter a detention centre established under this Act has in his or her possession a thing that might: (a) endanger the safety of the detainees, staff or other persons at the detention centre; or

© 2016 THOMSON REUTERS

507

s 252G

Migration Act 1958

[252G.20]

(b) disrupt the order or security arrangements at the detention centre; the authorised officer may request that the person do some or all of the things in subsection (4) for the purpose of finding out whether the person has such a thing. A request may be made whether or not a request is also made to the person under subsection (1). (4) An authorised officer may request that the person do one or more of the following: (a) allow the authorised officer to inspect the things in the person’s possession; (b) remove some or all of the person’s outer clothing such as a coat, jacket or similar item; (c) remove items from the pockets of the person’s clothing; (d) open a thing in the person’s possession, or remove the thing’s contents, to allow the authorised officer to inspect the thing or its contents; (e) leave a thing in the person’s possession, or some or all of its contents, in a place specified by the authorised officer if he or she suspects on reasonable grounds that the thing or its contents are capable of concealing something that might: (i) endanger the safety of the detainees, staff or other persons at the detention centre; or (ii) disrupt the order or security arrangements at the detention centre. (5) A person who leaves a thing (including any of its contents) in a place specified by an authorised officer is entitled to its return when the person leaves the detention centre. (6) However, if possession of the thing, or any of those contents, by the person is unlawful under a Commonwealth law or in the State or Territory in which the detention centre is located: (a) the thing or the contents must not be returned to the person; and (b) an authorised officer must, as soon as practicable, give the thing or the contents to a constable (within the meaning of the Crimes Act 1914). (7) A person who is about to enter a detention centre established under this Act may be refused entry if he or she does not comply with a request under this section. [S 252G insrt Act 85 of 2001, s 3 and Sch 1 item 7, with effect from 27 Jul 2001 Cross-reference: Ministerial Directions: Powers concerning the entry of persons to immigration detention centres (Direction No. 59): This Direction gives guidance to officers who exercise powers under s 252G in relation to the entry of persons to immigration detention centres.]

SECTION 252G COMMENTARY [252G.20] Scope An officer who requests a person to enter a detention centre should have regard to the Direction made under s 499 – that is, Minister for Immigration and Multicultural Affairs, Direction [20] Powers Concerning the Entry of Visitors to Immigration Detention Centres (27 July 2001). The Direction gives guidance to officers who, pursuant to s 252G, may request certain things from a person about to enter a detention centre.

508

Migration Law

[252G.20]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 13 – Examination, search, detention and identification (ss 246–261)

s 253

253 Detention of deportee (1) Where an order for the deportation of a person is in force, an officer may, without warrant, detain a person whom the officer reasonably supposes to be that person. [Subs (1) am Act 184 of 1992, s 38 and Sch, with effect from 1 Sep 1994; Act 24 of 1992, s 5 and Sch 1, with effect from 6 Nov 1992; subst Act 59 of 1989, s 20(a), with effect from 19 Dec 1989; am Act 112 of 1983, s 37 and Sch, with effect from 2 Apr 1984]

(2) A person detained under subsection (1) or (10) may, subject to this section, be kept in immigration detention or in detention as a deportee in accordance with subsection (8). [Subs (2) am Act 184 of 1992, s 38 and Sch, with effect from 1 Sep 1994; Act 24 of 1992, s 5 and Sch 1, with effect from 6 Nov 1992; Act 59 of 1989, s 20(b) and (c), with effect from 19 Dec 1989]

(3) Where an officer detains a person under subsection (1) or (10), the officer shall forthwith inform the person of the reason for the detention and shall, if that person so requests, furnish to him or her, as soon as practicable, particulars of the deportation order. [Subs (3) am Act 184 of 1992, s 38 and Sch, with effect from 1 Sep 1994; Act 24 of 1992, s 5 and Sch 1, with effect from 6 Nov 1992; Act 59 of 1989, s 20(d)–(f), with effect from 19 Dec 1989]

(4) If a person detained under this section (in this subsection called the detained person) claims, within 48 hours after the detention and while the detained person is detention, that he or she is not the person in respect of whom the deportation order is in force, the person to whom the claim is made shall: (a) if that last-mentioned person is an officer – ask the detained person; or (b) in any other case – cause an officer to ask the detained person; to make a statutory declaration to that effect, and, if the person detained makes such a declaration, the officer who asked him or her to make the declaration shall take him or her before a prescribed authority within 48 hours after the making of the declaration, or, if it is not practicable to take him or her before a prescribed authority within that time, as soon as practicable after the expiration of that period. [Subs (4) am Act 184 of 1992, s 38 and Sch, with effect from 1 Sep 1994; Act 24 of 1992, s 5 and Sch 1, with effect from 6 Nov 1992; Act 59 of 1989, s 34 and Sch 2, with effect from 19 Dec 1989]

(5) If a detained person who is required under subsection (4) to be brought before a prescribed authority within a particular period, is not so brought before a prescribed authority, the person shall be released. [Subs (5) am Act 24 of 1992, s 5 and Sch 1, with effect from 6 Nov 1992; Act 59 of 1989, s 34 and Sch 2 (am Act 159 of 1989), with effect from 19 Dec 1989; Act 112 of 1983, s 37 and Sch, with effect from 2 Apr 1984]

(6) Where a person is brought before a prescribed authority under this section, the prescribed authority shall inquire into the question whether there are reasonable grounds for supposing that that person is a deportee and, if the prescribed authority is satisfied that there are such reasonable grounds, the prescribed authority shall, by writing under his or her hand, declare accordingly. [Subs (6) am Act 59 of 1989, s 20(g)–(j), with effect from 19 Dec 1989]

(7) Where a prescribed authority makes a declaration in accordance with subsection (6), the detained person may be held in detention as a deportee in accordance with subsection (8), but otherwise the prescribed authority shall direct the release of that person and he or she shall be released accordingly. [Subs (7) am Act 184 of 1992, s 38 and Sch, with effect from 1 Sep 1994; Act 24 of 1992, s 5 and Sch 1, with effect from 6 Nov 1992]

(8) A deportee may be kept in immigration detention or such detention as the Minister, Secretary or Australian Border Force Commissioner directs: (a) pending deportation, until he or she is placed on board a vessel for deportation;

© 2016 THOMSON REUTERS

509

s 253

Migration Act 1958

(b) at any port or place in Australia at which the vessel calls after he or she has been placed on board; or (c) on board the vessel until its departure from its last port or place of call in Australia. [Subs (8) am Act 41 of 2015, s 3 and Sch 3 item 23, with effect from 1 Jul 2015; Act 184 of 1992, s 38 and Sch, with effect from 1 Sep 1994]

(9) In spite of anything else in this section, the Minister, Secretary or Australian Border Force Commissioner may at any time order the release (either unconditionally or subject to specified conditions) of a person who is in detention under this section. [Subs (9) am Act 41 of 2015, s 3 and Sch 3 item 23, with effect from 1 Jul 2015; Act 184 of 1992, s 38 and Sch, with effect from 1 Sep 1994]

(10) An officer may, without warrant, detain a person who: (a) has been released from detention under subsection (9) subject to conditions; and (b) has breached any of those conditions. [Subs (10) am Act 184 of 1992, s 38 and Sch, with effect from 1 Sep 1994; Act 24 of 1992, s 5 and Sch 1, with effect from 6 Nov 1992]

(11) Nothing contained in, or done under, this section prevents the Supreme Court of a State or Territory or the High Court from ordering the release from detention of a person held in detention under this section where the Court finds that there is no valid deportation order in force in relation to that person. [Subs (11) am Act 184 of 1992, s 38 and Sch, with effect from 1 Sep 1994] [S 253 am Act 41 of 2015; Act 113 of 1998, s 3 and Sch 6 item 11, with effect from 1 Mar 1999; Act 184 of 1992; Act 24 of 1992; Act 59 of 1989; Act 112 of 1983; Act 117 of 1979]

254 Removees and deportees held in other custody (1) This section applies if a person is a removee or a deportee and is in the custody of an authority of the Commonwealth, a State or a Territory, otherwise than under this Act. [Subs (1) subst Act 60 of 1994, s 63(a), with effect from 1 Sep 1994]

(2) The Secretary or Australian Border Force Commissioner may give the person written notice: (a) if the person is a deportee: (i) stating that a deportation order has been made; and (ii) setting out particulars of the deportation order; and (b) if the person is a removee—stating that the person is to be removed; and (c) in any case—stating that, from the time when the person would otherwise be entitled to be released from the custody referred to in subsection (1) (the custody transfer time), the person will be kept in immigration detention. [Subs (2) am Act 41 of 2015, s 3 and Sch 3 item 24, with effect from 1 Jul 2015; subst Act 60 of 1994, s 63(a), with effect from 1 Sep 1994]

(2A) If a removee is given notice under subsection (2): (a) the authority who has custody of the removee immediately before the custody transfer time is taken from the custody transfer time to be an officer for the purposes of the application of Division 7 of Part 2 in relation to the removee; and (b) the removee is taken from the custody transfer time to be detained by the authority in the capacity of such an officer in the exercise of the powers conferred by that Division. [Subs (2A) insrt Act 28 of 2000, s 3 and Sch 4 item 1, with effect from 28 Apr 2000]

(3) If a deportee is given notice under subsection (2):

510

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 13 – Examination, search, detention and identification (ss 246–261)

s 256

(a)

the authority who has custody of the deportee immediately before the custody transfer time is taken from the custody transfer time to be an officer for the purposes of the application of subsection 253(1) in relation to the deportee; and (b) the deportee is taken from the custody transfer time to be detained by the authority in the capacity of such an officer in the exercise of the powers conferred by subsection 253(1); and (c) subsection 253(3) does not apply in relation to the deportee. [Subs (3) subst Act 28 of 2000, s 3 and Sch 4 item 1, with effect from 28 Apr 2000; am Act 60 of 1994, s 63(b) and (c), with effect from 1 Sep 1994; Act 24 of 1992, s 5 and Sch 1, with effect from 6 Nov 1992] [S 254 am Act 41 of 2015; Act 28 of 2000; Act 60 of 1994; Act 24 of 1992; insrt Act 59 of 1989, s 21, with effect from 19 Dec 1989]

255 Prescribed authorities (1) The Minister may appoint as a prescribed authority for the purposes of section 253 a person who is or has been a Judge of a Federal Court or of the Supreme Court of a State or Territory or a barrister or solicitor of the High Court or of the Supreme Court of a State of not less than 5 years’ standing. [Subs (1) am Act 60 of 1994, s 82 and Sch 1 item 91, with effect from 1 Sep 1994; Act 112 of 1983, s 37 and Sch, with effect from 2 Apr 1984]

(2) The Governor-General may arrange with the Governor-in-Council of a State for the performance by persons who hold office as Police, Stipendiary or Special Magistrates in that State of the functions of a prescribed authority under section 253. [Subs (2) am Act 60 of 1994, s 82 and Sch 1 item 91, with effect from 1 Sep 1994; Act 112 of 1983, s 37 and Sch, with effect from 2 Apr 1984]

(3) Notice of an arrangement under subsection (2) shall be published in the Gazette. [Subs (3) am Act 112 of 1983, s 37 and Sch, with effect from 2 Apr 1984]

(4) Where an arrangement under subsection (2) is in force, a person who holds an office specified in the arrangement is a prescribed authority for the purposes of section 253. [Subs (4) am Act 60 of 1994, s 82 and Sch 1 item 91, with effect from 1 Sep 1994; Act 112 of 1983, s 37 and Sch, with effect from 2 Apr 1984]

(5) A person who holds office as a Police, Stipendiary or Special Magistrate of a Territory is a prescribed authority for the purposes of section 253. [Subs (5) am Act 60 of 1994, s 82 and Sch 1 item 91, with effect from 1 Sep 1994; Act 112 of 1983, s 37 and Sch, with effect from 2 Apr 1984]

(6) A prescribed authority shall make a thorough investigation of the matter which he or she is required to inquire into, without regard to legal forms, and shall not be bound by any rules of evidence but may inform himself or herself on any relevant matter in such manner as he or she thinks fit. [Subs (6) am Act 59 of 1989, s 34 and Sch 2, with effect from 19 Dec 1989] [S 255 am Act 60 of 1994; Act 59 of 1989; Act 112 of 1983]

256 Person in immigration detention may have access to certain advice, facilities etc. Where a person is in immigration detention under this Act, the person responsible for his or her immigration detention shall, at the request of the person in immigration detention, give to him or her application forms for a visa or afford to him or her all reasonable facilities for making a statutory declaration for the purposes of this Act or for obtaining legal advice or taking legal proceedings in relation to his or her immigration detention. [S 256 am Act 89 of 1999, s 3 and Sch 1 item 10, with effect from 22 Jul 1999; Act 184 of 1992, s 38 and Sch, with effect from 1 Sep 1994; Act 59 of 1989, s 34 and Sch 2, with effect from 19 Dec 1989]

© 2016 THOMSON REUTERS

511

s 257

Migration Act 1958

[256.20]

SECTION 256 COMMENTARY [256.20] Scope Under this section, a person who is detention must be given, among other things, all reasonable facilities to obtain legal advice and take proceedings preventing his or her removal. This includes having a reasonable time to do these things: SZSPI v Minister for Immigration and Border Protection (2014) 317 ALR 1; [2014] FCAFC 140 at [16] per Allsop CJ, Mansfield and Besanko JJ. It will depend on the circumstances as to what is a reasonable time and a reasonable opportunity to bring legal proceedings to prevent removal: SZSPI v Minister for Immigration and Border Protection (2014) 317 ALR 1; [2014] FCAFC 140 at [49] per Allsop CJ, Mansfield and Besanko JJ. 257 Persons may be required to answer questions (1) For the purpose of determining whether a person who is in immigration detention under this Act is an unlawful non-citizen, a removee or a deportee, an officer may put to that person such questions as the officer considers necessary and may move that person from place to place. [Subs (1) am Act 184 of 1992, s 38 and Sch, with effect from 1 Sep 1994; Act 24 of 1992, s 5 and Sch 1, with effect from 6 Nov 1992; Act 59 of 1989, s 34 and Sch 2, with effect from 19 Dec 1989; Act 112 of 1983, s 37 and Sch, with effect from 2 Apr 1984]

(2) Where an officer puts a question to a person in accordance with subsection (1) after having informed that person that he or she is required to answer the question, that person shall not: (a) refuse or fail to answer the question; or (b) in answer to the question, make a statement which is false or misleading in a material particular. Penalty: Imprisonment for 6 months. [Subs (2) am Act 59 of 1989, s 34 and Sch 2, with effect from 19 Dec 1989; Act 112 of 1983, s 37 and Sch, with effect from 2 Apr 1984; Act 117 of 1979, s 29 and Sch, with effect from 1 Nov 1979; Act 10 of 1966, s 11 and Sch, with effect from 6 May 1966]

(2A) An offence against subsection (2) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. [Subs (2A) insrt Act 97 of 2001, s 3 and Sch 1 items 63, with effect from 19 Sep 2001]

(3) Where subsection (2) is applicable in relation to a question put to a person, that person is not excused from answering the question on the ground that the answer might tend to incriminate him or her, but the answer to the question shall not be used as evidence against that person in any proceedings other than proceedings under that subsection. [Subs (3) am Act 59 of 1989, s 34 and Sch 2, with effect from 19 Dec 1989; Act 112 of 1983, s 37 and Sch, with effect from 2 Apr 1984] [S 257 am Act 97 of 2001; Act 184 of 1992; Act 24 of 1992; Act 59 of 1989; Act 112 of 1983; Act 117 of 1979; Act 10 of 1966]

257A Person may be required to provide personal identifiers (1) Subject to subsection (3), the Minister or an officer may, in writing or orally, require a person to provide one or more personal identifiers for the purposes of this Act or the regulations. (2) Without limiting subsection (1), the purposes referred to in that subsection include any of the purposes referred to in subsection 5A(3).

512

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 13 – Examination, search, detention and identification (ss 246–261)

s 258

Only citizens entering Australia etc. may be required to provide personal identifiers (3) If the Minister or officer knows or reasonably believes that a person is a citizen, the person must not be required to provide one or more personal identifiers under subsection (1) unless section 166, 170 or 175 applies in relation to the person. When requirement under subsection (1) must be made (4) The Minister or an officer must require a person to provide one or more personal identifiers under subsection (1) if prescribed circumstances exist. How personal identifiers must be provided (5) If a person is required to provide one or more personal identifiers under subsection (1), those personal identifiers must be: (a) provided by way of one or more identification tests carried out by an authorised officer or an authorised system; or (b) if another way is specified by the Minister or officer—provided in that specified way. Note: If the types of identification tests that the authorised officer may carry out are specified under section 5D, then each identification test must be of a type so specified.

(6) If paragraph (5)(b) applies, the person must comply with any requirements specified by the Minister or officer in providing one or more personal identifiers in the way specified under that paragraph. Multiple requirements for personal identifiers may be made (7) A person may be required to provide one or more personal identifiers under subsection (1): (a) more than once; and (b) whether or not the person has previously complied with a requirement under this Act or the regulations to provide one or more personal identifiers. Other provisions not limited or otherwise affected (8) This section does not limit, or otherwise affect, any other provision of this Act under which a personal identifier may be required, provided or presented. [S 257A insrt Act 115 of 2015, s 3 and Sch 1 item 34, with effect from 16 Feb 2016]

258 Minister may determine that specified persons are not to be required to provide personal identifiers etc. The Minister may determine, by legislative instrument, that: (a) a specified person, or a person included in a specified class of persons, must not be required to provide under section 257A: (i) any personal identifiers; or (ii) one or more specified kinds of personal identifiers; or (b) a specified person, or a person included in a specified class of persons, must not be required in specified circumstances to provide under section 257A: (i) any personal identifiers; or (ii) one or more specified kinds of personal identifiers. [S 258 subst Act 115 of 2015, s 3 and Sch 1 item 35, with effect from 16 Feb 2016; am Act 116 of 2014; Act 141 of 2005, s 3 and Sch 4 items 7–9, with effect from 12 Dec 2005; subst Act 2 of 2004, s 3 and Sch 1 item 31, with effect from 27 Aug 2004; am Act 184 of 1992, s 38 and Sch, with effect from 1 Sep 1994; Act 59 of 1989, s 34 and Sch 2, with effect from 19 Dec 1989]

© 2016 THOMSON REUTERS

513

s 258

Migration Act 1958

258A When detainees must not be required to provide personal identifiers under section 257A A person must not be required to provide a personal identifier under section 257A if: (a) the person is in immigration detention (but not only because he or she is detained for questioning detention (see section 192)); and (b) the person has, during that detention, provided a personal identifier of that type under Division 13AA. [S 258A am Act 115 of 2015, s 3 and Sch 1 items 36 and 37, with effect from 16 Feb 2016; Act 116 of 2014, s 3 and Sch 5 item 41, with effect from 4 Nov 2014; insrt Act 2 of 2004, s 3 and Sch 1 item 31, with effect from 27 Aug 2004]

258B Information to be provided – authorised officers carrying out identification tests (1) Before an authorised officer carries out an identification test on a person for the purposes of section 257A, the authorised officer must inform the person of such matters as are prescribed. [Subs (1) subst Act 115 of 2015, s 3 and Sch 1 item 38, with effect from 16 Feb 2016; am Act 116 of 2014, s 3 and Sch 5 items 42 and 43, with effect from 4 Nov 2014]

(2) For the purposes of subsection (1), the authorised officer informs the person of a matter if the authorised officer informs the person of the matter, through an interpreter if necessary, in a language (including sign language or braille) in which the person is able to communicate with reasonable fluency. [Subs (2) am Act 116 of 2014, s 3 and Sch 5 item 44, with effect from 4 Nov 2014]

(3) The authorised officer may comply with this section by giving to the person, in accordance with the regulations, a form setting out the information specified in the regulations. However, the information must be in a language (including braille) in which the person is able to communicate with reasonable fluency. [Subs (3) am Act 116 of 2014, s 3 and Sch 5 item 44, with effect from 4 Nov 2014] [S 258B am Act 115 of 2015; Act 116 of 2014; insrt Act 2 of 2004, s 3 and Sch 1 item 31, with effect from 27 Aug 2004]

258C Information to be provided when identification tests not carried out [Repealed] [S 258C rep Act 115 of 2015, s 3 and Sch 1 item 39, with effect from 16 Feb 2016; am Act 116 of 2014, s 3 and Sch 5 item 45, with effect from 4 Nov 2014; Act 62 of 2007; insrt Act 2 of 2004, s 3 and Sch 1 item 31, with effect from 27 Aug 2004]

258D Regulations may prescribe manner for carrying out identification tests (1) The regulations may prescribe the manner in which an identification test is to be carried out on a person under section 257A. [Subs (1) am Act 115 of 2015, s 3 and Sch 1 item 40, with effect from 16 Feb 2016; Act 116 of 2014, s 3 and Sch 5 item 47, with effect from 4 Nov 2014]

(2) The regulations may prescribe the procedure and requirements that apply if a personal identifier is provided under section 257A by the person otherwise than by way of an identification test. [Subs (2) am Act 115 of 2015, s 3 and Sch 1 item 41, with effect from 16 Feb 2016; Act 116 of 2014, s 3 and Sch 5 items 48 and 49, with effect from 4 Nov 2014] [S 258D am Act 115 of 2015; Act 116 of 2014; insrt Act 2 of 2004, s 3 and Sch 1 item 31, with effect from 27 Aug 2004]

258E General rules for carrying out identification tests An identification test that an authorised officer carries out under section 257A:

514

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 13 – Examination, search, detention and identification (ss 246–261)

(a)

s 259

must be carried out in circumstances affording reasonable privacy to the person; and

[Para (a) am Act 116 of 2014, s 3 and Sch 5 item 50, with effect from 4 Nov 2014]

(b) must not be carried out in the presence or view of a person whose presence is not necessary for the purposes of the identification test or required or permitted by another provision of this Act; and (c) must not involve the removal of more clothing than is necessary for carrying out the test; and (d) must not involve more visual inspection than is necessary for carrying out the test. [Para (d) am Act 115 of 2015, s 3 and Sch 1 item 43, with effect from 16 Feb 2016]

(e)

[Repealed]

[Para (e) rep Act 115 of 2015, s 3 and Sch 1 item 44, with effect from 16 Feb 2016] [S 258E am Act 115 of 2015, s 3 and Sch 1 item 42, with effect from 16 Feb 2016; Act 116 of 2014; insrt Act 2 of 2004, s 3 and Sch 1 item 31, with effect from 27 Aug 2004]

258F Person must not be required to provide personal identifiers in a cruel, inhuman or degrading way etc. For the purposes of this Act, a requirement to provide a personal identifier, or the provision of a personal identifier, in a particular way under section 257A is not of itself taken: (a) to be cruel, inhuman or degrading; or (b) to be a failure to treat a person with humanity and with respect for human dignity. However, nothing in this Act authorises the Minister or an officer to require a person to provide a personal identifier under section 257A in a cruel, inhuman or degrading way, or in a way that fails to treat the person with humanity and with respect for human dignity. [S 258F subst Act 115 of 2015, s 3 and Sch 1 item 45, with effect from 16 Feb 2016; insrt Act 2 of 2004, s 3 and Sch 1 item 31, with effect from 27 Aug 2004]

258G Authorised officer may get help to carry out identification tests An authorised officer may ask another authorised officer or an officer to help him or her to carry out the identification test, and the other person may give that help. [S 258G insrt Act 2 of 2004, s 3 and Sch 1 item 31, with effect from 27 Aug 2004]

259 Detention of vessel for purpose of search (1) The Secretary or Australian Border Force Commissioner may, by notice in writing to the master of a vessel which has arrived in Australia not more than one month before the date of the notice, order that the vessel remain at a port or place for a reasonable time specified in the notice for the purpose of enabling a search of the vessel to be made in order to ascertain whether there are on the vessel any unlawful non-citizens or any persons seeking to enter Australia in circumstances in which they would become unlawful non-citizens. [Subs (1) am Act 41 of 2015, s 3 and Sch 3 item 25, with effect from 1 Jul 2015; Act 184 of 1992, s 38 and Sch, with effect from 1 Sep 1994; Act 112 of 1983, s 37 and Sch, with effect from 2 Apr 1984]

(2) The master of a vessel in respect of which an order is in force under this section shall not, during the time specified in the order, move the vessel without the consent of the Secretary or Australian Border Force Commissioner. Penalty: $20,000. [Subs (2) am Act 41 of 2015, s 3 and Sch 3 item 25, with effect from 1 Jul 2015; Act 24 of 1992, s 5 and Sch 1, with effect from 6 Nov 1992; Act 59 of 1989, s 35 and Sch 1, with effect from 19 Dec 1989; Act 117 of 1979, s 29 and Sch, with effect from 1 Nov 1979; Act 10 of 1966, s 11 and Sch, with effect from 6 May 1966]

(3) An offence against subsection (2) is an offence of strict liability.

© 2016 THOMSON REUTERS

515

s 259

Migration Act 1958

Note: For strict liability, see section 6.1 of the Criminal Code. [Subs (3) insrt Act 97 of 2001, s 3 and Sch 1 item 64, with effect from 19 Sep 2001] [S 259 am Act 41 of 2015; Act 97 of 2001; Act 184 of 1992; Act 24 of 1992; Act 59 of 1989; Act 112 of 1983; Act 117 of 1979; Act 10 of 1966]

260 Detention of vessel pending recovery of penalty (1) The Secretary or Australian Border Force Commissioner may, in writing, direct an officer to detain a vessel where, in the Secretary’s or Australian Border Force Commissioner’s opinion, the master, owner, agent or charterer of the vessel has been guilty of an offence against this Act. [Subs (1) am Act 41 of 2015, s 3 and Sch 3 items 26 and 27, with effect from 1 Jul 2015]

(2) Where a direction is given under subsection (1): (a) the officer specified in the direction may detain the vessel at the place where it is found or cause it to be brought to another place specified by the Secretary or Australian Border Force Commissioner and detain it at that place; and (b) the Secretary or Australian Border Force Commissioner shall forthwith give notice of the detention to the master, owner, charterer or agent of the vessel. [Subs (2) am Act 41 of 2015, s 3 and Sch 3 item 28, with effect from 1 Jul 2015; Act 60 of 1994, s 3 and Sch 1 item 94, with effect from 1 Sep 1994; Act 59 of 1989, s 35 and Sch 2, with effect from 19 Dec 1989; Act 112 of 1983, s 37 and Sch, with effect from 2 Apr 1984]

(3) For the purposes of the detention and other lawful dealings with the vessel, the officer specified in the direction is entitled to obtain such seizure warrant issued under Division 1 of Part XII of the Customs Act 1901 or other aid as may be obtained under a law of the Commonwealth with respect to the seizure of vessels or goods. [Subs (3) am Act 41 of 2015, s 3 and Sch 5 item 100, with effect from 1 Jul 2015; Act 85 of 1995, s 11 and Sch 9 item 4, with effect from 1 Jul 1995]

(4) The detention of a vessel under this section shall cease if a bond with 2 sufficient sureties to the satisfaction of the Secretary or Australian Border Force Commissioner is given by the master, owner, agent or charterer of the vessel for the payment of any penalties that may be imposed in respect of the alleged offence. [Subs (4) am Act 41 of 2015, s 3 and Sch 3 item 28, with effect from 1 Jul 2015; Act 112 of 1983, s 37 and Sch, with effect from 2 Apr 1984]

(5) If, while the vessel is detained under this section, default is made in payment of any penalties imposed in respect of an offence against this Act by the master, owner, agent or charterer of the vessel, the Secretary or Australian Border Force Commissioner may seize the vessel, and the like proceedings shall thereupon be taken for forfeiting and condemning the vessel as in the case of a vessel seized for breach of the Customs Act 1901, and the vessel shall be sold. [Subs (5) am Act 41 of 2015, s 3 and Sch 5 item 101, with effect from 1 Jul 2015; Act 41 of 2015, s 3 and Sch 3 item 28, with effect from 1 Jul 2015]

(6) The proceeds of the sale shall be applied firstly in payment of the penalties referred to in subsection (5) and of all costs awarded in connexion with the proceedings in which the penalties were imposed or incurred in and about the sale and the proceedings leading to the sale, and the balance shall be payable to the owner and other persons having interests in the vessel before the condemnation and sale. [Subs (6) am Act 112 of 1983, s 37 and Sch, with effect from 2 Apr 1984]

(7) Division 13A does not limit the operation of this section. [Subs (7) insrt Act 160 of 1999, s 3 and Sch 1 item 5, with effect from 16 Dec 1999] [S 260 am Act 41 of 2015; Act 160 of 1999; Act 85 of 1995; Act 60 of 1994; Act 59 of 1989; Act 112 of 1983]

516

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 13AA – Identification of immigration detainees (ss 261AA–261AKH)

s 261

261 Disposal of dilapidated vessels etc. (1) If a non-citizen who enters Australia: (a) is required to comply with section 166 (immigration clearance); and (b) either: (i) does not comply; or (ii) on complying, is detained under section 189; the Secretary or Australian Border Force Commissioner may, in writing, direct an officer to seize the vessel on which the non-citizen came to Australia. [Subs (1) am Act 41 of 2015, s 3 and Sch 3 item 29, with effect from 1 Jul 2015]

(2) If: (a) a vessel is seized under subsection (1) or section 261B; and (b) the vessel has not been forfeited and condemned under section 260 or condemned as forfeited under Division 13A; and (c) the vessel has not been ordered by a court to be delivered to a person or otherwise dealt with; and (d) the Secretary or Australian Border Force Commissioner is satisfied that the vessel is in such a poor condition that its custody or maintenance involves expense out of proportion to its value; and (e) a person other than the Commonwealth does not meet, or make arrangements that the Secretary or Australian Border Force Commissioner considers are satisfactory to meet, that expense; the Secretary or Australian Border Force Commissioner may in writing, direct an officer to sell, destroy or otherwise dispose of the vessel. [Subs (2) am Act 41 of 2015, s 3 and Sch 3 item 29, with effect from 1 Jul 2015; Act 160 of 1999, s 3 and Sch 1 items 6 and 7, with effect from 16 Dec 1999]

(3) The officer must comply with the direction. (4) The proceeds of a sale are to be applied firstly in payment of costs incurred by the Commonwealth in the custody or maintenance of the vessel, and in selling or disposing of the vessel, and, subject to subsection (5), the balance is to be paid to the owner and any other persons with interests in the vessel before its sale. [Subs (4) am Act 160 of 1999, s 3 and Sch 1 item 8, with effect from 16 Dec 1999]

(5) If: (a) a person owes a debt to the Commonwealth under this Act; and (b) an amount by way of the balance of the proceeds of a sale (the balance amount) is payable to the person under subsection (4); the Commonwealth may apply the balance amount in payment of the debt, and the debt is reduced accordingly. The amount applied must not exceed the amount of the debt. [Subs (5) insrt Act 160 of 1999, s 3 and Sch 1 item 9, with effect from 16 Dec 1999]

(6) Division 13A does not limit the operation of this section. [Subs (6) insrt Act 160 of 1999, s 3 and Sch 1 item 9, with effect from 16 Dec 1999] [S 261 am Act 41 of 2015; Act 160 of 1999; insrt Act 184 of 1992, s 20, with effect from 1 Sep 1994]

DIVISION 13AA – IDENTIFICATION OF IMMIGRATION DETAINEES (SS 261AA–261AKH) [Div 13AA insrt Act 2 of 2004, s 3 and Sch 1 item 32]

© 2016 THOMSON REUTERS

517

s 261AA

Migration Act 1958

[261AA.20]

SUBDIVISION A – PROVISION OF PERSONAL IDENTIFIERS (SS 261AA-216AC) 261AA Immigration detainees must provide personal identifiers (1) A non-citizen who is in immigration detention must (other than in the prescribed circumstances) provide to an authorised officer one or more personal identifiers. (1A) An authorised officer must not require, for the purposes of subsection (1), a person to provide a personal identifier other than any of the following (including any of the following in digital form): (a) fingerprints or handprints of the person (including those taken using paper and ink or digital livescanning technologies); (b) a measurement of the person’s height and weight; (c) a photograph or other image of the person’s face and shoulders; (d) the person’s signature; (e) any other personal identifier of a type prescribed for the purposes of this paragraph. Note: Division 13AB sets out further restrictions on the personal identifiers that minors and incapable persons can be required to provide.

(2) The one or more personal identifiers are to be provided by way of one or more identification tests carried out by the authorised officer in accordance with this Division. Note: Subject to certain restrictions, section 261AE allows reasonable force to be used to carry out identification tests under this Division.

(3) However, this Division does not apply to a non-citizen who: (a) is in immigration detention only because he or she is detained under section 192; and (b) has provided a personal identifier in accordance with a requirement under section 257A. [Subs (3) am Act 115 of 2015, s 3 and Sch 1 item 46, with effect from 16 Feb 2016] [S 261AA am Act 115 of 2015; insrt Act 2 of 2004, s 3 and Sch 1 item 32]

SECTION 261AA COMMENTARY CONCEPTS

Prescribed circumstances ............................................................................................................... [261AA.20] Prescribed identifier ....................................................................................................................... [261AA.40]

CONCEPTS [261AA.20] Prescribed circumstances For the purposes of s 261AA, prescribed circumstances occur: • when the non-citizen is in the company of, and restrained by, an officer or another person directed by the Secretary to accompany and restrain a particular non-citizen: see reg 3.30(1); or • if immediately before being detained in immigration detention, the non-citizen was detained under either the Environment Protection and Biodiversity Conservation Act 1999 (Cth), the Fisheries Management Act 1991 (Cth) or the Torres Strait Fisheries Act 1984 (Cth) and provides a personal identifier or identifiers in accordance with those Acts: see reg 3.30(2). However, this only applies if the authorised officer is satisfied: – that the personal identifier provided is usable for a particular purpose set out in s 5A(3); 518

Migration Law

[261AB.20]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 13AA – Identification of immigration detainees (ss 261AA–261AKH)

s 261AC

– about the integrity of the personal identifier; and – that no further personal identifiers need to be collected from the non-citizen to satisfy the purpose: see reg 3.30(3). [261AA.40] Prescribed identifier For the purposes of s 261A(1A)(e), an iris scan is a prescribed personal identifier: see reg 3.30(4). 261AB Authorised officers must require and carry out identification tests (1) The authorised officer must, other than in the circumstances prescribed for the purposes of subsection 261AA(1): (a) require, in writing or orally, the non-citizen to provide one or more personal identifiers, of the type or types prescribed, by way of one or more identification tests carried out by the authorised officer; and (b) carry out the one or more identification tests on the non-citizen. [Subs (1) am Act 115 of 2015, s 3 and Sch 1 item 47, with effect from 16 Feb 2016]

(2) However: (a) if the types of identification tests that the authorised officer may carry out is specified under section 5D—each identification test must be of a type so specified; and (b) each identification test must be carried out in accordance with Subdivision B; and (c) unless the authorised officer has reasonable grounds to believe that the non-citizen is not a minor or an incapable person—each identification test must be carried out in accordance with the additional requirements of Division 13AB. [S 261AB am Act 115 of 2015; insrt Act 2 of 2004, s 3 and Sch 1 item 32]

SECTION 261AB COMMENTARY CONCEPTS

Prescribed identifier ....................................................................................................................... [261AB.20]

CONCEPTS [261AB.20] Prescribed identifier For the purposes of s 261AB(1)(a), the following are the prescribed personal identifiers: • fingerprints or hand prints of the non-citizen (including those taken using paper and ink or digital livescanning technologies); • a measurement of the non-citizen’s height and weight; • a photograph or other image of the non-citizen’s face and shoulders; or • the non-citizen’s signature: see reg 3.31. 261AC Information to be provided before carrying out identification tests (1) Before carrying out an identification test, the authorised officer must:

© 2016 THOMSON REUTERS

519

s 261AC

Migration Act 1958

[261AC.20]

(a)

inform the non-citizen that the non-citizen may ask that an independent person be present while the identification test is carried out and that the test be carried out by a person of the same sex as the non-citizen; and (b) inform the non-citizen of such other matters as are specified in the regulations. (2) For the purposes of subsection (1), the authorised officer informs the non-citizen of a matter if the authorised officer informs the non-citizen of the matter, through an interpreter if necessary, in a language (including sign language or braille) in which the non-citizen is able to communicate with reasonable fluency. (3) The authorised officer may comply with this section by giving to the non-citizen, in accordance with the regulations, a form setting out the information specified in the regulations. However, the information must be in a language (including braille) in which the non-citizen is able to communicate with reasonable fluency. [S 261AC insrt Act 2 of 2004, s 3 and Sch 1 item 32]

SECTION 261AC COMMENTARY CONCEPTS

Matters specified in the regulations .............................................................................................. [261AC.20]

CONCEPTS [261AC.20] Matters specified in the regulations For the purposes of s 261AC(1)(b), the Regulations do not specify the information that authorised officers must provide to non-citizens. However, the types of information that may be prescribed under the Regulations include: • the purpose and reason for the test; • the way in which the test is to be carried out, including the power to use reasonable force, if necessary; • the ways in which the information that is collected can be used; • the circumstances in which the information obtained may be disclosed to third parties; • that the identification test may produce evidence against the non-citizen that might be used in a court of law or a tribunal; • that a video recording may be made of the test; and • the non-citizen’s right to make a complaint to the Privacy Commissioner, or to make an application under the Freedom of Information Act 1982 (Cth) and how this may be done: Explanatory Memorandum to the Migration Legislation Amendment (Identification and Authentication) Bill 2003 (Cth) at item 32. For the purposes of s 261AC(3), the Regulations do not prescribe the way in which an authorised officer is to provide a non-citizen with the appropriate form for the purpose of that section. SUBDIVISION B – HOW IDENTIFICATION TESTS ARE CARRIED OUT (SS 261AD–261AK) 261AD General rules for carrying out identification tests An identification test under this Division:

520

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 13AA – Identification of immigration detainees (ss 261AA–261AKH)

(a) (b) (c) (d) (e) (f)

s 261AE

must be carried out in circumstances affording reasonable privacy to the non-citizen; and if the non-citizen so requests and it is practicable to comply with the request—must not be carried out in the presence or view of a person who is of the opposite sex to the non-citizen; and must not be carried out in the presence or view of a person whose presence is not necessary for the purposes of the identification test or is not required or permitted by another provision of this Act; and must not involve the removal of more clothing than is necessary for carrying out the test; and must not involve more visual inspection than is necessary for carrying out the test; and if the test is one of 2 or more identification tests to be carried out on the non-citizen—must be carried out at the same time as the other identification tests, if it is practicable to do so.

[S 261AD insrt Act 2 of 2004, s 3 and Sch 1 item 32]

261AE Use of force in carrying out identification tests When use of force is permitted (1) Subject to subsection (2) and section 261AF, an authorised officer, or a person authorised under section 261AG to help the authorised officer, may use reasonable force: (a) to enable the identification test to be carried out; or (b) to prevent the loss, destruction or contamination of any personal identifier or any meaningful identifier derived from the personal identifier. However, this section does not authorise the use of force against a minor or an incapable person, or if the personal identifier in question is a person’s signature. (2) The officer or person must not use force unless: (a) the non-citizen required to provide the personal identifier in question has refused to allow the identification test to be carried out; and (b) all reasonable measures to carry out the identification test without the use of force have been exhausted; and (c) use of force in carrying out the identification test is authorised under subsection (4). Applications for authorisation to use force (3) An authorised officer may apply to a senior authorising officer (who is not an officer referred to in subsection (1)) for an authorisation to use force in carrying out the identification test. Authorisation to use force (4) The senior authorising officer may authorise the use of force in carrying out the identification test if he or she is reasonably satisfied that: (a) the non-citizen required to provide the personal identifier in question has refused to allow the identification test to be carried out; and (b) all reasonable measures to carry out the identification test without the use of force have been exhausted. (5) An authorisation under subsection (4): (a) may be given by telephone, fax or other electronic means; and

© 2016 THOMSON REUTERS

521

s 261AE

Migration Act 1958

(b) must be recorded in writing, and signed by the person giving the authorisation, within one business day after it is given. (6) A failure to comply with paragraph (5)(b) does not affect the validity of an identification test carried out on the basis of that authorisation. (7) The power to give an authorisation under subsection (4) cannot be delegated to any other person. Definition (8) In this section: senior authorising officer means an officer whom the Secretary or Australian Border Force Commissioner has authorised, or who is included in a class of officers whom the Secretary or Australian Border Force Commissioner has authorised, to perform the functions of a senior authorising officer under this section. [Def am Act 41 of 2015, s 3 and Sch 3 item 30, with effect from 1 Jul 2015] [S 261AE am Act 41 of 2015; insrt Act 2 of 2004, s 3 and Sch 1 item 32]

261AF Identification tests not to be carried out in cruel, inhuman or degrading manner etc. For the purposes of this Act, the carrying out of the identification test is not of itself taken: (a) to be cruel, inhuman or degrading; or (b) to be a failure to treat a person with humanity and with respect for human dignity. However, nothing in this Act authorises the carrying out of the identification test in a cruel, inhuman or degrading manner, or in a manner that fails to treat a person with humanity and with respect for human dignity. [S 261AF insrt Act 2 of 2004, s 3 and Sch 1 item 32]

261AG Authorised officer may get help to carry out identification tests An authorised officer may ask another authorised officer or an officer to help him or her to carry out the identification test, and the other person may give that help. [S 261AG insrt Act 2 of 2004, s 3 and Sch 1 item 32]

261AH Identification tests to be carried out by authorised officer of same sex as non-citizen If the non-citizen requests that the identification test be carried out by an authorised officer of the same sex as the non-citizen, the test must only be carried out by an authorised officer of the same sex as the non-citizen. [S 261AH insrt Act 2 of 2004, s 3 and Sch 1 item 32]

261AI Independent person to be present The identification test must be carried out in the presence of an independent person if: (a) force is used in carrying out the identification test; or (b) both of the following apply: (i) the non-citizen requests that an independent person be present while the identification test is being carried out; (ii) an independent person is readily available at the same place as the non-citizen and is willing to attend the test within a reasonable time. [S 261AI insrt Act 2 of 2004, s 3 and Sch 1 item 32]

261AJ Recording of identification tests (1) An authorised officer may video record the carrying out of the identification test.

522

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 13AA – Identification of immigration detainees (ss 261AA–261AKH)

s 261AK

(2) If the carrying out of the identification test is not video recorded, the authorised officer may decide that the identification test must be carried out in the presence of an independent person. [S 261AJ insrt Act 2 of 2004, s 3 and Sch 1 item 32]

261AK Retesting When retesting is permitted (1) If: (a) an authorised officer has carried out an identification test (the earlier test) on a non-citizen in accordance with this Division (including a test authorised under subsection (4)); and (b) either: (i) a personal identifier that is provided as a result of the earlier test being carried out is unusable; or (ii) an authorised officer or an officer is not satisfied about the integrity of that personal identifier; the officer who carried out the earlier test or another officer may require the non-citizen to provide the personal identifier again, and may carry out the test again in accordance with this Division, if: (c) the requirement is made while the earlier test is being carried out or immediately after it was carried out; or (d) carrying out the test again is authorised under subsection (4). (2) If the non-citizen is required under subsection (1) to provide the personal identifier again, the non-citizen is taken, for the purposes of this Division, not to have provided the personal identifier as a result of the earlier test being carried out. Applications for authorisation to retest (3) An authorised officer may apply for an authorisation to carry out the test again. The application is to be made to: (a) if the earlier test was not a test authorised under subsection (4)—a senior authorising officer (who is not an officer referred to in subsection (1)); or (b) if the earlier test was a test authorised under subsection (4) by a senior authorising officer—the Secretary, Australian Border Force Commissioner or an SES Band 3 employee in the Department (who is not an officer referred to in subsection (1)). [Subs (3) am Act 41 of 2015, s 3 and Sch 3 item 31, with effect from 1 Jul 2015]

Authorisation to retest (4) The senior authorising officer, Secretary, Australian Border Force Commissioner or SES Band 3 employee (as the case requires) may authorise the test to be carried out again if: (a) he or she is reasonably satisfied that the personal identifier that is provided as a result of the earlier test being carried out is unusable; or (b) he or she is not reasonably satisfied about the integrity of that personal identifier. [Subs (4) am Act 41 of 2015, s 3 and Sch 3 item 31, with effect from 1 Jul 2015]

(5) An authorisation under subsection (4): (a) may be given by telephone, fax or other electronic means; and (b) must be recorded in writing, and signed by the person giving the authorisation, within one business day after it is given. (6) A failure to comply with paragraph (5)(b) does not affect the validity of an identification test carried out on the basis of that authorisation.

© 2016 THOMSON REUTERS

523

s 261AK

Migration Act 1958

(7) The power to give an authorisation under subsection (4) cannot be delegated to any other person. Use of force (8) An authorisation under subsection (4) does not authorise the use of force in carrying out an identification test. Note: See section 261AE on the use of force in carrying out identification tests.

Effect of refusing to authorise retesting (9) If an application for an authorisation to carry out an identification test again on a non-citizen is refused, the non-citizen is taken, for the purposes of this Act, to have complied with any requirement under this Act to provide the personal identifier in question. Definitions (10) In this section: senior authorising officer means an officer (other than an SES Band 3 employee in the Department) whom the Secretary or Australian Border Force Commissioner has authorised, or who is included in a class of officers whom the Secretary or Australian Border Force Commissioner has authorised, to perform the functions of a senior authorising officer under this section. [Def am Act 41 of 2015, s 3 and Sch 3 item 32, with effect from 1 Jul 2015]

SES Band 3 employee means an SES employee with a classification of Senior Executive Band 3, and includes an SES employee who has been temporarily assigned duties that have been allocated a classification of Senior Executive Band 3. SES employee [Repealed] [Def rep Act 31 of 2014, s 3 and Sch 8 item 28, with effect from 24 Jun 2014] [S 261AK am Act 41 of 2015; Act 31 of 2014; insrt Act 2 of 2004, s 3 and Sch 1 item 32]

SUBDIVISION C – OBLIGATIONS RELATING TO VIDEO RECORDINGS OF IDENTIFICATION TESTS (SS 261AKA–261AKH) 261AKA Definitions In this Subdivision, unless the contrary intention appears: permitted provision, of a video recording, has the meaning given by subsection 261AKD(2). provide, in relation to a video recording, includes provide access to the recording. related document means a document that contains information, derived from a video recording made under section 261AJ or from a copy of such a recording, from which the identity of the individual on whom the identification test in question was carried out is apparent or can reasonably be ascertained. video recording means a video recording made under section 261AJ or a copy of such a recording, and includes a related document. [S 261AKA insrt Act 2 of 2004, s 3 and Sch 1 item 32]

261AKB Accessing video recordings (1) A person commits an offence if: (a) the person accesses a video recording; and

524

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 13AA – Identification of immigration detainees (ss 261AA–261AKH)

s 261AKD

(b) the person is not authorised under section 261AKC to access the video recording for the purpose for which the person accessed it. Penalty: Imprisonment for 2 years, or 120 penalty units, or both. (2) This section does not apply if the access is through the provision of a video recording that is a permitted provision. Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code). [S 261AKB insrt Act 2 of 2004, s 3 and Sch 1 item 32]

261AKC Authorising access to video recordings (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: (a) all video recordings; or (b) a specified video recording, or video recordings of a specified kind. [Subs (1) am Act 41 of 2015, s 3 and Sch 3 item 33, with effect from 1 Jul 2015]

(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) providing a video recording to another person in accordance with this Subdivision; (b) administering or managing the storage of video recordings; (c) making a video recording available to the person to whom it relates; (d) modifying related documents in order to correct errors or ensure compliance with appropriate standards; (e) any purpose connected with determining whether a civil or criminal liability has arisen from a person carrying out or helping to carry out an identification test under this Act; (f) complying with laws of the Commonwealth or the States or Territories. [Subs (2) am Act 41 of 2015, s 3 and Sch 3 item 33, with effect from 1 Jul 2015]

(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 (other than an offence involving whether an identification test was carried out lawfully); or (b) prosecuting a person for such an offence; if the identifying information in question relates to a personal identifier of a prescribed type. [Subs (3) am Act 41 of 2015, s 3 and Sch 3 item 33, with effect from 1 Jul 2015] [S 261AKC am Act 41 of 2015; insrt Act 2 of 2004, s 3 and Sch 1 item 32]

261AKD Providing video recordings (1) A person commits an offence if: (a) the person’s conduct causes a video recording to be provided to another person; and (b) the provision of the recording is not a permitted provision of the recording. Penalty: Imprisonment for 2 years, or 120 penalty units, or both. (2) A permitted provision of a video recording is a provision of the recording that: (a) is for the purpose of administering or managing the storage of video recordings; or

© 2016 THOMSON REUTERS

525

s 261AKD

Migration Act 1958

(b) is for the purpose of making the video recording in question available to the non-citizen to whom it relates; or (c) is for the purpose of a proceeding, before a court, the Tribunal or another tribunal,, or the Immigration Assessment Authority,, relating to the non-citizen to whom the video recording in question relates; or (d) is for any purpose connected with determining whether a civil or criminal liability has arisen from a person carrying out or helping to carry out an identification test under this Act; or (e) is for the purpose of an investigation by the Information Commissioner under the Privacy Act 1988 or the Ombudsman relating to carrying out an identification test; or (f) 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 carrying out an identification test; or (g) takes place with the written consent of the non-citizen to whom the video recording in question relates. [Subs (2) am Act 60 of 2015, s 3 and Sch 2 items 17 and 150, with effect from 1 Jul 2015; Act 51 of 2010, s 3 and Sch 5 item 37 Editor’s Note: There appears to be a drafting error in s 261AKD(2)(c). The reference to “,, or the Immigration Assessment Authority,,” should probably read “, or the Immigration Assessment Authority,”.]

(3) However, a provision of a video recording is not a permitted provision of the recording if: (a)

it constitutes 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 (other than an offence involving whether an identification test was carried out lawfully); or (ii) prosecuting a person for such an offence. [S 261AKD am Act 60 of 2015; Act 51 of 2010; insrt Act 2 of 2004, s 3 and Sch 1 item 32]

261AKE Unauthorised modification of video recordings A person commits an offence if: (a) the person causes any unauthorised modification of a video recording; 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. [S 261AKE insrt Act 2 of 2004, s 3 and Sch 1 item 32]

261AKF Unauthorised impairment of video recordings A person commits an offence if: (a) the person causes any unauthorised impairment of: (i) the reliability of a video recording; or (ii) the security of the storage of a video recording; or (iii) the operation of a system by which a video recording 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. [S 261AKF insrt Act 2 of 2004, s 3 and Sch 1 item 32]

526

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 13AB – Identification of minors and incapable persons (ss 261AL–261AM)

s 261AL

261AKG Meanings of unauthorised modification and unauthorised impairment etc. (1) In this Subdivision: (a) modification of a video recording; or (b) impairment of the reliability of a video recording; or (c) impairment of the security of the storage of a video recording; or (d) impairment of the operation of a system by which a video recording 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 Subdivision, 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. [S 261AKG insrt Act 2 of 2004, s 3 and Sch 1 item 32]

261AKH Destroying video recordings A person commits an offence if: (a) the person is the person who has day-to-day responsibility for the system under which a video recording is stored; and (b) the person fails physically to destroy the recording, and all copies of the recording, within 10 years after it was made. Penalty: Imprisonment for 2 years, or 120 penalty units, or both. [S 261AKH insrt Act 2 of 2004, s 3 and Sch 1 item 32]

DIVISION 13AB – IDENTIFICATION OF MINORS AND INCAPABLE PERSONS (SS 261AL–261AM) [Div 13AB insrt Act 2 of 2004, s 3 and Sch 1 item 32]

261AL Minors Minors less than 15 years old (1) A person who is less than 15 years old must not be required under Division 13AA of this Part to provide a personal identifier other than a personal identifier consisting of: (a) a measurement of the person’s height and weight; or (b) the person’s photograph or other image of the person’s face and shoulders. [Subs (1) am Act 115 of 2015, s 3 and Sch 1 item 48, with effect from 16 Feb 2016; Act 116 of 2014, s 3 and Sch 5 items 51 and 52, with effect from 4 Nov 2014]

(2) [Repealed] [Subs (2) rep Act 115 of 2015, s 3 and Sch 1 item 49, with effect from 16 Feb 2016]

(3) [Repealed] [Subs (3) rep Act 115 of 2015, s 3 and Sch 1 item 49, with effect from 16 Feb 2016]

© 2016 THOMSON REUTERS

527

s 261AL

Migration Act 1958

(4) [Repealed] [Subs (4) rep Act 115 of 2015, s 3 and Sch 1 item 49, with effect from 16 Feb 2016]

Persons present while identification test is carried out (5) If a person who is a minor provides a personal identifier, in accordance with a requirement under Division 13AA of this Part, by way of an identification test carried out by an authorised officer, the test must be carried out in the presence of: (a) a parent or guardian of the minor; or (b) an independent person. [Subs (5) am Act 115 of 2015, s 3 and Sch 1 item 50, with effect from 16 Feb 2016; Act 116 of 2014, s 3 and Sch 5 item 53, with effect from 4 Nov 2014]

(6) However, if the Minister is the minor’s guardian, the test must be carried out in the presence of an independent person other than the Minister. [S 261AL am Act 115 of 2015; Act 116 of 2014; insrt Act 2 of 2004, s 3 and Sch 1 item 32]

261AM Incapable persons Incapable persons (1) A person who is an incapable person must not be required under Division 13AA of this Part to provide a personal identifier other than a personal identifier consisting of: (a) a measurement of the person’s height and weight; or (b) the person’s photograph or other image of the person’s face and shoulders. [Subs (1) am Act 115 of 2015, s 3 and Sch 1 item 51, with effect from 16 Feb 2016; Act 116 of 2014, s 3 and Sch 5 items 54 and 55, with effect from 4 Nov 2014]

(2) [Repealed] [Subs (2) rep Act 115 of 2015, s 3 and Sch 1 item 52, with effect from 16 Feb 2016]

(3) [Repealed] [Subs (3) rep Act 115 of 2015, s 3 and Sch 1 item 52, with effect from 16 Feb 2016]

Persons present while identification test is carried out (4) If a person who is an incapable person provides a personal identifier, in accordance with a requirement under Division 13AA of this Part, by way of an identification test carried out by an authorised officer, the test must be carried out in the presence of: (a) a parent or guardian of the incapable person; or (b) an independent person. [Subs (4) am Act 115 of 2015, s 3 and Sch 1 item 53, with effect from 16 Feb 2016; Act 116 of 2014, s 3 and Sch 5 item 56, with effect from 4 Nov 2014] [S 261AM am Act 115 of 2015; Act 116 of 2014; insrt Act 2 of 2004, s 3 and Sch 1 item 32]

DIVISION 13A – AUTOMATIC FORFEITURE OF THINGS USED IN CERTAIN OFFENCES (SS 261A–261K) [Div 13A insrt Act 160 of 1999, s 3 and Sch 1 item 10, with effect from 16 Dec 1999]

SUBDIVISION A – AUTOMATIC FORFEITURE (S 261A) 261A Forfeiture of things used in certain offences (1) The following things are forfeited to the Commonwealth: (a) a vessel used or involved in a contravention of this Act (where the contravention occurred in Australia), if the contravention involved: (i) the bringing or coming to Australia of one or more persons who were, or upon entry into Australia became, unlawful non-citizens; or

528

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) [261A.40] Division 13A – Automatic forfeiture of things used in certain offences (ss 261A–261K)

s 261A

(ii) the entry or proposed entry into Australia of one or more such persons; (b) a vehicle or equipment: (i) on a vessel described in paragraph (a) at the time of the contravention mentioned in that paragraph; or (ii) used or involved in the contravention referred to in that paragraph. (2) Despite subsection (1), a vessel that: (a) was used or involved in a contravention of this Act of a kind referred to in that subsection; and (b) at the time of the contravention, was being used in the course of a regular public transport operation; is not forfeited to the Commonwealth if both the master and the owner of the vessel: (c) did not know; and (d) could not reasonably be expected to have known; that it was used or involved in the contravention. (3) In this section: regular public transport operation, in relation to a vessel, means an operation of the vessel for the purpose of a service that: (a) is provided for a fee payable by persons using the service; and (b) is conducted in accordance with fixed schedules to or from fixed terminals over specific routes; and (c) is available to the general public on a regular basis. [S 261A insrt Act 160 of 1999, s 3 and Sch 1 item 10, with effect from 16 Dec 1999]

SECTION 261A COMMENTARY Scope ................................................................................................................................................. [261A.20] CONCEPTS

Contravention of this Act ................................................................................................................. [261A.40]

[261A.20] Scope The purpose of s 261A is to provide for automatic forfeiture, followed by seizure and (if necessary) disposal, of ships and aircraft that have been used in people smuggling operations: see Explanatory Memorandum to the Border Protection Legislation Amendment Bill 1999 (Cth) at item 8; Tran v Commonwealth (2010) 187 FCR 54; 271 ALR 1; [2010] FCAFC 80 at [52] per Rares J. Section 261A was introduced into the Act by the Border Protection Legislation Amendment Act 1991 (Cth) and applies to contraventions of this section that occur after 16 December 1999: see Border Protection Legislation Amendment Act 1991 (Cth) at Sch 1 Pt 2 item 13.

CONCEPTS [261A.40] Contravention of this Act The words “contravention of this Act” do not have a wide application to all contraventions under the Act. Rather, this expression means an “offence against” the Act that causes property used in people smuggling to be forfeited: Tran v Commonwealth (2010) 187 FCR 54; 271 ALR 1; [2010] FCAFC 80 at [71] and [80] per Rares J. © 2016 THOMSON REUTERS

529

s 261B

[261A.40]

Migration Act 1958

A contravention of s 42 (that is, a non-citizen travelling to Australia without a visa that is in effect) will not engage the forfeiture provisions in s 261A: Tran v Commonwealth (2010) 187 FCR 54; 271 ALR 1; [2010] FCAFC 80 at [12] per Lander J.

SUBDIVISION B – SEIZURE (S 261B) 261B Seizure of things used in certain offences (1) An authorised officer may seize a thing in Australia, or may order an officer to seize a thing in Australia, if: (a) the thing is forfeited under section 261A; or (b) the authorised officer reasonably suspects that the thing is forfeited under section 261A. (2) If an officer is ordered by an authorised officer to seize a thing under subsection (1), the officer may seize the thing. [S 261B insrt Act 160 of 1999, s 3 and Sch 1 item 10, with effect from 16 Dec 1999]

SUBDIVISION C – DEALING WITH THINGS SEIZED AS AUTOMATICALLY FORFEITED (SS 261C–261I) 261C Application of this Subdivision This Subdivision sets out rules about a thing that an officer seizes under section 261B. [S 261C insrt Act 160 of 1999, s 3 and Sch 1 item 10, with effect from 16 Dec 1999]

261D Notice of seizure (1) The officer must give written notice of the seizure of the thing to the owner of the thing. However, if the owner cannot be identified after reasonable inquiry, the officer must give the notice to the person in whose possession or custody or under whose control the thing was immediately before it was seized. (2) If the officer cannot conveniently give the notice to the person referred to in subsection (1) in person, the officer may give written notice of the seizure of the thing by fixing the notice to a prominent part of the thing. (3) The notice must: (a) identify the thing; and (b) state that the thing has been seized; and (c) specify the reason for the seizure; and (d) state that the thing will be condemned as forfeited unless: (i) the owner of the thing, or the person who had possession, custody or control of the thing immediately before it was seized, gives the Secretary or Australian Border Force Commissioner, within 21 days, a claim for the thing; or (ii) within 21 days, the Minister gives a written order that the thing is not to be condemned as forfeited; and (e) specify the address of the Secretary or Australian Border Force Commissioner. Note: Section 261F condemns the thing if it is not claimed within 21 days, unless the Minister gives an order that the thing is not to be condemned as forfeited. Section 261H condemns the thing if a claim is made, but the claimant does not get a court order supporting the claim, unless the Minister gives an order that the thing is not to be condemned as forfeited. [Subs (3) am Act 41 of 2015, s 3 and Sch 3 items 34 and 35, with effect from 1 Jul 2015]

530

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 13A – Automatic forfeiture of things used in certain offences (ss 261A–261K)

s 261G

(4) A claim under subparagraph (3)(d)(i) must: (a) be in writing; and (b) be in English; and (c) state an address for service on the person making the claim. [S 261D am Act 41 of 2015; insrt Act 160 of 1999, s 3 and Sch 1 item 10, with effect from 16 Dec 1999]

261E Dealing with thing before it is condemned (1) The Secretary or Australian Border Force Commissioner may, on behalf of the Commonwealth, cause the thing to be disposed of or destroyed if: (a) its custody or maintenance creates serious difficulties; or (b) the expenses of its custody or maintenance between its seizure and condemnation are likely to be greater than its value. [Subs (1) am Act 41 of 2015, s 3 and Sch 3 item 36, with effect from 1 Jul 2015]

(2) If the Secretary or Australian Border Force Commissioner causes the thing to be disposed of, the Secretary or Australian Border Force Commissioner may cause the disposal to be subject to specified conditions. [Subs (2) am Act 41 of 2015, s 3 and Sch 3 item 36, with effect from 1 Jul 2015] [S 261E am Act 41 of 2015; insrt Act 160 of 1999, s 3 and Sch 1 item 10, with effect from 16 Dec 1999]

261F Thing condemned if not claimed in time (1) By force of this subsection, the thing is condemned as forfeited to the Commonwealth 21 days after notice of seizure of the thing has been given under section 261D, unless: (a) the following conditions are satisfied: (i) within the 21 days, the owner of the thing or the person who had possession, custody or control of it immediately before it was seized gives the Secretary or Australian Border Force Commissioner a written claim for the thing; (ii) the claim is in English; (iii) the claim sets out an address for service on the person making the claim; or (b) within the 21 days, the Minister gives a written order that the thing is not to be condemned as forfeited. Note: Section 261I requires things condemned as forfeited to be dealt with in accordance with the Secretary’s directions. [Subs (1) am Act 41 of 2015, s 3 and Sch 3 item 37, with effect from 1 Jul 2015]

(2) A person may claim the thing even if it is disposed of or destroyed before or after the claim. [S 261F am Act 41 of 2015; insrt Act 160 of 1999, s 3 and Sch 1 item 10, with effect from 16 Dec 1999]

261G Dealing with claim for thing (1) If the thing is claimed under section 261F: (a) an officer may retain possession of the thing whether or not any proceedings for the condemnation of the thing have been instituted; and (b) the Minister may give a written order that the thing is not condemned as forfeited; and (c) unless an order has already been made under paragraph (b), the Secretary or Australian Border Force Commissioner may give the claimant a written notice stating that the thing will be condemned as forfeited unless: (i) the claimant institutes proceedings against the Commonwealth within one month to recover the thing, or for a declaration that the thing is not forfeited; or

© 2016 THOMSON REUTERS

531

s 261G

Migration Act 1958

(ii)

within one month, the Minister gives a written order that the thing is not condemned as forfeited.

Note 1: An officer may retain possession even if the Secretary or Australian Border Force Commissioner does not give notice. If so, the claimant will be able to recover the thing only if a court orders its release to the claimant. Note 2: If the Secretary or Australian Border Force Commissioner does give the notice and the claimant institutes proceedings, whether the claimant recovers the thing will depend on the outcome of the proceedings. [Subs (1) am Act 41 of 2015, s 3 and Sch 3 items 38 and 39, with effect from 1 Jul 2015]

(2) The Secretary or Australian Border Force Commissioner may give the notice to the claimant by posting it prepaid as a letter to the last address of the claimant that is known to the Secretary or Australian Border Force Commissioner. If the Secretary or Australian Border Force Commissioner does so, the letter is taken to be properly addressed for the purposes of section 29 of the Acts Interpretation Act 1901. [Subs (2) am Act 41 of 2015, s 3 and Sch 3 item 40, with effect from 1 Jul 2015]

(3) Subsection (2) does not limit the ways in which the notice may be given. Note: Sections 28A and 29 of the Acts Interpretation Act 1901 explain how a notice can be given, and when it is taken to be given. [S 261G am Act 41 of 2015; insrt Act 160 of 1999, s 3 and Sch 1 item 10, with effect from 16 Dec 1999]

261H What happens if thing is claimed (1) This section applies if the Secretary or Australian Border Force Commissioner gives the claimant a notice under section 261G about instituting proceedings: (a) to recover the thing; or (b) for a declaration that the thing is not forfeited. [Subs (1) am Act 41 of 2015, s 3 and Sch 3 item 41, with effect from 1 Jul 2015]

(2) If, within the period of one month after the notice is given: (a) the claimant does not institute such proceedings; and (b) the Minister does not give a written order that the thing is not to be condemned as forfeited; the thing is condemned as forfeited to the Commonwealth immediately after the end of that period. (3) If the claimant institutes such proceedings within the period of one month after the notice is given, the thing is condemned as forfeited to the Commonwealth unless: (a) before the end of the proceedings, the Minister gives a written order that the thing is not to be condemned as forfeited; or (b) at the end of the proceedings, there is: (i) an order for the claimant to recover the thing; or (ii) if the thing has been sold or disposed of—an order for the Commonwealth to pay the claimant an amount in respect of the thing; or (iii) a declaration that the thing is not forfeited. (4) For the purposes of subsection (3), if the proceedings go to judgment, they end: (a) if no appeal against the judgment is lodged within the period for lodging such an appeal—at the end of that period; or (b) if an appeal against the judgment is lodged within that period – when the appeal lapses or is finally determined. (5) Proceedings relating to the thing may be instituted or continued even if it is disposed of or destroyed.

532

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 13A – Automatic forfeiture of things used in certain offences (ss 261A–261K)

s 261K

(6) If the court hearing the proceedings decides that it would have ordered that the thing be delivered to a person apart from the fact that the thing had been disposed of or destroyed, the court may make such orders as the court considers appropriate, including an order that the Commonwealth pay the person an amount equal to: (a) if the thing has been sold before the end of the proceedings—the proceeds of the sale of the thing, less such costs incurred by the Commonwealth in respect of the thing as the court considers appropriate; or (b) if the thing has been disposed of (except by sale) or destroyed before the end of the proceedings – the market value of the thing at the time it was disposed of or destroyed, less such costs incurred by the Commonwealth in respect of the thing as the court considers appropriate. [S 261H am Act 41 of 2015; insrt Act 160 of 1999, s 3 and Sch 1 item 10, with effect from 16 Dec 1999]

261I Dealing with thing after it is condemned If the thing is condemned as forfeited to the Commonwealth, the thing must be dealt with or disposed of in accordance with the directions of the Secretary. [S 261I insrt Act 160 of 1999, s 3 and Sch 1 item 10, with effect from 16 Dec 1999]

SUBDIVISION D – OPERATION OF DIVISION (S 261J) 261J Operation of Division Sections 260 and 261 do not limit the operation of this Division. [S 261J am Act 16 of 2013, s 3 and Sch 4 item 53, with effect from 27 Mar 2014; insrt Act 160 of 1999, s 3 and Sch 1 item 10, with effect from 16 Dec 1999]

SUBDIVISION E – MINISTER’S ORDER THAT A THING NOT BE CONDEMNED AS FORFEITED (S 261K) 261K Minister’s order that a thing not be condemned (1) A power of the Minister under this Division to give a written order that a thing is not to be condemned as forfeited must be exercised by the Minister personally. (2) The Minister does not have a duty to consider whether to exercise such a power in respect of any thing, whether the Minister is requested to do so by any person, or in any other circumstances. (3) If the Minister makes an order under this Division that a thing is not to be condemned as forfeited, he or she must cause to be laid before each House of the Parliament a statement that sets out: (a) the order; and (b) the Minister’s reasons for making the order. (4) A statement under subsection (3) is to be laid before each House of the Parliament within 15 sitting days of that House after: (a) if the order is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or (b) if the order is made between 1 July and 31 December (inclusive) in a year—1 January in the following year. [S 261K insrt Act 160 of 1999, s 3 and Sch 1 item 10, with effect from 16 Dec 1999]

© 2016 THOMSON REUTERS

533

s 262

Migration Act 1958

[261A.40]

DIVISION 14 – RECOVERY OF COSTS FROM CERTAIN PERSONS (SS 262–268) [Former Div 8A renum Act 60 of 1994, s 83; insrt Act 84 of 1992, s 10]

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). [Subs (1) am Act 106 of 2014, s 3 and Sch 3 item 2, with effect from 25 Sep 2014; Act 85 of 2009, s 3 and Sch 1 items 21 and 22; Act 160 of 1999, s 3 and Sch 1 item 57; Act 184 of 1992, s 38 and Sch]

(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. [Subs (2) insrt Act 85 of 2009, s 3 and Sch 1 item 23]

(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. [Subs (3) insrt Act 85 of 2009, s 3 and Sch 1 item 23]

(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). [Subs (4) insrt Act 106 of 2014, s 3 and Sch 3 item 3, with effect from 25 Sep 2014] [S 262 am Act 106 of 2014, s 3 and Sch 3 item 1, with effect from 25 Sep 2014; Act 85 of 2009; Act 160 of 1999; former s 100B renum Act 60 of 1994, s 83; am Act 184 of 1992; insrt Act 84 of 1992, s 10 Cross-reference: Legislative Instruments: IMMI 14/088 — Migration Act 1958 – Determination of Daily Maintenance Amounts for Persons in Detention: This Instrument operates to nominate the amount to be charged, on a daily basis, between 22 March 2014 and 13 October 2014 for keeping and maintaining a person in immigration detention at a specified place.]

534

Migration Law

[262.60]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 14 – Recovery of costs from certain persons (ss 262–268)

s 263

SECTION 262 COMMENTARY CONCEPTS

Offences against this Act .................................................................................................................... [262.20] Against a prescribed law ..................................................................................................................... [262.40] Legislative instrument ......................................................................................................................... [262.60]

CONCEPTS [262.20] Offences against this Act For the purposes of s 262(1)(b), s 5(1) defines “offences against this Act” to include: • an offence against s 6 of the Crimes Act 1914 (Cth) that relates to an offence against a provision of this Act; and • an ancillary offence (within the meaning of the Criminal Code Act 1995 (Cth)) that is, or relates to, an offence against a provision of this Act. [262.40] Against a prescribed law For the purposes of s 262(1)(b), reg 5.18 prescribes the following laws for: • the Commonwealth: – the Continental Shelf (Living Natural Resources) Act 1968 (Cth); – the Fisheries Act 1952 (Cth); – the Fisheries Management Act 1991 (Cth); and – the Torres Strait Fisheries Act 1984 (Cth); • Queensland: – the Fisheries Act 1976 (Qld); – the Fishing Industry Organisation and Marketing Act 1982 (Qld); and • Western Australia: – the Fisheries Act 1905 (WA). [262.60] Legislative instrument For the purposes of s 262(2), the legislative instrument Minister for Immigration and Citizenship (Cth), No IMMI 14/088 - Determination of Daily Maintenance Amounts for Persons in Detention (22 September 2014) sets out the daily amount, which is currently $184.05, for the keeping and maintaining of a person in immigration detention at the specified place for the specified period. 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; [Para (b) am Act 41 of 2015, s 3 and Sch 3 item 43, with effect from 1 Jul 2015]

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

© 2016 THOMSON REUTERS

535

s 263

Migration Act 1958

(c) in a court of competent jurisdiction; or (d) by garnishee notice under section 264. [S 263 am Act 41 of 2015, s 3 and Sch 3 item 42, with effect from 1 Jul 2015; former s 100C renum Act 60 of 1994, s 83; insrt Act 84 of 1992, s 10]

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. [Subs (1) am Act 41 of 2015, s 3 and Sch 3 item 44, with effect from 1 Jul 2015]

(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. [Subs (3) am Act 41 of 2015, s 3 and Sch 3 item 44, with effect from 1 Jul 2015]

(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. [Subs (5) am Act 41 of 2015, s 3 and Sch 3 item 44, with effect from 1 Jul 2015]

(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. [S 264 am Act 41 of 2015; former s 100D renum Act 60 of 1994, s 83; insrt Act 84 of 1992, s 10]

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:

536

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 14 – Recovery of costs from certain persons (ss 262–268)

s 267

(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. [Former s 100E renum Act 60 of 1994, s 83; insrt Act 84 of 1992, s 10]

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. [S 266 am Act 41 of 2015, s 3 and Sch 3 item 45, with effect from 1 Jul 2015; former s 100F renum Act 60 of 1994, s 83; insrt Act 84 of 1992, s 10]

267 Secretary may freeze amounts to secure future debts (1) If there is a future debt in relation to a person (future debtor), the Secretary 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. [Subs (1) am Act 41 of 2015, s 3 and Sch 3 item 46, with effect from 1 Jul 2015]

(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. [Subs (2) am Act 41 of 2015, s 3 and Sch 3 item 46, with effect from 1 Jul 2015]

© 2016 THOMSON REUTERS

537

s 267

Migration Act 1958

(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. [Subs (3) am Act 41 of 2015, s 3 and Sch 3 item 46, with effect from 1 Jul 2015]

(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. [S 267 am Act 41 of 2015; former s 100G renum Act 60 of 1994, s 83; insrt Act 84 of 1992, s 10]

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. [Former s 100H renum Act 60 of 1994, s 83; insrt Act 84 of 1992, s 10]

DIVISION 14A – MONITORING COMPLIANCE WITH STUDENT VISA CONDITIONS (SS 268AA–268CZH) SUBDIVISION A – PRELIMINARY (SS 268AA–268AD) [Div 14A insrt Act 168 of 2000, s 3 and Sch 2 item 1, with effect from 1 Mar 2001]

268AA Definitions In this Division: attendance notice means a notice given under section 268BD. document includes copy of a document. education provider means an institution or other body or person in Australia that provides, has provided or seeks to provide courses of education or of training to persons who hold student visas. monitoring warrant means a warrant issued under section 268CE or 268CZD. new ESOS Act [Repealed] [Def rep Act 73 of 2008, s 3 and Sch 1 item 32, with effect from 1 Mar 2001]

occupier: (a) in relation to premises comprising a vehicle or vessel – means the person apparently in charge of the vehicle or vessel; and (b) in any case – includes a person who apparently represents the occupier. old ESOS Act [Repealed] [Def rep Act 73 of 2008, s 3 and Sch 1 item 33, with effect from 1 Mar 2001]

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

538

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 14A – Monitoring compliance with student visa conditions (ss 268AA–268CZH) s 268BA

(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. [S 268AA am Act 73 of 2008; insrt Act 168 of 2000, s 3 and Sch 2 item 1, with effect from 1 Mar 2001]

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. [S 268AB insrt Act 168 of 2000, s 3 and Sch 2 item 1, with effect from 1 Mar 2001]

268AC Criminal Code applies [Repealed] [S 268AC rep Act 97 of 2001, s 3 and Sch 1 item 65, with effect from 19 Sep 2001; insrt Act 168 of 2000, s 3 and Sch 2 item 1, with effect from 1 Mar 2001]

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. [S 268AD insrt Act 168 of 2000, s 3 and Sch 2 item 1, with effect from 1 Mar 2001]

SUBDIVISION B – NOTICES REQUIRING INFORMATION AND DOCUMENTS (SS 268BA–268BQ) 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. [Subs (1) am Act 41 of 2015, s 3 and Sch 3 item 47, with effect from 1 Jul 2015]

(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. [Subs (2) am Act 41 of 2015, s 3 and Sch 3 items 47 and 48, with effect from 1 Jul 2015]

(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:

© 2016 THOMSON REUTERS

539

s 268BA

Migration Act 1958

(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. [S 268BA am Act 41 of 2015; insrt Act 168 of 2000, s 3 and Sch 2 item 1, with effect from 1 Mar 2001]

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. [S 268BB insrt Act 168 of 2000, s 3 and Sch 2 item 1, with effect from 1 Mar 2001]

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. [Subs (1) am Act 41 of 2015, s 3 and Sch 3 item 49, with effect from 1 Jul 2015]

(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). [Subs (2) am Act 41 of 2015, s 3 and Sch 3 item 49, with effect from 1 Jul 2015] 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. [S 268BC am Act 41 of 2015; insrt Act 168 of 2000, s 3 and Sch 2 item 1, with effect from 1 Mar 2001]

540

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 14A – Monitoring compliance with student visa conditions (ss 268AA–268CZH) s 268BH

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. [Subs (1) am Act 41 of 2015, s 3 and Sch 3 item 50, with effect from 1 Jul 2015]

(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. [Subs (2) am Act 41 of 2015, s 3 and Sch 3 items 50 and 51, with effect from 1 Jul 2015]

(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. [S 268BD am Act 41 of 2015; insrt Act 168 of 2000, s 3 and Sch 2 item 1, with effect from 1 Mar 2001]

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. [S 268BE insrt Act 168 of 2000, s 3 and Sch 2 item 1, with effect from 1 Mar 2001]

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. [S 268BF insrt Act 168 of 2000, s 3 and Sch 2 item 1, with effect from 1 Mar 2001]

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). [S 268BG insrt Act 168 of 2000, s 3 and Sch 2 item 1, with effect from 1 Mar 2001]

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. Maximum penalty: Imprisonment for 6 months. [Subs (1) am Act 4 of 2016, s 3 and Sch 4 item 207, with effect from 10 Mar 2016; Act 97 of 2001, s 3 and Sch 1 item 66, with effect from 19 Sep 2001]

© 2016 THOMSON REUTERS

541

s 268BH

Migration Act 1958

(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. [Subs (2) am Act 4 of 2016, s 3 and Sch 4 item 404, with effect from 10 Mar 2016]

(3) An offence against subsection (1) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. [Subs (3) insrt Act 97 of 2001, s 3 and Sch 1 item 67, with effect from 19 Sep 2001] [S 268BH am Act 4 of 2016; Act 97 of 2001; insrt Act 168 of 2000, s 3 and Sch 2 item 1, with effect from 1 Mar 2001]

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. Maximum penalty: Imprisonment for 12 months. [S 268BI am Act 4 of 2016, s 3 and Sch 4 item 208, with effect from 10 Mar 2016; Act 97 of 2001, s 3 and Sch 1 item 68, with effect from 19 Sep 2001; insrt Act 168 of 2000, s 3 and Sch 2 item 1, with effect from 1 Mar 2001]

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. Maximum penalty: Imprisonment for 12 months. [Subs (1) am Act 4 of 2016, s 3 and Sch 4 item 209, with effect from 10 Mar 2016; Act 85 of 2008, s 3 and Sch 3 item 14, with effect from 15 Sep 2008; Act 97 of 2001, s 3 and Sch 1 item 69, with effect from 19 Sep 2001]

(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. [Subs (2) am Act 4 of 2016, s 3 and Sch 4 item 404, with effect from 10 Mar 2016] Note: A defendant bears an evidential burden in relation to the matter in subsection (2): see subsection 13.3(3) of the Criminal Code. [S 268BJ am Act 4 of 2016; Act 85 of 2008; Act 97 of 2001; insrt Act 168 of 2000, s 3 and Sch 2 item 1, with effect from 1 Mar 2001]

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. [S 268BK insrt Act 168 of 2000, s 3 and Sch 2 item 1, with effect from 1 Mar 2001]

542

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 14A – Monitoring compliance with student visa conditions (ss 268AA–268CZH) s 268BO

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). [S 268BL insrt Act 168 of 2000, s 3 and Sch 2 item 1, with effect from 1 Mar 2001]

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. [S 268BM insrt Act 168 of 2000, s 3 and Sch 2 item 1, with effect from 1 Mar 2001]

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. [Subs (1) am Act 41 of 2015, s 3 and Sch 3 item 52, with effect from 1 Jul 2015]

(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. [Subs (3) am Act 41 of 2015, s 3 and Sch 3 item 52, with effect from 1 Jul 2015] [S 268BN am Act 41 of 2015; insrt Act 168 of 2000, s 3 and Sch 2 item 1, with effect from 1 Mar 2001]

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. [S 268BO insrt Act 168 of 2000, s 3 and Sch 2 item 1, with effect from 1 Mar 2001]

© 2016 THOMSON REUTERS

543

s 268BO

Migration Act 1958

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. [Subs (2) am Act 58 of 2001, s 3 and Sch 4 item 2, with effect from 1 Mar 2001]

(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. [S 268BP am Act 58 of 2001; insrt Act 168 of 2000, s 3 and Sch 2 item 1, with effect from 1 Mar 2001]

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. [S 268BQ insrt Act 168 of 2000, s 3 and Sch 2 item 1, with effect from 1 Mar 2001]

SUBDIVISION C – SEARCHING EDUCATION PROVIDERS’ PREMISES (SS 268CA–268CZH) 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.

544

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 14A – Monitoring compliance with student visa conditions (ss 268AA–268CZH) s 268CG

(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. [S 268CA insrt Act 168 of 2000, s 3 and Sch 2 item 1, with effect from 1 Mar 2001]

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. [S 268CB insrt Act 168 of 2000, s 3 and Sch 2 item 1, with effect from 1 Mar 2001]

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. [S 268CC insrt Act 168 of 2000, s 3 and Sch 2 item 1, with effect from 1 Mar 2001]

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. [S 268CD insrt Act 168 of 2000, s 3 and Sch 2 item 1, with effect from 1 Mar 2001]

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. [S 268CE insrt Act 168 of 2000, s 3 and Sch 2 item 1, with effect from 1 Mar 2001]

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. [S 268CF insrt Act 168 of 2000, s 3 and Sch 2 item 1, with effect from 1 Mar 2001]

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

© 2016 THOMSON REUTERS

545

s 268CG

Migration Act 1958

(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. [S 268CG insrt Act 168 of 2000, s 3 and Sch 2 item 1, with effect from 1 Mar 2001]

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. [S 268CH insrt Act 168 of 2000, s 3 and Sch 2 item 1, with effect from 1 Mar 2001]

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

546

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 14A – Monitoring compliance with student visa conditions (ss 268AA–268CZH) s 268CL

(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. [S 268CI insrt Act 168 of 2000, s 3 and Sch 2 item 1, with effect from 1 Mar 2001]

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. [S 268CJ am Act 4 of 2016, s 3 and Sch 4 item 405, with effect from 10 Mar 2016; insrt Act 168 of 2000, s 3 and Sch 2 item 1, with effect from 1 Mar 2001]

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. [S 268CK am Act 4 of 2016, s 3 and Sch 4 item 406, with effect from 10 Mar 2016; insrt Act 168 of 2000, s 3 and Sch 2 item 1, with effect from 1 Mar 2001]

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). Maximum penalty: Imprisonment for 6 months. [Subs (1) am Act 4 of 2016, s 3 and Sch 4 item 209, with effect from 10 Mar 2016; Act 97 of 2001, s 3 and Sch 1 item 69, with effect from 19 Sep 2001]

(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.

© 2016 THOMSON REUTERS

547

s 268CL

Migration Act 1958

Note: A defendant bears an evidential burden in relation to the matter in subsection (2): see subsection 13.3(3) of the Criminal Code. [Subs (2) am Act 4 of 2016, s 3 and Sch 4 item 407, with effect from 10 Mar 2016]

(3) An offence against subsection (1) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. [Subs (3) insrt Act 97 of 2001, s 3 and Sch 1 item 70, with effect from 19 Sep 2001] [S 268CL am Act 4 of 2016; Act 97 of 2001; insrt Act 168 of 2000, s 3 and Sch 2 item 1, with effect from 1 Mar 2001]

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. Maximum penalty: Imprisonment for 12 months. [S 268CM am Act 4 of 2016, s 3 and Sch 4 item 210, with effect from 10 Mar 2016; Act 85 of 2008, s 3 and Sch 3 item 15, with effect from 15 Sep 2008; Act 97 of 2001, s 3 and Sch 1 item 71, with effect from 19 Sep 2001; insrt Act 168 of 2000, s 3 and Sch 2 item 1, with effect from 1 Mar 2001]

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. Maximum penalty: Imprisonment for 12 months. [Subs (1) am Act 4 of 2016, s 3 and Sch 4 item 211, with effect from 10 Mar 2016; Act 85 of 2008, s 3 and Sch 3 items 16 and 17, with effect from 15 Sep 2008; Act 97 of 2001, s 3 and Sch 1 item 72, with effect from 19 Sep 2001]

(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. [Subs (2) am Act 4 of 2016, s 3 and Sch 4 item 407, with effect from 10 Mar 2016] Note: A defendant bears an evidential burden in relation to the matter in subsection (2): see subsection 13.3(3) of the Criminal Code. [S 268CN am Act 4 of 2016; Act 85 of 2008; Act 97 of 2001; insrt Act 168 of 2000, s 3 and Sch 2 item 1, with effect from 1 Mar 2001]

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. [S 268CO insrt Act 168 of 2000, s 3 and Sch 2 item 1, with effect from 1 Mar 2001]

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:

548

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 14A – Monitoring compliance with student visa conditions (ss 268AA–268CZH) s 268CS

(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. [S 268CP insrt Act 168 of 2000, s 3 and Sch 2 item 1, with effect from 1 Mar 2001]

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. [S 268CQ insrt Act 168 of 2000, s 3 and Sch 2 item 1, with effect from 1 Mar 2001]

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. [S 268CR insrt Act 168 of 2000, s 3 and Sch 2 item 1, with effect from 1 Mar 2001]

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:

© 2016 THOMSON REUTERS

549

s 268CS

Migration Act 1958

(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. [S 268CS insrt Act 168 of 2000, s 3 and Sch 2 item 1, with effect from 1 Mar 2001]

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. [S 268CT insrt Act 168 of 2000, s 3 and Sch 2 item 1, with effect from 1 Mar 2001]

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. [S 268CU insrt Act 168 of 2000, s 3 and Sch 2 item 1, with effect from 1 Mar 2001]

550

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 14A – Monitoring compliance with student visa conditions (ss 268AA–268CZH) s 268CY

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). Maximum penalty: 10 penalty units. [Subs (2) am Act 4 of 2016, s 3 and Sch 4 item 211, with effect from 10 Mar 2016; Act 97 of 2001, s 3 and Sch 1 item 73, with effect from 19 Sep 2001] [S 268CV am Act 4 of 2016; Act 97 of 2001; insrt Act 168 of 2000, s 3 and Sch 2 item 1, with effect from 1 Mar 2001]

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. [S 268CW insrt Act 168 of 2000, s 3 and Sch 2 item 1, with effect from 1 Mar 2001]

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. [S 268CX insrt Act 168 of 2000, s 3 and Sch 2 item 1, with effect from 1 Mar 2001]

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. [S 268CY insrt Act 168 of 2000, s 3 and Sch 2 item 1, with effect from 1 Mar 2001]

© 2016 THOMSON REUTERS

551

s 268CY

Migration Act 1958

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. [S 268CZ insrt Act 168 of 2000, s 3 and Sch 2 item 1, with effect from 1 Mar 2001]

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. [Subs (1) am Act 41 of 2015, s 3 and Sch 3 item 53, with effect from 1 Jul 2015]

(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. Maximum penalty: 1 penalty unit. [Subs (2) am Act 4 of 2016, s 3 and Sch 4 item 211, with effect from 10 Mar 2016; Act 41 of 2015, s 3 and Sch 3 item 54, with effect from 1 Jul 2015; Act 97 of 2001, s 3 and Sch 1 item 74, with effect from 19 Sep 2001]

(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. [Subs (4) am Act 4 of 2016, s 3 and Sch 4 item 407, with effect from 10 Mar 2016]

(5) An authorised officer must carry an identity card at all times when exercising powers under this Subdivision. [S 268CZA am Act 4 of 2016; Act 41 of 2015; Act 97 of 2001; insrt Act 168 of 2000, s 3 and Sch 2 item 1, with effect from 1 Mar 2001]

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. [S 268CZB insrt Act 168 of 2000, s 3 and Sch 2 item 1, with effect from 1 Mar 2001]

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.

552

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 14A – Monitoring compliance with student visa conditions (ss 268AA–268CZH) s 268CZF

(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. [S 268CZC insrt Act 168 of 2000, s 3 and Sch 2 item 1, with effect from 1 Mar 2001]

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. [S 268CZD insrt Act 168 of 2000, s 3 and Sch 2 item 1, with effect from 1 Mar 2001]

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. [S 268CZE insrt Act 168 of 2000, s 3 and Sch 2 item 1, with effect from 1 Mar 2001]

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.

© 2016 THOMSON REUTERS

553

s 268CZF

Migration Act 1958

(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. [S 268CZF insrt Act 168 of 2000, s 3 and Sch 2 item 1, with effect from 1 Mar 2001]

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. [S 268CZG insrt Act 168 of 2000, s 3 and Sch 2 item 1, with effect from 1 Mar 2001]

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. [S 268CZH insrt Act 168 of 2000, s 3 and Sch 2 item 1, with effect from 1 Mar 2001]

DIVISION 15 – GENERAL (SS 269–274) 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. [Subs (1) am Act 85 of 2008, s 3 and Sch 3 item 18]

(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. [Subs (1A) insrt Act 85 of 2008, s 3 and Sch 3 item 19]

(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

554

Migration Law

[269.40]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 15 – General (ss 269–274)

s 269

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. [S 269 am Act 85 of 2008]

SECTION 269 COMMENTARY SCOPE

Introduction ......................................................................................................................................... [269.20] Visas with conditions about security .................................................................................................. [269.40] Purpose of security to secure compliance with condition ................................................................. [269.60] Forfeiture of security ........................................................................................................................... [269.80] KEY CASES

Decision-maker to ask whether the requirement of a security would have any effect on compliance with condition ................................................................................................................................... [269.100] Natural justice where security forfeited ........................................................................................... [269.120] PRACTICE POINT

Reviewable decision .......................................................................................................................... [269.140]

SCOPE [269.20] Introduction This section allows an authorised officer to require and take a security from a non-citizen for compliance with the Act, Regulations or with a condition imposed in pursuance of, or for the purposes of, the Act or Regulations. The power to fix the amount of a security is to be exercised for a proper purpose and, in doing so, the authorised officer must exercise that power with the facts of a particular case in mind: Tennakoon v Minister for Immigration and Multicultural Affairs [2001] FCA 615 at [16] per Gray J. [269.40] Visas with conditions about security The following visas contain criteria in relation to the taking of a security under s 269: • a subclass 050 – Bridging (General) visa. The criterion is Sch 2 cl 050.224; and • a subclass 600 – Visitor visa. The criterion in relation to the tourist stream is Sch 2 cl 600.225 and the criterion in relation to the sponsored family stream is Sch 2 cl 600.235. In relation to a subclass 050 – Bridging (General) visa, prior to 1 November 2000, the criteria to be satisfied at the time of application included the following: • 050.213 – “The Minister is satisfied that, if a bridging visa is granted to the applicant, the applicant will abide by the conditions (if any) imposed on it”; and • 050.214 – “A security has been lodged by the applicant, if asked for by an officer authorised under section 269 of the Act (which deals with security for compliance with the Act)”. In relation to the above criteria, if an applicant had not been asked to lodge a security pursuant to s 269 prior to the making of the application, then the applicant had satisfied the criterion in © 2016 THOMSON REUTERS

555

s 269

Migration Act 1958

[269.60]

050.214 at the date of the application, and continued to satisfy it: see Tutugri v Minister for Immigration and Multicultural Affairs (1990) 95 FCR 592; [1999] FCA 1785 at [41]–[44] per Lee J; Takli v Minister for Immigration and Multicultural Affairs [2000] FCA 1186 at [18]–[26] per Katz J. By Sch 4 Pt 3 of the Migration Amendment Regulations 2000 (No 5) (Cth), the above criteria were deleted and the following new time-of-decision criteria were inserted and came into operation as of 1 November 2000: • 050.223 – “The Minister is satisfied that, if a bridging visa is granted to the applicant, the applicant will abide by the conditions (if any) imposed on it”; and • 050.224 – “If an authorised officer has required a security for compliance with any conditions that the officer has indicated to the applicant will be imposed on the visa if it is granted, the security has been lodged.” [269.60] Purpose of security to secure compliance with condition Where the purpose of requiring and taking a security is to secure compliance with conditions imposed by the Act or Regulations, the amount fixed as security should be “reasonable in all the circumstances”: Mitrevski v Minister for Immigration and Multicultural Affairs [2001] FCA 221 (Mitrevski) at [8] per Merkel J; Tennakoon v Minister for Immigration and Multicultural Affairs [2001] FCA 615 (Tennakoon) at [16] per Gray J. Where an individual is in immigration and detention, and applies for a visa, the fixing of an oppressive amount will result in continued involuntary detention and therefore the “power to fix a security amount is a decision that affects the liberty of an individual”: Mitrevski at [8] per Merkel J. Where the purpose of the exercise of the power is to secure compliance with a condition to be attached to a visa, then the authorised officer must know what those conditions are, or will be, before exercising the power: Tennakoon at [16] per Gray J. Once the condition is known, the authorised officer will be able to determine whether security for compliance with the condition should be required. The authorised officer must then determine whether the applicant will abide by that condition and, if not, then a security is required. If the decision is that the applicant will abide by the condition, then it will not be necessary to consider the question of security. For example, in relation to a subclass 050 – Bridging (General) visa, criterion 050.223 will be met and therefore the decision-maker does not need to consider criterion 050.224. However, if the authorised officer does not consider that an applicant will abide by the condition, the officer must consider whether it will be necessary to provide for an incentive by way of security for compliance with the condition and then determine the amount of that security. If the authorised officer is of the view that the applicant will not abide by the condition in any event, then the visa will be refused: Tennakoon at [18] per Gray J. In determining the amount of the security, the authorised officer will need to consider (along with any other circumstances relevant to a particular applicant) the nature of the condition imposed, the applicant’s past dealings with the Department and the financial status of the applicant. Where an authorised officer has fixed an arbitrary amount without regard to the applicant’s circumstances, then the officer will not be exercising the power under s 269(1): Tennakoon at [19] per Gray J. However, an authorised officer will not necessarily err if he or she fixes an amount of security which the affected person is not capable of providing: Applicant VAAN of 2001 v Minister for Immigration and Multicultural Affairs (2002) 70 ALD 289; [2002] FCA 197 at [27] per Finkelstein J; Mitrevski at [9] per Merkel J; VWEX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 460 (VWEX) at [43] per Weinberg J. An amount may be fixed which is clearly beyond an applicant’s means to pay in circumstances where the decision-maker is concerned about the risk of an applicant absconding, as long as the exercise of the power under s 269 was not excessive in the circumstances, or 556

Migration Law

[269.100]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 15 – General (ss 269–274)

s 269

involved any misuse of that power or any other jurisdictional error: Mitrevski at [9] per Merkel J; VWEX at [47] and [53] per Weinberg J. Where an amount has been determined, the authorised officer must give the applicant a reasonable amount of time to lodge the security: Tennakoon at [21] and [22] per Gray J. [269.80] Forfeiture of security The Minister may exercise the power to forfeit a security under s 269 if the non-citizen who provided the security breaches a condition for which the security was given: Khan v Minister for Immigration and Multicultural Affairs [1999] FCA 1790. Section 269 does not specify what considerations are to be taken into account where the security provided under the section is called upon as a result of a breach of the conditions for which the security was given. However, what does need to be considered is whether there has been a breach of the relevant condition: Khan v Minister for Immigration and Multicultural Affairs [1999] FCA 1790 at [13] per Hill J.

KEY CASES [269.100]

Decision-maker to ask whether the requirement of a security would have any effect on compliance with condition In Tennakoon v Minister for Immigration and Multicultural Affairs [2001] FCA 615 the applicants, Mr Suranga Tennakoon and Mr Kosala Tennakoon, who were in immigration detention, applied for subclass 050 – Bridging (General) visas. In relation to Mr Suranga Tennakoon, for the purposes of s 269, an authorised officer considered it necessary to require payment of a security deposit in the amount of $50,000. In relation to Mr Kosala Tennakoon, for the purposes of s 269, an authorised officer considered it necessary to require payment of a security deposit in the amount of $15,000. In both cases the applicants did not pay the requisite amounts and a delegate of the Minister refused to grant the visas. Both applicants applied to the former Migration Review Tribunal not only in relation to the decisions to refuse to grant the visas, but also in relation to the decisions to fix the security deposit amounts. In those circumstances, the former Migration Review Tribunal was reviewing four decisions. The former Migration Review Tribunal affirmed the delegate’s decisions not to grant the visas and the authorised officer’s decision in relation to Mr Kosala Tennakoon about the amount of the security deposit. However, in relation to Mr Suranga Tennakoon, the former Migration Review Tribunal remitted that decision for reconsideration, with a direction that a security of $20,000 be required. In affirming the decision not to grant the visa, the former Migration Review Tribunal was not satisfied that the applicants would abide by the specified conditions and concluded that the applicants could not satisfy subcl 050.223 for the grant of a subclass 050 – Bridging (General) visa. Due to this conclusion, the former Migration Review Tribunal did not consider it necessary to consider the other criteria of the visa, such as whether any security had been lodged. Gray J held at [27] that the former Migration Review Tribunal’s reasoning process was flawed because it: failed to ask itself the question whether the requirement of a security, if imposed, would have any effect on the likelihood that the applicant concerned would abide by the conditions. The MRT considered the question of compliance without any consideration of the question of security. This was so despite the fact that, in each case, a decision had been made to require a security and an amount had been fixed for each security, and that each such decision was also subject to review at the same time by the MRT … In those circumstances, the MRT was obliged to consider whether requiring a security might assist in producing compliance with the proposed conditions. If it thought compliance might be made more likely by the requirement of a security, the MRT was then required to move to its review of the decision with respect to requiring a security and the amount of the security. Once that review was completed, the MRT was obliged to return to its review of the decision to refuse a visa and to consider, in light of its © 2016 THOMSON REUTERS

557

s 270

Migration Act 1958

[269.120]

decision in relation to a security and the amount of the security, whether the criterion in subclause 050.223 was satisfied. If it had considered the question of a security, and its amount, at the earlier stage, the MRT might have reached the conclusion that it would be possible to impose a requirement of a security in an appropriate amount that would, in its view, bring about compliance. By treating the visa application and requirement of a security as entirely separate issues, the MRT denied itself the chance to consider the case in this way.

[269.120] Natural justice where security forfeited In circumstances where a non-citizen has breached a condition for which a security has been provided, there is no obligation on the Minister to afford natural justice, in the sense of giving the non-citizen the opportunity to be heard before calling on the security: Khan v Minister for Immigration and Multicultural Affairs [1999] FCA 1790 at [24] per Hill J.

PRACTICE POINT [269.140] Reviewable decision A decision by an authorised officer to require a security is a decision reviewable by the Tribunal under Pt 5: see s 338(9) and reg 4.02(4)(f); Tennakoon v Minister for Immigration and Multicultural Affairs [2001] FCA 615 (Tennakoon) at [7] per Gray J. The Tribunal under Pt 5 can review a decision not to grant a visa and the decision to require a security at the same time: Tennakoon at [7] per Gray J. 270 Reports of absences of crews of vessels (1) Where, at or after the departure from a port in Australia of a vessel that has entered Australia from overseas, the master, owner, charterer or agent of the vessel reports in writing to an officer that a specified person was a member of the crew of the vessel on board the vessel at the time of its arrival at that port and is or was absent from the vessel at the time of its departure from that port, and states in the report whether that member left the vessel at that port with leave or without leave, that report is, for the purposes of proceedings under or in relation to this Act, evidence of the matters contained in the report and: (a) if the report states that the member left the vessel with leave – that the member entered Australia, with leave, from the vessel during the vessel’s stay at that port and remained in Australia after the vessel left that port; or (b) if the report states that the member left the vessel without leave – that the member entered Australia, without leave, from the vessel during the vessel’s stay at that port. (2) Where, during the stay at a port in Australia of a vessel that has entered Australia from overseas, the master of the vessel reports in writing to an officer that a specified person was included in the complement of the vessel, or a member of the crew of the vessel, on board the vessel at the time of its arrival at that port and: (a) at any time during the vessel’s stay at that port, left the vessel without leave; or (b) at any time during the vessel’s stay at that port, left the vessel with leave, but has become absent without leave; the report is, for the purposes of proceedings under or in relation to this Act, evidence of the matters contained in the report. [S 270 insrt Act 10 of 1966, s 8, with effect from 6 May 1966]

271 Proof of certain matters (1) In migration proceedings:

558

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 15 – General (ss 269–274)

(a)

(b)

(c)

(d)

(e) (f)

(g)

(h)

(i)

s 271

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 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 the production out of official custody of a document purporting to be a report made by the master, owner, charterer or agent of a vessel to an officer as to a matter relevant to the operation of this Act is evidence that the document is such a report; and 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 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 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 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 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 for the purpose of proving that a person has, in a place outside Australia, been convicted of a particular crime (including an attempt to commit a crime) and has been sentenced to a particular sentence in respect of the conviction, fingerprint records, photographs and documents or copies thereof, and certificates in relation to any fingerprint records, photographs or documents or copies thereof, are admissible in the evidence if they: (i) are produced out of the custody of a police or prison officer of the Commonwealth or of a State or Territory; and (ii) purport to be certified or given under the hand of a police or prison officer, or like authority, of a place outside Australia; and any such certificate is evidence of the matters stated in the certificate; and

© 2016 THOMSON REUTERS

559

s 271

Migration Act 1958

(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). [Subs (1) am Act 10 of 2013, s 3 and Sch 1 items 21 and 22, with effect from 14 Mar 2013; Act 58 of 2001, s 3 and Sch 2 item 7, with effect from 10 Aug 2001; Act 160 of 1999, s 3 and Sch 1 item 58, with effect from 16 Dec 1999; Act 60 of 1994, s 3 and Sch 1 item 95, with effect from 1 Sep 1994; Act 220 of 1992, s 8, with effect from 24 Dec 1992; Act 59 of 1989, s 24(a)–(c), with effect from 19 Dec 1989; Act 151 of 1988, s 12, with effect from 1 Jul 1989; Act 133 of 1987, s 8, with effect from 16 Dec 1987]

(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. [Subs (2) insrt Act 175 of 1980, s 9, with effect from 23 Jan 1981]

(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. [Subs (3) insrt Act 168 of 1986, s 3 and Sch 1, with effect from 11 May 1987]

(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

560

Migration Law

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 15 – General (ss 269–274)

[271.20]

(c)

s 273

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). [Def am Act 60 of 2015, s 3 and Sch 2 item 151, with effect from 1 Jul 2015; subst Act 60 of 2015, s 3 and Sch 2 item 18, with effect from 1 Jul 2015; am Act 10 of 2013, s 3 and Sch 1 item 23, with effect from 14 Mar 2013; Act 160 of 1999, s 3 and Sch 1 items 59 and 60, with effect from 16 Dec 1999; Act 113 of 1998, s 3 and Sch 2 item 4, with effect from 1 Jun 1999; Act 184 of 1992, s 21, with effect from 1 Jul 1993] [Subs (4) am Act 160 of 1999, s 3 and Sch 1 item 61, with effect from 16 Dec 1999; insrt Act 59 of 1989, s 24(d) (am Act 159 of 1989), with effect from 19 Dec 1989]

(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. [Subs (5) insrt Act 58 of 2001, s 3 and Sch 2 item 8, with effect from 10 Aug 2001] [S 271 am Act 60 of 2015; Act 10 of 2013; Act 58 of 2001; Act 160 of 1999; Act 113 of 1998; Act 60 of 1994; Act 220 of 1992; Act 184 of 1992; Act 59 of 1989; Act 151 of 1988; Act 133 of 1987; Act 168 of 1986; Act 175 of 1980; Act 10 of 1966; Act 87 of 1964]

SECTION 271 COMMENTARY [271.20] Scope Section 271(1)(j) and Amendment Act 1991 before 16 December Protection Legislation

(k) were introduced into the Act in the Border Protection Legislation (Cth) and do not apply in relation to travel to Australia that occurred 1999, the date of commencement of those provisions: see Border Amendment Act 1991 (Cth), Sch 1 Pt 4 item 63.

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. [Subs (1) am Act 112 of 1983, s 35(a) and (b), with effect from 2 Apr 1984]

(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. [Subs (2) am Act 112 of 1983, s 35(c), with effect from 2 Apr 1984]

(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. [Subs (3) am Act 112 of 1983, s 35(a) and (b), with effect from 2 Apr 1984]

(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. [S 272 am Act 112 of 1983]

273 Detention centres (1) The Minister may, on behalf of the Commonwealth, cause detention centres to be established and maintained.

© 2016 THOMSON REUTERS

561

s 273

Migration Act 1958

[273.20]

(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. [Def am Act 184 of 1992, s 38 and Sch, with effect from 1 Sep 1994] [S 273 am Act 184 of 1992; insrt Act 59 of 1989, s 25, with effect from 19 Dec 1989]

SECTION 273 COMMENTARY Scope ................................................................................................................................................... [273.20] KEY CASES

Duty of care due to location of detention centre ............................................................................... [273.40]

[273.20] Scope This provision allows for the establishment of immigration detention centres. It does not apply to other places of detention, such as Immigration Transit Accommodation, which are established under the definition of “immigration detention” in s 5(1)(b)(v) of the Act, which allows a person to be held by an officer in another place approved by the Minister in writing. Under s 273, the Minister, on behalf of the Commonwealth (and usually through a service provider), is also responsible for the maintenance of detention centres. For the purposes of s 273(2), there are no specific regulations that refer to this section and specifically to the operation and regulation of detention centres: Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs (2004) 219 CLR 486; 208 ALR 271; [2004] HCA 36 at [161] per Hayne J. However, the following regulations relate to detention centres: • reg 5.35: deals with the medical treatment of persons held at a detention centre; and • reg 5.32A: deals with the work performed by persons held in a detention centre. The following detention centres currently exist: • Northern Immigration Detention Centre; • Christmas Island Immigration Detention Centre; • Curtin Immigration Detention Centre; • Scherger Immigration Detention Centre; • Perth Immigration Detention Centre; • Yongah Hill Immigration Detention Centre; • Maribyrnong Immigration Detention Centre; and • Villawood Immigration Detention Centre. 562

Migration Law

[274.20]

Part 2 – Arrival, presence and departure of persons (ss 13–274) Division 15 – General (ss 269–274)

s 274

KEY CASES [273.40] Duty of care due to location of detention centre The decision by the Commonwealth to establish a detention centre under s 273 may be a factor when determining whether the Commonwealth has breached its duty of care to a detainee. The particular relationship between detainees and the Commonwealth means that the Commonwealth owes detainees a non-delegable duty of care: Kondis v State Transport Authority (1984) 154 CLR 672; 55 ALR 225; [1984] HCA 61 at 687 (CLR) per Mason J. Therefore, if the Commonwealth decides to establish a detention centre in an isolated part of Australia, which may impact the standard of health care available to detainees, this may potentially be a breach of the Commonwealth’s duty of care. In S v Secretary, Department of Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 217; 216 ALR 252; [2005] FCA 549, Finn J did not decide this issue, but stated at [213] that “having made its choice of location, the Commonwealth, not the detainees, should bear the consequences of it insofar as that choice has affected or compromised the medical services that could be made available to meet the known needs of detainees”. 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. [Subs (1) am Act 60 of 1994, s 65, with effect from 1 Sep 1994; Act 184 of 1992, s 38 and Sch, with effect from 1 Sep 1994]

(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. [Subs (2) am Act 41 of 2015, s 3 and Sch 3 item 56, with effect from 1 Jul 2015]

(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. [Subs (3) am Act 41 of 2015, s 3 and Sch 3 items 57 and 58, with effect from 1 Jul 2015] [S 274 am Act 41 of 2015, s 3 and Sch 3 item 55, with effect from 1 Jul 2015; Act 60 of 1994; Act 184 of 1992; insrt Act 59 of 1989, s 25, with effect from 19 Dec 1989]

SECTION 274 COMMENTARY [274.20] Scope For the purposes of s 274(3), the prescribed form is contained in Sch 10 of the Regulations.

© 2016 THOMSON REUTERS

563

PART 3 – MIGRATION AGENTS AND IMMIGRATION ASSISTANCE (SS 275–332H) [Pt 3 insrt Act 85 of 1992, s 4, with effect from 21 Sep 1992]

PART 3 COMMENTARY Scope ................................................................................................................................................... [Pt 3.20] Practice points ..................................................................................................................................... [Pt 3.40]

[Pt 3.20] Scope Part 3 of the Act regulates migration agents and the provision of immigration assistance. Prior to 1992, the migration agents industry was largely unregulated: Explanatory Memorandum to the Migration Legislation Amendment (Migration Agents Integrity Measures) Bill 2003 (Cth) at [7.5.1]. The Migration Amendment Act (No 3) 1992 (Cth) inserted Pt 2A, Migration Agents and Immigration Assistance, into the Act (which is substantially the same as Pt 3). Around this time, the Migration Agents Registration Scheme (MARS) was introduced, mainly in response to “increasing consumer complaints concerning incompetent and unscrupulous agents”: Explanatory Memorandum to the Migration Legislation Amendment (Migration Agents Integrity Measures) Bill 2003 (Cth) at [7.5.1]. The need for MARS was reinforced by Mason CJ in Cunliffe v Commonwealth (Migration Agents Case) (1994) 182 CLR 272; 124 ALR 120; [1994] HCA 44 at [22]: The acknowledged purpose sought to be achieved by Pt 2A is to bring about an improvement in “standards of professional conduct and quality of service” on the part of migration agents, that being the statutory object according to the Minister’s second reading speech ((28) Commonwealth, House of Representatives, Parliamentary Debates (Hansard), 27 May 1992 at 2937.). Part 2A seeks to achieve that object by protecting aliens from incompetent and unscrupulous advisers through the introduction of a regulatory regime which is designed to ensure that those who advise and represent aliens are competent and are persons of integrity.

On 21 March 1998, Pt 3 of the Act, Migration Agents and Immigration Assistance, commenced through the Migration Legislation Amendments (Migration Agents) Act 1997 (Cth), which allowed for statutory self-regulation of the migration agents industry, originally for a period of two years: Explanatory Memorandum to the Migration Legislation Amendment (Migration Agents Integrity Measures) Bill 2003 (Cth) at [7.4.2]. The Migration Institute of Australia (MIA) was appointed as the Migration Agents Registration Authority (MARA) to act as the industry regulator. A further review was undertaken in 1999 and it was found that the migration agents industry was “not yet ready to move to full self-regulation” and the statutory self-regulation period was extended for a further three years: Explanatory Memorandum to the Migration Legislation Amendment (Migration Agents Integrity Measures) Bill 2003 (Cth) at [7.4.3]. Another review was undertaken in 2001 and 2002 and, once again, it was found that the migration agents industry was “not yet ready to move towards voluntary self-regulation”: Explanatory Memorandum to the Migration Legislation Amendment (Migration Agents Integrity © 2016 THOMSON REUTERS

565

s 275

Migration Act 1958

[Pt 3.40]

Measures) Bill 2003 (Cth) at [7.5.4]. As a result of this review further amendments were made to Pt 3 through the Migration Legislation Amendment (Migration Agents Integrity Measures) Act 2004 (Cth). A further review was undertaken in 2007 and 2008 and, as a result, on 1 July 2009 the Office of MARA was established to administer the functions of MARA under s 316 of the Act: see http://www.mara.gov.au (accessed 9 November 2014). [Pt 3.40] Practice points The MIA is no longer appointed as the MARA; however, it is a professional body, which registered migration agents can join: see http://www.mia.org.au (accessed 9 November 2014). In addition to the Act, the migration agent industry is regulated by the following Acts and Regulations: • Migration Agents Regulations 1998 (Cth); • Code of Conduct, located in Sch 2 of the Migration Agents Regulations 1998 (Cth); • Migration Agents Registration Application Charge Act 1997 (Cth); • Migration Agents Registration Application Charge Regulations 1998 (Cth). DIVISION 1 – PRELIMINARY (SS 275–279) 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. [Def subst Act 168 of 2000, s 3 and Sch 1 item 10, with effect from 4 Jun 2001; insrt Act 60 of 1994, s 3 and Sch 1 item 98, with effect from 1 Sep 1994]

cancellation review application, in relation to a cancellation review applicant, means the application by the applicant. [Def insrt Act 60 of 1994, s 3 and Sch 1 item 98, with effect from 1 Sep 1994]

high visa refusal rate, in relation to a visa of a particular class, has the meaning given by section 306AC. [Def insrt Act 48 of 2004, s 3 and Sch 1 item 1, with effect from 1 Jul 2004]

Institute means the Migration Institute of Australia Limited (A.C.N. 003 409 390). [Def insrt Act 205 of 1997, s 3 and Sch 1 item 6, with effect from 21 Mar 1998]

lawyer [Repealed] [Def rep Act 159 of 2008, s 3 and Sch 1 item 32, with effect from 14 Sep 2009]

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. [Def insrt Act 205 of 1997, s 3 and Sch 1 item 7, with effect from 21 Mar 1998]

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

566

Migration Law

Part 3 – Migration Agents and Immigration Assistance (ss 275–332H) Division 1 – Preliminary (ss 275–279)

s 276

(c) a member of the public service of a State or Territory; or (d) a member of the staff of a Parliamentarian. [Def am Act 146 of 1999, s 3 and Sch 1 item 608, with effect from 5 Dec 1999]

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. [Def insrt Act 48 of 2004, s 3 and Sch 1 item 3, with effect from 1 Jul 2004]

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. [Def am Act 48 of 2004, s 3 and Sch 1 item 4, with effect from 1 Jul 2004; insrt Act 205 of 1997, s 3 and Sch 1 item 9, with effect from 21 Mar 1998]

registration status charge means charge imposed by section 10 of the Migration Agents Registration Application Charge Act 1997. [Def insrt Act 48 of 2004, s 3 and Sch 1 item 5, with effect from 1 Jul 2004]

review (a) (b) (c)

authority means: the the Tribunal in reviewing a Part 5-reviewable decision; or the the Tribunal in reviewing a Part 7-reviewable decision; or the Immigration Assessment Authority.

[Def am Act 60 of 2015, s 3 and Sch 2 items 19 and 20, with effect from 1 Jul 2015; Act 135 of 2014, s 3 and Sch 4 item 15, with effect from 18 Apr 2015; Act 113 of 1998, s 3 and Sch 1 items 5 and 6, with effect from 1 Jun 1999; insrt Act 184 of 1992, s 22, with effect from 1 Jul 1993 Editor’s Note: There appears to be a drafting error in this definition. The two references to “the the” should probably read “the”.] [S 275 am Act 60 of 2015; Act 135 of 2014; Act 159 of 2008; Act 48 of 2004; Act 168 of 2000; Act 146 of 1999; Act 113 of 1998; Act 205 of 1997; Act 60 of 1994; Act 184 of 1992; insrt Act 85 of 1992, s 4, with effect from 21 Sep 1992]

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. [Subs (1) am Act 205 of 1997, s 3 and Sch 1 items 11 and 12, with effect from 21 Mar 1998; Act 60 of 1994, s 3 and Sch 1, with effect from 1 Sep 1994]

© 2016 THOMSON REUTERS

567

s 276

Migration Act 1958

[276.20]

(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. [Subs (2) insrt Act 205 of 1997, s 3 and Sch 1 item 13, with effect from 21 Mar 1998]

(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). [Subs (2A) am Act 60 of 2015, s 3 and Sch 2 item 21, with effect from 1 Jul 2015; Act 79 of 2005, s 3 and Sch 1 items 12 and 13, with effect from 29 Jun 2005; insrt Act 48 of 2004, s 3 and Sch 1 item 6, with effect from 1 Jul 2004]

(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. [Subs (3) am Act 48 of 2004, s 3 and Sch 1 item 7, with effect from 1 Jul 2004; insrt Act 205 of 1997, s 3 and Sch 1 item 13, with effect from 21 Mar 1998]

(4) A person also does not give immigration assistance in the circumstances prescribed by the regulations. [Subs (4) insrt Act 35 of 2002, s 3 and Sch 1 item 1, with effect from 26 Jun 2002] [S 276 am Act 60 of 2015; Act 79 of 2005; Act 48 of 2004; Act 35 of 2002; Act 205 of 1997; Act 60 of 1994; insrt Act 85 of 1992, s 4, with effect from 21 Sep 1992]

SECTION 276 COMMENTARY [276.20] Scope Section 276 defines the expression “immigration assistance”. The definition of “immigration assistance” also includes “acting or assisting in a visa application”, “acting or assisting in a cancellation review application” and “acting or assisting in nominating or sponsoring a visa 568

Migration Law

[276.20]

Part 3 – Migration Agents and Immigration Assistance (ss 275–332H) Division 1 – Preliminary (ss 275–279)

s 277

applicant”: Hartnett v Migration Agents Registration Authority (2004) 140 FCR 388; [2004] FCAFC 269 at [3] per Madgwick, Finkelstein and Dowsett JJ. 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. [Subs (1) am Act 205 of 1997, s 3 and Sch 1 items 14–20, with effect from 21 Mar 1998; Act 60 of 1994, s 3 and Sch 1, with effect from 1 Sep 1994]

(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)). [Subs (2) insrt Act 205 of 1997, s 3 and Sch 1 item 21, with effect from 21 Mar 1998]

(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). [Subs (3) insrt Act 205 of 1997, s 3 and Sch 1 item 21, with effect from 21 Mar 1998]

© 2016 THOMSON REUTERS

569

s 277

Migration Act 1958

(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). [Subs (4) am Act 60 of 2015, s 3 and Sch 2 item 22, with effect from 1 Jul 2015; insrt Act 48 of 2004, s 3 and Sch 1 item 8, with effect from 1 Jul 2004]

(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). [Subs (5) insrt Act 79 of 2005, s 3 and Sch 1 item 14, with effect from 29 Jun 2005] [S 277 am Act 60 of 2015; Act 79 of 2005; Act 48 of 2004; Act 205 of 1997; Act 60 of 1994; insrt Act 85 of 1992, s 4, with effect from 21 Sep 1992]

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. [Subs (1) am Act 48 of 2004, s 3 and Sch 1 item 9, with effect from 1 Jul 2004]

Regulations (2) For the purposes of this Part, an individual is also related by employment to another individual in any other prescribed circumstance. [Subs (2) insrt Act 48 of 2004, s 3 and Sch 1 item 10, with effect from 1 Jul 2004]

Expanded meaning of employee (3) In this section: employee includes a person engaged as a consultant or as an independent contractor. [Subs (3) insrt Act 48 of 2004, s 3 and Sch 1 item 10, with effect from 1 Jul 2004] [S 278 am Act 48 of 2004; insrt Act 85 of 1992, s 4, with effect from 21 Sep 1992]

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. [Subs (2) insrt Act 205 of 1997, s 3 and Sch 1 item 22, with effect from 21 Mar 1998] [S 279 am Act 205 of 1997; insrt Act 85 of 1992, s 4, with effect from 21 Sep 1992]

279A

Application of the Criminal Code [Repealed]

[S 279A rep Act 97 of 2001, s 3 and Sch 1 item 75, with effect from 19 Sep 2001; insrt Act 205 of 1997, s 3 and Sch 1 item 23, with effect from 21 Mar 1998]

570

Migration Law

Part 3 – Migration Agents and Immigration Assistance (ss 275–332H) Division 2 – Restrictions on giving of immigration assistance and making of immigration representations (ss 280–285) s 280

DIVISION 2 – RESTRICTIONS ON GIVING OF IMMIGRATION ASSISTANCE AND MAKING OF IMMIGRATION REPRESENTATIONS (SS 280–285) 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). [Subs (1) am Act 48 of 2004, s 3 and Sch 1 items 11–13, with effect from 1 Jul 2004; Act 97 of 2001, s 3 and Sch 1 item 76, with effect from 19 Sep 2001; Act 205 of 1997, s 3 and Sch 1 items 24 and 25, with effect from 21 Mar 1998]

(1A) An offence against subsection (1) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. [Subs (1A) insrt Act 97 of 2001, s 3 and Sch 1 item 77, with effect from 19 Sep 2001]

(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). [Subs (2) am Act 48 of 2004, s 3 and Sch 1 item 14, with effect from 1 Jul 2004]

(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). [Subs (3) am Act 48 of 2004, s 3 and Sch 1 item 15, with effect from 1 Jul 2004]

(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). [Subs (4) am Act 48 of 2004, s 3 and Sch 1 item 16, with effect from 1 Jul 2004]

(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). [Subs (5) subst Act 48 of 2004, s 3 and Sch 1 item 17, with effect from 1 Jul 2004]

(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). [Subs (5A) insrt Act 48 of 2004, s 3 and Sch 1 item 17, with effect from 1 Jul 2004]

(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). [Subs (5B) insrt Act 48 of 2004, s 3 and Sch 1 item 17, with effect from 1 Jul 2004]

(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). [Subs (5C) insrt Act 48 of 2004, s 3 and Sch 1 item 17, with effect from 1 Jul 2004]

© 2016 THOMSON REUTERS

571

s 280

Migration Act 1958

(6) This section does or her capacity as: (a) a member of (b) a member of (c) a member of

not prohibit an individual from giving immigration assistance in his a diplomatic mission; or a consular post; or 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). [Subs (6) am Act 48 of 2004, s 3 and Sch 1 item 18, with effect from 1 Jul 2004; Act 150 of 1997, s 3 and Sch 2 item 8, with effect from 17 Oct 1997]

(7) In this section: close family member has the meaning given by the regulations. [Def insrt Act 48 of 2004, s 3 and Sch 1 item 19, with effect from 1 Jul 2004]

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. [Def subst Act 150 of 1997, s 3 and Sch 2 item 9, with effect from 17 Oct 1997] [S 280 am Act 48 of 2004; Act 97 of 2001; Act 205 of 1997; Act 150 of 1997; insrt Act 85 of 1992, s 4, with effect from 21 Sep 1992]

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. [Subs (1) am Act 48 of 2004, s 3 and Sch 1 item 20, with effect from 1 Jul 2004; Act 97 of 2001, s 3 and Sch 1 item 78, with effect from 19 Sep 2001; Act 205 of 1997, s 3 and Sch 1 item 25, with effect from 21 Mar 1998]

(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. [Subs (2) am Act 48 of 2004, s 3 and Sch 1 item 21, with effect from 1 Jul 2004; Act 97 of 2001, s 3 and Sch 1 item 78, with effect from 19 Sep 2001; Act 205 of 1997, s 3 and Sch 1 item 25, with effect from 21 Mar 1998]

(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). [Subs (3) am Act 48 of 2004, s 3 and Sch 1 item 22, with effect from 1 Jul 2004]

(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). [S 281 am Act 48 of 2004; Act 97 of 2001; Act 205 of 1997; insrt Act 85 of 1992, s 4, with effect from 21 Sep 1992]

572

Migration Law

Part 3 – Migration Agents and Immigration Assistance (ss 275–332H) Division 2 – Restrictions on giving of immigration assistance and making of immigration representations (ss 280–285) s 283

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. [Subs (2) am Act 48 of 2004, s 3 and Sch 1 item 23, with effect from 1 Jul 2004; Act 97 of 2001, s 3 and Sch 1 item 78, with effect from 19 Sep 2001; Act 205 of 1997, s 3 and Sch 1 item 25, with effect from 21 Mar 1998]

(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. [Subs (2) am Act 48 of 2004, s 3 and Sch 1 item 24, with effect from 1 Jul 2004; Act 97 of 2001, s 3 and Sch 1 item 78, with effect from 19 Sep 2001; Act 205 of 1997, s 3 and Sch 1 item 25, with effect from 21 Mar 1998]

(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. [Subs (4) am Act 60 of 2015, s 3 and Sch 2 item 23, with effect from 1 Jul 2015; Act 79 of 2005, s 3 and Sch 1 item 15, with effect from 29 Jun 2005; Act 48 of 2004, s 3 and Sch 1 item 25, with effect from 1 Jul 2004; subst Act 205 of 1997, s 3 and Sch 1 item 26, with effect from 21 Mar 1998; am Act 60 of 1994, s 3 and Sch 1 item 104, with effect from 1 Sep 1994]

(5) A person does not make immigration representations in the circumstances prescribed by the regulations. [Subs (5) insrt Act 35 of 2002, s 3 and Sch 1 item 2, with effect from 26 Jun 2002] [S 282 am Act 60 of 2015; Act 79 of 2005; Act 48 of 2004; Act 35 of 2002; Act 97 of 2001; Act 205 of 1997; Act 60 of 1994; insrt Act 85 of 1992, s 4, with effect from 21 Sep 1992]

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. [Subs (1) am Act 48 of 2004, s 3 and Sch 1 item 26, with effect from 1 Jul 2004]

© 2016 THOMSON REUTERS

573

s 283

Migration Act 1958

(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. [Subs (2) am Act 48 of 2004, s 3 and Sch 1 item 27, with effect from 1 Jul 2004; Act 97 of 2001, s 3 and Sch 1 item 78, with effect from 19 Sep 2001; Act 205 of 1997, s 3 and Sch 1 items 27 and 28, with effect from 21 Mar 1998] [S 283 am Act 48 of 2004, s 3 and Sch 1 item 26, with effect from 1 Jul 2004; Act 97 of 2001; Act 205 of 1997; insrt Act 85 of 1992, s 4, with effect from 21 Sep 1992]

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. [Subs (1) am Act 48 of 2004, s 3 and Sch 1 item 28, with effect from 1 Jul 2004; Act 97 of 2001, s 3 and Sch 1 item 78, with effect from 19 Sep 2001; Act 205 of 1997, s 3 and Sch 1 item 28, with effect from 21 Mar 1998]

(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). [Subs (2) am Act 48 of 2004, s 3 and Sch 1 item 29, with effect from 1 Jul 2004]

(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). [Subs (3) am Act 48 of 2004, s 3 and Sch 1 item 30, with effect from 1 Jul 2004]

(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). [Subs (4) am Act 48 of 2004, s 3 and Sch 1 item 31, with effect from 1 Jul 2004] [S 284 am Act 48 of 2004; Act 97 of 2001; Act 205 of 1997; insrt Act 85 of 1992, s 4, with effect from 21 Sep 1992]

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. [Subs (1) am Act 48 of 2004, s 3 and Sch 1 item 32, with effect from 1 Jul 2004; Act 97 of 2001, s 3 and Sch 1 item 78, with effect from 19 Sep 2001; Act 205 of 1997, s 3 and Sch 1 items 29 and 30, with effect from 21 Mar 1998]

(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). [Subs (2) am Act 48 of 2004, s 3 and Sch 1 item 33, with effect from 1 Jul 2004]

(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). [Subs (3) am Act 48 of 2004, s 3 and Sch 1 item 34, with effect from 1 Jul 2004]

(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.

574

Migration Law

Part 3 – Migration Agents and Immigration Assistance (ss 275–332H) Division 3 – Registration of migration agents (ss 286–306AA)

s 287

Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code). [Subs (4) am Act 48 of 2004, s 3 and Sch 1 item 35, with effect from 1 Jul 2004] [S 285 am Act 48 of 2004; Act 97 of 2001; Act 205 of 1997; insrt Act 85 of 1992, s 4, with effect from 21 Sep 1992]

DIVISION 3 – REGISTRATION OF MIGRATION AGENTS (SS 286–306AA) 286 Individuals may be registered as migration agents Individuals may be registered as migration agents in accordance with this Part. [S 286 insrt Act 85 of 1992, s 4, with effect from 21 Sep 1992]

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. [Subs (1) am Act 205 of 1997, s 3 and Sch 1 item 31, with effect from 21 Mar 1998]

(2) The (a) (b) (c) (d) (e) (g) (h) (i)

Register is to show in respect of each registered migration agent: the agent’s full name; and any business names of the agent or the agent’s employer; and a business address for the agent; and a telephone number for contacting the agent; and the date on which the agent was registered most recently; and particulars of any suspension of the agent’s registration; and particulars of any caution given to the agent; and particulars of any other prescribed matter.

[Subs (2) am Act 48 of 2004, s 3 and Sch 1 items 36–37, with effect from 1 Jul 2004; Act 205 of 1997, s 3 and Sch 3 items 9 and 10, with effect from 21 Mar 1999]

(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. [Subs (3) am Act 48 of 2004, s 3 and Sch 1 item 38, with effect from 1 Jul 2004; Act 205 of 1997, s 3 and Sch 1 item 31, with effect from 21 Mar 1998]

(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. [Subs (3A) insrt Act 48 of 2004, s 3 and Sch 1 item 38A, with effect from 1 Jul 2004]

(4) The Migration Agents Registration Authority must make the Register available, in a suitable form and at reasonable times, for inspection by any person. [Subs (4) am Act 205 of 1997, s 3 and Sch 1 item 31, with effect from 21 Mar 1998]

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). [Subs (5) insrt Act 48 of 2004, s 3 and Sch 1 item 39, with effect from 1 Jul 2004]

© 2016 THOMSON REUTERS

575

s 287

Migration Act 1958

Time for removal (6) The Authority must remove the details within the period worked out in accordance with the regulations. [Subs (6) insrt Act 48 of 2004, s 3 and Sch 1 item 39, with effect from 1 Jul 2004]

(7) The regulations may prescribe different periods in relation to details about suspensions or cautions. [Subs (7) insrt Act 48 of 2004, s 3 and Sch 1 item 39, with effect from 1 Jul 2004] [S 287 am Act 48 of 2004; Act 205 of 1997; insrt Act 85 of 1992, s 4, with effect from 21 Sep 1992]

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.

576

Migration Law

Part 3 – Migration Agents and Immigration Assistance (ss 275–332H) Division 3 – Registration of migration agents (ss 286–306AA)

s 289

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. [S 288 subst Act 48 of 2004, s 3 and Sch 1 item 40, with effect from 1 Jul 2004; am Act 205 of 1997; insrt Act 85 of 1992, s 4, with effect from 21 Sep 1992]

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). [S 288A insrt Act 48 of 2004, s 3 and Sch 1 item 40, with effect from 1 Jul 2004]

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. [S 288B insrt Act 48 of 2004, s 3 and Sch 1 item 40, with effect from 1 Jul 2004]

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. [Subs (1) am Act 48 of 2004, s 3 and Sch 1 items 41 and 42, with effect from 1 Jul 2004; Act 35 of 2002, s 3 and Sch 1 item 3, with effect from 26 Jun 2002; Act 205 of 1997, s 3 and Sch 3 item 4, with effect from 21 Jan 1999]

© 2016 THOMSON REUTERS

577

s 289

Migration Act 1958

(2) The Migration Agents Registration Authority must do so as soon as possible. [Subs (2) am Act 48 of 2004, s 3 and Sch 1 item 43, with effect from 1 Jul 2004; subst Act 205 of 1997, s 3 and Sch 3 item 5, with effect from 21 Jan 1999]

(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. [Subs (3) am Act 48 of 2004, s 3 and Sch 1 items 44–46, with effect from 1 Jul 2004; subst Act 205 of 1997, s 3 and Sch 3 item 5, with effect from 21 Jan 1999]

(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). [Subs (4) am Act 48 of 2004, s 3 and Sch 1 item 46A, with effect from 1 Jul 2004; Act 35 of 2002, s 3 and Sch 1 item 4, with effect from 26 Jun 2002; insrt Act 205 of 1997, s 3 and Sch 3 item 5, with effect from 21 Jan 1999] [S 289 am Act 48 of 2004; Act 35 of 2002; Act 205 of 1997; subst Act 205 of 1997, s 3 and Sch 1 item 35, with effect from 21 Mar 1998; am Act 110 of 1995; insrt Act 85 of 1992, s 4, with effect from 21 Sep 1992]

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. [S 289A insrt Act 48 of 2004, s 3 and Sch 1 item 47, with effect from 1 Jul 2004]

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

578

Migration Law

[290.20]

Part 3 – Migration Agents and Immigration Assistance (ss 275–332H) Division 3 – Registration of migration agents (ss 286–306AA)

s 290

(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. [Subs (2) am Act 48 of 2004, s 3 and Sch 1 items 48 and 49, with effect from 1 Jul 2004]

(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. [Subs (3) am Act 48 of 2004, s 3 and Sch 1 item 50, with effect from 1 Jul 2004]

(4) To avoid doubt, this section applies to all applicants (not just first time applicants). [Subs (4) am Act 48 of 2004, s 3 and Sch 1 item 51, with effect from 1 Jul 2004] [S 290 am Act 48 of 2004; subst Act 205 of 1997, s 3 and Sch 1 item 35, with effect from 21 Mar 1998; insrt Act 85 of 1992, s 4, with effect from 21 Sep 1992]

SECTION 290 COMMENTARY Scope ................................................................................................................................................... [290.20] CONCEPTS

Fit and proper person .......................................................................................................................... [290.40] Integrity ............................................................................................................................................... [290.60] Practice point ....................................................................................................................................... [290.80]

[290.20] Scope The Migration Agents Registration Authority (MARA) is not to register an applicant if satisfied that: – the applicant is not a fit and proper person to receive immigration assistance; – the applicant is not a person of integrity; or – the applicant is related by employment to an individual who is not a person of integrity and therefore should not be registered because of that relationship: s 290(1). Section 290(1) is “in mandatory terms” and “it forbids the registration of an application as a migration agent” if MARA is satisfied of one of the three matters described above: Lilienthal v Migration Agents Registration Authority (2002) 117 FCR 558; 34 AAR 371; [2002] FCA 93 at [10] per Wilcox J. In considering whether it is satisfied of the above, the MARA must take into consideration the factors listed in s 290(2), which are not an “exhaustive or exclusive list of the matters” which © 2016 THOMSON REUTERS

579

s 290

Migration Act 1958

[290.40]

are to be taken into account: Seymour v Migration Agents Registration Authority (2007) 215 FCR 203; 45 AAR 370; [2007] FCAFC 76 at [15] per Nicholson, Downes and Tracey JJ; Shi v Migration Agents Registration Authority (2008) 235 CLR 286; 248 ALR 390; [2008] HCA 31 at [149] per Kiefel J.

CONCEPTS [290.40] Fit and proper person The expression “fit and proper person” is not defined in the Act. In Hughes & Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127; [1955] ALR 525; [1955] HCA 28 at [9], Dixon CJ, McTiernan and Webb JJ stated: The expression “fit and proper person” is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their very purpose is to give the widest scope for judgment and indeed rejection. “Fit” (or “idoneus”) with respect to an office is said to involve three things, honesty knowledge and ability: “honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it” – Coke.

In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; 94 ALR 11; [1990] HCA 33 at [36], Toohey and Gaudron JJ stated: The expression “fit and proper person”, standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept “fit and proper” cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.

[290.60] Integrity The term “integrity” is not defined in the Act but is generally taken to mean “soundness of moral principle and character; uprightness; honesty”: Re Peng v Department of Immigration and Multicultural Affairs and AAT [1998] AATA 12 at [26] per McMahon DP and endorsed in Lilienthal v Migration Agents Registration Authority (2002) 117 FCR 558; 34 AAR 371; [2002] FCA 93 at [22] per Wilcox J. [290.80] Practice point An application for review of a decision made under s 290 may be made to the Administrative Appeals Tribunal: see s 306.

580

Migration Law

[290A.80]

Part 3 – Migration Agents and Immigration Assistance (ss 275–332H) Division 3 – Registration of migration agents (ss 286–306AA)

s 290A

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. [S 290A am Act 48 of 2004, s 3 and Sch 1 items 52 and 53, with effect from 1 Jul 2004; insrt Act 205 of 1997, s 3 and Sch 3 item 6, with effect from 21 Jan 1999 Cross-reference: Legislative Instruments: OMARA 11/001 — Notice of approved activities (continuing professional development) under section 290A of the Migration Act 1958 and clause 3 of Schedule 1 of the Migration Agents Regulations 1998: This Notice specifies classes of activities which are approved for the purpose of Continuing Professional Development for registered migration agents.]

SECTION 290A COMMENTARY Scope ................................................................................................................................................. [290A.20] CONCEPTS

Prescribed by the regulations ........................................................................................................... [290A.40] Has been registered .......................................................................................................................... [290A.60] Has not met the requirements .......................................................................................................... [290A.80]

[290A.20] Scope Before a migration agent can be re-registered, s 290A requires that agent to have satisfied continuing professional development requirements.

CONCEPTS [290A.40] Prescribed by the regulations Schedule 1 of the Migration Agents Regulations 1998 (Cth) sets out the requirements for the continuing professional development of a migration agent. [290A.60] Has been registered The words “has been registered” in s 290A refer “to the status of being registered during a prior registration period, rather than to the act of prior registration”: Migration Agents Registration Authority v Barrie Goldsmith (2001) 113 FCR 18; 184 ALR 723; [2001] FCA 778 at [30] per Mansfield J. [290A.80] Has not met the requirements Section 290A contains the expression “has not met … the requirements prescribed”. In Migration Agents Registration Authority v Barrie Goldsmith (2001) 113 FCR 18; 184 ALR 723; [2001] FCA 778, Heerey J stated: The expression “has not met the requirements” is couched in the perfect tense. It is speaking of a state of affairs existing in the past and continuing up until the present, that is to say up until the time at which the application is being considered.

Mansfield J was also of the view that the words “has not met” mean “has not met at the time of the application or its determination”: at [33].

© 2016 THOMSON REUTERS

581

s 290B

[290A.80]

Migration Act 1958

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. [S 290B insrt Act 48 of 2004, s 3 and Sch 1 item 54, with effect from 1 Jul 2004]

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). [Subs (2) insrt Act 48 of 2004, s 3 and Sch 1 item 55, with effect from 1 Jul 2004] [S 291 am Act 48 of 2004; subst Act 205 of 1997, s 3 and Sch 1 item 35, with effect from 21 Mar 1998; insrt Act 85 of 1992, s 4, with effect from 21 Sep 1992]

291A If:

Applicant must not be registered if suspension would be in effect (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. [S 291A insrt Act 48 of 2004, s 3 and Sch 1 item 55A, with effect from 1 Jul 2004]

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. [S 292 subst Act 48 of 2004, s 3 and Sch 1 item 56, with effect from 1 Jul 2004; Act 205 of 1997, s 3 and Sch 1 item 35, with effect from 21 Mar 1998; insrt Act 85 of 1992, s 4, with effect from 21 Sep 1992]

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 [Para (a) am Act 48 of 2004, s 3 and Sch 1 items 57 and 58, with effect from 1 Jul 2004]

(b) the period has not ended. [S 292A am Act 48 of 2004; insrt Act 35 of 2002, s 3 and Sch 1 item 5, with effect from 26 Jun 2002]

582

Migration Law

Part 3 – Migration Agents and Immigration Assistance (ss 275–332H) Division 3 – Registration of migration agents (ss 286–306AA)

s 299

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). [S 292B insrt Act 48 of 2004, s 3 and Sch 1 item 58A, with effect from 1 Jul 2004]

293 Applicant under 18 must not be registered An applicant must not be registered if he or she is under 18. [S 293 subst Act 205 of 1997, s 3 and Sch 1 item 35, with effect from 21 Mar 1998; insrt Act 85 of 1992, s 4, with effect from 21 Sep 1992]

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). [Subs (2) insrt Act 48 of 2004, s 3 and Sch 1 item 59, with effect from 1 Jul 2004] [S 294 am Act 48 of 2004; subst Act 205 of 1997, s 3 and Sch 1 item 35, with effect from 21 Mar 1998; insrt Act 85 of 1992, s 4, with effect from 21 Sep 1992]

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.) [S 295 subst Act 205 of 1997, s 3 and Sch 1 item 35, with effect from 21 Mar 1998; insrt Act 85 of 1992, s 4, with effect from 21 Sep 1992]

[Editor’s note: Sections 296–298 were repealed by Act 205 of 1997, s 3 and Sch 1 item 35, with effect from 21 Mar 1998] 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. [Subs (1) am Act 48 of 2004, s 3 and Sch 1 items 60 and 61, with effect from 1 Jul 2004; Act 35 of 2002, s 3 and Sch 1 item 6, with effect from 26 Jun 2002]

(2) [Repealed] [Subs (2) rep Act 205 of 1997, s 3 and Sch 3 item 11, with effect from 21 Mar 1999]

(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. [Subs (3) am Act 48 of 2004, s 3 and Sch 1 item 62, with effect from 1 Jul 2004] [S 299 am Act 48 of 2004; Act 35 of 2002; Act 205 of 1997; insrt Act 85 of 1992, s 4, with effect from 21 Sep 1992]

© 2016 THOMSON REUTERS

583

s 299

Migration Act 1958

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.

584

Migration Law

[300.40]

Part 3 – Migration Agents and Immigration Assistance (ss 275–332H) Division 3 – Registration of migration agents (ss 286–306AA)

s 300

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. [S 300 subst Act 48 of 2004, s 3 and Sch 1 item 63, with effect from 1 Jul 2004; reinsrt Act 35 of 2002, s 3 and Sch 1 item 7, with effect from 26 Jun 2002; rep Act 205 of 1997, s 3 and Sch 3 item 12, with effect from 21 Mar 1999; am Act 205 of 1997; insrt Act 85 of 1992, s 4, with effect from 21 Sep 1992]

SECTION 300 COMMENTARY Scope ................................................................................................................................................... [300.20] KEY CASES

Section 300(7) and stay of decision ................................................................................................... [300.40]

[300.20] Scope Section 300 provides for the automatic continuance of the registration of a migration agent if the requirements in that section are satisfied. The purpose of s 300 is to limit the circumstances in which a migration agent’s registration can be automatically continued, and to ensure that a migration agent’s “registration will not be extended for lengthy periods until review proceedings” are finalised in relation to a cancellation or suspension of a migration agent’s registration or a decision to refuse to register a migration agent: Seymour v Migration Agents Registration Authority (2007) 156 FCR 544; 44 AAR 532; [2007] FCAFC 5 at [19] per Tamberlin, Gyles and Stone JJ.

KEY CASES [300.40] Section 300(7) and stay of decision Under s 300(7), the Migration Agents Registration Authority (MARA) is taken to have made a decision under s 300 even if that decision is later stayed. In Seymour v Migration Agents Registration Authority (2007) 156 FCR 544; 44 AAR 532; [2007] FCAFC 5, the MARA refused an application by the applicant for re-registration as a migration agent. The applicant applied to the Administrative Appeals Tribunal (Tribunal) for a stay of the MARA’s decision. The Tribunal refused the application for a stay on the basis that “if the Tribunal had the power to grant an effective stay, s 300(7) would have no work to do because it would not significantly alter the law as it previously stood”: at [10]. The applicant submitted that s 300 should be read narrowly so that if a stay was granted and no decision was made by the Tribunal within a ten-month period, there would be an automatic continuation of the migration agent’s registration, even though the MARA had found that the agent was not a person of integrity. Tamberlin, Gyles and Stone JJ considered the legislative history of s 300 and held that where an application complied with s 300(1), registration would continue after the expiry date until the MARA had made a decision about the application. When that decision was made, the continuous registration of the migration agent would cease: at [26]. Given this and taking into account the legislative history, the scheme of the legislation, the language of the provision and the extrinsic material of s 300(7), Tamberlin, Gyles and Stone JJ held that the grant of a stay would be futile, as it would have no effect: at [27].

© 2016 THOMSON REUTERS

585

s 301

Migration Act 1958

[300.40]

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. [S 301 am Act 48 of 2004, s 3 and Sch 1 items 64 and 65, with effect from 1 Jul 2004; subst Act 205 of 1997, s 3 and Sch 3 item 7, with effect from 21 Feb 1999; am Act 205 of 1997; Act 110 of 1995; insrt Act 85 of 1992, s 4, with effect from 21 Sep 1992]

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 (b) [Repealed] (c) [Repealed] (d) he or she dies. [Subs (1) am Act 48 of 2004, s 3 and Sch 1 item 66, with effect from 1 Jul 2004; Act 205 of 1997, s 3 and Sch 3 item 13, with effect from 21 Mar 1999; Act 205 of 1997, s 3 and Sch 1 items 38–40, with effect from 21 Mar 1998]

(2) [Repealed] [Subs (2) rep Act 205 of 1997, s 3 and Sch 1 item 41, with effect from 21 Mar 1998] [S 302 am Act 48 of 2004; Act 205 of 1997; insrt Act 85 of 1992, s 4, with effect from 21 Sep 1992]

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. [Subs (1) am Act 48 of 2004, s 3 and Sch 1 items 67 and 68, with effect from 1 Jul 2004; Act 205 of 1997, s 3 and Sch 1 items 42 and 43, with effect from 21 Mar 1998]

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. [Subs (2) insrt Act 48 of 2004, s 3 and Sch 1 item 69, with effect from 1 Jul 2004] [S 303 am Act 48 of 2004, s 3 and Sch 1 item 67, with effect from 1 Jul 2004; Act 205 of 1997; insrt Act 85 of 1992, s 4, with effect from 21 Sep 1992]

586

Migration Law

[303.60]

Part 3 – Migration Agents and Immigration Assistance (ss 275–332H) Division 3 – Registration of migration agents (ss 286–306AA)

s 303

SECTION 303 COMMENTARY Scope ................................................................................................................................................... [303.20] CONCEPTS

Fit and proper person .......................................................................................................................... [303.40] Integrity ............................................................................................................................................... [303.60] KEY CASES

Facts and circumstances subsisting at time of review to be taken into account .............................. [303.80] PRACTICE POINT

Application for review ...................................................................................................................... [303.100]

[303.20] Scope Section 303 provides the Migration Agents Registration Authority (MARA) with the power to cancel or suspend the registration of a migration agent, or caution that agent, if satisfied of any of the circumstances in s 303(1)(d) – (h).

CONCEPTS [303.40] Fit and proper person The expression “fit and proper person” is not defined in the Act. In Hughes & Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127; [1955] ALR 525; [1955] HCA 28 at [9] Dixon CJ, McTiernan and Webb JJ stated: The expression “fit and proper person” is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their very purpose is to give the widest scope for judgment and indeed rejection. “Fit” (or “idoneus”) with respect to an office is said to involve three things, honesty knowledge and ability: “honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it” – Coke.

In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; 94 ALR 11; [1990] HCA 33 at [36], Toohey and Gaudron JJ stated: The expression “fit and proper person”, standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept “fit and proper” cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.

[303.60] Integrity The term “integrity” is not defined in the Act, but is generally taken to mean “soundness of moral principle and character; uprightness; honesty”: Re Peng v Department of Immigration and Multicultural Affairs and AAT [1998] AATA 12 at [26] per McMahon DP, endorsed in Lilienthal v Migration Agents Registration Authority (2002) 117 FCR 558; 34 AAR 371; [2002] FCA 93 at [22] per Wilcox J. © 2016 THOMSON REUTERS

587

s 304

Migration Act 1958

[303.80]

KEY CASES [303.80]

Facts and circumstances subsisting at time of review to be taken into account In Shi v Migration Agents Registration Authority (2008) 235 CLR 286; 248 ALR 390; [2008] HCA 31, the MARA made a decision under s 303 to cancel the applicant’s registration as a migration agent. The Administrative Appeals Tribunal (Tribunal) substituted its own decision that the applicant be cautioned, and made orders for the “lifting” of that caution at a specified time. The MARA contested the Tribunal’s entitlement to make such a decision. Relevantly, the MARA submitted that the Tribunal erred by failing to limit its review to the facts and circumstances that prevailed at the time that the MARA made its decision, instead of taking account of those subsisting at the time of the review before the Tribunal. Kirby, Hayne, Heydon, Crennan and Kiefel JJ all held that the Tribunal could take into consideration the facts and circumstances subsisting at the time of the review in relation to s 303. Kirby J stated at [48]: Section 303 of the Migration Act directs the Authority’s attention, amongst other things, to whether an agent “becomes bankrupt”; whether he or she “is not a person of integrity” or “otherwise not a fit and proper person”; and whether “an individual related by employment to the agent is not a person of integrity”. Each of these grounds is expressed in the present tense. Necessarily, the circumstances to which each is addressed could be altered by supervening events. Thus, the language of s 303 of the Migration Act clearly contemplates the possibility that circumstances may chance between an initial decision of the Authority and a subsequent decision of the Tribunal, performing the “review” which s 306 of the Migration Act contemplates and for which s 43 of the AAT Act provides.

Hayne and Heydon JJ stated at [101]: Nothing in the provisions of the Migration Act fixed a particular time as the point at which a migration agent’s fitness to provide immigration assistance was to be assessed. Unlike some legislation providing for pension entitlements, in which the critical statutory question is whether a criterion was met or not met at a particular date, such as the date of cancellation of entitlements, the provisions of s 303 of the Migration Act contained no temporal element. It follows that when the Tribunal reviews a decision under s 303, the question which the Tribunal must consider (is the Tribunal satisfied that the person concerned is not a fit and proper person to give immigration assistance?) is a question which invites attention to the state of affairs as they exist at the time the Tribunal makes its decision.

PRACTICE POINT [303.100] Application for review An application for review of a decision made under s 303 may be made to the Administrative Appeals Tribunal: see s 306. 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. [Subs (1) am Act 48 of 2004, s 3 and Sch 1 item 70, with effect from 1 Jul 2004; Act 205 of 1997, s 3 and Sch 1 item 44, with effect from 21 Mar 1998]

588

Migration Law

Part 3 – Migration Agents and Immigration Assistance (ss 275–332H) Division 3 – Registration of migration agents (ss 286–306AA)

s 305B

(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. [S 304 am Act 48 of 2004; Act 205 of 1997; insrt Act 85 of 1992, s 4, with effect from 21 Sep 1992]

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. [S 304A insrt Act 48 of 2004, s 3 and Sch 1 item 71, with effect from 1 Jul 2004]

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. [S 305 subst Act 48 of 2004, s 3 and Sch 1 item 72, with effect from 1 Jul 2004; am Act 175 of 1999; subst Act 205 of 1997, s 3 and Sch 1 item 45, with effect from 21 Mar 1998; insrt Act 85 of 1992, s 4, with effect from 21 Sep 1992]

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. [S 305A subst Act 48 of 2004, s 3 and Sch 1 item 72, with effect from 1 Jul 2004; insrt Act 175 of 1999, s 3 and Sch 2 item 3, with effect from 1 Mar 2000]

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;

© 2016 THOMSON REUTERS

589

s 305B

Migration Act 1958

(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. [S 305B insrt Act 48 of 2004, s 3 and Sch 1 item 73, with effect from 1 Jul 2004]

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). [S 305C insrt Act 48 of 2004, s 3 and Sch 1 item 73, with effect from 1 Jul 2004]

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. [S 306 am Act 205 of 1997, s 3 and Sch 1 item 46, with effect from 21 Mar 1998; insrt Act 85 of 1992, s 4, with effect from 21 Sep 1992]

590

Migration Law

Part 3 – Migration Agents and Immigration Assistance (ss 275–332H) Division 3AA - Disciplining registered migration agents (ss 306AB-306AM)

s 306AC

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. [S 306AA insrt Act 48 of 2004, s 3 and Sch 1 item 74, with effect from 1 Jul 2004]

DIVISION 3AA – DISCIPLINING REGISTERED MIGRATION AGENTS FOR ENGAGING IN VEXATIOUS ACTIVITY (SS 306AB–306AM) [Div 3AA insrt Act 48 of 2004, s 3 and Sch 1 item 75, with effect from 1 Jul 2004]

SUBDIVISION A – DEFINITIONS (S 306AB) 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). [S 306AB insrt Act 48 of 2004, s 3 and Sch 1 item 75, with effect from 1 Jul 2004]

SUBDIVISION B – REFERRAL OF REGISTERED MIGRATION AGENTS FOR DISCIPLINARY ACTION (SS 306AC–306AGA) 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.

© 2016 THOMSON REUTERS

591

s 306AC

Migration Act 1958

Method statement Note: Subsections (3) and (4) provide for certain applications not to be counted.

Step 2. Step 3.

Step 4.

Work out if the number at step 1 is equal to or greater than the number determined by the Minister under this Division. 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. 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. [S 306AC insrt Act 48 of 2004, s 3 and Sch 1 item 75, with effect from 1 Jul 2004 Cross-reference: Legislative Instruments: Migration Act 1958 – Notice under section 306AD: The Notice determines specifics relating to the Method Statement in s 306AC.]

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. [Subs (1) am Act 141 of 2005, s 3 and Sch 4 item 10]

Minimum number of applications (2) The Minister may, by legislative instrument, determine a number for the purposes of step 2 of that method statement. [Subs (2) am Act 141 of 2005, s 3 and Sch 4 item 10]

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. [Subs (3) am Act 141 of 2005, s 3 and Sch 4 item 10]

592

Migration Law

Part 3 – Migration Agents and Immigration Assistance (ss 275–332H) Division 3AA - Disciplining registered migration agents (ss 306AB-306AM)

s 306AF

(4) [Repealed] [Subs (4) rep Act 141 of 2005, s 3 and Sch 4 item 11] [S 306AD am Act 141 of 2005; insrt Act 48 of 2004, s 3 and Sch 1 item 75, with effect from 1 Jul 2004 Cross-reference: Legislative Instruments: Migration Act 1958 – Notice under section 306AD: The Notice determines specifics relating to the Method Statement in s 306AC.]

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). [S 306AE insrt Act 48 of 2004, s 3 and Sch 1 item 75, with effect from 1 Jul 2004]

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. [S 306AF insrt Act 48 of 2004, s 3 and Sch 1 item 75, with effect from 1 Jul 2004]

© 2016 THOMSON REUTERS

593

s 306AF

Migration Act 1958

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. [S 306AG insrt Act 48 of 2004, s 3 and Sch 1 item 75, with effect from 1 Jul 2004]

594

Migration Law

Part 3 – Migration Agents and Immigration Assistance (ss 275–332H) Division 3AA - Disciplining registered migration agents (ss 306AB-306AM)

s 306AGAB

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. [S 306AGAA insrt Act 48 of 2004, s 3 and Sch 1 item 75, with effect from 1 Jul 2004]

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.

© 2016 THOMSON REUTERS

595

s 306AGAB

Migration Act 1958

(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. [S 306AGAB insrt Act 48 of 2004, s 3 and Sch 1 item 75, with effect from 1 Jul 2004]

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.

596

Migration Law

Part 3 – Migration Agents and Immigration Assistance (ss 275–332H) Division 3AA - Disciplining registered migration agents (ss 306AB-306AM)

s 306AL

Note: Section 332H sets out when the agent is taken to have been given the notice. [S 306AGAC insrt Act 48 of 2004, s 3 and Sch 1 item 75, with effect from 1 Jul 2004]

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. [S 306AGA insrt Act 48 of 2004, s 3 and Sch 1 item 75, with effect from 1 Jul 2004]

SUBDIVISION D – REVIEW (SS 306AJ–306AK) 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. [S 306AJ insrt Act 48 of 2004, s 3 and Sch 1 item 75, with effect from 1 Jul 2004]

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. [S 306AK insrt Act 48 of 2004, s 3 and Sch 1 item 75, with effect from 1 Jul 2004]

SUBDIVISION E – MAKING DISCIPLINARY DETAILS AVAILABLE (SS 306AL– 306AM) 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

© 2016 THOMSON REUTERS

597

s 306AL

Migration Act 1958

(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. [S 306AL insrt Act 48 of 2004, s 3 and Sch 1 item 75, with effect from 1 Jul 2004]

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. [S 306AM insrt Act 48 of 2004, s 3 and Sch 1 item 75, with effect from 1 Jul 2004]

DIVISION 3A – DOCUMENTS RELATING TO CLIENTS OF INACTIVE MIGRATION AGENTS AND DECEASED MIGRATION AGENTS (SS 306A–306L) [Div 3A heading subst Act 48 of 2004, s 3 and Sch 1 item 76, with effect from 1 Jul 2004] [Div 3A insrt Act 175 of 1999, s 3 and Sch 2 item 4, with effect from 1 Mar 2000]

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 [Para (a) am Act 48 of 2004, s 3 and Sch 1 item 77, with effect from 1 Jul 2004]

(b) to ensure that clients of deceased migration agents are not unduly disadvantaged by the death of the agent; [Para (b) am Act 48 of 2004, s 3 and Sch 1 item 78, with effect from 1 Jul 2004]

by empowering the Migration Agents Registration Authority to:

598

Migration Law

Part 3 – Migration Agents and Immigration Assistance (ss 275–332H) Division 3A – Documents relating to clients of inactive migration agents and deceased migration agents (ss 306A–306L) s 306B

(c)

obtain originals or copies of client documents from inactive migration agents or from the legal personal representatives of deceased migration agents; and

[Para (c) am Act 48 of 2004, s 3 and Sch 1 items 79–81, with effect from 1 Jul 2004]

(d) give the originals or copies to the clients concerned. [Para (d) am Act 48 of 2004, s 3 and Sch 1 item 82, with effect from 1 Jul 2004] Note: An agent becomes inactive as a result of expiry of registration, deregistration, cancellation of registration, suspension of registration, or incapacity (see section 306B). [S 306A am Act 48 of 2004; insrt Act 175 of 1999, s 3 and Sch 2 item 4, with effect from 1 Mar 2000]

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 [Para (a) am Act 48 of 2004, s 3 and Sch 1 items 83–86, with effect from 1 Jul 2004]

(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 [Para (b) am Act 48 of 2004, s 3 and Sch 1 items 87–89, with effect from 1 Jul 2004]

(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

[Para (c) am Act 48 of 2004, s 3 and Sch 1 items 90–92, with effect from 1 Jul 2004]

(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 [Para (d) am Act 48 of 2004, s 3 and Sch 1 items 93–95, with effect from 1 Jul 2004]

(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

© 2016 THOMSON REUTERS

599

s 306B

Migration Act 1958

(ii)

the person remains an inactive migration agent until the person ceases to be physically or mentally incapable of giving immigration assistance.

[Para (e) am Act 48 of 2004, s 3 and Sch 1 items 96–98, with effect from 1 Jul 2004] [S 306B am Act 48 of 2004, s 3 and Sch 1 item 83, with effect from 1 Jul 2004; insrt Act 175 of 1999, s 3 and Sch 2 item 4, with effect from 1 Mar 2000]

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. [S 306C subst Act 48 of 2004, s 3 and Sch 1 item 99, with effect from 1 Jul 2004; insrt Act 175 of 1999, s 3 and Sch 2 item 4, with effect from 1 Mar 2000]

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. [Subs (1) am Act 48 of 2004, s 3 and Sch 1 items 100–103, with effect from 1 Jul 2004]

(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. [Subs (2) subst Act 48 of 2004, s 3 and Sch 1 item 104, with effect from 1 Jul 2004]

(3) (4) (5) notice

A notice under subsection (2) must set out the effect of sections 306G and 306H. A notice under subsection (2) need not identify any particular client or clients. A period specified in a notice under subsection (2) must end at least 14 days after the was given.

Note: Section 332H sets out when the inactive migration agent is taken to have been given the notice. [S 306D am Act 48 of 2004, s 3 and Sch 1 items 100 and 105, with effect from 1 Jul 2004; insrt Act 175 of 1999, s 3 and Sch 2 item 4, with effect from 1 Mar 2000]

600

Migration Law

Part 3 – Migration Agents and Immigration Assistance (ss 275–332H) Division 3A – Documents relating to clients of inactive migration agents and deceased migration agents (ss 306A–306L) s 306F

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. [Subs (1) am Act 48 of 2004, s 3 and Sch 1 items 106 and 107, with effect from 1 Jul 2004]

(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. [Subs (2) am Act 48 of 2004, s 3 and Sch 1 items 108 and 109, with effect from 1 Jul 2004]

(3) (4) (5) notice

A notice under subsection (2) must set out the effect of sections 306G and 306H. A notice under subsection (2) need not identify any particular client or clients. A period specified in a notice under subsection (2) must end at least 14 days after the was given.

Note: Section 332H sets out when the legal personal representative is taken to have been given the notice. [S 306E am Act 48 of 2004, s 3 and Sch 1 items 106 and 110, with effect from 1 Jul 2004; insrt Act 175 of 1999, s 3 and Sch 2 item 4, with effect from 1 Mar 2000]

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. [Subs (1) am Act 48 of 2004, s 3 and Sch 1 item 111, with effect from 1 Jul 2004]

(2) The Migration Agents Registration Authority may, by written notice given to the legal personal representative, require the legal personal representative:

© 2016 THOMSON REUTERS

601

s 306F

Migration Act 1958

(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. [Subs (2) am Act 48 of 2004, s 3 and Sch 1 items 112 and 113, with effect from 1 Jul 2004]

(3) (4) (5) notice

A notice under subsection (2) must set out the effect of sections 306G and 306H. A notice under subsection (2) need not identify any particular client or clients. A period specified in a notice under subsection (2) must end at least 14 days after the was given.

Note: Section 332H sets out when the legal personal representative is taken to have been given the notice. [S 306F am Act 48 of 2004, s 3 and Sch 1 items 111 and 114, with effect from 1 Jul 2004; insrt Act 175 of 1999, s 3 and Sch 2 item 4, with effect from 1 Mar 2000]

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. [S 306G insrt Act 175 of 1999, s 3 and Sch 2 item 4, with effect from 1 Mar 2000]

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. [Subs (1) am Act 4 of 2016, s 3 and Sch 4 item 211, with effect from 10 Mar 2016; Act 48 of 2004, s 3 and Sch 1 item 115, with effect from 1 Jul 2004; Act 97 of 2001, s 3 and Sch 1 item 79, with effect from 19 Sep 2001]

(2) An offence against subsection (1) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. [Subs (2) insrt Act 97 of 2001, s 3 and Sch 1 item 80, with effect from 19 Sep 2001] [S 306H am Act 4 of 2016; Act 48 of 2004; Act 97 of 2001; insrt Act 175 of 1999, s 3 and Sch 2 item 4, with effect from 1 Mar 2000]

[Editor’s Note: There is no section 306I in this Act.] 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). [S 306J subst Act 48 of 2004, s 3 and Sch 1 item 116, with effect from 1 Jul 2004; insrt Act 175 of 1999, s 3 and Sch 2 item 4, with effect from 1 Mar 2000]

602

Migration Law

Part 3 – Migration Agents and Immigration Assistance (ss 275–332H) Division 3A – Documents relating to clients of inactive migration agents and deceased migration agents (ss 306A–306L) s 306L

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. [Subs (1) am Act 48 of 2004, s 3 and Sch 1 items 117–120, with effect from 1 Jul 2004]

(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. [Subs (2) am Act 48 of 2004, s 3 and Sch 1 items 121–126, with effect from 1 Jul 2004] [S 306K am Act 48 of 2004, s 3 and Sch 1 item 117, with effect from 1 Jul 2004; insrt Act 175 of 1999, s 3 and Sch 2 item 4, with effect from 1 Mar 2000]

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.

© 2016 THOMSON REUTERS

603

s 306L

[308.20]

Migration Act 1958

just terms has the same meaning as in paragraph 51(xxxi) of the Constitution. [S 306L insrt Act 175 of 1999, s 3 and Sch 2 item 4, with effect from 1 Mar 2000]

DIVISION 4 – INVESTIGATIONS AND DECISION-MAKING BY THE MIGRATION AGENTS REGISTRATION AUTHORITY (SS 308–311) [Div 4 heading subst Act 205 of 1997, s 3 and Sch 1 item 47, with effect from 21 Mar 1998]

307 Investigations [Repealed] [S 307 rep Act 205 of 1997, s 3 and Sch 1 item 48, with effect from 21 Mar 1998; insrt Act 85 of 1992, s 4, with effect from 21 Sep 1992]

SECTION 308 COMMENTARY [308.20] Scope According to s 308, the Migration Agents Registration Authority (MARA) may require a migration agent to: – make a statutory declaration in answer to questions by MARA; – appear before MARA to answer questions; or – provide MARA with records and documents: s 308(1). Where the migration agent is also a legal professional, s 308 will not abrogate legal professional privilege: Joel v Migration Agents Registration Authority (2000) 110 FCR 202; 63 ALD 380; [2000] FCA 1919 at [32] per Conti J. 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. [Subs (1) am Act 48 of 2004, s 3 and Sch 1 items 127 and 128, with effect from 1 Jul 2004]

(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. [Subs (2) subst Act 48 of 2004, s 3 and Sch 1 item 129, with effect from 1 Jul 2004]

(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. [Subs (2A) insrt Act 48 of 2004, s 3 and Sch 1 item 129, with effect from 1 Jul 2004]

(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. [Subs (3) am Act 48 of 2004, s 3 and Sch 1 item 130, with effect from 1 Jul 2004]

(4) However: (a) any information or document provided in response to a requirement under subsection (1); and 604

Migration Law

[308.20]

Part 3 – Migration Agents and Immigration Assistance (ss 275–332H) Div 4 - Investigations and decision-making by the MARA (ss 308-311)

s 309

(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). [Subs (4) am Act 48 of 2004, s 3 and Sch 1 item 131, with effect from 1 Jul 2004; Act 137 of 2000, s 3 and Sch 2 item 282, with effect from 24 May 2001] [S 308 am Act 48 of 2004, s 3 and Sch 1 item 127, with effect from 1 Jul 2004; Act 137 of 2000; subst Act 205 of 1997, s 3 and Sch 1 item 48, with effect from 21 Mar 1998; insrt Act 85 of 1992, s 4, with effect from 21 Sep 1992]

SECTION 308 COMMENTARY [308.20] Scope According to s 308, the Migration Agents Registration Authority (MARA) may require a migration agent to: – make a statutory declaration in answer to questions by MARA; – appear before MARA to answer questions; or – provide MARA with records and documents: s 308(1). Where the migration agent is also a legal professional, s 308 will not abrogate legal professional privilege: Joel v Migration Agents Registration Authority (2000) 110 FCR 202; 63 ALD 380; [2000] FCA 1919 at [32] per Conti J. 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. [Subs (1) am Act 48 of 2004, s 3 and Sch 1 item 132, with effect from 1 Jul 2004; Act 205 of 1997, s 3 and Sch 1 item 49, with effect from 21 Mar 1998]

(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. [Subs (2) am Act 48 of 2004, s 3 and Sch 1 item 133, with effect from 1 Jul 2004; Act 205 of 1997, s 3 and Sch 1 item 49, with effect from 21 Mar 1998]

(3) In this section: submission means: (a) a statutory declaration; or (b) a written argument. [S 309 am Act 48 of 2004; Act 205 of 1997; insrt Act 85 of 1992, s 4, with effect from 21 Sep 1992]

SECTION 309 COMMENTARY Scope ................................................................................................................................................... [309.20] KEY CASE

No requirement to provide written reasons ........................................................................................ [309.40] © 2016 THOMSON REUTERS

605

s 310

Migration Act 1958

[309.20]

[309.20] Scope If the Migration Agents Registration Authority (MARA) is considering: – refusing a registration application; or – cancelling or suspending a registered migration agent’s registration; or – cautioning a registered migration agent, it must: – inform the person of the reasons for considering the above; and – invite the person to make submissions.

KEY CASE [309.40] No requirement to provide written reasons In Adrian Phillip Joel v Migration Agents Registration Board (1997) 49 ALD 79; [1997] FCA 989, the Migration Agents Registration Board (MARB) (the predecessor of MARA) sent the applicant a letter informing him that it was considering making a decision to either cancel or suspend his registration, or to caution him, and invited him to make submissions in this regard. The applicant claimed that the reasons provided by MARB in the letter were so inadequate as to not qualify as reasons within the meaning of s 309. The applicant relied upon s 25D of the Acts Interpretation Act 1901 (Cth) which provides: Where an Act requires a tribunal or person making a decision to give written reason for the decision, whether the expression “reasons”, “grounds” or any other expression is used, the instrument giving the reasons shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based.

Foster J found that s 25D of the Acts Interpretation Act 1901 (Cth) did not have any bearing on the obligation in s 309. This is because, in providing reasons under s 309 as to why MARB is considering cancellation, suspension or a caution, MARB is not giving written reasons for a decision within the meaning of s 25D; rather it is putting the agent on notice of the factors which have caused MARB to enter into those considerations. Therefore, the information provided by MARB to the applicant was sufficient to satisfy the requirements in s 309: p 83. 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. [Subs (1) am Act 205 of 1997, s 3 and Sch 1 item 49, with effect from 21 Mar 1998]

(2) If the Migration Agents Registration Authority does not receive a submission, it may decide the matter on the information before it. [Subs (2) am Act 205 of 1997, s 3 and Sch 1 item 49, with effect from 21 Mar 1998]

(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. [Subs (3) am Act 205 of 1997, s 3 and Sch 1 item 49, with effect from 21 Mar 1998] [S 310 am Act 205 of 1997, s 3 and Sch 1 item 49, with effect from 21 Mar 1998; insrt Act 85 of 1992, s 4, with effect from 21 Sep 1992]

606

Migration Law

Part 3 – Migration Agents and Immigration Assistance (ss 275–332H) Division 4A – Disciplining former registered migration agents (ss 311A–311P)

s 311C

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. [S 311 am Act 205 of 1997, s 3 and Sch 1 item 49, with effect from 21 Mar 1998; insrt Act 85 of 1992, s 4, with effect from 21 Sep 1992]

DIVISION 4A – DISCIPLINING FORMER REGISTERED MIGRATION AGENTS (SS 311A–311P) [Div 4A heading subst Act 48 of 2004, s 3 and Sch 1 item 134, with effect from 1 Jul 2004] [Div 4A insrt Act 35 of 2002, s 3 and Sch 1 item 9, with effect from 26 Jun 2002]

SUBDIVISION A – COMPLAINTS ABOUT PROVISION OF IMMIGRATION ASSISTANCE (SS 311A–311F) [Subdiv A heading insrt Act 48 of 2004, s 3 and Sch 1 item 134, with effect from 1 Jul 2004]

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. [Subs (1) am Act 48 of 2004, s 3 and Sch 1 items 135 and 136, with effect from 1 Jul 2004]

(2) The period must not be more than 5 years starting on the day of the Authority’s decision. [S 311A am Act 48 of 2004, s 3 and Sch 1 item 135, with effect from 1 Jul 2004; insrt Act 35 of 2002, s 3 and Sch 1 item 9, with effect from 26 Jun 2002]

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. [S 311B subst Act 48 of 2004, s 3 and Sch 1 item 137, with effect from 1 Jul 2004; insrt Act 35 of 2002, s 3 and Sch 1 item 9, with effect from 26 Jun 2002]

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

© 2016 THOMSON REUTERS

607

s 311C

Migration Act 1958

(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. [S 311C subst Act 48 of 2004, s 3 and Sch 1 item 137, with effect from 1 Jul 2004; insrt Act 35 of 2002, s 3 and Sch 1 item 9, with effect from 26 Jun 2002]

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. [Subs (1) am Act 48 of 2004, s 3 and Sch 1 items 138 and 139, with effect from 1 Jul 2004]

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. [Subs (4) am Act 48 of 2004, s 3 and Sch 1 item 140, with effect from 1 Jul 2004] [S 311D am Act 48 of 2004, s 3 and Sch 1 item 138, with effect from 1 Jul 2004; insrt Act 35 of 2002, s 3 and Sch 1 item 9, with effect from 26 Jun 2002]

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. [S 311E insrt Act 35 of 2002, s 3 and Sch 1 item 9, with effect from 26 Jun 2002]

608

Migration Law

Part 3 – Migration Agents and Immigration Assistance (ss 275–332H) Division 4A – Disciplining former registered migration agents (ss 311A–311P)

s 311G

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). [S 311EA insrt Act 48 of 2004, s 3 and Sch 1 item 141, with effect from 1 Jul 2004]

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). [S 311F insrt Act 35 of 2002, s 3 and Sch 1 item 9, with effect from 26 Jun 2002]

SUBDIVISION B – ENGAGING IN VEXATIOUS ACTIVITY (SS 311G–311P) [Subdiv B insrt Act 48 of 2004, s 3 and Sch 1 item 142, with effect from 1 Jul 2004]

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. [S 311G insrt Act 48 of 2004, s 3 and Sch 1 item 142, with effect from 1 Jul 2004]

© 2016 THOMSON REUTERS

609

s 311G

Migration Act 1958

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. [S 311H insrt Act 48 of 2004, s 3 and Sch 1 item 142, with effect from 1 Jul 2004]

[Editor’s Note: There is no section 311I in this Act.] 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). [S 311J insrt Act 48 of 2004, s 3 and Sch 1 item 142, with effect from 1 Jul 2004]

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.

610

Migration Law

Part 3 – Migration Agents and Immigration Assistance (ss 275–332H) Division 4A – Disciplining former registered migration agents (ss 311A–311P)

s 311L

(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. [S 311K insrt Act 48 of 2004, s 3 and Sch 1 item 142, with effect from 1 Jul 2004]

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. [S 311L insrt Act 48 of 2004, s 3 and Sch 1 item 142, with effect from 1 Jul 2004]

© 2016 THOMSON REUTERS

611

s 311L

Migration Act 1958

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. [S 311M insrt Act 48 of 2004, s 3 and Sch 1 item 142, with effect from 1 Jul 2004]

[Editor’s Note: There is no section 311N or section 311O in this Act.] 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. [S 311P insrt Act 48 of 2004, s 3 and Sch 1 item 142, with effect from 1 Jul 2004]

DIVISION 5 – OBLIGATIONS OF REGISTERED MIGRATION AGENTS (SS 312–314) [Div 5 heading subst Act 48 of 2004, s 3 and Sch 1 item 143, with effect from 1 Jul 2004]

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;

612

Migration Law

Part 3 – Migration Agents and Immigration Assistance (ss 275–332H) Division 5 – Obligations of registered migration agents (ss 312–314)

s 312B

(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 (ii) [Repealed] (iii) it begins to be wound up. Penalty: 100 penalty units. [Subs (1) am Act 8 of 2007, s 3 and Sch 4 items 18 and 19, with effect from 15 Mar 2007; Act 48 of 2004, s 3 and Sch 1 items 144–147, with effect from 1 Jul 2004; Act 97 of 2001, s 3 and Sch 1 item 81, with effect from 19 Sep 2001; Act 205 of 1997, s 3 and Sch 1 items 49–51, with effect from 21 Mar 1998]

(2) An offence against subsection (1) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code. [Subs (2) reinsrt Act 97 of 2001, s 3 and Sch 1 item 82, with effect from 19 Sep 2001; rep Act 205 of 1997, s 3 and Sch 3 item 14, with effect from 21 Mar 1999; subst Act 205 of 1997, s 3 and Sch 1 item 52, with effect from 21 Mar 1998]

(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. [Subs (3) insrt Act 48 of 2004, s 3 and Sch 1 item 148, with effect from 1 Jul 2004] [S 312 am Act 8 of 2007; Act 48 of 2004; Act 97 of 2001; Act 205 of 1997; insrt Act 85 of 1992, s 4, with effect from 21 Sep 1992]

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. [S 312A insrt Act 48 of 2004, s 3 and Sch 1 item 149, with effect from 1 Jul 2004]

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

© 2016 THOMSON REUTERS

613

s 312B

Migration Act 1958

[313.20]

(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. [S 312B insrt Act 48 of 2004, s 3 and Sch 1 item 149, with effect from 1 Jul 2004]

313 Persons charged for services to be given detailed statement of services (1A) [Repealed] [Subs (1A) rep Act 48 of 2004, s 3 and Sch 1 item 150, with effect from 1 Jul 2004; insrt Act 205 of 1997, s 3 and Sch 1 item 53, with effect from 21 Mar 1998]

(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. [Subs (1) am Act 48 of 2004, s 3 and Sch 1 items 151 and 152, with effect from 1 Jul 2004; Act 205 of 1997, s 3 and Sch 1 item 54, with effect from 21 Mar 1998; Act 60 of 1994, s 3 and Sch 1 item 105, with effect from 1 Sep 1994]

(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. [Subs (3) am Act 48 of 2004, s 3 and Sch 1 items 153 and 154, with effect from 1 Jul 2004; subst Act 205 of 1997, s 3 and Sch 1 item 55, with effect from 21 Mar 1998; am Act 60 of 1994, s 3 and Sch 1 item 105, with effect from 1 Sep 1994]

(4) This section does not apply to the giving of immigration legal assistance by a lawyer. [S 313 am Act 48 of 2004; Act 205 of 1997; Act 60 of 1994; insrt Act 85 of 1992, s 4, with effect from 21 Sep 1992]

SECTION 313 COMMENTARY Scope ................................................................................................................................................... [313.20] Practice point ....................................................................................................................................... [313.40]

[313.20] Scope A migration agent must give a person a statement of services in order to be entitled to be paid a fee or other reward for giving immigration assistance: s 313(1). [313.40] Practice point The Federal Circuit Court does not have jurisdiction in relation to claims for the recovery of money under s 313(3): Hu v Li-Chien Liu [2011] FMCA 21 at [3] per Jarrett FM.

614

Migration Law

[314.40]

Part 3 – Migration Agents and Immigration Assistance (ss 275–332H) Division 6 – Migration Agents Registration Authority (ss 315–322)

s 316

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. [Subs (2) am Act 48 of 2004, s 3 and Sch 1 item 155, with effect from 1 Jul 2004] [S 314 am Act 48 of 2004; insrt Act 85 of 1992, s 4, with effect from 21 Sep 1992]

SECTION 314 COMMENTARY Scope ................................................................................................................................................... [314.20] Practice point ....................................................................................................................................... [314.40]

[314.20] Scope A registered migration agent must comply with the Code of Conduct for migration agents. The Code of Conduct is located in Sch 2 of the Migration Agents Regulations 1998 (Cth). The Code of Conduct is not an “applicable industry code” for the purposes of s 51AD of the Competition and Consumer Act 2010 (Cth): Hu v Li-Chien Liu [2011] FMCA 21 at [7] per Jarrett FM. [314.40] Practice point For annotation of the Code of Conduct, see Sch 2 of the Migration Agents Regulations 1998 (Cth). DIVISION 6 – MIGRATION AGENTS REGISTRATION AUTHORITY (SS 315–322) [Div 6 heading subst Act 205 of 1997, s 3 and Sch 1 item 56, with effect from 21 Mar 1998]

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. [S 315 subst Act 205 of 1997, s 3 and Sch 1 item 57, with effect from 21 Mar 1998; insrt Act 85 of 1992, with effect from 21 Sep 1992]

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

© 2016 THOMSON REUTERS

615

s 316

Migration Act 1958

(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. [Subs (1) am Act 48 of 2004, s 3 and Sch 1 item 156, with effect from 1 Jul 2004; Act 35 of 2002, s 3 and Sch 1 items 10 and 11, with effect from 1 Nov 2002]

(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. [Subs (1A) am Act 48 of 2004, s 3 and Sch 1 item 157, with effect from 1 Jul 2004; insrt Act 35 of 2002, s 3 and Sch 1 item 12, with effect from 1 Nov 2002]

(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. [Subs (1B) am Act 48 of 2004, s 3 and Sch 1 item 158, with effect from 1 Jul 2004; insrt Act 35 of 2002, s 3 and Sch 1 item 12, with effect from 1 Nov 2002]

(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. [Subs (2) insrt Act 205 of 1997, s 3 and Sch 1 item 60, with effect from 21 Mar 1998] [S 316 am Act 48 of 2004; Act 35 of 2002; Act 175 of 1999; Act 205 of 1997, s 3 and Sch 1 items 58 and 59, with effect from 21 Mar 1998; insrt Act 85 of 1992, with effect from 21 Sep 1992]

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. [S 317 subst Act 205 of 1997, s 3 and Sch 1 item 61, with effect from 21 Mar 1998; insrt Act 85 of 1992, with effect from 21 Sep 1992]

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. [S 318 am Act 48 of 2004, s 3 and Sch 1 item 159, with effect from 1 Jul 2004; Act 35 of 2002, s 3 and Sch 1 item 13, with effect from 1 Nov 2002; subst Act 205 of 1997, s 3 and Sch 1 item 61, with effect from 21 Mar 1998; insrt Act 85 of 1992, with effect from 21 Sep 1992]

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. [Subs (1) am Act 48 of 2004, s 3 and Sch 1 item 160, with effect from 1 Jul 2004; Act 35 of 2002, s 3 and Sch 1 item 14, with effect from 1 Nov 2002]

616

Migration Law

Part 3 – Migration Agents and Immigration Assistance (ss 275–332H) Division 6 – Migration Agents Registration Authority (ss 315–322)

s 320

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. [Subs (2) am Act 48 of 2004, s 3 and Sch 1 items 161 and 162, with effect from 1 Jul 2004; Act 35 of 2002, s 3 and Sch 1 item 15, with effect from 1 Nov 2002]

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. [Subs (3) am Act 48 of 2004, s 3 and Sch 1 items 163 and 164, with effect from 1 Jul 2004; insrt Act 35 of 2002, s 3 and Sch 1 item 16, with effect from 1 Nov 2002] [S 319 am Act 48 of 2004; Act 35 of 2002; subst Act 205 of 1997, s 3 and Sch 1 item 61, with effect from 21 Mar 1998; insrt Act 85 of 1992, with effect from 21 Sep 1992]

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. [S 319A insrt Act 48 of 2004, s 3 and Sch 1 item 165, with effect from 1 Jul 2004]

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. [Subs (1) am Act 205 of 1997, s 3 and Sch 1 item 82, with effect from 9 Dec 1999]

(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. [Subs (3) am Act 159 of 2008, s 3 and Sch 1 item 33, with effect from 14 Sep 2009] [S 320 am Act 159 of 2008; Act 48 of 2004, s 3 and Sch 1 item 165, with effect from 1 Jul 2004; subst Act 205 of 1997, s 3 and Sch 1 item 61, with effect from 21 Mar 1998; am Act 205 of 1997 (am Act 146 of 1999)]

© 2016 THOMSON REUTERS

617

s 320

Migration Act 1958

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. [Subs (1) am Act 159 of 2008, s 3 and Sch 1 item 34, with effect from 14 Sep 2009]

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. [S 321 am Act 159 of 2008; subst Act 205 of 1997, s 3 and Sch 1 item 61, with effect from 21 Mar 1998; insrt Act 85 of 1992, with effect from 21 Sep 1992]

321A Disclosure of personal information by the Migration Agents Registration Authority (1) The Migration Agents Registration Authority may disclose personal information about a registered migration agent, or an inactive migration agent, to any of the following (the recipient): (a) the Secretary or an authorised officer; (b) a review authority. (2) However, the Authority may do so only in the prescribed circumstances. (3) The regulations may prescribe circumstances in which the recipient may use or disclose personal information disclosed under subsection (1). (4) In this section: inactive migration agent has the meaning given by section 306B. personal information [Repealed] [Def rep Act 159 of 2008, s 3 and Sch 1 item 35, with effect from 14 Sep 2009] [S 321A am Act 159 of 2008; insrt Act 48 of 2004, s 3 and Sch 1 item 166, with effect from 1 Jul 2004]

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.

618

Migration Law

Part 3 – Migration Agents and Immigration Assistance (ss 275–332H) Division 6A – Registration application fees and registration status charges (ss 332A–332B) s 332B

(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. [S 322 subst Act 205 of 1997, s 3 and Sch 1 item 61, with effect from 21 Mar 1998; insrt Act 85 of 1992, with effect from 21 Sep 1992]

[Editor’s note: Sections 323–332 were repealed by Act 205 of 1997, s 3 and Sch 1 item 61, with effect from 21 Mar 1998] DIVISION 6A – REGISTRATION APPLICATION FEES AND REGISTRATION STATUS CHARGES (SS 332A–332B) [Div 6A heading subst Act 48 of 2004, s 3 and Sch 1 item 167, with effect from 1 Jul 2004; Act 205 of 1997, s 3 and Sch 3 item 15, with effect from 21 Mar 1999] [Div 6A insrt Act 205 of 1997, s 3 and Sch 1 item 62, with effect from 21 Mar 1998]

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. [Subs (1) am Act 141 of 2005, s 3 and Sch 4 item 12, with effect from 12 Dec 2005]

(2) [Repealed] [Subs (2) rep Act 141 of 2005, s 3 and Sch 4 item 13, with effect from 12 Dec 2005]

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. [S 332A am Act 141 of 2005; subst Act 48 of 2004, s 3 and Sch 1 item 168, with effect from 1 Jul 2004; am Act 205 of 1997; insrt Act 205 of 1997, s 3 and Sch 1 item 62, with effect from 21 Mar 1998 Cross-reference: Legislative Instruments: IMMI 14/027 — Migration Act 1958 – Determination of The Collection of the Registration Status Charge: This Instrument operates to determine when the registration status charge imposed upon a registered migration agent who changes from providing immigration assistance on a non-commercial basis to a commercial basis becomes due and payable.]

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. [Subs (1A) insrt Act 48 of 2004, s 3 and Sch 1 item 169, with effect from 1 Jul 2004]

(2) The Consolidated Revenue Fund is appropriated for the purposes of this section. [S 332B am Act 48 of 2004; insrt Act 205 of 1997, s 3 and Sch 1 item 62, with effect from 21 Mar 1998; am Act 205 of 1997]

© 2016 THOMSON REUTERS

619

s 332B

Migration Act 1958

DIVISION 7 – OTHER THINGS (SS 332C–332H) [Div 7 heading reinsrt Act 48 of 2004, s 3 and Sch 1 item 170, with effect from 1 Jul 2004; rep Act 3 of 2003, s 3 and Sch 1 item 1, with effect from 24 Feb 2003; subst Act 175 of 1999, s 3 and Sch 1 item 1, with effect from 22 Dec 1999; Act 205 of 1997, s 3 and Sch 1 item 63, with effect from 21 Mar 1998; Act 92 of 1997, s 3 and Sch 1 item 1, with effect from 30 Jun 1997; Act 25 of 1996, s 3 and Sch 1 item 1, with effect from 28 Jun 1996; am Act 100 of 1995, s 3 and Sch 1 item 8, with effect from 15 Sep 1995]

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. [S 332C insrt Act 48 of 2004, s 3 and Sch 1 item 170, with effect from 1 Jul 2004]

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. [S 332D insrt Act 48 of 2004, s 3 and Sch 1 item 170, with effect from 1 Jul 2004]

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:

620

Migration Law

Part 3 – Migration Agents and Immigration Assistance (ss 275–332H) Division 7 – Other things (ss 332C–332H)

s 332G

(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. [S 332E insrt Act 48 of 2004, s 3 and Sch 1 item 170, with effect from 1 Jul 2004]

332F Disclosure of personal information by the Secretary (1) The Secretary may disclose personal information about a registered migration agent, or an inactive migration agent, to a review authority. (2) However, the Secretary may do so only in the prescribed circumstances. (3) The regulations may prescribe circumstances in which the review authority may use or disclose personal information disclosed under subsection (1). (4) In this section: inactive migration agent has the meaning given by section 306B. personal information [Repealed] [Def rep Act 159 of 2008, s 3 and Sch 1 item 36, with effect from 14 Sep 2009] [S 332F am Act 159 of 2008; insrt Act 48 of 2004, s 3 and Sch 1 item 170, with effect from 1 Jul 2004]

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.

© 2016 THOMSON REUTERS

621

s 332G

Migration Act 1958

personal information [Repealed] [Def rep Act 159 of 2008, s 3 and Sch 1 item 37, with effect from 14 Sep 2009]

review application means an application for review by a review authority of a decision to refuse to grant a person a visa. [S 332G am Act 159 of 2008; insrt Act 48 of 2004, s 3 and Sch 1 item 170, with effect from 1 Jul 2004]

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 1 Handing the notice 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 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

622

Timing rule When it is handed to the recipient When it is handed to the other person

(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

Migration Law

Part 3 – Migration Agents and Immigration Assistance (ss 275–332H) Division 7 – Other things (ss 332C–332H)

s 332H

Giving of notices under this Part Item Methods of giving notices Timing rule 4 Transmitting the notice by: At the end of the day on which the (a) fax; or notice is transmitted (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 [Subs (1) am Act 31 of 2014, s 3 and Sch 4 item 27, with effect from 24 Jun 2014]

(2) This section has effect despite any provision in the Electronic Transactions Act 1999. [S 332H am Act 31 of 2014; insrt Act 48 of 2004, s 3 and Sch 1 item 170, with effect from 1 Jul 2004]

© 2016 THOMSON REUTERS

623

PART 4 – OFFENCES RELATING TO DECISIONS UNDER ACT (SS 334–336) [Pt 4 insrt Act 85 of 1992, with effect from 21 Sep 1992]

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. [Subs (1) am Act 4 of 2016, s 3 and Sch 4 item 211, with effect from 10 Mar 2016]

(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. [Subs (2) am Act 4 of 2016, s 3 and Sch 4 item 211, with effect from 10 Mar 2016] [S 334 am Act 4 of 2016; subst Act 97 of 2001, s 3 and Sch 1 item 83, with effect 19 Sep 2001; insrt Act 85 of 1992, with effect from 21 Sep 1992]

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. [S 335 insrt Act 85 of 1992, with effect from 21 Sep 1992]

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: © 2016 THOMSON REUTERS

625

s 336

Migration Act 1958

(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. [S 336 insrt Act 85 of 1992, with effect from 21 Sep 1992]

626

Migration Law

PART 4A – OBLIGATIONS RELATING TO IDENTIFYING INFORMATION (SS 336A–336L) [Pt 4A insrt Act 2 of 2004, s 3 and Sch 1 item 33, with effect from 27 Aug 2004]

DIVISION 1 – PRELIMINARY (SS 336A–336B) 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. [Def am Act 69 of 2009, s 3 and Sch 1 item 1, with effect from 19 Sep 2009; subst Act 63 of 2007, s 3 and Sch 1 item 33]

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. [Def am Act 69 of 2009, s 3 and Sch 1 item 2, with effect from 19 Sep 2009; subst Act 63 of 2007, s 3 and Sch 1 item 34]

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. [S 336A am Act 69 of 2009; Act 63 of 2007; insrt Act 2 of 2004, s 3 and Sch 1 item 33, with effect from 27 Aug 2004]

336B Application Section 15.4 of the Criminal Code (extended geographical jurisdiction—category D) applies to all offences against this Part. [S 336B insrt Act 2 of 2004, s 3 and Sch 1 item 33, with effect from 27 Aug 2004]

© 2016 THOMSON REUTERS

627

s 336B

Migration Act 1958

DIVISION 2 – ACCESSING IDENTIFYING INFORMATION (SS 336C–336D) 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). [Subs (1A) insrt Act 63 of 2007, s 3 and Sch 1 item 35]

(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). [S 336C am Act 63 of 2007; insrt Act 2 of 2004, s 3 and Sch 1 item 33, with effect from 27 Aug 2004]

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. [Subs (1) am Act 41 of 2015, s 3 and Sch 3 item 59, with effect from 1 Jul 2015]

(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. [Subs (2) am Act 41 of 2015, s 3 and Sch 3 item 59, with effect from 1 Jul 2015; Act 116 of 2014, s 3 and Sch 5 item 57, with effect from 4 Nov 2014; Act 63 of 2007, s 3 and Sch 1 item 68; Act 21 of 2007, s 3 and Sch 1 item 39 (am Act 63 of 2007)]

(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:

628

Migration Law

Part 4A – Obligations relating to identifying information (ss 336A–336L) Division 3 – Disclosing identifying information (ss 336E–336FD)

s 336E

(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. [Subs (3) am Act 41 of 2015, s 3 and Sch 3 item 59, with effect from 1 Jul 2015] [S 336D am Act 41 of 2015; Act 116 of 2014; Act 63 of 2007; Act 21 of 2007; insrt Act 2 of 2004, s 3 and Sch 1 item 33, with effect from 27 Aug 2004]

DIVISION 3 – DISCLOSING IDENTIFYING INFORMATION (SS 336E–336FD) 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). [Subs (1A) insrt Act 63 of 2007, s 3 and Sch 1 item 36]

(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

© 2016 THOMSON REUTERS

629

s 336E

Migration Act 1958

(e) (ea) (eb) (ec) (ed) (f) (g) (ga) (gb) (gc)

(h)

(ha)

(i) (j) (k)

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 is reasonably necessary for the enforcement of the criminal law of the Commonwealth or of a State or Territory; or is required by or under a law of the Commonwealth or of a State or Territory; or is for the purpose of identifying non-citizens who have a criminal history or who are of character concern; or is for the purpose of identifying persons who may be a security concern to Australia or a foreign country; or 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 is for the purpose of an investigation by the Information Commissioner or the Ombudsman relating to action taken by the Department; or is for the purpose of facilitating or expediting the exercise of powers, or performance of functions, of the Migration Agents Registration Authority; or 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 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 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 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 takes place with the written consent of the person to whom the identifying information in question relates; or is authorised by section 336FA; or is authorised by section 336FC.

[Subs (2) am Act 60 of 2015, s 3 and Sch 2 items 24 and 152, with effect from 1 Jul 2015; Act 116 of 2014, s 3 and Sch 5 items 58–60, with effect from 4 Nov 2014; Act 113 of 2012, s 3 and Sch 1 item 28; Act 7 of 2012, s 3 and Sch 1 item 13; Act 51 of 2010, s 3 and Sch 5 item 38; Act 63 of 2007, s 3 and Sch 1 items 37–44, 63, 69 and 70; Act 141 of 2005, s 3 and Sch 3 item 1, with effect from 13 Dec 2005 Editor’s Note: There appears to be a drafting error in s 336E(2)(f). The reference to “Authority,,” should probably read “Authority,”.]

(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

630

Migration Law

Part 4A – Obligations relating to identifying information (ss 336A–336L) Division 3 – Disclosing identifying information (ss 336E–336FD)

s 336F

(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. [S 336E am Act 60 of 2015; Act 116 of 2014; Act 113 of 2012; Act 7 of 2012; Act 51 of 2010; Act 63 of 2007; Act 141 of 2005; insrt Act 2 of 2004, s 3 and Sch 1 item 33, with effect from 27 Aug 2004]

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. [Subs (1) am Act 41 of 2015, s 3 and Sch 3 item 60, with effect from 1 Jul 2015]

(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). [Subs (2) am Act 41 of 2015, s 3 and Sch 3 item 60, with effect from 1 Jul 2015]

(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. [Subs (3) am Act 135 of 2014, s 3 and Sch 5 item 14, with effect from 18 Apr 2015; Act 35 of 2013, s 3 and Sch 1 item 49; Act 121 of 2011, s 3 and Sch 1 items 25 and 26]

(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

© 2016 THOMSON REUTERS

631

s 336F

Migration Act 1958

(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. [Subs (4) am Act 135 of 2014, s 3 and Sch 5 item 14, with effect from 18 Apr 2015; Act 35 of 2013, s 3 and Sch 1 item 49; Act 121 of 2011, s 3 and Sch 1 items 27 and 28]

(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.

632

Migration Law

Part 4A – Obligations relating to identifying information (ss 336A–336L) Division 3 – Disclosing identifying information (ss 336E–336FD)

s 336FB

Note: See subsection 5(9) for when an application is finally determined. [Subs (5) am Act 135 of 2014, s 3 and Sch 5 items 14 and 15, with effect from 18 Apr 2015; Act 35 of 2013, s 3 and Sch 1 item 50; Act 113 of 2012, s 3 and Sch 1 item 29; Act 121 of 2011, s 3 and Sch 1 items 29 and 30] [S 336F am Act 41 of 2015; Act 135 of 2014; Act 35 of 2013; Act 113 of 2012; Act 121 of 2011; insrt Act 2 of 2004, s 3 and Sch 1 item 33, with effect from 27 Aug 2004 Cross-reference: Legislative Instruments: IMMI 15/066 — Migration Regulations 1994 – Specification of Disclosure of Information to Prescribed Bodies 2015: This Instrument specifies Commonwealth, State, Territory and foreign country bodies that are authorised to receive identifying information as prescribed bodies for the purpose of s 336F(1)(d) of the Migration Act 1958.]

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. [Subs (1) am Act 69 of 2009, s 3 and Sch 1 item 3, with effect from 19 Sep 2009]

(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. [S 336FA am Act 69 of 2009; insrt Act 141 of 2005, s 3 and Sch 3 item 2, with effect from 13 Dec 2005]

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. [Subs (1) am Act 69 of 2009, s 3 and Sch 1 item 4, with effect from 19 Sep 2009; Act 159 of 2008, s 3 and Sch 1 item 38, with effect from 14 Sep 2009]

(2) This section does not apply to personal information that is identifying information.

© 2016 THOMSON REUTERS

633

s 336FB

Migration Act 1958

(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. [Subs (3) am Act 69 of 2009, s 3 and Sch 1 item 5, with effect from 19 Sep 2009] [S 336FB am Act 69 of 2009; Act 159 of 2008; insrt Act 141 of 2005, s 3 and Sch 3 item 2, with effect from 13 Dec 2005]

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. [Subs (1) am Act 41 of 2015, s 3 and Sch 3 item 61, with effect from 1 Jul 2015]

(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. [Subs (2) am Act 41 of 2015, s 3 and Sch 3 item 61, with effect from 1 Jul 2015; Act 159 of 2008, s 3 and Sch 1 item 39, with effect from 14 Sep 2009]

634

Migration Law

Part 4A – Obligations relating to identifying information (ss 336A–336L) Division 4 – Modifying and impairing identifying information (ss 336G–336J)

s 336H

(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. [Subs (3) am Act 41 of 2015, s 3 and Sch 3 item 61, with effect from 1 Jul 2015]

(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). [Subs (4) am Act 41 of 2015, s 3 and Sch 3 item 61, with effect from 1 Jul 2015]

(5) An authority under paragraph (1)(c) is not a legislative instrument. [S 336FC am Act 41 of 2015; Act 159 of 2008; insrt Act 141 of 2005, s 3 and Sch 3 item 2, with effect from 13 Dec 2005]

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). [Subs (1) subst Act 197 of 2012, s 3 and Sch 5 item 54; am Act 159 of 2008, s 3 and Sch 1 item 40, with effect from 14 Sep 2009]

(2) This section does not apply to personal information that is identifying information. [S 336FD am Act 197 of 2012; Act 159 of 2008; insrt Act 141 of 2005, s 3 and Sch 3 item 2, with effect from 13 Dec 2005]

DIVISION 4 – MODIFYING AND IMPAIRING IDENTIFYING INFORMATION (SS 336G–336J) 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. [S 336G insrt Act 2 of 2004, s 3 and Sch 1 item 33, with effect from 27 Aug 2004]

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. [S 336H insrt Act 2 of 2004, s 3 and Sch 1 item 33, with effect from 27 Aug 2004]

© 2016 THOMSON REUTERS

635

s 336H

Migration Act 1958

[Editor’s Note: There is no section 336I in this Act.] 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. [S 336J insrt Act 2 of 2004, s 3 and Sch 1 item 33, with effect from 27 Aug 2004]

DIVISION 5 – DESTROYING IDENTIFYING INFORMATION (SS 336K–336L) 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

636

Migration Law

Part 4A – Obligations relating to identifying information (ss 336A–336L) Division 5 – Destroying identifying information (ss 336K–336L)

s 336L

(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. [S 336K insrt Act 2 of 2004, s 3 and Sch 1 item 33, with effect from 27 Aug 2004]

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. [S 336L insrt Act 2 of 2004, s 3 and Sch 1 item 33, with effect from 27 Aug 2004]

© 2016 THOMSON REUTERS

637

PART 5 – REVIEW OF PART 5-REVIEWABLE DECISIONS (SS 336M–379G) [Pt 5 heading subst Act 60 of 2015, s 3 and Sch 2 item 25, with effect from 1 Jul 2015] [Former Pt 3 renum Act 60 of 1994, s 83; former Pt III Act 59 of 1989, s 35; insrt Act 59 of 1989, s 26]

PART 5 COMMENTARY Scope ................................................................................................................................................... [Pt 5.20] Further reading ................................................................................................................................... [Pt 5.40]

[Pt 5.20] Scope Part 5 of the Act provides that certain visa decisions are reviewable by the Administrative Appeals Tribunal (Tribunal) and deals with aspects of the Tribunal’s operation. Part 5-reviwable decisions were previously reviewed by the Migration Review Tribunal. That Tribunal was amalgamated into the Administrative Appeals Tribunal on 1 July 2015 by the Tribunals Amalgamation Act 2015 (Cth), which now hears merits review applications of certain migration decisions in its Migration and Refugee Division. Prior to legislative reforms introduced in the late 1980s, the scope for review of migration decisions was confined to limited internal review (including the ability to petition the Minister), investigation by the Ombudsman or the Human Rights Commission or, in some circumstances, through the Administrative Appeals Tribunal. Additionally, judicial review was available in the Federal Court and the High Court: (see Crock M, Immigration and Refugee Law in Australia (Federation Press, Sydney, 1998) p 250). On 4 September 1987, a Committee to Advise on Australia’s Immigration Policies (chaired by Stephen FitzGerald) was established with a wide brief to examine immigration policy and legislation. The result was a three-volume report, commonly referred to as the “FitzGerald Report”: see Committee to Advise on Australia’s Immigration Policies, Immigration: A Commitment to Australia (Parliament of Australia, 1988). The FitzGerald Report concluded that the major deficiency in the Act was “the broad and unstructured nature of the discretionary powers contained in the Act” which “created a great deal of uncertainty”: the FitzGerald Report, p 113. In response, the Migration Legislation Amendment Act 1989 (Cth) was enacted as the first in many of a suite of reforms. The changes introduced by this legislation were explained in the Second Reading speech: The wide discretionary powers conferred by the Migration Act have long been a source of public criticism. Decision-making guidelines are perceived to be obscure, arbitrarily changed and applied, and subject to day-to-day political intervention in individual cases. Accordingly this Bill proposes a decision-making system in which policies governing entry to and stay in Australia will, for the first time, be spelt out in the migration legislative scheme. Parliament, then through its powers of disallowance, will be able to monitor those policies.

The Migration Legislation Amendment Act 1989 (No 59) (Cth) created a two-tiered system of review of prescribed decisions under the Act. The first tier provided for internal review by authorised officers of certain decisions. These decisions were reviewed by a unit within the Department known as the Migration Internal Review Office (MIRO). The second tier involved © 2016 THOMSON REUTERS

639

s 336M

Migration Act 1958

[Pt 5.40]

external review by a body called the Immigration Review Tribunal (IRT). The IRT operated “independently of the Department” and its objective was to provide for a “mechanism of review that is fair, just, economical and quick”: Explanatory Memorandum to the Migration Legislation Amendment Bill 1989 (Cth) at [2]. These changes were followed soon after by further amendments made by the Migration Reform Act 1992 (Cth). This legislation introduced the “Refugee Review Tribunal”, which was vested with sole responsibility for providing “determinative, independent merits review of refugee status matters”: Explanatory Memorandum to the Migration Reform Bill 1992 Migration (Delayed Visa Applications) Tax Bill 1992 at [40]. As with the Migration Review Tribunal, the Refugee Review Tribunal has now been amalgamated into the Tribunal. Part 7 of the Act contains provisions regarding the review of “protection visa” decisions by the Tribunal. To streamline the merits review process, in 1998 MIRO and the IRT were merged to form the Migration Review Tribunal. This was followed soon after by the partial codification in 2002 of the rules of procedural fairness which the courts had significantly developed in the preceding 20 years or so. The new Pt 5, Div 5 directed the Migration Review Tribunal on its procedure, while Part 7, Division 4 directed the Refugee Review Tribunal: see, generally, Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth) and the Explanatory Memorandum to the Migration Legislation Amendment (Procedural Fairness) Bill 2002. As already noted, on 1 July 2015, both the Migration Review Tribunal and Refugee Review Tribunal amalgamated with the Administrative Appeals Tribunal through the Tribunals Amalgamation Act 2015 (Cth). The “existing codes of procedure under Parts 5 and 7” of the Act now apply to the Administrative Appeals Tribunal sitting in its Migration and Refugee Division: Explanatory Memorandum to the Tribunal’s Amalgamation Bill 2015 (Cth) at [24]–[25]. [Pt 5.40] Further reading Crock M, “Immigration Refuges and Forced Migration: Law, Policy and Practice in Australia” (The Federation Press, Sydney, 2011) Chaaya M, “Proposed Changes to the Review of Migration Decisions: Sensible Reform Agenda or Political Expediency?” [1997] SydLawRw 28; (1997) 19(4) Sydney Law Review 547 Parliament of Australia website: http://www.aph.gov.au (accessed 26 October 2014) Department of Immigration and Border Protection website: http://www.immi.gov.au (accessed 26 October 2014)

DIVISION 1 – INTERPRETATION (SS 336M–337) [Former Div 1A heading renum Act 60 of 1994, s 83; insrt Act 184 of 1992, s 23]

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.

640

Migration Law

Part 5 – Review of Part 5-reviewable decisions (ss 336M–379G) Division 1 – Interpretation (ss 336M–337)

s 337

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. [S 336M am Act 60 of 2015, s 3 and Sch 2 item 153, with effect from 1 Jul 2015; insrt Act 60 of 2015, s 3 and Sch 2 item 26, with effect from 1 Jul 2015]

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. [S 336N insrt Act 60 of 2015, s 3 and Sch 2 item 26, with effect from 1 Jul 2015]

337 Interpretation In this Part: Australian permanent resident means an Australian permanent resident within the meaning of the regulations. [Def insrt Act 60 of 1994, s 66(j), with effect from 1 Sep 1994]

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. [Def am Act 60 of 2015, s 3 and Sch 2 items 136 and 137, with effect from 1 Jul 2015; insrt Act 35 of 2015, s 3 and Sch 4 item 3, with effect from 18 Apr 2015]

Deputy Principal Member [Repealed] [Def rep Act 60 of 2015, s 3 and Sch 2 item 27(a), with effect from 1 Jul 2015; insrt Act 85 of 2008, s 3 and Sch 1 item 1]

member means a member of the Tribunal. MRT-reviewable decision [Repealed] [Def rep Act 60 of 2015, s 3 and Sch 2 item 27(b), with effect from 1 Jul 2015; insrt Act 113 of 1998, s 3 and Sch 1 item 7, with effect from 1 Jun 1999]

nominated has the same meaning as in the regulations.

© 2016 THOMSON REUTERS

641

s 337

Migration Act 1958

officer of the Tribunal has the meaning given by the Administrative Appeals Tribunal Act 1975. [Def insrt Act 60 of 2015, s 3 and Sch 2 item 28, with effect from 1 Jul 2015]

Part 5-reviewable decision: see section 338. [Def reinsrt Act 60 of 2015, s 3 and Sch 2 item 28, with effect from 1 Jul 2015; am Act 34 of 1999, s 3 and Sch 1 item 10; rep Act 113 of 1998, s 3 and Sch 1 item 8, with effect from 1 Jun 1999; am Act 110 of 1995, s 3 and Sch 1 item 14, with effect from 29 Sep 1995]

presiding member [Repealed] [Def rep Act 60 of 2015, s 3 and Sch 2 item 29, with effect from 1 Jul 2015]

Principal Member [Repealed] [Def rep Act 60 of 2015, s 3 and Sch 2 item 29, with effect from 1 Jul 2015]

Registrar means the Registrar of the Tribunal. review officer [Repealed] [Def rep Act 113 of 1998, s 3 and Sch 1 item 9, with effect from 1 Jun 1999]

sponsored has the same meaning as in the regulations. Senior Member [Repealed] [Def rep Act 60 of 2015, s 3 and Sch 2 item 29, with effect from 1 Jul 2015]

Tribunal [Repealed] [Def rep Act 60 of 2015, s 3 and Sch 2 item 29, with effect from 1 Jul 2015; subst Act 113 of 1998, s 3 and Sch 2 item 7, with effect from 5 Feb 1999] Note: Tribunal means the Administrative Appeals Tribunal. See the definition in subsection 5(1). [S 337 am Act 60 of 2015, s 3 and Sch 2 item 30, with effect from 1 Jul 2015; Act 35 of 2015; Act 85 of 2008; Act 34 of 1999; Act 113 of 1998; Act 110 of 1995; Act 60 of 1994; former s 115 renum Act 60 of 1994, s 83, with effect from 1 Sep 1994; subst Act 184 of 1992, s 23, with effect from 1 Sep 1994; former s 61 renum Act 59 of 1989, s 35; insrt Act 59 of 1989, s 26]

DIVISION 2 – PART 5-REVIEWABLE DECISIONS (SS 338–339) [Div 2 heading subst Act 60 of 2015, s 3 and Sch 2 item 31, with effect from 1 Jul 2015] [Div 2 subst Act 113 of 1998, s 3 and Sch 1 item 10, with effect from 1 Jun 1999; former Div 1 renum Act 60 of 1994, s 83, with effect from 1 Sep 1994; subst Act 184 of 1992, s 23, with effect from 1 Sep 1994]

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. [Subs (1) am Act 60 of 2015, s 3 and Sch 2 items 133 and 135, with effect from 1 Jul 2015; Act 135 of 2014, s 3 and Sch 4 item 16, with effect from 18 Apr 2015; Act 34 of 1999, s 3 and Sch 1 item 11]

(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

642

Migration Law

Part 5 – Review of Part 5-reviewable decisions (ss 336M–379G) Division 2 – Part 5-reviewable decisions (ss 338–339)

s 338

(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. [Subs (2) am Act 60 of 2015, s 3 and Sch 2 item 133, with effect from 1 Jul 2015; Act 99 of 2003, s 3 and Sch 2 item 1]

(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). [Subs (3) am Act 60 of 2015, s 3 and Sch 2 item 133, with effect from 1 Jul 2015; Act 129 of 2014, s 3 and Sch 2 items 18 and 19, with effect from 11 Dec 2014]

(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. [Subs (3A) am Act 60 of 2015, s 3 and Sch 2 item 133, with effect from 1 Jul 2015; insrt Act 168 of 2000, s 3 and Sch 1 item 11]

(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. [Subs (4) am Act 60 of 2015, s 3 and Sch 2 item 133, with effect from 1 Jul 2015; Act 129 of 2014, s 3 and Sch 2 item 20, with effect from 11 Dec 2014]

(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. [Subs (5) am Act 60 of 2015, s 3 and Sch 2 item 133, with effect from 1 Jul 2015]

(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

© 2016 THOMSON REUTERS

643

s 338

Migration Act 1958

(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. [Subs (6) am Act 60 of 2015, s 3 and Sch 2 item 133, with effect from 1 Jul 2015; Act 144 of 2008, s 3 and Sch 10 items 65 and 66]

(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. [Subs (7) am Act 60 of 2015, s 3 and Sch 2 item 133, with effect from 1 Jul 2015; Act 144 of 2008, s 3 and Sch 10 items 67 and 68]

(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. [Subs (7A) am Act 60 of 2015, s 3 and Sch 2 item 133, with effect from 1 Jul 2015; insrt Act 28 of 2000, s 3 and Sch 5 item 1]

(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. [Subs (8) am Act 60 of 2015, s 3 and Sch 2 item 133, with effect from 1 Jul 2015]

(9) A decision that is prescribed for the purposes of this subsection is a Part 5-reviewable decision. [Subs (9) am Act 60 of 2015, s 3 and Sch 2 item 133, with effect from 1 Jul 2015] [S 338 am Act 60 of 2015, s 3 and Sch 2 item 32, with effect from 1 Jul 2015; Act 135 of 2014; Act 129 of 2014; Act 144 of 2008; Act 99 of 2003; Act 168 of 2000; Act 28 of 2000; Act 34 of 1999; subst Act 113 of 1998, s 3 and Sch 1 item 10, with effect from 1 Jun 1999; former s 115A renum Act 60 of 1994, s 83, with effect from 1 Sep 1994; am Act 60 of 1994; insrt Act 184 of 1992, s 23, with effect from 1 Sep 1994]

SECTION 338 COMMENTARY Scope ................................................................................................................................................... [338.20] CONCEPTS

Migration zone .................................................................................................................................... [338.40] Immigration cleared ............................................................................................................................ [338.60] In immigration clearance .................................................................................................................... [338.80] 644

Migration Law

[338.60]

Part 5 – Review of Part 5-reviewable decisions (ss 336M–379G) Division 2 – Part 5-reviewable decisions (ss 338–339)

s 338

Refused immigration clearance ......................................................................................................... [338.100] Approved sponsor ............................................................................................................................. [338.120] Prescribed decisions .......................................................................................................................... [338.140] Sponsored by an approved sponsor .................................................................................................. [338.160] KEY CASES

A primary decision that is affected by jurisdictional error will still constitute a Pt 5 reviewable decision ..................................................................................................................................... [338.200] If the Minister breaches s 47(3) and considers an invalid visa application, s 69(1) will render any decision made in respect of that application as being valid ................................................................. [338.220] Section 338 does not confer jurisdiction on the Tribunal (rather, jurisdiction is conferred by ss 348–349) ............................................................................................................................... [338.260]

[338.20] Scope Section 338 sets out the types of decisions made under the Act that are reviewable by the Tribunal. If a particular decision under the Act is not a “Part 5–reviewable decision”, a “Part 7–reviewable decision” (see s 411), or is not otherwise reviewable by the Tribunal under any other provision of the Act, then merits review will not be available. Rather, the visa applicant will be limited to seeking judicial review in either the High Court, the Federal Court or the Federal Circuit Court (see Pt 8), as the case may be.

CONCEPTS [338.40] Migration zone The phrase “migration zone” is defined by s 5 to mean the area consisting of the States, the Territories, “Australian resource installations” and “Australian sea installations” (these latter two concepts are likewise defined in s 5). This includes land at mean low water, sea within the limits of a State or a Territory, and ports, piers or similar structures (any part of which is connected to land or to ground under the sea area). [338.60] Immigration cleared A person has been “immigration cleared” if, and only if, he or she meets one of the following alternative requirements: • the person enters Australia at a port, complies with s 166, and leaves the port at which the person complied with s 166, therefore leaving with the permission of a “clearance authority” (see s 5) and otherwise than in “immigration detention” (see s 5): s 172(1)(a); or • the person enters Australia otherwise than at a port, complies with s 166, and leaves the prescribed place at which the person complied, therefore leaving with the permission of a “clearance authority” (see s 5) and otherwise than in “immigration detention” (see s 5): s 172(1)(b); or • the person enters Australia by virtue of the operation of s 10 and, at the time of the person’s birth, had at least one parent who was immigration cleared on his or her last entry into Australia: s 172(1)(ba); or • the person is “refused immigration clearance”, or bypasses immigration clearance, and is subsequently granted a “substantive visa”: s 172(1)(c); • the person is in a prescribed class of persons: s 172(d). There are no prescribed classes under the Regulations, for the purposes of s 172(d). © 2016 THOMSON REUTERS

645

s 338

Migration Act 1958

[338.80]

[338.80] In immigration clearance Under s 172(2), a person is “in immigration clearance” if the person is with an officer or at an “authorised system” (see s 5) for the purposes of s 166 and has not been refused immigration clearance. [338.100] Refused immigration clearance Under s 172(3), a person has been “refused immigration clearance” if the person is with a “clearance officer” for the purposes of s 166 and satisfies one or more of the following: • the person has had his or her visa cancelled; • the person refuses, or is unable, to present to a clearance officer evidence referred to in s 166(1)(a); • the person refuses, or is unable, to provide to a clearance officer information referred to in s 166(1)(b); • the person refuses, or is unable, to comply with any requirement referred to in s 166(1)(c) to provide one or more “personal identifiers” (see s 5A) to a clearance officer. [338.120] Approved sponsor Under s 5, the words “approved sponsor” mean a person who: • has been approved by the Minister under s 140E in relation to a class prescribed by the Regulations for the purpose of s 140E(2), and whose approval has not been cancelled under s 140M or otherwise ceased to have effect under s 140G in relation to that class; or • is a party to a “work agreement” (excluding any person who is a Minister): see s 5. [338.140] Prescribed decisions Under s 338(9), the Regulations may prescribe particular classes of decisions to be “Pt 5 reviewable decisions”. Regulation 4.02 relevantly prescribes a variety of decisions as being “Pt 5 reviewable” decisions. [338.160] Sponsored by an approved sponsor The word “sponsored” and its variants are used in the opening words of s 338(2)(d) in addition to ss 338(2)(d)(i) and 338(2)(d)(ii). Relevantly, the word “sponsored”, when used in Part 5, is defined in s 337 to have the same meaning as in the Regulations. Regulation 4.02(1AA) provides in this regard that “sponsored” includes being identified in a nomination under s 140GB. This has a number of consequences for the purposes of determining the Tribunal’s jurisdiction under s 338(2)(d). First, in determining whether it is a criterion for the grant of the visa that the non-citizen is “sponsored by an approved sponsor”, as the opening words of s 338(2)(d) mandate, this is to be read as including any criterion that the applicant be identified in a nomination under s 140GB by an approved sponsor: see, for example, Minister for Immigration and Citizenship v Islam (2012) 202 FCR 46 at [38]-[43] per Robertson J; Szabo v Minister for Immigration and Border Protection [2014] HCATrans 226 per Gagelr J; Ahmad v Minister for Immigration and Border Protection [2015] FCAFC 182 (Ahmad) at [96] per Katzmann, Robertson and Griffiths JJ. In other words, a visa that requires an applicant to be identified in a nomination under s 140GB is to be equated, in the general sense required by the opening words of s 338(2)(d), with a visa which requires an applicant to be “sponsored by an approved sponsor”. Secondly, for the purposes of s 338(2)(d)(i), this means that jurisdiction will lie where not only an approved sponsor has obtained sponsorship of the visa applicant, but also where the applicant 646

Migration Law

[338.200]

Part 5 – Review of Part 5-reviewable decisions (ss 336M–379G) Division 2 – Part 5-reviewable decisions (ss 338–339)

s 338

has merely been identified in a nomination for sponsorship under s 140GB: Ahmad at [98]. Thus, the Tribunal will have jurisdiction notwithstanding that the nomination has been refused. However, the Full Court in Ahmad noted at [113] in obiter that jurisdiction is unlikely to be found where an adverse nomination application has not been appealed against or has lapsed. Finally, the expression “decision not to approve the sponsor” in s 338(2)(d)(ii) includes both the approval of the sponsor under s 140E and the approval of the nomination under s 140GB: Ahmad at [99]. This has the effect of conferring jurisdiction on the Tribunal where either an application for approval of the sponsor is pending, or where an application for approval of the nomination is pending. Thus, it would be sufficient to attract the Tribunal’s jurisdiction that, at the time of making an application for review of a visa decision, there is a pending application for review in respect of an adverse nomination decision: at [105]. The Tribunal will accordingly have jurisdiction to review a decision to refuse a visa application under s 338(2)(d) where: • the visa applicant’s nomination by an approved sponsor has been approved (but, for instance, has not been granted a visa for some reason); • the visa applicant is identified in a pending nomination made under s 140GB; • there is a pending application for review of a decision not to approve the sponsor under s 140E; • there is a pending application for review of a decision not to approve a nomination made under s 140GB.

KEY CASES [338.200]

A primary decision that is affected by jurisdictional error will still constitute a Pt 5 reviewable decision An error in the making of a primary decision (whether by the Minister or his or her delegate) does not prevent the decision from being a “Pt 5 reviewable decision”. To understand why, it is necessary to have regard to the following related provisions in the Act: • s 69(1) provides that non-compliance by the Minister with subdiv AA, AB or s 494D in relation to a visa application, “does not mean that a decision to grant or refuse to grant the visa is not a valid decision but only means that the decision might have been the wrong one and might be set aside if reviewed”; • s 338 refers to the types of decisions that are reviewable by the tribunal. In each instance, the word “decision” is used (for example, a “decision to refuse”) to define a Pt 5 reviewable decision, but does not import the words “valid decision” in this context; • s 349(1) provides that the “tribunal may, for the purposes of review of a Pt 5 reviewable decision, exercise all the powers and discretions that are conferred by [the] Act on the person who made the decision”. In Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307; [1979] FCA 21 at [12] (Lawlor), Bowen CJ observed, in relation to whether the Administrative Appeals Tribunal had jurisdiction to review a purported revocation of a licence where there was no statutory power to revoke the licence, that “decision” means a “decision in fact made, regardless of whether or not it is a legally effective decision”. In Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495; 62 ALD 513; [2000] FCA 906 (Yilmaz), the applicant had submitted an incomplete application for a protection visa, but noted in his application that he would provide the balance of the information required at a later stage. Before the applicant provided the information, a delegate of the Minister made a decision to refuse to grant the visa. On appeal, the Full Court of the Federal © 2016 THOMSON REUTERS

647

s 338

Migration Act 1958

[338.220]

Court considered the consequence of the delegate considering an incomplete, and therefore invalid, application for a visa. Relevantly, Gyles J (Spender J agreeing, Marshall J in dissent, but not on this point) had regard to the corresponding legislative provisions under Pt 7 of the Act, and observed at [88]: In my opinion, these principles are to be applied in the present setting. Brian Lawlor … was a landmark decision in the early days of the jurisdiction of the AAT which had been established to conduct review of certain administrative decisions on the merits as part of a comprehensive set of administrative law reforms. The decision has stood now for over 20 years without dissent and has been regularly applied. It must be taken to have been the law when the RRT provisions were framed. The decision of the delegate … was in fact a decision to refuse to grant a protection visa within the meaning of s 411(1)(c), even if invalid … There are no degrees of invalidity … This analysis does, however, elucidate s 69. In my opinion, it is intended to have the same effect as does the application of the Lawlor principle.

In Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 211 ALR 261; [2004] FCAFC 248, the applicant argued that the decision of the delegate, which was subsequently considered by the tribunal, was “no decision at all” as it was affected by jurisdictional error. A Full Court of the Federal Court followed the reasoning of Gyles J in Yilmaz, and observed at [28] that the term “decision”, when used in s 338, ought not be construed in some way so as to refer only to a decision that has been made by a delegate after full compliance with the mandatory procedural prescriptions. The court stated that there is nothing in Pt 5 of the Act which would suggest that the tribunal does not have the power or obligation to review a decision properly brought before it where the delegate may have failed to comply with a procedural requirement, or in some other way may have committed an error of law. Having regard to s 349(1), the court also observed at [32] that the tribunal was, in consequence, able to “cure” a defect in a decision of the Minister or his or her delegate. [338.220]

If the Minister breaches s 47(3) and considers an invalid visa application, s 69(1) will render any decision made in respect of that application as being valid Section 47(3) provides that the Minister is not to consider an application that is not a valid application. On the other hand, s 69(1) provides that non-compliance by the Minister with subdiv AA (which includes s 47), AB or s 494D in relation to a visa application, “does not mean that a decision to grant or refuse to grant the visa is not a valid decision but only means that the decision might have been the wrong one and might be set aside if reviewed”. In Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495; 62 ALD 513; [2000] FCA 906 (Yilmaz) at [81], Gyles J (with whom Spender J agreed, Marshall J in dissent) held that a decision of a delegate made in respect of an otherwise invalid application, although it would involve a contravention of s 47(3), is rendered valid by the operation of s 69(1). Gyles J reasoned that: It is thus clear that s 69 relieves against invalidity based upon a breach of s 47. It is entirely reasonable that this should be so. The Minister is bound not to consider an invalid application, and should not do so. If the Minister does so, however, why should the applicant be penalised for, or affected by, the Minister’s mistake? If a visa has been granted, but the application had been invalid on some ground, it would be unreasonable to have it declared invalid in proceedings thereafter, when the remedy had been in the Minister’s own hands at the time … Viewed in this way, s 69 prevents approbation and reprobation by the executive to the disadvantage of the applicant.

Further, Gyles J in Yilmaz (Spender J agreeing, Marshall J in dissent) rejected any suggestion that the wording of s 65(1) was inconsistent with the above conclusion. His Honour stated at [83]: It seems to be that the words “after considering a valid application for a visa” in that section do not form part of the conditions of exercise of the power, but are, rather, the assumption upon which the section proceeds. This is not surprising, since it would be assumed that the Minister would obey s 47, 648

Migration Law

[338.260]

Part 5 – Review of Part 5-reviewable decisions (ss 336M–379G) Division 2 – Part 5-reviewable decisions (ss 338–339)

s 338

which is directed to the very point. As non-compliance with s 47 is plainly covered by s 69, I do not find any inconsistency between it and s 65, which is directed to those elements … which must be met before a visa can be granted.

[338.260]

Section 338(2)(d) confers jurisdiction on the Tribunal where a nomination made under s 140GB has been refused (providing an application for review of the nomination refusal is pending) In Ahmad v Minister for Immigration and Border Protection [2015] FCAFC 182, a real estate agency, “RKP”, had been approved under s 140E as a “standard business sponsor”, entitling it to apply for approval of a nomination of a person for a subclass 457 visa. Subsequently, Mr Ahmad, the visa applicant, applied for a Temporary Business Entry (Class UC) subclass 457 visa. At about the same time RPK applied separately under s 140GB for the occupation of “property manager” to be approved, being the position intended to be filled by Mr Ahmad. The Minister’s delegate refused to approve RKP’s nomination of Mr Ahmad in relation to the proposed position on the basis that the delegate was not satisfied that the position was genuine for the purposes of reg 2.72(10)(f) of the Regulations. On the same day, Mr Ahmad’s visa application was refused. Both Mr Ahmad and RKP applied to the Tribunal for merits review of the adverse decisions against them. The Tribunal concluded that it lacked jurisdiction to consider Mr Ahmad’s case. It informed the applicant that, to attract the Tribunal’s jurisdiction under s 338(2)(d)(i) of the Act, the nomination of an occupation must first have been approved. Alternatively, to attract the Tribunal’s jurisdiction under s 338(2)(d)(ii), an application for review of a refusal to approve a sponsorship application under s 140E must have been made and be pending review. Relevantly, it was said that jurisdiction would not lie under s 338(2)(d)(ii) where a refusal to approve a nomination under s 140GB was pending review. The Full Federal Court rejected the Tribunal’s interpretation of s 338(2)(d), which rested on the judgment given in Minister for Immigration v Lee [2014] FCCA 2881. The Full Court observed that the word “sponsored”, when used in Part 5, is defined in s 337 to have the same meaning as in the Regulations. Regulation 4.02(1AA) provides in this regard that “sponsored” includes being identified in a nomination under s 140GB at [98]. The Full Court found that this has a number of consequences for the purposes of determining the Tribunal’s jurisdiction under s 338(2)(d). First, in determining whether it is a criterion for the grant of the visa that the non-citizen is “sponsored by an approved sponsor”, as the opening words of s 338(2)(d) mandate, this is to be read as including any criterion that the applicant be identified in a nomination under s 140GB by an approved sponsor: at [96]. In other words, a visa that requires an applicant to be identified in a nomination under s 140GB is to be equated, in the general sense required by the opening words of s 338(2)(d), with a visa which requires an applicant to be “sponsored by an approved sponsor”. This aspect of the decision followed Minister for Immigration and Citizenship v Islam (2012) 202 FCR 46 at [38]-[43] and Szabo v Minister for Immigration and Border Protection [2014] HCATrans 226 (Gageler J). Secondly, for the purposes of s 338(2)(d)(i), this means that jurisdiction will lie where not only an approved sponsor has obtained sponsorship of the visa applicant, but also where the applicant has merely been identified in a nomination for sponsorship under s 140GB: at [98]. Thus, the Tribunal will have jurisdiction notwithstanding that the nomination has been refused. However, the Full Court noted at [113] in obiter that jurisdiction is unlikely to be found where an adverse nomination application has not been appealed against or has lapsed. Finally, the expression “decision not to approve the sponsor” in s 338(2)(d)(ii) was said to include both the approval of the sponsor under s 140E and the approval of the nomination under © 2016 THOMSON REUTERS

649

s 339

Migration Act 1958

[339.20]

s 140GB: at [99]. This has the effect of conferring jurisdiction on the Tribunal where either an application for approval of the sponsor is pending, or where an application for approval of the nomination is pending. Thus, it would be sufficient to attract the Tribunal’s jurisdiction that, at the time of making an application for review of a visa decision, there is a pending application for review in respect of an adverse nomination decision: at [105]. The Full Court therefore found that the Tribunal had jurisdiction to hear Mr Ahmad’s application as the decision not to approve RPK’s nomination of his proposed occupation was subject to a pending application for review. That is, for all intents and purposes, an application for review of the decision “not to approve the sponsor” had been made and pending at the time Mr Ahmad made his application: [100]–[101]. 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)). [S 339 am Act 60 of 2015, s 3 and Sch 2 item 33, with effect from 1 Jul 2015; subst Act 114 of 1998, s 3 and Sch 1 item 12; Act 113 of 1998, s 3 and Sch 1 item 10, with effect from 1 Jun 1999; former s 115B renum Act 60 of 1994, s 83, with effect from 1 Sep 1994; am Act 60 of 1994; insrt Act 184 of 1992, s 23, with effect from 1 Sep 1994]

SECTION 339 COMMENTARY Scope ................................................................................................................................................... [339.20] CONCEPTS

Use of the word may in s 339 means the power is discretionary .................................................... [339.40] KEY CASES

The issue of a certificate under s 339 may be subject to judicial review ........................................ [339.60]

[339.20] Scope This provision enables the Minister to issue a conclusive certificate rendering a primary decision not reviewable by the Tribunal. According to the Explanatory Memorandum to the Migration Legislation Amendment Bill (No 1) 1998 (Cth) at [21]: A certificate may be issued where the Minister thinks that it is in the public interest to do so. This can occur because of prejudice to Australia’s security, defence or international relations or because the review would involve the deliberations of decisions of Cabinet or a Cabinet committee.

CONCEPTS [339.40] Use of the word “may” in s 339 means the power is discretionary Section 33(2A) of the Acts Interpretation Act 1901 (Cth) provides that where a person, court or body may do a particular act or thing, and the word “may” is used, the act or thing may be done at the discretion of the person, court or body. In Nguyen Thanh Trong v Minister of Immigration Local Government and Ethnic Affairs (1996) 66 FCR 239; 42 ALD 255; [1996] FCA 1674, Merkel J applied s 33(2A) of the Acts Interpretation Act 1901 (Cth) to s 166B (which, at the time, was similar to s 339 in its present form) but held that, if that section did not apply, his Honour would in any event have arrived at the same conclusion in relation to the discretion conferred: at [37]. 650

Migration Law

[339.60]

Part 5 – Review of Part 5-reviewable decisions (ss 336M–379G) Division 2 – Part 5-reviewable decisions (ss 338–339)

s 339

KEY CASES [339.60] The issue of a certificate under s 339 may be subject to judicial review In Nguyen Thanh Trong v Minister of Immigration Local Government and Ethnic Affairs (1996) 66 FCR 239; 42 ALD 255; [1996] FCA 1674, 17 persons had applied for protection visas. The applications were determined by delegates of the Minister, with the result that three persons were determined to be refugees and the remaining 14 were determined not to be refugees. Subsequently, and without prior notice, the Minister issued conclusive certificates under s 166B (which was similar in terms to s 339) in relation to each of the claimants whose claim for protection had been refused. The effect of the certificates was to make the delegates’ decisions non “RRT-reviewable decisions” (now a “Part 7-reviewable decision”), which meant the decisions were no longer subject to review by the Refugee Review Tribunal. The applicant sought judicial review of the Minister’s decision to issue a certificate. In considering a court’s ability to review a decision by the Minister to issue a certificate, Merkel J held at [46] that: • the Minister has a discretion whether to issue a conclusive certificate upon forming the requisite belief; • the discretion is a broad one and is confined only by the requirement that its exercise be consistent with the scope, subject matter and purpose of the power conferred; • in forming the requisite belief the Minister is only required to have regard to the matters set out in the provision (that is, the “national interest”); • a decision made under the section is not immune from review. However, the width of the discretion and the subjective nature of any decision, insofar as it is conditional on the formation of a belief, necessarily result in very limited grounds for administrative review. In light of the limited grounds of administrative review available in respect of a decision to issue a certificate, the court dismissed the applicant’s challenge on the basis of an alleged error of law, failure to have regard to Australia’s treaty obligations and failure to exercise a fair, impartial and independent discretion. Merkel J stated at [59] that the applicant’s ground that the Minister failed to afford natural justice or procedural fairness was “the only substantial ground of challenge”. His Honour cited with approval at [61] the comments of Mason CJ, Dawson, Toohey and Gaudron JJ in Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; 66 ALJR 271; [1992] HCA 10 at 576 (CLR), where their Honours held that the duty to afford procedural fairness arises, if at all, because the impugned power involved is one which may “destroy, defeat or prejudice a person’s rights, interests or legitimate expectations”. Merkel J found, at [62]–[68], that s 166B met this description and that, therefore, the applicant was entitled to procedural fairness. The court found that the failure of the Minister to give the applicant prior notice of his intention to issue a conclusive certificate, and not give the applicant an opportunity to be heard, breached the rules of natural justice. The court held that the decision was therefore invalid. [Editor’s note: Sections 340–345 were repealed by Act 113 of 1998, s 3 and Sch 1 item 10, with effect from 1 Jun 1999, and have not been reproduced.]

© 2016 THOMSON REUTERS

651

s 346

[339.60]

Migration Act 1958

DIVISION 3 – PART 5-REVIEWABLE DECISIONS: TRIBUNAL REVIEW (SS 347–352) [Div 3 heading subst Act 60 of 2015, s 3 and Sch 2 item 34, with effect from 1 Jul 2015; Act 113 of 1998, s 3 and Sch 1 item 11, with effect from 1 Jun 1999] [Former Div 2 renum Act 60 of 1994, s 83, with effect from 1 Sep 1994; subst Act 184 of 1992, s 23, with effect from 1 Sep 1994]

346 Decisions reviewable by Immigration Review Tribunal [Repealed] [S 346 rep Act 113 of 1998, s 3 and Sch 1 item 13, with effect from 1 Jun 1999; am Act 60 of 1994; former s 116 subst Act 184 of 1992, s 23, with effect from 1 Sep 1994]

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). [Subs (1) am Act 60 of 2015, s 3 and Sch 2 item 133, with effect from 1 Jul 2015; Act 168 of 2000, s 3 and Sch 1 item 12; Act 28 of 2000, s 3 and Sch 5 item 2; Act 113 of 1998, s 3 and Sch 1 items 13 and 39, with effect from 1 Jun 1999; Act 60 of 1994, s 73(a) and (b), with effect from 1 Sep 1994]

(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). [Subs (2) am Act 60 of 2015, s 3 and Sch 2 item 133, with effect from 1 Jul 2015; Act 144 of 2008, s 3 and Sch 10 item 70; Act 168 of 2000, s 3 and Sch 1 item 13; Act 28 of 2000, s 3 and Sch 5 item 3; subst Act 113 of 1998, s 3 and Sch 1 item 14, with effect from 1 Jun 1999; am Act 60 of 1994, s 73(c)–(e), with effect from 1 Sep 1994]

(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. [Subs (3) am Act 60 of 2015, s 3 and Sch 2 item 133, with effect from 1 Jul 2015; Act 168 of 2000, s 3 and Sch 1 item 14; Act 113 of 1998, s 3 and Sch 1 item 15, with effect from 1 Jun 1999; Act 60 of 1994, s 73(f), with effect from 1 Sep 1994]

(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:

652

Migration Law

Part 5 – Review of Part 5-reviewable decisions (ss 336M–379G) Division 3 – Part 5-reviewable decisions: Tribunal review (ss 347–352)

[339.60]

s 347

(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. [Subs (3A) am Act 60 of 2015, s 3 and Sch 2 item 133, with effect from 1 Jul 2015; insrt Act 28 of 2000, s 3 and Sch 5 item 4]

(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. [Subs (4) am Act 60 of 2015, s 3 and Sch 2 item 133, with effect from 1 Jul 2015; Act 113 of 1998, s 3 and Sch 1 item 16, with effect from 1 Jun 1999]

(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). [Subs (5) am Act 60 of 2015, s 3 and Sch 2 item 133, with effect from 1 Jul 2015; Act 113 of 1998, s 3 and Sch 1 item 17, with effect from 1 Jun 1999] [S 347 am Act 60 of 2015, s 3 and Sch 2 item 35, with effect from 1 Jul 2015; Act 144 of 2008; Act 168 of 2000; Act 28 of 2000; Act 113 of 1998, s 3 and Sch 2 item 8, with effect from 5 Feb 1999; former s 117 renum Act 60 of 1994, s 83, with effect from 1 Sep 1994; am Act 60 of 1994; subst Act 184 of 1992, s 23, with effect from 1 Sep 1994; former s 63 renum Act 59 of 1989, s 35; insrt Act 59 of 1989, s 26]

SECTION 347 COMMENTARY Scope ................................................................................................................................................... [347.20] CONCEPTS

Approved form .................................................................................................................................... [347.40] Prescribed period ................................................................................................................................. [347.60] Prescribed fee ...................................................................................................................................... [347.80] KEY CASES

No power to extend the prescribed period to file an application .................................................... [347.100] Section 347(1) creates an envelope of time during which the application must be made ............ [347.120] If proper notification of the delegate’s decision is not given, time does not commence so as to preclude an applicant from applying to the Tribunal for review ............................................................... [347.140] Valid notification of a Pt 5-reviewable decision cannot be undone so that the prescribed period will immediately commence regardless of subsequent events ....................................................... [347.160] Is the requirement to use the approved form amenable to substantial compliance ....................... [347.200] Substantial compliance of an approved form where passport details not provided ....................... [347.220] Distinction between the requirement to make an application on a specific form, and an obligation to complete that form in the prescribed manner ......................................................................... [347.240] The requirement for a specified person to make the application is not amenable to substantial compliance. Either the correct person applies, or they do not .................................................................... [347.260] Prescribed fee and application for waiver ........................................................................................ [347.280] PRACTICE POINT

Where a Part 5-reviewable decision is made in respect of a person who fails to apply to the Tribunal for review in accordance with s 347, application may, in the alternative, be made to the High Court for judicial review .......................................................................................................................... [347.300] Approved forms ................................................................................................................................. [347.320] © 2016 THOMSON REUTERS

653

s 347

Migration Act 1958

[347.20]

[347.20] Scope This section sets out the prerequisites that must be complied with for the Tribunal to be apprised of jurisdiction to hear and determine an application for merits review.

CONCEPTS [347.40] Approved form According to s 5, the words “approved form” mean, in respect of a particular provision of the Act, a form approved by the Minister in writing for the purposes of that provision. Section 495 provides that the Minister may, in writing, approve a form for the purposes of a provision of the Act in which the expression “approved form” is used. Further, the Minister may delegate the power to approve such forms under s 496(1). On 25 February 2005, the Minister, by instrument in writing, revoked all existing delegations made in relation to the Principal Member of the Tribunal. By the same instrument, the Minister delegated to the Principal Member, among other things, the power to approve forms for the purposes of s 495 of the Act. Accordingly, all application forms to the Tribunal are approved by the Principal Member of the Tribunal. [347.60] Prescribed period Section 347(1) “fixes the maximum period within which applications may be made” to the Tribunal, “but authorises the making of regulations prescribing shorter periods”: Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172 (Xie) at [5] per Spender, Kiefel and Dowsett JJ. Regulation 4.10 sets out the prescribed periods for making applications to the Tribunal. For example, for the purpose of s 347(1)(b), the maximum period is 28 days “after the notification of the decision”. However, pursuant to reg 4.10(1)(a), the prescribed period in relation to a decision covered by s 338(2) (a decision to refuse to grant a visa) starts when the applicant receives the notice of the decision and ends at the end of 21 days “after the day on which the notice is received”: reg 4.10(1)(a). Even though the language in s 347(1)(b), being 28 days “after the notification of the decision”, differs to the language in reg 4.10(1)(a), being 21 days “after the day on which the notice is received”, nothing turns on this inconsistency: Xie at [5] per Spender, Kiefel and Dowsett JJ. [347.80] Prescribed fee Currently, reg 4.13 prescribes the “fee for an application for review of a decision by the Tribunal” to be $1,540. The payment of this fee is subject to exceptions mentioned in sub-regulations (2) and (3). Further, reg 4.13(4) allows a person to apply for a fee waiver of up to 50% of the amount otherwise required to be paid. Pursuant to reg 4.13A, the fee is increased in accordance with reg 4.13B on each biennial anniversary of 1 July 2011.

KEY CASES [347.100] No power to extend the prescribed period to file an application The Tribunal does not have the power, either under the Act or the Regulations, to extend the prescribed periods in s 347: Patel v Minister for Immigration and Citizenship [2012] FCA 145 at [7] per Marshall J. [347.120]

Section 347(1) creates an envelope of time during which the application must be made In Hasan v Minister for Immigration and Citizenship (2010) 184 FCR 523; 114 ALD 602; [2010] FCA 375 (Hasan), the applicant had filed an application for review nearly five months after notification of the primary decision of the delegate. The Tribunal held that it did not have 654

Migration Law

[347.160]

Part 5 – Review of Part 5-reviewable decisions (ss 336M–379G) Division 3 – Part 5-reviewable decisions: Tribunal review (ss 347–352)

s 347

jurisdiction to deal with an application filed outside the prescribed period. The appellants argued that no effective notice of the delegate’s decision had been given, and sought an order compelling the Tribunal to hear and determine the application for review. North J found that proper notification had not been given and that, therefore, the time within which to file an application to review the delegate’s decision had not commenced. However, because time had not “started”, the Tribunal did not have jurisdiction to deal with the application and could not therefore be compelled to hear and determine it. His Honour observed at [29]: The regulation [reg 4.10] appears to establish an envelope of time with a beginning and an end. It seems to require that the application be given to the Tribunal within that envelope. On this view, an application given after the end of the period would not comply with the requirement. Similarly, an application given before the start of the period would not comply with the requirement.

North J held at [58] that, because the application for review was given before the prescribed period commenced, the Tribunal could not be compelled to embark on a hearing. In the circumstances, his Honour directed the Minister to provide proper notice of the delegate’s decision. In SZOFE v Minister for Immigration and Citizenship (2010) 185 FCR 129; 269 ALR 343; [2010] FCAFC 79, Buchanan and Nicholas JJ expressed agreement with North J in Hasan that the language of the Regulations (regs 4.10 and 4.31 appears to establish an envelope of time within which an application must be made. [347.140]

If proper notification of the delegate’s decision is not given, time does not commence so as to preclude an applicant from applying to the Tribunal for review Where proper notification of the delegate’s decision is not given in accordance with the requirements of s 66, time does not commence so as to preclude an applicant from applying to the Tribunal for review: see, for example, Hasan v Minister for Immigration and Citizenship (2010) 184 FCR 523; 114 ALD 602; [2010] FCA 375 at [29], [58]; and SZOFE v Minister for Immigration and Citizenship (2010) 185 FCR 129; 269 ALR 343; [2010] FCAFC 79 at [61]–[63]. [347.160]

Valid notification of a Pt 5-reviewable decision cannot be “undone” so that the prescribed period will immediately commence regardless of subsequent events Once an applicant has been validly notified of the delegate’s decision, it is not possible to “re-notify” the recipient. Where an applicant is therefore sent more than one letter notifying him or her of the decision, the time which the applicant will have to apply to the Tribunal will begin from the first letter that is validly sent. In Minister for Immigration and Citizenship v Abdul Manaf (2009) 111 ALD 437; [2009] FCA 963, Ms Abdul Manaf lodged an application for a further business visa, which the delegate refused. The delegate sent the notification letter and decision to the address provided by Ms Abdul Manaf. After having sent the notification letter and decision to that address, Ms Abdul Manaf informed the Department that she had changed her address. A second notification letter, with the decision, was then resent, not to the new address but to an address that did not exist. Both the first and second notification letters were returned to the Department. Once Ms Abdul Manaf was made aware of the decision, she applied to the Tribunal for review. The Tribunal found that the applicant was validly notified by the first letter sent, and therefore it did not have jurisdiction to consider the application as it had been filed outside the prescribed period provided for under s 347. Ms Abdul Manaf applied for judicial review of the Tribunal’s decision. At first instance, O’Dwyer FM held that the Tribunal had erred in finding that Ms Abdu Manaf had been validly © 2016 THOMSON REUTERS

655

s 347

Migration Act 1958

[347.200]

notified by the first notification letter. This is because the second renotification letter invalidated the first notification, and because the second renotification letter had been sent to the wrong address, it did not satisfy the legislative scheme, and therefore Ms Abdul Manaf had not been validly notified. On appeal, Sundberg J held that the first notification letter attaching the decision was validly sent, and that therefore time to apply to the Tribunal for review began at that time. Since the first notification was validly sent, it was not possible to renotify Ms Abdul Manaf, as there could not be more than one timetable for the commencement of the review application to the Tribunal. [347.200]

Is the requirement to use the approved form amenable to substantial compliance In determining whether an applicant has provided an “approved form” to the Tribunal for the purposes of s 347(1)(a), regard must be had to the applicability of s 25C of the Acts Interpretations Act 1901, which relevantly provides: Where an Act prescribes a form, then strict compliance with the form is not required and substantial compliance is sufficient.

In MZAIC v Minister for Immigration and Border Protection [2016] FCAFC 25 (MZAIC), Kenny, Tracey, Robertson and Mortimer JJ considered s 412(1)(a) which is the equivalent provision to s 347(1)(a) in relation to reviews of decisions under Part 7 of the Act. Kenny, Tracey, Robertson and Mortimer JJ upheld an appeal by the appellant in relation to a decision by the Federal Circuit Court which held that the Tribunal did not err by finding that it did not have jurisdiction to consider the appellant’s application because he had used a superseded version of the approved form. The Full Court of the Federal Court considered whether in such circumstances it was possible for there to be substantial compliance in relation to s 412(1)(a) by applying s 25C of the Acts Interpretations Act 1901. Justices Kenny, Tracey, Robertson and Mortimer held that s 25C of the Acts Interpretations Act 1901 applies to s 412(1)(a) in relation to the provision of an approved form. That is, where a person has used a superseded form in circumstances where that person is not expressly or impliedly prohibited from using the approved form, then it is possible to have substantial compliance. In MZAIC Kenny, Tracey, Robertson and Mortimer JJ distinguished SZJDS v Minister for Immigration and Citizenship (2012) 201 FCR 1; 126 ALD 78; [2012] FCAFC 27 in relation to the issue of whether the provision of an approved form under s 412(1)(a) was amenable to substantial compliance on the basis that s 25C of the Acts Interpretations Act 1901 applies to this section. In SZJDS v Minister for Immigration and Citizenship (2012) 201 FCR 1; 126 ALD 78; [2012] FCAFC 27, the appellant had lodged a valid application form with the Tribunal for the purposes of s 347(1)(a). However, the appellant inserted, with the valid application form, part of an invalid form which had previously been completed and which directed the Tribunal to send correspondence to the appellant’s solicitor. The valid application form, on the other hand, provided only the appellant’s address as the relevant address for correspondence purposes. The Tribunal subsequently sent an invitation to the appellant to attend a hearing via the appellant’s solicitors. The appellant was not informed of this invitation by the solicitor. On appeal, the appellant argued that the Tribunal ought to have sent all correspondence to himself, rather than to his solicitor, because the direction to send correspondence to his solicitor was contained on an invalid application form which had previously been completed and which pre-dated the completion of the valid application form. The Full Court of the Federal court allowed the appeal, finding that the inclusion of part of the invalid form was essentially a nullity. In coming to their decision, Rares and Cowdroy JJ stated at [26]–[28]: 656

Migration Law

[347.220]

Part 5 – Review of Part 5-reviewable decisions (ss 336M–379G) Division 3 – Part 5-reviewable decisions: Tribunal review (ss 347–352)

s 347

Two different scenarios can arise where legislation requires a specific form to be used to make an application. The first arises where a specific form is required to be used to make an application. In this instance, it is essential that the specified form be used. Here, there is no scope for partial or substantial compliance with the requirement to use the particular form. Either an applicant uses the correct form, or the applicant does not. If the applicant does not use the correct form, the attempt to make an application using the wrong form will be invalid. The second scenario arises where an applicant uses the prescribed form, but fails in some respect to complete it accurately or fully. In this instance, the failure does not necessarily result in an invalid application. That is because of the operation of s 35C of the Acts Interpretation act 1901 (Cth) which provides that where “… an Act prescribes a form, then unless the contrary intention appears, strict compliance with the form is not required and substantial compliance is sufficient”. The distinction between the first and second scenarios is that a person cannot partially or substantially comply with the requirement to use the specific form; the application will be valid only if he or she uses the specific form, otherwise the application is invalid. On the other hand, if the person substantially complies with the directions on that specific form, depending on the circumstances, a partial failure to complete it in accordance with its stated directions may not affect its validity.

In MZAIC, Kenny, Tracey, Robertson and Mortimer JJ considered the above reasoning and stated at [24] to [25]: To the extent that the reasoning in these paragraphs suggests that s 25C does not apply to s 412(1)(a) of the Migration Act we respectfully disagree with that meaning. SZJDS is readily to be distinguished as in that case the appellant was not within the particular class of applicant for review contemplated by the form he used as he was not in immigration detention. … In the present case, however, all that appears is that the appellant used a superseded form but one which was directed to the applicants of his class and where the form, although superseded, had not been approved for different purposes.

It appears that in very special circumstances, such as those that existed in SZJDS, that is were a person is not able to use a particular form or a person does not fall within the class of persons who are able to use a particular form, then it is not possible to have substantial compliance. However, according to MZAIC where a person, who is able to use a particular, uses a superseded form, then it is possible to have substantial compliance, [347.220]

Substantial compliance of an approved form where passport details not provided In MZAIC v Minister for Immigration and Border Protection [2016] FCAFC 25 (MZAIC), Kenny, Tracey, Robertson and Mortimer JJ held that the appellant had substantially complied with s 412(1)(a) (the equivalent provision to s 347(1)(a) in relation to reviews under Part 7 of the Act) by providing a superseded application form to the Tribunal which did not contain his passport details. At [58] of the decision Kenny, Tracey, Robertson and Mortimer JJ set out their reasoning that there had been substantial compliance, namely because: • the purpose of the application form was to indicate that an applicant invokes the jurisdiction of the Tribunal and for that purpose it states who the applicant is and identifies the decision to be challenged; • the application attached a copy of the notification letter from the delegate refusing his visa and that letter contained the appellant’s name, date of birth, client ID, application ID and file number; • many applicants to the Tribunal would not have passport numbers; • the request for passport numbers in the application appears to be directed to the administrative convenience of the Tribunal; © 2016 THOMSON REUTERS

657

s 347

Migration Act 1958

[347.240]

• the request for the passport number in the application is merely a further or additional means to collect information about the person applying for review; • pursuant to s 418(3) of the Act, the Secretary is required to provide the Tribunal with documents in his or her control, which will include the appellant’s passport number [347.240]

Distinction between the requirement to make an application on a specific form, and an obligation to complete that form in the prescribed manner In SZJDS v Minister for Immigration and Citizenship (2012) 201 FCR 1; 126 ALD 78; [2012] FCAFC 27, the appellant had lodged a valid application form with the Tribunal for the purposes of s 347(1)(a). However, the appellant inserted, with the valid application form, part of an invalid form which had previously been completed and which directed the Tribunal to send correspondence to the appellant’s solicitor. The valid application form, on the other hand, provided only the appellant’s address as the relevant address for correspondence purposes. The Tribunal subsequently sent an invitation to the appellant to attend a hearing via the appellant’s solicitors. The appellant was not informed of this invitation by the solicitor. On appeal, the appellant argued that the Tribunal ought to have sent all correspondence to himself, rather than to his solicitor, because the direction to send correspondence to his solicitor was contained on an invalid application form which had previously been completed and which pre-dated the completion of the valid application form. The Full Court of the Federal court allowed the appeal, finding that the inclusion of part of the invalid form was essentially a nullity. In coming to their decision, Rares and Cowdroy JJ stated at [26]–[28], [34]: Two different scenarios can arise where legislation requires a specific form to be used to make an application. The first arises where a specific form is required to be used to make an application. In this instance, it is essential that the specified form be used. Here, there is no scope for partial or substantial compliance with the requirement to use the particular form. Either an applicant uses the correct form, or the applicant does not. If the applicant does not use the correct form, the attempt to make an application using the wrong form will be invalid. The second scenario arises where an applicant uses the prescribed form, but fails in some respect to complete it accurately or fully. In this instance, the failure does not necessarily result in an invalid application. That is because of the operation of s 35C of the Acts Interpretation act 1901 (Cth) which provides that where “… an Act prescribes a form, then unless the contrary intention appears, strict compliance with the form is not required and substantial compliance is sufficient”. The distinction between the first and second scenarios is that a person cannot partially or substantially comply with the requirement to use the specific form; the application will be valid only if he or she uses the specific form, otherwise the application is invalid. On the other hand, if the person substantially complies with the directions on that specific form, depending on the circumstances, a partial failure to complete it in accordance with its stated directions may not affect its validity. … A failure to use “the approved form”, such as occurred when the applicant lodged [the invalid application form], was a failure properly to make an application to the Tribunal within the meaning of ss 347(1)(a) and 348(1). Its jurisdiction was only invoked later … when the appellant lodged [the valid application form].

[347.260]

The requirement for a specified person to make the application is not amenable to substantial compliance. Either the correct person applies, or they do not Section 347(2), (3) and (3A) set out the persons who may apply to the Tribunal for review. In Assi v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 260 (Assi), the applicant had personally lodged an application for review with the Administrative Appeals Tribunal. The Tribunal decided that it did not have jurisdiction to consider the 658

Migration Law

[347.280]

Part 5 – Review of Part 5-reviewable decisions (ss 336M–379G) Division 3 – Part 5-reviewable decisions: Tribunal review (ss 347–352)

s 347

application because the applicant was not entitled to make the application. Rather, the Tribunal found that, pursuant to s 347(2)(b), only the applicant’s sponsor or nominator was entitled to apply for review on the applicant’s behalf. The Federal Magistrates Court upheld the AAT’s finding, noting at [62] that the Tribunal did not have power to amend an application made to the Tribunal by someone other than the person entitled to make an application under the Act. Although the court in Assi did not express itself in such words, the comments of the majority in SZJDS v Minister for Immigration and Citizenship (2012) 201 FCR 1; 126 ALD 78; [2012] FCAFC 27 (SZJDS) at [26]–[28] are apposite to circumstances where a particular person is required to make an application. In that case, a Full Court of the Federal Court held that the requirement to file an application in the “approved form” is not subject to substantial compliance – either the correct form is filed or it is not. It may therefore be inferred that where a particular person is required to make an application, the concept of substantial compliance has no application – either the correct person applies to the Tribunal or they do not. However, it is to be noted that the court in Assi left open the possibility of another person making an application where he or she acts as a disclosed agent for the party who is required to lodge the application form: at [52], [59]. In MZAIC v Minister for Immigration and Border Protection [2016] FCAFC 25 (MZAIC), at [24] to [25]. Kenny, Tracey, Robertson and Mortimer JJ accepted the reasoning at [26]–[28] in SZJDS and noted at [48] that is not possible to have substantial compliance where a person is expressly or impliedly prohibited from using a form, as was the case in MZAIC. [347.280] Prescribed fee and application for waiver Pursuant to s 347(1)(c), if there is a prescribed fee, payment of such a fee is necessary in order for the application to the Tribunal to be valid. However, where an applicant has lodged an application with the Tribunal together with an application to have the prescribed fee waived (and the fee is subsequently waived or paid), the Tribunal will have jurisdiction to review the decision even though the prescribed fee was not paid within the prescribed period in s 347(1)(b) for making the application. In Braganza v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 364; 183 ALR 123; [2001] FCA 318, the applicant lodged his application with the Tribunal within the prescribed period and had also (within that period of time) applied to have the prescribed fee waived on the grounds of financial hardship. The applicant had a telephone conversation with an officer at the Tribunal and was informed that his application for the fee waiver had been rejected and he had a further week to pay the fee. Six days after the telephone conversation, the Tribunal sent him a letter stating that his application was not valid and had been “finalised as ineligible”. Prior to receipt of this letter and within a week of the telephone conversation, the applicant paid the prescribed fee. The applicant sought judicial review of the decision that he had not made a valid application. At first instance, the application was dismissed. On appeal, the Full Court of the Federal Court held, relying on the inclusion of the phrase “if any” in s 347(1)(c), that the provision is to be read subject to a qualification that: provided an application for a waiver of the fee has been made within the prescribed period, the MRT is not prevented from considering the application for review merely because the prescribed fee has not been paid within the prescribed time: at [51] per Wilcox, Weinberg and Stone JJ.

This decision was applied by Gray J in Patel v Minister for Immigration and Citizenship (2009) 108 ALD 151; [2009] FCA 392 at [13] where Gray J stated: The Full Court in Braganza attempted to resolve the difficulty created by the absence of any specific provisions to deal with the obvious gap created by s 347(1)(c) of the Migration Act. That gap occurs in a case in which a person gives to the Tribunal, within the prescribed time limit, an application in the approved form, but the application is not accompanied by the prescribed fee, because the applicant has © 2016 THOMSON REUTERS

659

s 348

[347.300]

Migration Act 1958

applied for a decision under reg 4.13(4) of the Migration Regulations that the fee should not be paid, generally described as an application to waive the fee. If the application to waive the fee is unsuccessful, the applicant is required to pay the prescribed fee. The problem is that time has elapsed. Not only has the prescribed fee not accompanied the application, but it is very likely that the prescribed period has expired. If a literal view were to be taken of s 347(1)(c), in every case an applicant would be precluded from proceeding for review, because of non-compliance with s 347(1)(c). This would have the effect of depriving reg 4.13(4), and the words “(if any)” in s 347(1)(c), of any real meaning, except in a case in which the applicant paid the prescribed fee and also sought a decision that it should not be paid, leading to the remission of the fee if the application were successful. Such a construction would do injustice to an applicant who genuinely lacks the means to pay the fee and therefore seeks a decision under reg 4.14(4) to waive the fee. It is likely that there would be many such applicants. To make the provisions operate sensibly, the Full Court in Braganza held that, in such a case, the Tribunal was not deprived of jurisdiction to consider the application for review merely because the prescribed fee was not paid within the prescribed period, provided the fee was either eventually waived or paid within a reasonable time after the rejection of the request for a decision under reg 4.13(4).

PRACTICE POINT [347.300]

Where a Part 5-reviewable decision is made in respect of a person who fails to apply to the Tribunal for review in accordance with s 347, application may, in the alternative, be made to the High Court for judicial review In MZXOT v Minister for Immigration and Citizenship (2008) 233 CLR 601; 247 ALR 58; [2008] HCA 28, the Minister had refused to grant the plaintiff a protection visa under s 36 of the Act. The plaintiff applied to the Refugee Review Tribunal for review, but failed to comply with s 412 of the Act (the equivalent provision to s 347 pertaining to the Part 5-reviewable decisions). The plaintiff therefore applied to the High Court for judicial review pursuant to the High Court’s original jurisdiction under s 75(v) of the Constitution. Among other things, the plaintiff sought orders remitting the “primary decision” of the Minister to the Federal Magistrates Court for determination on the basis that ss 476, 476A, 476B and 484 of the Act curtailed, limited or impaired the constitutional role of the High Court (that is, by placing an undue burden on the High Court’s resources). The High Court rejected this argument and refused to remit the matter. Kirby J, in agreeing with the conclusions reached by Gleeson CJ, Gummow and Hayne JJ, found that there was no such burden and that, therefore, the case for remittal had not been made out: at [59]. [347.320] Approved forms The Tribunal publishes on its website the approved form for the purposes of s 347. 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. [Subs (1) am Act 60 of 2015, s 3 and Sch 2 item 133, with effect from 1 Jul 2015; Act 113 of 1998, s 3 and Sch 1 item 39, with effect from 1 Jun 1999]

(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. [Subs (2) am Act 113 of 1998, s 3 and Sch 1 item 18, with effect from 1 Jun 1999] [S 348 am Act 60 of 2015, s 3 and Sch 2 item 36, with effect from 1 Jul 2015; Act 113 of 1998, s 3 and Sch 2 item 8, with effect from 5 Feb 1999; former s 118 renum Act 60 of 1994, s 83, with effect from 1 Sep 1994; subst Act 184 of 1992, s 23, with effect from 1 Sep 1994; am Act 84 of 1992; former s 64 renum Act 59 of 1989, s 35; insrt Act 59 of 1989, s 26]

660

Migration Law

[348.60]

Part 5 – Review of Part 5-reviewable decisions (ss 336M–379G) Division 3 – Part 5-reviewable decisions: Tribunal review (ss 347–352)

s 348

SECTION 348 COMMENTARY Scope ................................................................................................................................................... [348.20] CONCEPTS

Application is properly made ............................................................................................................. [348.40] KEY CASES

The Tribunal is required to apply the law as it stands at the date it makes its decision ................. [348.60] Duty to review, not to make inquiries ................................................................................................ [348.80] The duty to review is a duty to arrive at the correct or preferable decision ................................. [348.100] The nature of the Tribunal’s review function – difference between the function of the Tribunal under Part 5 and Part 7 of the Act ................................................................................................................ [348.120] Prescribed fee and waiver application .............................................................................................. [348.140]

[348.20] Scope If an application to the Tribunal is properly made, the Tribunal must review the decision unless a conclusive certificate under s 339 has been issued. The Tribunal may exercise all the powers and discretions conferred by the Act on the original decision-maker. It may vary or affirm the decision, remit the matter for reconsideration or set aside and substitute a new decision: SZQVV v Minister for Immigration and Citizenship (2012) 130 ALD 472; [2012] FCA 871 at [37] per Greenwood J. However, according to Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed (2005) 143 FCR 324; [2005] FCAFC 58 at [36] per Hely, Gyles and Allsop JJ, the Tribunal is not vested with a: wider substantive jurisdiction (in the administrative sense) than the delegate had. The powers conferred on the Tribunal are for the purposes of reviewing the decisions: see s 349. The review is not an exercise in judicial review of the kind contemplated by s 39B(1) of the Judiciary Act 1903 (Cth). The review is of the MRT-reviewable decision of the delegate. The subject matter of that review is to be identified by examining the boundaries of the administrative controversy before the delegate.

CONCEPTS [348.40] Application is properly made Under s 348, the tribunal can only review an application that is properly made under s 347. Section 347 sets out the requirements for making an application to the Tribunal. In exercising the powers under s 348, a Tribunal member must then decide whether the application was properly made under s 347 and whether the application concerns a “Pt 5-reviewable decision”. This function could not be delegated to an officer in the registry: Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 305 (Lee) at [35] per Madgwick J. However, where this function has been performed by an officer in the registry and the application is out of time, and therefore not properly made, it would be futile for a court to remit the matter to the Tribunal for reconsideration by a Tribunal member, as ultimately the Tribunal will not have jurisdiction to consider the application: Lee at [41] per Madgwick J

KEY CASES [348.60]

The Tribunal is required to apply the law as it stands at the date it makes its decision The effect of s 348(1) is to require the Tribunal to review a “Pt 5-reviewable decision”. In exercising the power conferred by s 349(1) of the Act, the Tribunal is required to apply the law as it stood at the date of the review (that is, at the date it makes its decision): M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 146; 199 ALR 290; [2003] FCAFC 131 (M38/2002) at [48]–[49] per Goldberg, Weinberg and Kenny JJ. © 2016 THOMSON REUTERS

661

s 348

Migration Act 1958

[348.60]

Determining what the law is, at the time the Tribunal makes its decision, depends on what rights a visa applicant has accrued since applying for the visa, and whether any of those rights have been expressly extinguished by Parliament. Section 7(2)(c) of the Acts Interpretation Act 1901 (Cth) provides that where an Act repeals or amends another Act, the repeal or amendment does not “affect any right, privilege, obligation or liability acquired, accrued or incurred under the affected Act”. However, s 7(2)(c) must be read in light of s 2(2), which provides that the application of the Acts Interpretation Act 1901 (Cth) is “subject to a contrary intention” (that is, a contrary intention expressed by Parliament in the amending Act). In Esber v Commonwealth (1992) 174 CLR 430; 106 ALR 577; [1992] HCA 20 (Esber), the High Court considered s 8(c) and (e) of the Acts Interpretation Act 1901 (Cth), which were in similar form to s 7(c) and (e) (when read with s 2(2) of that Act). Relevantly, in the Administrative Appeals Tribunal the appellant had challenged a decision by a delegate of the Commissioner for Employees’ Compensation not to allow the appellant to convert weekly compensation payments into a lump sum. Mascon CJ, Deane, Toohey and Gaudron JJ noted that the first step in consideration of s 8 is to identify the right which was acquired or accrued under the repealed Act. Their Honours held at [21]: Once the appellant lodged an application to the [Administrative Appeals] Tribunal to review the delegate’s decision, he had a right to have the decision of the delegate reconsidered and determined by the [Administrative Appeals] Tribunal. It was not merely “a power to take advantage of an enactment” … Nor was it a mere matter of procedure … it was a substantive right … Section 8 of the Acts Interpretation Act protects anything that may truly be described as a right, “although that right might fairly be called inchoate or contingent” … This was such a right. It was a right in existence at the time the 1971 Act was repealed. That being so, and in the absence of a contrary intention, the right was protected by s 8 of the Acts Interpretation Act and was not affected by the repeal of the 1971 Act.

In Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen (2001) 177 ALR 473; 75 ALJR 542; [2001] HCA 10 (Cohen) at [28], McHugh J cited the above passage with approval, in the context of considering how amendments to the Act and the Regulations ought to be construed. Relevantly, in Cohen, the plaintiff had applied for a “special need relative” visa in October 1998. Subsequently, a visa criterion that the plaintiff had sought to satisfy, the “special need relative” criterion, had been removed pursuant to an amending Regulation, effective from 1 December 1998. Further, the “special need relative” class of visa was repealed altogether, effective from 1 November 1999, pursuant to a different amending Regulation. Transitional provisions contained in the latter legislation made clear, however, that, if an application for a “special need relative” visa had not been finally determined by 1 November 1999, the Regulations “as in force immediately before 1 November 1999” would continue to apply. The problem faced by the plaintiff was that the Regulations in force immediately before 1 November 1999 did not contain the “special need relative” criterion, which was the provision he had relied upon when he applied for the visa, as that criterion had been removed by the earlier amending Regulation. Applying the ratio expressed by the majority in Esber at [21], McHugh J held at [29] that the plaintiff had accrued a “right”, by virtue of s 65(1) of the Act, to have his application for the visa considered by reference to the criteria which applied at the date the application was lodged. His Honour held, in accordance with the Acts Interpretation Act 1901 (Cth), that this right could only be adversely affected by clearly expressed legislation. In the circumstances, the removal of the “special need relative” criterion by the first amending Regulation, and the removal of the “special need relative” class of visa by the latter amending Regulation, did not express any such clear intention. Accordingly, McHugh J held that the applicant had a right to have his visa application determined on the basis that the “special need relative” criterion remained applicable. 662

Migration Law

[348.120]

Part 5 – Review of Part 5-reviewable decisions (ss 336M–379G) Division 3 – Part 5-reviewable decisions: Tribunal review (ss 347–352)

s 348

The decisions in Esber, Cohen and M38/2002 are consistent with each other and are also consistent with the terms of s 7(2)(c) of the Acts Interpretation Act 1901 (Cth). Relying on these authorities, the following general propositions emerge: • the Tribunal is required to apply the law as it stands at the date the Tribunal makes its decision; • what the “law” is depends first upon whether a person has accrued any “rights” and, second, whether those rights have been adversely affected by clearly expressed legislation; and • in relation to visa applications specifically, a person has a “right”, by virtue of s 65(1) of the Act, to have their application for a visa determined by reference to the visa criteria which applied at the date on which the visa application was lodged. Whether those criteria are to be applied at the date on which the primary decision-maker, or the Tribunal, makes a decision, depends on whether any amending legislation has clearly expressed an intention to remove and/or amend that criteria. [348.80] Duty to review, not to make inquiries The Tribunal’s duty is to review a Pt 5-reviewable decision, not to make inquiries. In Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; 273 ALR 223; [2011] HCA 1, the High Court considered the Refugee Review Tribunal’s powers under s 427. Relevantly, French CJ and Kiefel J at [22] endorsed the ratio of the Full Court of the Federal Court in WAGJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 277 that the provision does not impose any duty on the Tribunal to exercise its inquisitorial power by causing an investigation to be undertaken. Similarly, in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; 83 ALJR 1123; [2009] HCA 39, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ held that there is no general duty imposed on the Tribunal to make inquiries. Rather, the duty imposed on the Tribunal is a duty to review: at [25]. A Tribunal may, in some circumstances, fail to discharge its duty to review if it fails to “make an obvious inquiry about a critical fact, the existence of which is easily ascertained. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction”: at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. [348.100]

The duty to review is a duty to arrive at the correct or preferable decision In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; 297 ALR 225; 87 ALJR 618; [2013] HCA 18, the High Court considered a refusal of an adjournment by the Tribunal pursuant to the exercise of its statutory power to adjourn the review of a decision under s 363(1)(b) of the Act. It was recognised that an unreasonable refusal by the Tribunal to grant an adjournment could result in jurisdictional error if it was established that the Tribunal did not conduct a review in the manner required by the Act: see Hayne, Kiefel and Bell JJ at [77]–[87]. In discussing the Tribunal’s obligation to conduct a review in a manner that is “reasonable”, Gageler J at [93] noted that s 348(1) “imposes an overriding duty on the MRT to ‘review the decision’: that is, ‘to arrive at the correct or preferable decision in the case before it according to the material before it’” (citing Bushell v Repatriation Commission (1992) 175 CLR 408; 109 ALR 30; [1992] HCA 47). [348.120]

The nature of the Tribunal’s review function – difference between the function of the Tribunal under Part 5 and Part 7 of the Act The functions of the Tribunal under Pt 5 and Pt 7, in reviewing a decision not to grant a visa, are “informed by the statutory criteria for the grant of such visas”: NABE v Minister for Immigration © 2016 THOMSON REUTERS

663

s 348

Migration Act 1958

[348.120]

and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; 219 ALR 27; [2004] FCAFC 263 (NABE) at [44] per Black CJ, French and Selway JJ. The task of the Tribunal under Pt 7 is to review decisions regarding protection visas. In Huai Xin Li v Minister for Immigration and Citizenship (2008) 102 ALD 354; [2008] FCA 902 at [22], the Federal Court described this task as follows (emphasis in original): A protection visa is not a prescribed class of visa, but is a class referred to in s 31(2), and in s 36, of the Act itself. A criterion for the grant of a protection visa is set out in s 36(2), namely … that the applicant be a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention. Under reg 866.211 of the Regulations, there are also criteria that the applicant claims to be a person to whom Australia has protection obligations under the Convention and that the applicant makes specific claims under the Convention. In the case of an application for a protection visa, therefore, the claims which the applicant actually makes constitute the definitional elements of the application. As is clear from cases such as Htun and Dranichnikov, the courts have regarded such claims as more than merely pieces of evidence in support of a contention that there exists a fear of one of the kinds referred to in the Convention. They have been regarded, it seems, as definitional with respect to the very question which comes before the relevant decision-maker.

Accordingly, the imposition of the word “claim” in the criteria to be met for the grant of a protection visa, when considered in the context of the ss 36(2)(a) and 36(2)(aa) of the Act, creates a mandatory consideration. Applying the reasoning of the Full Court of the Federal Court in NABE at [44], the function of the Tribunal when acting under Pt 7 therefore is, among other things, to consider an applicant’s “claims”. A failure by the Tribunal to consider such “claims” will be a failure to take into account a “relevant consideration” and will therefore be a constructive failure to exercise jurisdiction: see, for example, Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 44; [2001] FCA 1802 at [14] per Merkel J (Spender and Allsop JJ agreeing), at [42] per Allsop J (Spender and Merkel JJ agreeing); see also Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; 180 ALR 1; 75 ALJR 1105; [2001] HCA 30 at [95] per McHugh, Gummow and Hayne JJ; Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 at [44]–[47] per French, Sackville and Hely JJ. A failure by the Tribunal acting in accordance with Pt 7 to address an applicant’s “claims” may also give rise to a denial of procedural fairness: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; 77 ALJR 1088; [2003] HCA 26 at [24] per Gummow and Callinan JJ. On the other hand, where the Tribunal is exercising jurisdiction under Pt 5, it is not compelled to consider “claims”, as the concept of “claims” is peculiar to the criteria for a protection visa only. Jessup J explained the different role of the Migration Review Tribunal in Huai Xin Li v Minister for Immigration and Citizenship (2008) 102 ALD 354; [2008] FCA 902 at [23], where his Honour stated: By contrast, at least relevantly to the present case, the entitlement of an applicant to a spouse visa is not structured around the nature of the claims which he or she makes. The elements of an applicant’s case, as it were, are the components of the definition of “spouse” in reg 1.15A. Undoubtedly the decision-maker is required to consider each of those components, and it is not suggested in the present case that the Tribunal did not do so. The matters which must be considered are stated objectively and, in some respects, broadly. It is inevitable that, under these broad categories, the decision-maker will base his or her decision upon evidence. Such evidence, however, whether advanced by the applicant or obtained otherwise, is not, in my view, of the same legal nature as the “claims”, made by an applicant for a protection visa, by reference to which the decision whether to grant a visa of the latter kind must be made.

Accordingly, as established by the Full Court of the Federal Court in NABE at [44], the task of the Tribunal, when exercising jurisdiction under Pt 5, will be informed by reference to the particular visa that the applicant has applied for. 664

Migration Law

[348.140]

Part 5 – Review of Part 5-reviewable decisions (ss 336M–379G) Division 3 – Part 5-reviewable decisions: Tribunal review (ss 347–352)

s 348

[348.140] Prescribed fee and waiver application The Tribunal is required to review a decision where an application has been properly made under s 347. Pursuant to s 347(1)(c), if there is a prescribed fee, payment of such a fee is necessary in order for the application to the Tribunal to be valid. However, where an applicant has lodged an application with the Tribunal, together with an application to have the prescribed fee waived (and the fee is eventually either waived or paid), the Tribunal will have jurisdiction to review the decision even though the prescribed fee was not paid within the period prescribed in s 347(1)(b) for making the application. In Braganza v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 364; 183 ALR 123; [2001] FCA 318, the applicant lodged his application with the Tribunal within the prescribed period and had also (within that period of time) applied to have the prescribed fee waived on the grounds of financial hardship. The applicant had a telephone conversation with an officer at the Tribunal and was informed that his application for the fee waiver had been rejected and that he had a further week to pay the fee. Six days after the telephone conversation, the Tribunal sent the applicant a letter stating that the application was not valid and had been “finalised as ineligible”. Prior to receipt of this letter, and within a week of the telephone conversation, the applicant paid the prescribed fee. The applicant sought judicial review of the decision that he had not made a valid application. At first instance, the application was dismissed. On appeal, Wilcox, Weinberg and Stone JJ held at [51], relying on the inclusion of the phrase “if any” in s 347(1)(c), that the provision is to be read subject to a qualification that: provided an application for a waiver of the fee has been made within the prescribed period, the MRT is not prevented from considering the application for review merely because the prescribed fee has not been paid within the prescribed time.

This decision was applied by Gray J in Patel v Minister for Immigration and Citizenship (2009) 108 ALD 151; [2009] FCA 392 at [13] where his Honour stated: The Full Court in Braganza attempted to resolve the difficulty created by the absence of any specific provisions to deal with the obvious gap created by s 347(1)(c) of the Migration Act. That gap occurs in a case in which a person gives to the Tribunal, within the prescribed time limit, an application in the approved form, but the application is not accompanied by the prescribed fee, because the applicant has applied for a decision under reg 4.13(4) of the Migration Regulations that the fee should not be paid, generally described as an application to waive the fee. If the application to waive the fee is unsuccessful, the applicant is required to pay the prescribed fee. The problem is that time has elapsed. Not only has the prescribed fee not accompanied the application, but it is very likely that the prescribed period has expired. If a literal view were to be taken of s 347(1)(c), in every case an applicant would be precluded from proceeding for review, because of non-compliance with s 347(1)(c). This would have the effect of depriving reg 4.13(4), and the words “(if any)” in s 347(1)(c), of any real meaning, except in a case in which the applicant paid the prescribed fee and also sought a decision that it should not be paid, leading to the remission of the fee if the application were successful. Such a construction would do injustice to an applicant who genuinely lacks the means to pay the fee and therefore seeks a decision under reg 4.14(4) to waive the fee. It is likely that there would be many such applicants. To make the provisions operate sensibly, the Full Court in Braganza held that, in such a case, the Tribunal was not deprived of jurisdiction to consider the application for review merely because the prescribed fee was not paid within the prescribed period, provided the fee was either eventually waived or paid within a reasonable time after the rejection of the request for a decision under reg 4.13(4).

© 2016 THOMSON REUTERS

665

s 349

Migration Act 1958

[349.20]

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. [Subs (1) am Act 60 of 2015, s 3 and Sch 2 item 133, with effect from 1 Jul 2015; Act 113 of 1998, s 3 and Sch 1 item 39, with effect from 1 Jun 1999]

(2) The (a) (b) (c)

Tribunal may: affirm the decision; or vary the decision; or 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.

[Subs (2) am Act 35 of 2015, s 3 and Sch 4 item 4, with effect from 18 Apr 2015]

(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. [S 349 am Act 60 of 2015, s 3 and Sch 2 item 37, with effect from 1 Jul 2015; Act 35 of 2015; Act 113 of 1998, s 3 and Sch 2 item 8, with effect from 5 Feb 1999; former s 119 renum Act 60 of 1994, s 83, with effect from 1 Sep 1994; subst Act 184 of 1992, s 23, with effect from 1 Sep 1994; former s 64A renum Act 59 of 1989, s 35; insrt Act 59 of 1989, s 26]

SECTION 349 COMMENTARY Scope ................................................................................................................................................... [349.20] CONCEPTS

Prescribed matter or power to remit ................................................................................................... [349.40] Directions ............................................................................................................................................. [349.60] Substitute a new decision ................................................................................................................... [349.80] KEY CASES

No general power of remittal ........................................................................................................... [349.100] Tribunal can only substitute a decision that is of the same kind as the decision under review .... [349.120]

[349.20] Scope According to s 349, the Tribunal is given the same powers and discretions that are conferred by the Act on the person who made the decision that is being reviewed. However, as is made clear by the Explanatory Memorandum to the Migration Reform Bill 1992 Migration (Delayed Visa Applications) Tax Bill 1992 (Cth) at [300], the Tribunal does not have the discretion “to make a decision on compassionate or humanitarian grounds outside the grounds established under the Act” and Regulations. 666

Migration Law

[349.100]

Part 5 – Review of Part 5-reviewable decisions (ss 336M–379G) Division 3 – Part 5-reviewable decisions: Tribunal review (ss 347–352)

s 349

The Tribunal’s power of reviewing a decision is “restricted to a consideration of whether or not that decision was the ‘correct or preferable’ decision, and nothing more”: Minister for Immigration and Multicultural Affairs v Sharma (1999) 90 FCR 513; [1999] FCA 31 at [37] per Weinberg J.

CONCEPTS [349.40] Prescribed matter or power to remit Pursuant to s 349(2)(c), the Tribunal may remit a matter for reconsideration if the decision relates to a “prescribed matter”. The Regulations prescribe the following “matters”: • an application for a visa or entry permit made on or after 19 December 1989: reg 4.15(1)(a); • the requirement for a security that is mentioned in reg 4.02(4)(f): reg 4.15(2). [349.60] Directions Section 349(2)(c) provides that the Tribunal may remit certain matters in accordance with such “directions” (or recommendations) of the Tribunal as are permitted by the Regulations. However, the permissible directions that may be made by the Tribunal are confined to: • the prescribed criteria for the relevant class of the visa: Minister for Immigration and Citizenship v Dhanoa (2009) 180 FCR 510; [2009] FCAFC 153 at [70] per Jagot and Foster JJ (special leave refused – see Dhanoa v Minister for Immigration and Citizenship [2010] HCATrans 200); and • those permitted by the Regulations: Poudyal v Minister for Immigration [2005] FMCA 265 at [19] per Smith FM. In relation to applications for a visa or entry permit made on or after 19 December 1989, a permissible direction is that the applicant must be taken to have satisfied a specified criterion for the visa or entry permit: reg 4.15(1)(b). [349.80] Substitute a new decision Under s 349(2)(d), the Tribunal may set aside a decision and substitute a new decision. This power is qualified by, and limited to, the Part 5-reviewable decision itself. The Tribunal does not have the power to substitute a decision at large about any other matter “within the ambit of any provisions of the Act”: Minister for Immigration and Multicultural Affairs v Sharma (1999) 90 FCR 513; [1999] FCA 31 at [36] per Weinberg J; Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 76 FCR 301; [1997] FCA 551 at 311 (FCR) per Goldberg J.

KEY CASES [349.100] No general power of remittal This section does not vest the Tribunal with a general power of remittal. Rather, the power to remit is subject to any direction or recommendation that is permitted by the Regulations: Minister for Immigration and Citizenship v Dhanoa (2009) 180 FCR 510; [2009] FCAFC 153 at [53] per Jagot and Foster JJ (special leave refused – see Dhanoa v Minister for Immigration and Citizenship [2010] HCATrans 200). In Minister for Immigration and Citizenship v Dhanoa (2009) 180 FCR 510; [2009] FCAFC 153 (special leave refused – see Dhanoa v Minister for Immigration and Citizenship [2010] HCATrans 200), Mr Dhanoa had applied for a Skilled – Independent Overseas Student (Residence) (Class DD) visa. On the application form, he indicated that he intended to invest $100,000 in a designated security and thereby achieve the required points for the grant of the © 2016 THOMSON REUTERS

667

s 349

Migration Act 1958

[349.120]

visa. Due to the score on Mr Dhanoa’s English language test, even if he had invested the money in a designated security, he still would not have had the requisite points for the grant of the visa. Given there was no utility in doing so, the delegate of the Minister did not invite Mr Dhanoa to invest in a designated security and refused to grant the visa. Mr Dhanoa applied to the Tribunal for review. During the review, Mr Dhanoa sat another English language test and received a higher score, thereby earning more points towards his visa. If he had then invested the money in a designated security he would have achieved the necessary points for the visa. However, Mr Dhanoa was unable to invest in a designated security because he had not received any invitation from the Department to invest in such a security (which was a precondition to investing the money). Mr Dhanoa requested that the Tribunal remit the matter to the delegate on the basis that he would lodge the money in a designated security when the Department invited him to do so. The Tribunal did not do so and affirmed the delegate’s decision because Mr Dhanoa did not have the requisite points for the visa. Mr Dhanoa applied to the Federal Magistrates Court on the basis that the Tribunal fell into jurisdictional error by not considering its power to remit the matter to the Minister’s delegate for further consideration under s 349(2)(c). The Federal Magistrate allowed Mr Dhanoa’s appeal. The Minister appealed to the Full Court of the Federal Court and Jagot and Foster JJ upheld the Minister’s appeal. Jagot and Foster JJ held that the Tribunal did not have power to remit the matter and therefore did not have any obligation to consider doing so: at [72]. In relation to s 349(2)(c), the Tribunal does not have a power to remit a matter without a direction or recommendation, which must be permitted by the Regulations: Minister for Immigration and Citizenship v Dhanoa (2009) 180 FCR 510; [2009] FCAFC 153 at [53] per Jagot and Foster JJ. In relation to Mr Dhanoa, the Tribunal did not have the power to remit the matter to the Minister for reconsideration under s 349(2)(c) because: there was no permissible direction or recommendation the Tribunal could make so as to enliven its power to do so. The Tribunal could not remit the matter generally without any direction and could not remit the matter for a direction relating to Mr Dhanoa having achieved 20 points for his IELTS test on 12 July 2008 because the language component is not a “specified criterion for the visa” within the meaning of reg 4.15(1)(b). The specified criterion is the qualifying score of 120 points which Mr Dhanoa, pursuant to the assessment as required, did not satisfy for the reasons the Tribunal gave.

[349.120]

Tribunal can only substitute a decision that is of the same kind as the decision under review Where a Tribunal exercises its power under s 349(2)(d) to set aside a decision and substitute a new one, the Tribunal can only substitute a decision that is of the same kind as the Part 5-reviewable decision it had reviewed. For example, in Minister for Immigration and Multicultural Affairs v Sharma (1999) 90 FCR 513; [1999] FCA 31, Mr Sharma sought review in the Immigration Review Tribunal (IRT) an antecedent to the present Tribunal of a decision to cancel his student visa. The IRT set aside the decision to cancel Mr Sharma’s student visa and purported to “substitute” a new decision that Mr Sharma be granted a new student visa (as his previous student visa was about to expire). The Minister applied to the Federal Court for judicial review of this decision. Weinberg J set aside the IRT’s decision to substitute a decision that Mr Sharma be granted a new student visa. His Honour held at [63] that: The issue properly before the IRT was not whether or not the respondent had an entitlement to a new student view but rather whether or not the cancellation decision was the “correct and preferable” decision. It was that decision alone which could be affirmed or set aside. In setting aside that decision, the IRT was not empowered under the Act to grant a new student visa even if it thought that such an order was necessary or appropriate. 668

Migration Law

[349.120]

Part 5 – Review of Part 5-reviewable decisions (ss 336M–379G) Division 3 – Part 5-reviewable decisions: Tribunal review (ss 347–352)

s 351

Weinberg J explained further at [36]–[37]: The powers conferred upon the IRT, which include the powers and discretions conferred by the Act upon the person which made the “IRT-reviewable decision” were conferred by s 349(1) “for the purposes of the review of an IRT-reviewable decision”. They were not conferred for any other purposes. Among the powers conferred was the power to “substitute a new decision” – s 349(2)(d). That power is not, however, a power to make a decision at large about any matter falling within the ambit of any of the provisions of the Act. It is rather a power qualified by, and limited to, the “IRT-reviewable decision” itself – Jayasinghe v Minister for Immigration and Ethnic Affairs … at 311; Minister for Immigration and Multicultural Affairs v Ozmanian [1996] FCA 1017; (1996) 71 FCR 1 at 25. In the present case, the “IRT-reviewable decision” was the decision to cancel the student visa. The respondent herself identified it in that way in her application to the IRT for review. Regulation 4.09(d) of the Regulations makes it plain that such a decision, standing alone, is “IRT-reviewable”. The power which the IRT possessed in reviewing that decision was therefore, prima facie, quite limited. It is my view, restricted to a consideration of whether or not that decision was the “correct or preferable” decision, and nothing more.

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. [Subs (2) insrt Act 60 of 1994, s 74, with effect from 1 Sep 1994] [Former s 120 renum Act 60 of 1994, s 83, with effect from 1 Sep 1994; am Act 60 of 1994; subst Act 184 of 1992, s 23, with effect from 1 Sep 1994; former s 64B renum Act 59 of 1989, s 35; insrt Act 59 of 1989, s 26]

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

© 2016 THOMSON REUTERS

669

s 351

Migration Act 1958

[351.20]

(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. [Former s 121 renum Act 60 of 1994, s 83, with effect from 1 Sep 1994; subst Act 184 of 1992, s 23, with effect from 1 Sep 1994; former s 64C renum Act 59 of 1989, s 35; insrt Act 59 of 1989, s 26]

SECTION 351 COMMENTARY Scope ................................................................................................................................................... [351.20] CONCEPTS

Public interest ...................................................................................................................................... [351.40] Exercised by the Minister personally ................................................................................................. [351.60] Minister does not have a duty to consider whether to exercise the power – power is noncompellable ................................................................................................................................. [351.80] KEY CASES

Departmental officers are under no duty to afford a person procedural fairness in determining whether or not to refer an application under s 351 to the Minister for consideration ............................. [351.100] PRACTICE POINTS

No power to consider matter in relation to s 351 ........................................................................... [351.120]

[351.20] Scope Section 351 provides that the Minister has the power to substitute a new, and more favourable, decision for the decision of the Tribunal if the Minister considers it is in the public interest to do so. This power is exercisable by the Minister personally, and the Minister does not have any duty to consider whether or not to exercise this power in any particular case. The Explanatory Memorandum to the Migration Reform Bill 1992 Migration (Delayed Visa Applications) Tax Bill 1992 (Cth) at [305] states that the operation of the provision: means that the actions of the Minister in declining to consider the exercise of this power, or in declining to exercise the power after considering its exercise, will not give rise to any right of review, whether merits or judicial review.

670

Migration Law

[351.100]

Part 5 – Review of Part 5-reviewable decisions (ss 336M–379G) Division 3 – Part 5-reviewable decisions: Tribunal review (ss 347–352)

s 351

CONCEPTS [351.40] Public interest The Minister has the discretion to substitute a more favourable decision if he or she thinks that it is in the public interest to do so. The term “public interest” is not defined in the Act or Regulations. In Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636; 290 ALR 616; [2012] HCA 31 at [30], French CJ and Kiefel J stated: The powers so conferred are conditional upon a ministerial judgment of the “public interest”. That is a term to which it is difficult to give a precise content. It has been described in this Court as: a discretionary value judgment to be made by reference to undefined factual matters, confined only “in so far as the subject matter and the scope and purpose of the statutory enactments may enable … given reasons to be [pronounced] definitely extraneous to any object the legislature could have had in view”.

[351.60] Exercised by the Minister personally The power under this section must be exercised by the Minister personally and cannot be delegated. [351.80]

Minister does not have a duty to consider whether to exercise the power – power is non-compellable Section 351(7) states that the Minister does not have a duty to consider whether to exercise the power under s 351(1) in respect of any decision of the Tribunal. Accordingly, the power is said to be “non-compellable”, and cannot be enlivened by a request for its exercise, nor by the existence of circumstances which might be thought, in the public interest, to attract its application: Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636; 290 ALR 616; [2012] HCA 31 at [30] per French CJ and Kiefel J, at [99(i)] per Gummow, Hayne, Crennan and Bell JJ.

KEY CASES [351.100]

Departmental officers are under no duty to afford a person procedural fairness in determining whether or not to refer an application under s 351 to the Minister for consideration In Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636; 290 ALR 616; [2012] HCA 31, French CJ, Kiefel, Gummow, Hayne, Crennan, Bell and Heydon JJ held that the principles of procedural fairness do not apply to the dispensing provisions of ss 48B, 195A, 351 and 417 of the Act: at [50], [53], [99], [110]–[111] and [118]. The four plaintiffs (Plaintiff S10, Plaintiff S49, Plaintiff S51 and Plaintiff S42), each non-citizens who had unsuccessfully applied for visas to remain in Australia, applied to the High Court in relation to their failure to attract the exercise by the Minister of his non-compellable, non-delegable personal discretion to make decisions in favour of unsuccessful visa applicants and persons in detention. Those powers are contained in ss 48B (Minister may grant a protection visa to person whose application for protection has already been refused), 195A (Minister may grant a visa to a person in immigration detention), 351 (Minister may substitute a decision of the Tribunal for a decision more favourable) and 417 (Minister may substitute a decision of the Tribunal for a decision more favourable). Relevantly, Plaintiff S42 was refused a student visa and that decision was affirmed by the Tribunal. Plaintiff S42 then requested that the Minister exercise his power under s 351. Her request was referred to the Minister, who determined that he did not wish to consider the exercise of that power. After unsuccessfully applying to the Federal Magistrates Court and © 2016 THOMSON REUTERS

671

s 351

Migration Act 1958

[351.100]

Federal Court for judicial review, Plaintiff S42 submitted a further request to the Minister seeking the exercise of his power under s 351. The relevant departmental officers declined to refer the request to the Minister. Plaintiff S42 applied to the High Court on the basis that there was a breach of procedural fairness in the failure of the officers assessing her repeat request to invite her to comment on a statement in an email from an officer of the Department (the email stated that the repeat request was based primarily on a comment which the Federal Court, in considering Plaintiff S42’s judicial review appeal, had made in its judgment suggesting that it might be a case that the Minister would look at a second time). Plaintiff S42’s application, and the other four plaintiffs’ applications, dealt with whether the executive power of the Commonwealth is constrained by a requirement that procedural fairness be afforded to a person whose rights, interests or legitimate expectations may be destroyed, defeated or prejudiced by its exercise. French CJ and Kiefel J held at [4] that: the consideration by officers of the Department of the requests by the plaintiffs for the Minister to consider exercising non-compellable powers under the Act did not attract the requirements of procedural fairness. Further, the Minister is not obliged to accord procedural fairness, in the form of the so-called hearing rule, in personally considering whether to exercise the Minister’s discretion under ss 48B, 195A, 351 or 417.

Their Honours came to this conclusion on the basis that the Minister is not under any duty to respond to a request for his or her consideration of the exercise of power under s 351 (and ss 48B, 195A and 417). As there was no statutory duty to consider such an application, “no question of procedural fairness arises when the Minister declines to embark upon such a consideration”: at [50]. In addition, French CJ and Kiefel J rejected the plaintiffs’ submissions that the issue of ministerial guidelines in relation to the dispensing provisions involved a decision by the Minister to decide to consider the exercise of the powers conferred by s 351 (and ss 48B, 195A and 417) and held that “there was no implied requirement that the guidelines be applied in such a way as to accord with the hearing rule aspect of procedural fairness”: at [52]. Gummow, Hayne, Crennan and Bell JJ noted the following significant characteristics of s 351 (and ss 48B, 195A and 417) at [99(i)]–[99(ix)]: • the powers conferred under that section must be exercised by the Minister personally, and cannot be delegated; • the tabling requirements render the Minister accountable to each House of the Parliament; • the exercise of the powers under the section are not preconditioned by the making of a request by any other person, and if a request is made, there is no requirement to consider it; • the exercise of the powers is preconditioned on: – the Minister having decided to consider whether to exercise the power; and – the Minister thinking that it is in the public interest to do so; • the term “public interest” does not have any fixed or precise content and will involve a value judgment; • the personal circumstances of an individual may be taken into account, but they are not mandatory relevant considerations; • individual interests and rights are dealt with by provisions of the Act regulating applications and providing for review of decisions concerning visas; 672

Migration Law

[351.120]

Part 5 – Review of Part 5-reviewable decisions (ss 336M–379G) Division 3 – Part 5-reviewable decisions: Tribunal review (ss 347–352)

s 352

• the premise of s 351 is that on a merits review the Tribunal has determined that there is no right to the visa sought; and • against that background, the focus of s 351 is upon the Minister’s view of the public interest rather than the satisfaction of the conditions for the visa. In light of the above, Gummow, Hayne, Crennan and Bell JJ held at [100]: The cumulative significance of the matters referred to above in (i)-(ix) is to disclose a situation akin to that identified by Brennan J in South Australia v O’Shea, namely where a senior officer standing at the peak of the administration of the statute is not required to give an opportunity for a hearing in every case affecting an individual who has had an opportunity of a merits review in the course of the administrative process. Upon their proper construction and in their application to the present cases, the dispensing provisions are not conditioned on observance of the principles of procedural fairness. In particular, there was no requirement to provide to the plaintiffs the opportunities to be heard which they assert in their submissions. The use in the provisions of the Act in question here of language emphatic both of the distinctive nature of the powers conferred upon the Minister (as personal, non-compellable, “public interest” powers), and of the availability of access to the exercise of those powers only to persons who have sought or could have sought, but have not established their right to, a visa is of determinative significance. It reveals the “necessary intendment” referred to in the Offshore Processing Case that the provisions are not attended by a requirement for the observance of procedural fairness.

PRACTICE POINTS [351.120] No power to consider matter in relation to s 351 Neither the Federal Circuit Court nor the Federal Court has the power to consider a matter in relation to s 351 because: • pursuant to s 476(2)(d), the Federal Circuit Court does not have jurisdiction to consider matters which fall within s 474(7) (this section includes matters relating to s 351); and • pursuant to s 476A(1), the Federal Court only has original jurisdiction in relation to the matters listed in that section (s 351 is not listed). Pursuant to s 75(v) of the Constitution, the High Court has original jurisdiction to hear matters in which a writ of mandamus, prohibition or an injunction is sought against an officer of the Commonwealth. Where an application for prerogative relief is filed in the High Court’s original jurisdiction challenging a matter in relation to the exercise (or non-exercise) of the discretion in s 351, the granting of such relief would serve no useful purpose. This is because the power under this section is non-compellable, meaning the Minister is under no duty to exercise that power: Re Minister for Immigration and Multicultural and Indigenous Affairs (2003) 211 CLR 441; 195 ALR 1; [2003] HCA 1 at [100] per Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ. 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. [Subs (1) am Act 60 of 2015, s 3 and Sch 2 item 39, with effect from 1 Jul 2015; Act 113 of 1998, s 3 and Sch 2 item 8, with effect from 5 Feb 1999]

(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

© 2016 THOMSON REUTERS

673

s 352

Migration Act 1958

(c)

[352.20]

gives the reasons for the decision.

[Subs (2) am Act 60 of 1994, s 75(a), with effect from 1 Sep 1994]

(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. [Subs (3) am Act 60 of 2015, s 3 and Sch 2 item 40, with effect from 1 Jul 2015; Act 113 of 1998, s 3 and Sch 1 item 19, with effect from 1 Jun 1999]

(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. [S 352 am Act 60 of 2015, s 3 and Sch 2 item 38, with effect from 1 Jul 2015; Act 113 of 1998, s 3 and Sch 2 item 8, with effect from 5 Feb 1999; former s 122 renum Act 60 of 1994, s 83, with effect from 1 Sep 1994; am Act 60 of 1994; subst Act 184 of 1992, s 23, with effect from 1 Sep 1994; former s 64D renum Act 59 of 1989, s 35; insrt Act 59 of 1989, s 26]

SECTION 352 COMMENTARY Scope ................................................................................................................................................... [352.20] CONCEPTS

Prescribed number of copies ............................................................................................................... [352.40] Other document ................................................................................................................................... [352.60] KEY CASES

Compliance with s 352(3) is not a precondition to the Tribunal exercising its review function .... [352.80] Procedural fairness and s 352(3) ...................................................................................................... [352.100] A failure to comply with s 352(4) does not amount to a denial of procedural fairness or any other jurisdictional error .................................................................................................................... [352.120]

[352.20] Scope According to s 352, the Registrar must notify the Secretary of the Department of any application for review to the Tribunal, and the Secretary must provide the Registrar with various documents, such as the decision under review and any documents in the Secretary’s possession or control that the Secretary considers relevant to the review.

CONCEPTS [352.40] Prescribed number of copies For the purposes of s 352(2), the prescribed number of copies of the statement about the decision under review is one: see reg 4.16. [352.60] Other document The expression “other document” in s 352(4) means a document other than the documents referred to in s 352(2): Muin v Refugee Review Tribunal (S36 of 1999) (2002) 190 ALR 601; 76 ALJR 966; [2002] HCA 30 at [19].

KEY CASES [352.80]

Compliance with s 352(3) is not a precondition to the Tribunal exercising its review function The Secretary of the Department must comply with the requirements in s 352(2) within two working days of being notified of the application to the Tribunal. However, the Secretary’s 674

Migration Law

[352.100]

Part 5 – Review of Part 5-reviewable decisions (ss 336M–379G) Division 4 – Part 5-reviewable decisions: Tribunal powers (ss 353–353B)

s 353

compliance with s 352(3) is not a precondition to the exercise by the Tribunal of its review function, nor does the section create an obligation on the Tribunal to consider the documents referred to by the section: S487 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1309 at [32] per Sackville J; S487 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 125 at [7] per Moore, Branson and Emmett JJ. [352.100] Procedural fairness and s 352(3) and (4) A failure by the Secretary of the Department to comply with either s 352(3) or (4) will not amount to a denial of procedural fairness or a jurisdictional error on behalf of the Tribunal (see for example Matete v Minister for Immigration and Citizenship [2008] FCA 1876 at [19] per Buchannan J). In SZOIN v Minister for Immigration and Citizenship (2011) 191 FCR 123; 276 ALR 247; [2011] FCAFC 38, the applicant applied for a protection visa, which was refused by a delegate of the Minister. The Tribunal affirmed the delegate’s decision. The applicant was in detention and had various medical assessments, such as an assessment by a clinical psychologist at the New South Wales “Services for the Treatment and Rehabilitation of Torture and Trauma Survivors” as well as other post-traumatic stress assessments. The Secretary of the Department did not provide any of these medical assessments to the Tribunal. The applicant applied for judicial review on the basis that the Tribunal’s decision was infected by a breach of the requirements of procedural fairness accorded by s 418 (the equivalent provision to s 352 relating to a Part 5-revewiable decision) because the Secretary of the Department did not provide the medical assessments to the Tribunal. The Full Court of the Federal Court held that the failure by the Secretary to satisfy the obligation in s 418 did not mean that the Tribunal’s decision was tainted by jurisdictional error: at [59]–[66] per Bennett and McKerracher JJ, and at [93] per Rares J. In addition, Bennett and McKerracher JJ held that the Secretary’s obligation under s 418(3) to provide information to the Tribunal is a continuing one, and the Secretary was required to provide new information that was relevant to the Tribunal’s considerations as that information came to hand: at [57].

DIVISION 4 – PART 5-REVIEWABLE DECISIONS: TRIBUNAL POWERS (SS 353–353B) [Div 4 heading subst Act 60 of 2015, s 3 and Sch 2 item 41, with effect from 1 Jul 2015; former Div 3 heading renum Act 60 of 1994, s 83, with effect from 1 Sep 1994]

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. [S 353 am Act 60 of 2015, s 3 and Sch 2 items 42–44, with effect from 1 Jul 2015; former s 123 renum Act 60 of 1994, s 83, with effect from 1 Sep 1994; former s 64E Act 59 of 1989, s 35; insrt Act 59 of 1989, s 26]

SECTION 353 COMMENTARY Scope ................................................................................................................................................... [353.20] CONCEPTS

Fair, just, economical, informal and quick ......................................................................................... [353.40] Not bound by technicalities, legal forms or rules of evidence; shall act according to substantial justice and the merits of the case ................................................................................................................. [353.60] © 2016 THOMSON REUTERS

675

s 353

Migration Act 1958

[353.20]

[353.20] Scope Section 353 was amended on 1 July 2015 by item 42 of Sch 2 to the Tribunals Amalgamation Act 2015 (Cth) to remove subsections 353(1), which previously provided that the Tribunal’s objective is to provide a mechanism of review that is “fair, just, economical, informal and quick”. That objective has been removed as it is supplanted by s 2A of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), which provides that: In carrying out its function, the Tribunal must purse the objective of providing a mechanism of review that: (a) is accessible; and (b) is fair, just economical, informal and quick; and (c) is proportionate to the importance and complexity of the matter; and (d) promotes public trust and confidence in the decision-making of the Tribunal.

Section 353, and s 2A of the AAT Act serve a facultative, rather than a restrictive, purpose. In Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; 162 ALR 577; [1999] HCA 21 at [49], Gleeson CJ and McHugh J observed that: legislative provisions similar to s 420 [the equivalent provision pertaining to the Refugee Review Tribunal] … are intended to be facultative, not restrictive. Their purpose is to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law, and regarded as inappropriate to tribunals. The extent to which they free tribunals from obligations applicable to the courts of law may give rise to dispute in particular cases, but that is another question.

In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; 297 ALR 225; 87 ALJR 618; [2013] HCA 18, French CJ considered the legislative history and context of s 353 at [13]–[15] (citations omitted): The requirements of s 353(2) are in the same terms as those applied to the RRT by s 420(2) of the Act. The language is familiar. Its ancestry dates back to statutory directions to Courts of Requests in the 17th century to make such orders “as they shall find to stand with equity and good conscience”. That statutory formula evolved and was applied to tribunals in Australia both before and after Federation. An early example was the statute re-establishing the Court of Requests in the Colony of New South Wales in 1842, which became the Small Debts Court, and was required to decide matters “in a summary way, and according to equity and good conscience”. The rolled-up direction to “act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms” was considered by the Court of Appeal of New South Wales in Qantas Airways Ltd v Gubbins. As pointed out by Gleeson CJ and Handley JA in that case, the collocation has no fixed legal meaning independent of the statutory context in which it is found. So too, s 353(2) is to be understood in its statutory context. That context makes clear that it cannot operate to allow the MRT to act other than according to the law set out in the Act in the exercise of its function of review, including the exercise of the powers and discretions conferred upon it in aid of that function. The MRT is not excused from compliance with the criteria of lawfulness, fairness and rationality that lie at the heart of administrative justice albeit their content is found in the provisions of the Act and the corresponding regulations and, subject to the Act and those regulations, the common law. Section 353(2) shares with s 353(1) a facultative rather than restrictive purpose. The two paragraphs of s 353(2) “describe the general nature of review proceedings and require the Tribunal to operate as an administrative body with flexible procedures and not as a body with technical rules of the kind that have sometimes been adopted by quasi-judicial tribunals.” Its facultative character was illustrated in Minister for Immigration and Multicultural Affairs v Bhardwaj. Gleeson CJ observed that s 353 allowed a precursor tribunal, the Immigration Review Tribunal, to reopen its own decision when it learned that the decision was based upon an administrative error.

Further, as French CJ observed at [16], s 353 does not import substantive common law requirements of procedural fairness and, therefore, cannot give rise, on its own, to grounds for judicial review. 676

Migration Law

Part 5 – Review of Part 5-reviewable decisions (ss 336M–379G) Division 4 – Part 5-reviewable decisions: Tribunal powers (ss 353–353B)

[353.60]

s 353B

CONCEPTS [353.40] Fair, just, economical, informal and quick Section 353 was amended on 1 July 2015 by item 42 of Sch 2 to the Tribunals Amalgamation Act 2015 (Cth) to remove s 353(1), which previously provided that the Tribunal’s objective is to provide a mechanism of review that is “fair, just, economical, informal and quick”. That objective has been removed as it is supplanted by s 2A of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), together with other broadly stated aims. In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; 297 ALR 225; 87 ALJR 618; [2013] HCA 18 at [14], French CJ noted that the “rolled-up direction” to “act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms” was considered by the Court of Appeal of New South Wales in Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26; 28 ALD 538; 45 IR 292. In that case, Gleeson CJ and Handley JA observed that these words have no fixed legal meaning independent of the statutory context in which they are found. Accordingly, French CJ noted that the Tribunal is “not excused from compliance with the criteria of lawfulness, fairness and rationality that lie at the heart of administrative justice”. [353.60]

Not bound by technicalities, legal forms or rules of evidence; shall act according to substantial justice and the merits of the case In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; 297 ALR 225; 87 ALJR 618; [2013] HCA 18 at [14], French CJ noted that the “rolled-up direction” to “act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms” was considered by the Court of Appeal of New South Wales in Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26; 28 ALD 538; 45 IR 292. In that case, Gleeson CJ and Handley JA observed that these words have no fixed legal meaning independent of the statutory context in which they are found. Accordingly, French CJ noted that the Tribunal is “not excused from compliance with the criteria of lawfulness, fairness and rationality that lie at the heart of administrative justice”. 353A

Principal Member may give directions [Repealed]

[S 353A rep Act 60 of 2015, s 3 and Sch 2 item 45, with effect from 1 Jul 2015; am Act 35 of 2015; Act 113 of 1998; insrt Act 110 of 1995, s 3 and Sch 1 item 15, with effect from 29 Sep 1995]

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. [Subs (1) subst Act 60 of 2015, s 3 and Sch 2 item 138, with effect from 1 Jul 2015]

(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. [S 353B am Act 60 of 2015; insrt Act 35 of 2015, s 3 and Sch 4 item 7, with effect from 18 Apr 2015]

[Editor’s note: Sections 354–357 were repealed by Act 60 of 2015, s 3 and Sch 2 item 45, with effect from 1 Jul 2015, and have not been reproduced.] © 2016 THOMSON REUTERS

677

s 357A

[357A.20]

Migration Act 1958

DIVISION 5 – PART 5-REVIEWABLE DECISIONS: CONDUCT OF REVIEW (SS 357A–367) [Div 5 heading subst Act 60 of 2015, s 3 and Sch 2 item 46, with effect from 1 Jul 2015; former Div 4 heading renum Act 60 of 1994, s 83, with effect from 1 Sep 1994]

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. [Subs (3) insrt Act 100 of 2007, s 3 and Sch 1 item 1] [S 357A am Act 100 of 2007; insrt Act 60 of 2002, s 3 and Sch 1 item 5]

SECTION 357A COMMENTARY Scope ................................................................................................................................................. [357A.20] CONCEPTS

Natural justice hearing rule .............................................................................................................. [357A.40] In relation to the matters it deals with ............................................................................................ [357A.60] Fair and just ...................................................................................................................................... [357A.80] KEY CASES

Natural justice hearing rule is not qualified or excluded in relation to offshore visa applicants .... [357A.100] In relation to the matters it deals with .......................................................................................... [357A.120] Some concepts of common law procedural fairness continue to apply ....................................... [357A.140] Some provisions are not procedural .............................................................................................. [357A.160] Practice point .................................................................................................................................. [357A.180]

[357A.20] Scope Section 357A was inserted by the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth). Section 357A(1) makes it clear that Pt 5 Div 5 of the Act (which deals with how the Tribunal conducts its reviews) is an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. Similarly, s 357A(2) provides that ss 375, 375A and 376 (which deal with the disclosure of confidential information to the tribunal) and Div 8A (which deals with how the tribunal is to provide documents) of the Act, insofar as they relate to Div 5, are an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with. The “codes of procedure” referred to in this section are an exhaustive statement of the requirements of the natural justice hearing rule: Explanatory Memorandum to the Migration Legislation Amendment (Procedural Fairness) Bill 2002 (Cth) at [1]. Section 357A was inserted as a result of the High Court’s decision in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; 179 ALR 238; [2001] HCA 22 (Miah), in which the court held that the exclusion of common law natural justice requirements required clear legislative intention: at [53]–[54] per Gleeson CJ and Hayne J, at [90] per Gaudron J, at [126]–[127] per McHugh J and at [183] per Kirby J. In Miah, the High Court considered whether a delegate had denied the applicants procedural fairness by failing to put to them for comment certain country information. At the relevant time, Pt 2 Div 3 subdiv AB of the Act laid down what Gleeson CJ and Hayne J described as a “code of procedure for dealing fairly, 678

Migration Law

[357A.20]

Part 5 – Review of Part 5-reviewable decisions (ss 336M–379G) Division 5 – Part 5-reviewable decisions: conduct of review (ss 357A–367)

s 357A

efficiently and quickly with visa applications”: at [28]. It did not contain any other statement other than the one contained in this section – that the Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule. Gleeson CJ and Hayne J commented at [43] that “there is a difference between a code of procedure for dealing with visa applications and a comprehensive statement of the requirements of natural justice”. The majority were of the view that it is possible to exclude the rule of natural justice. However, in order to do so, the legislation must be clear that the intention is for it to be excluded: at [53]–[54] per Gleeson CJ and Hayne J, at [90] per Gaudron J, at [126]–[127] per McHugh J and at [183] per Kirby J. Necessarily, therefore, the wording in s 357A is clear that the natural justice hearing rule is excluded. In the Second Reading speech for the Migration Legislation Amendment (Procedural Fairness) Bill 2002 (Cth), the Minister noted that the proposed amendments were necessary to restore the Parliament’s original intention that the Act should contain codes of procedure that allow fair, efficient and legally certain decision-making processes that do not replace the common law requirement of the natural justice hearing rule. The Migration Amendment (Review Provisions) Act 2007 (Cth) inserted s 357A(3) to provide that, when the tribunal carries out its procedures and requirements in relation to the natural justice hearing rule under this section, it would be required to do so in a fair and just way: see Explanatory Memorandum to the Migration Amendment (Review Provisions) Bill 2006 (Cth) at [1]. The purpose of this subsection is to complement s 353(1), which provides that the tribunal’s objective in carrying out its function is to provide a mechanism of review that is fair, just, economical, informal and quick: Explanatory Memorandum to the Migration Amendment (Review Provisions) Bill 2006 (Cth) at [1]. The Explanatory Memorandum to the Migration Legislation Amendment (Procedural Fairness) Bill 2002 (Cth), item 8, also clarifies the relationship between the amendments relating to the “codes of procedure” and s 474 of the Act, which deals with privative clauses. According to that Explanatory Memorandum “it is intended that the privative clause should protect from invalidity anything done or omitted to be done in relation to any matter dealt with in any provision taken to be an exhaustive statement of the natural justice hearing rule”: at [49]. However, if the tribunal has committed a jurisdictional error, no migration decision will have been made and the privative clause provisions will have no operation: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; 195 ALR 24; [2003] HCA 2 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. The concept of a privative clause is discussed further under s 474. According to item 8 of the Explanatory Memorandum to the Migration Legislation Amendments (Procedural Fairness) Bill 2002 (Cth), the introduction of this section is not intended to “limit the scope or operation of section 474 in relation to anything done, or omitted to be done, in relation to any matter dealt with” in this section. Despite the clear intentions of Parliament to seek to narrow the application of procedural fairness in relation to the matters the tribunal deals with, the courts have been cautious to adopt such a strict approach. As Hayne J observed in Minister for Immigration, Multicultural and Indigenous Affairs v WACO [2004] HCATrans 430, in relation to the equivalent provision pertaining to the Refugee Review Tribunal, “there are hours of innocent amusement yet to be had about the effect of section 422B”. Section 357A does not itself provide a review applicant with substantive rights. That is, s 357A is not capable of being “breached” in the strict sense. Rather, s 357A, together with s 353, conditions the exercise of the operative parts of the Division: see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; 297 ALR 225; 297 ALJR 225; [2013] HCA 18 at [58] per Hayne, Kiefel and Bell JJ. © 2016 THOMSON REUTERS

679

s 357A

Migration Act 1958

[357A.40]

The express constraint imposed by s 357A(2) makes it “unarguable” that some additional requirements of “fairness” are otherwise to be implied by recourse to s 353 or 357A(3): Khan v Minister for Immigration and Citizenship (2011) 192 FCR 173; 276 ALR 1; [2011] FCAFC 21 at [41]–[43] per Buchanan J. Sections 353 and 357A(3) “are not a source of rights for an applicant, but comprise only ‘facultative’ or ‘exhortative’ … provisions”: Khant v Minister for Immigration and Citizenship (2009) 112 ALD 241; [2009] FCA 1247 at [31] per Cowdroy J.

CONCEPTS [357A.40] Natural justice hearing rule The phrase “natural justice hearing rule”, or any variation thereof, is not defined in the Act. Natural justice usually requires that a person whose interests are to be affected by a decision be given an opportunity to comment and respond to material which is adverse to his or her interests: Kioa v West (1985) 159 CLR 550; 62 ALR 321; [1985] HCA 81 at 582 (CLR) per Mason J, at 628 – 629 per Brennan J. Natural justice and procedural fairness require a decision-maker to bring to an applicant’s attention the critical issues or factors on which its decision is likely to turn in order for the applicant to have the opportunity of dealing with them: Kioa v West (1985) 159 CLR 550; 62 ALR 321; [1985] HCA 81 at 587 (CLR) per Mason J; VAAC v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 168; [2003] FCAFC 74 at [27]. In discharging this duty, a decision-maker needs to bring the “substance” of adverse information to an applicant’s attention which the decision-maker considers may bear upon the decision to be made: Plaintiff M61/2010 v Commonwealth (2010) 243 CLR 319; 272 ALR 14; [2010] HCA 41 at [91] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ. Procedural fairness may extend to require identification to the applicant of “any adverse conclusion which has been arrived at which would not obviously be open on the known material” (Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; 127 ALR 699; 34 ALD 324 at [30]), whether that is material provided by the applicant or from other sources. For the requirements of natural justice to be satisfied, it is sufficient if the “gravamen or substance of the issue or factor is brought to the applicant’s attention” or that the applicant is “on notice of its essential features”: NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 at [25], referring to Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs (2000) 103 FCR 539; 175 ALR 706; [2000] FCA 1113 at [557]. In the ordinary case, natural justice requires that an opportunity should be given to a person affected by a decision to deal with any adverse information that is “credible, relevant and significant”: see, for example, Kioa v West (1985) 159 CLR 550; 62 ALR 321; [1985] HCA 81 at 629 (CLR) per Brennan J. Where a statute confers a power to destroy or prejudice a person’s rights or interests, principles of natural justice regulate the exercise of that power: see Annetts v McCann (1990) 170 CLR 596 97 ALR 177; [1990] HCA 57 at 598 (CLR) per Mason CJ, Deane and McHugh JJ. In Kioa v West (1985) 159 CLR 550; 62 ALR 321; [1985] HCA 81; at 609 (CLR), Brennan J stated that: when the statute does not expressly require that the principles of natural justice be observed, the court construes the statute on the footing that “the justice of the common law will supply the omission of the legislature”. The true intention of the legislation is thus ascertained.

Similarly, in Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1; 195 ALR 502; [2003] HCA 6 at [37], Gleeson CJ observed that procedural fairness is not an abstract concept; it is essentially practical and the concern is to avoid practical injustice. 680

Migration Law

[357A.120]

Part 5 – Review of Part 5-reviewable decisions (ss 336M–379G) Division 5 – Part 5-reviewable decisions: conduct of review (ss 357A–367)

s 357A

[357A.60] In relation to the matters it deals with The declaration that the subdivision is taken to be an exhaustive statement of the requirements of the natural justice hearing rule, is qualified by the words “in relation to the matters it deals with”: Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; 267 ALR 204; 84 ALJR 507; [2010] HCA 23 at [35] per French CJ, Gummow, Hayne, Crennan and Kiefel JJ. That is, insofar as common law rules of procedural fairness are codified under this Division, the codification only applies to the subject “matter” the Division “deals with” (that is, ss 358 – 367, 375 – 376 and Div 8A). Where the Division does not “deal with” certain subject “matter”, common law rules of procedural fairness continue to apply. [357A.80] Fair and just In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; 297 ALR 225; (2013) 87 ALJR 618; [2013] HCA 18 at [58] Hayne, Kiefel and Bell JJ stated: In any event, what is fair and just is not to be ascertained by reading s 357A(3) alone, but by reading it as it applies to the actions of the tribunal in the conduct of a review … What is fair and just in relation to the particular act may be discerned, to an extent, from the purpose of the provision which requires that the act be done or which gives the discretionary power to the tribunal to perform the act, as well as from the purpose of surrounding provisions and Div 5 as a whole.

KEY CASES [357A.100] Natural justice hearing rule is not qualified or excluded in relation to offshore visa applicants In Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; 267 ALR 204; 84 ALJR 507; [2010] HCA 23 (Saeed), the High Court considered s 51A of the Act. That provision is almost identical to s 357A, which was inserted by the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth) partly in response to the High Court’s decision in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; 179 ALR 238; 75 ALJR 889; (2001) 22(8) Leg Rep 2; [2001] HCA 22. In Saeed, Ms Saeed, a citizen of Pakistan, was outside Australia and applied for a Skilled – Independent Visa (Subclass 175), on the basis of being a cook. As part of the application, Ms Saeed provided documents that she had worked at a restaurant in Rawalpindi. An Australian immigration officer in Pakistan investigated Ms Saeed’s claims and discovered that no employee records were kept on the premises of the restaurant and that no woman had ever worked in the kitchen. On the basis of this information, the delegate advised Ms Saeed that her evidence about her work was false and misleading, and refused to grant the visa. The High Court considered the terms of ss 51A and 57 (which deal with the provisions of certain information to applicants) and concluded that the natural justice hearing rule is excluded only insofar as it concerns onshore visa applicants, and is not excluded in relation to visa applicants who are not in Australia: at [56] per French CJ, Gummow, Hayne, Crennan and Kiefel JJ. The natural justice hearing rule applies to visa applicants offshore and, therefore, the delegate was required to provide Ms Saeed with an opportunity to answer the adverse material. [357A.120] In relation to the matters it deals with In Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; 267 ALR 204; 84 ALJR 507; [2010] HCA 23, the High Court considered the scope of the expression “in relation to the matters it deals with” and the various cases which had previously interpreted this phrase. French CJ, Gummow, Hayne, Crennan and Kiefel JJ endorsed (and found “plainly correct”) the conclusions reached by: • Lindgren J in NAQF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 130 FCR 456; [2003] FCA 781 at 475 (FCR), that the expression “the © 2016 THOMSON REUTERS

681

s 357A

Migration Act 1958

[357A.140]

matters it deals with” in s 357A(1) requires a search to be made of the operative provisions within Div 5 for a provision “dealing with” a “relevant matter”. The plural form of “matters” suggests that the inquiry might be directed to a number of such provisions: at [38]; and • French J in WAID v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 220 at [58], that s 422B (the equivalent section to s 357A) requires “exploration in terms of its construction and identification of the ‘matters’ to which it applies”: at [58]. To place the High Court’s judgment in Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; 267 ALR 204; 84 ALJR 507; [2010] HCA 23 (Saeed) in context, it is necessary to have regard to some earlier decisions. In VXDC v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 146 FCR 562; [2005] FCA 1338 (VXDC), the Full Court of the Federal Court expressed the view that s 51A of the Act (which is similar, in terms, to s 357A) operated to exclude the common law natural justice hearing rule altogether: at [30]. Subsequently, in Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; 231 ALR 412; [2006] FCAFC 61 (Lay Lat), the Full Court of the Federal Court expressed its agreement with the observations made in VXDC at [30]: at [65]–[68]. However, in Antipova v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 151 FCR 480; [2006] FCA 584 (Antipova), Gray J, sitting alone, expressed disagreement with the court’s judgment in VXDC and did not accept that the judgment in Lay Lat was “plainly correct” and therefore declined to follow that decision: at [96]–[98]. In Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; 267 ALR 204; 84 ALJR 507; [2010] HCA 23, the Full Court of the Federal Court stated it was not open to Gray J in Antipova not to follow Lay Lat, and expressed its view that Lay Lat was correct: at [42]–[46]. However, in allowing the appeal in Saeed, the High Court, although not expressing any view as to the correctness of either Lay Lat or Antipova, clearly adopted the ratio decidendi of Gray J in Antipova by asserting that “the declaration in s 51A(1), that the subdivision is to be taken as an exhaustive statement of the requirements of the natural justice hearing rule, is qualified by the words ‘in relation to the matters it deals with’”. [357A.140] Some concepts of common law procedural fairness continue to apply In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; 297 ALR 225; 87 ALJR 618; [2013] HCA 18, the High Court considered a refusal of an adjournment by the tribunal pursuant to the exercise of its statutory power to adjourn the review of a decision under s 363(1)(b) of the Act. It was recognised that an unreasonable refusal by the tribunal to grant an adjournment could result in jurisdictional error if it was established that the tribunal did not conduct a review in the manner required by the Act: at [77]–[87] per Hayne, Kiefel and Bell JJ. This decision demonstrates that Div 5 is not an “exhaustive statement” in the general sense, as common law rules of procedural fairness, such as those concerning unreasonableness, continue to apply to the way in which the tribunal performs its review tasks. [357A.160] Some provisions are not procedural In SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294; 215 ALR 162; [2005] HCA 24 (SAAP) at [77], McHugh J made it clear that some provisions in the Division are not procedural in nature, but instead require strict compliance. His Honour observed that “[t]here can be no ‘partial compliance’ with a statutory obligation to accord procedural fairness. Either there has been compliance or there has not.” For example, prior to the introduction of s 359AA by the Migration Amendment (Review Provisions) Act 2007 (Cth), there was no scope for a tribunal to put adverse information to a review applicant orally, as s 359A strictly required that such information be put to an applicant in writing: SAAP at [77]. 682

Migration Law

[358.20]

Part 5 – Review of Part 5-reviewable decisions (ss 336M–379G) Division 5 – Part 5-reviewable decisions: conduct of review (ss 357A–367)

s 358

[357A.180] Practice point Section 357A does not itself provide a review applicant with substantive rights. That is, s 357A is not capable of being “breached” in the strict sense. Rather, s 357A, together with s 353, conditions the exercise of the operative parts of the Division: see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; 297 ALR 225; 87 ALJR 618; [2013] HCA 18 at [58] per Hayne, Kiefel and Bell JJ. 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. [Subs (1) am Act 110 of 1995, s 3 and Sch 1 item 16, with effect from 29 Sep 1995]

(2) The Secretary may give the Tribunal written argument relating to the issues arising in relation to the decision under review. [S 358 am Act 110 of 1995; former s 128 renum Act 60 of 1994, s 83, with effect from 1 Sep 1994; former s 64K Act 59 of 1989, s 35; insrt Act 59 of 1989, s 26]

SECTION 358 COMMENTARY Scope ................................................................................................................................................... [358.20] CONCEPTS

Issues arising in relation to the decision under review ..................................................................... [358.40] KEY CASES

A review applicant’s right to give a written statement, or a written argument, may be exercised at any time ............................................................................................................................................. [358.60] Practice point ....................................................................................................................................... [358.80]

[358.20] Scope This section provides an applicant with the opportunity to give to the tribunal a written statement in relation to any matter of fact that the applicant wants the tribunal to consider, and a written argument relating to the issues arising in relation to the decision under review. It is not mandatory that an applicant provide a written statement or written argument. The information usually provided is information that an applicant considers will advance his or her case: Minister for Immigration and Citizenship v Chamnam You [2008] FCA 241 at [19]. The applicant’s right to provide a written statement or written argument is not limited by any other provision in this Division, which requires the applicant to provide any other information: Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413; [2010] FCAFC 40 at [34] per Jacobson, Gilmour and Foster JJ. Section 358(1)(a) differs from the equivalent provision pertaining to Part 7-reviewable decisions (s 423(1)(a)) , which requires matters of fact that an applicant wishes the tribunal to consider to be contained in a statutory declaration (rather than a written statement). The reason for the difference in the provisions is discussed in s 423.

© 2016 THOMSON REUTERS

683

s 358

Migration Act 1958

[358.40]

CONCEPTS [358.40] Issues arising in relation to the decision under review In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; 231 ALR 592; [2006] HCA 63 at [35], the majority considered the meaning of these words in the context of s 425 of the Act (the equivalent provision to s 360): The tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the tribunal. But if the tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the tribunal (as they may be), it would ordinarily follow that, on review by the tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.

In SZHZD v Minister for Immigration and Multicultural Affairs [2008] FMCA 4 (SZHZD) at [39], Barnes FM considered the above passage in SZBEL and relevantly observed: An exercise in characterisation must be undertaken to identify what are the “dispositive” or determinative issues in the sense of issues on which the decision to reject the applicant’s claim is based. It is those issues that meet the description of an issue “arising in relation to the decision under review” within the meaning of s 425 [the equivalent provision to that contained in s 360].

The “issues” which arise in relation to the decision under review do not include the factual matters that comprise, or “go to”, the issues themselves: see, for example, SZJUB v Minister for Immigration and Citizenship [2007] FCA 1486 at [25] per Bennett J; SZHZD at [40]–[43].

KEY CASES [358.60]

A review applicant’s right to give a written statement, or a written argument, may be exercised at any time In Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413; [2010] FCAFC 40, the court considered a scenario where the tribunal had sent Mr Hasran a letter pursuant to s 359A, inviting him to comment on certain information and requesting a date by which that information was to be provided. Mr Hasran did not respond by the due date and, on the following day, requested an extension of time to respond to the s 359A letter. The tribunal sent Mr Hasran a letter on 5 August 2009 in which it stated that, since Mr Hasran had not responded to the s 359A letter within the specified time period, the tribunal was unable to grant him an extension and, further, he had also lost his right to appear before the tribunal to give evidence and present arguments. Mr Hasran sought judicial review of the tribunal’s decision on the basis that the tribunal’s letter dated 5 August 2009 denied him the opportunity to put before the tribunal written material in support of his case. The Full Federal Court considered that this issue turned on the construction of the letter dated 5 August 2009 and on the terms of s 358. The Full Federal Court was of the view that Mr Hasran was entitled under s 358 to give the tribunal a written statement and written arguments, and that the opportunity to do so was separate from, and unaffected by, the loss of his entitlement to appear before the tribunal: at [34]. The letter did not specifically state that Mr Hasran was still entitled under s 358 of the Act to present a written statement and written arguments. Nonetheless, the Full Federal Court was of the view that the letter did not purport to deny him the opportunity to do so: at [38]. 684

Migration Law

[358.80]

Part 5 – Review of Part 5-reviewable decisions (ss 336M–379G) Division 5 – Part 5-reviewable decisions: conduct of review (ss 357A–367)

s 359

PRACTICE POINT [358.80] Adverse information Any adverse information contained in a document provided by an applicant pursuant to s 358(1) of the Act is excluded under s 359A(4)(b) from being required to be put to the applicant for the purposes of s 359A(1): see, for example, SZEPR v Minister for Immigration [2005] FMCA 1608 at [14]. 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. [Subs (2) am Act 10 of 2009, s 3 and Sch 1 items 1 and 2]

(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. [Subs (3) am Act 10 of 2009, s 3 and Sch 1 item 3; subst Act 58 of 2001, s 3 and Sch 3 item 4]

(4) If an invitation is given to the Secretary, the invitation must be given by one of the methods specified in section 379B. [Subs (4) subst Act 58 of 2001, s 3 and Sch 3 item 4] [S 359 am Act 10 of 2009, s 3 and Sch 1 item 1; Act 58 of 2001; subst Act 113 of 1998, s 3 and Sch 1 item 22, with effect from 1 Jun 1999; former s 129 renum Act 60 of 1994, s 83, with effect from 1 Sep 1994; former s 64L Act 59 of 1989, s 35; insrt Act 59 of 1989, s 26]

SECTION 359 COMMENTARY Scope ................................................................................................................................................... [359.20] CONCEPTS

Person .................................................................................................................................................. [359.40] May get information that it considers relevant .................................................................................. [359.60] Tribunal must have regard to information ......................................................................................... [359.80] KEY CASES

No duty to inquire ............................................................................................................................. [359.100] If an applicant fails to respond to a s 359 invitation, the applicant may not be entitled to, and the Tribunal may be precluded from inviting the applicant to attend, a hearing under s 360 .................. [359.120] Tribunal may get information by any means ................................................................................... [359.140] A failure to refer to information in the decision will support an inference that the Tribunal did not have regard to that information ........................................................................................................ [359.160] It is a matter for the Tribunal’s discretion to determine the weight to be given to information that it must have regard to ........................................................................................................................... [359.180] PRACTICE POINTS

Method by which invitation given ................................................................................................... [359.200] © 2016 THOMSON REUTERS

685

s 359

Migration Act 1958

[359.20]

[359.20] Scope The current version of s 359 was inserted by the Migration Legislation Amendment Act (No 1) 1998 (Cth) when the tribunal was established. The purpose of this section, along with ss 359A, 359B and 359C, is to provide a “code of procedure which the tribunal is to follow in conducting its review”: Explanatory Memorandum to the Migration Legislation Amendment Bill (No 1) 1998 at [36]. The power conferred on the tribunal by this section is permissive, or facultative, rather than mandatory: Dissanayake v Minister for Immigration and Multicultural Affairs [2002] FCA 976 at [18]; VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459 at [27]; Minister for Immigration and Citizenship v SZKTI (2009) 238 CLR 489; 258 ALR 434; [2009] HCA 30 at [27]–[28]. In other words, while the tribunal has power to seek information, there is no express duty placed upon it by this section to do so. Section 359(1) gives the tribunal a discretionary power to “get any information that it considers relevant” and, if it does get any such information, it must have regard to it. Section 359(2) is a separate and different power to that contained in s 359(1): Minister for Immigration and Citizenship v SZKTI (2009) 238 CLR 489; 258 ALR 434; [2009] HCA 30 at [45]. The power in s 359(2) permits the tribunal to invite a person, either orally or in writing, to “give information”. The written information must be in accordance with s 359(3). The general power in s 359(1) is not limited by s 359(2) and a tribunal will not commit a jurisdictional error if it does not follow the procedures in s 359(2) when it “gets” information. In addition, s 359 does not prevent an applicant from providing the tribunal with information the applicant considers pertinent to his or her application: Minister for Immigration and Multicultural and Indigenous Affairs v Sun (2005) 146 FCR 498; [2005] FCAFC 201 at [50]. A corresponding subsection to s 359(4) is not contained in s 424 (the equivalent provision pertaining to a Part 7-reviewable decision).

CONCEPTS [359.40] Person Section 359(2) refers to inviting a “person” to give information. “Person” in this context: • refers to a “natural person”: SZLPO v Minister for Immigration and Citizenship (2009) 177 FCR 1 255; ALR 407; [2009] FCAFC 51 at [103]–[108] per Lindgren, Stone and Bennett JJ; and • is limited by reference to a person whose identity is known at the time of extending the invitation: SZLPO v Minister for Immigration and Citizenship (2009) 177 FCR 1; 255 ALR 407; [2009] FCAFC 51 at [109] per Lindgren, Stone and Bennett JJ. It is not necessary that the “person” is the review applicant. The powers under s 359(1) and (2) permit the tribunal to seek information from anyone, including a person at the Department of Foreign Affairs and Trade (DFAT): Dowlat v Minister for Immigration [2009] FMCA 171 at [10], [30]–[32] per Driver FM; SZLTR v Minister for Immigration and Citizenship [2008] FCA 1889 at [33]–[34] per Siopis J. However, a request to DFAT generally (and not to a natural person), or a request to DFAT to determine who to approach, will fall outside the scope of this section: SZLPO v Minister for Immigration and Citizenship (2009) 177 FCR 1; 255 ALR 407; [2009] FCAFC 51 at [119]–[120] per Lindgren, Stone and Bennett JJ; SZMXP v Minister for Immigration [2009] FMCA 495 at [4] per Driver FM. In addition, the “person” from whom the information is sought need not be the primary holder of the information. For example, the tribunal may invite a person at DFAT to make inquiries with Afghanistan’s Consulate General in Quetta, or may communicate with a person at DFAT to get information about an applicant’s status in the Awami League: Dowlat v Minister for Immigration 686

Migration Law

[359.100]

Part 5 – Review of Part 5-reviewable decisions (ss 336M–379G) Division 5 – Part 5-reviewable decisions: conduct of review (ss 357A–367)

s 359

[2009] FMCA 171 at [10], [30]–[32] per Driver FM; SZLTR v Minister for Immigration and Citizenship [2008] FCA 1889 at [33]–[34] per Siopis J. In certain circumstances DFAT may be treated as the agent of the tribunal, where the invitation from the tribunal to DFAT requests the recipient at DFAT to contact a particular person: SZLPO v Minister for Immigration and Citizenship (2009) 177 FCR 1; 255 ALR 407; [2009] FCAFC 51 at [119]–[120] per Lindgren, Stone and Bennett JJ. [359.60] May get information that it considers relevant The words “may get information that it considers relevant” in s 359(1) confer a general power and do not restrict or limit the tribunal’s powers in any way, other than in the requirement that the tribunal “must have regard to that information in making the decision”: see Minister for Immigration and Citizenship v SZKTI (2009) 238 CLR 489; 258 ALR 434; [2009] HCA 30 at [37] per French CJ, Heydon, Crennan, Kiefel and Bell JJ. [359.80] Tribunal must have regard to information In Singh v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 152; 194 ALR 599; [2001] FCA 389, the Federal Court considered the words “have regard to” in the context of s 54(1) of the Act. Sackville J noted at [57]: Equally, I do not think that s 54(1) is satisfied merely by the Minister, as the decision-maker, being aware of the information in the application. The expression “have regard to” suggests a process of consideration of information. In order to consider something it is doubtless necessary to know that the thing exists, but more is needed. A decision-maker may be aware of information without paying any attention to it or giving it any consideration.

In SZOAU v Minister for Immigration and Citizenship [2010] FMCA 606 at [19], Nicholls FM stated that the above comments of Sackville J are applicable to the same words which appear in s 424 of the Act (the equivalent provision to s 359). In Minister for Immigration and Multicultural and Indigenous Affairs v Katisat [2005] FCA 1908 at [62], the Federal Court observed that the phrase “to have regard” (as that phrase appears in s 361(3)), means “to take into account” or to “consider”. In SZRLO v Minister for Immigration and Citizenship [2013] FCA 825, the Federal Court considered the words “have regard to” under the equivalent provision under Pt 7 (s 424(1)). The court held at [49] that, to comply with the requirements of that section, “the tribunal must engage in ‘an active intellectual process’ in which information obtained pursuant to s 424(1) receives the tribunal’s ‘genuine’ consideration” (citing NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51; [2005] FCAFC 134 at [46]; Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248; 274 ALR 438; [2010] FCAFC 145).

KEY CASES [359.100] No duty to inquire Section 359 gives the tribunal wide discretionary powers to investigate an applicant’s claims; however, it does not impose any general duty on the tribunal to make inquiries: Re Minister for Immigration and Multicultural Affairs; Ex parte Cassim (2000) 175 ALR 209; 74 ALJR 1404; [2000] HCA 50 at [12]–[13] per McHugh J; Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426; 192 ALR 256; [2001] FCA 274; Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; 273 ALR 223; [2011] HCA 1 at [20]. There is no general duty imposed on the tribunal to make inquiries. Rather, the duty imposed on the tribunal is a duty to review: Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; 83 ALJR 1123; [2009] HCA 39 at [25] per French CJ, Gummow, Hayne, Crennan, © 2016 THOMSON REUTERS

687

s 359

Migration Act 1958

[359.120]

Kiefel and Bell JJ. A tribunal may, in some circumstances, fail to discharge its duty to review if it fails to “make an obvious inquiry about a critical fact, the existence of which is easily ascertained. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction”: Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; 83 ALJR 1123; [2009] HCA 39 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. However, a tribunal simply not exercising the discretionary power under this section will not of itself amount to jurisdictional error. [359.120]

If an applicant fails to respond to a s 359 invitation, the applicant may not be entitled to, and the Tribunal may be precluded from inviting the applicant to attend, a hearing under s 360 If an applicant is invited under s 359(2) to give information, but fails to do so, he or she may lose the right to attend a hearing before the tribunal and the tribunal may be precluded from scheduling any such hearing. In Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413; [2010] FCAFC 40 (Hasran), the review applicant had been invited by the tribunal, under s 359A(1) of the Act (compare s 359(2)), to provide written comments by a certain date. The applicant was warned that, if he failed to do so, the tribunal may make a decision on the review without taking any further action to obtain his response, and that the applicant would lose any entitlement he may have under the Act to an oral hearing. The applicant subsequently failed to respond to the letter, and the tribunal made a decision without inviting the applicant to attend a hearing. Among other things, the Full Court of the Federal Court considered the interaction between ss 359A, 359C, 360 and 363A of the Act, and the decisions of Minister for Immigration and Multicultural and Indigenous Affairs v Sun (2005) 146 FCR 498; [2005] FCAFC 201 (Sun) and M v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 333; 91 ALD 629; [2006] FCA 1247 (M). The majority in Hasran observed at [25]–[31]: In our view, the proper construction and application of s 363A of the Act and the related provisions of Part 5 were correctly stated by the Full Court in Sun and explained by Tracey J in M. As Tracey J observed in M at [46], the language of s 363A is clear. It operates so as to remove any discretion which the tribunal may have had to allow a person to do something where a provision of Part 5 states that the person is not entitled to do it. Here, the appellant’s failure to respond to the tribunal’s letter under s 359A had the effect of attracting the cascading operation of ss 359C(2), 360(2)(c) and, critically, s 360(3) which enlivened the application of s 363A. This was because the appellant was invited by the tribunal’s letter under s 359A to comment or respond to the information stated in the tribunal’s letter by 3 August 2009. He did not do so, and accordingly he was a person to whom s 359C(2) applied. The operation of s 360(3) was thereby attracted. The effect of that subsection in the circumstances of this case was that the appellant was not entitled to appear before the tribunal. The operation of s 360(3) then attracted the express terms of s 363A, the effect of which was to provide that the tribunal did not have the power to permit the appellant to appear at an oral hearing. As Tracey J said in M at [46], this approach to construction is consistent with the views of the Full Court in Sun, as well as the Explanatory Memorandum which accompanied the Migration Legislation Amendment Bill (No 5) 1994 (Cth). The contrary view expressed by a Full Court in Uddin v Minister for Immigration and Multicultural and Indigenous Affairs … [[2005] FCAFC 218; (2005) 149 FCR 1] (“Uddin”) is explained by the fact that the Full Court in Uddin was not referred to s 363A of the Act and by the fact that the case was not decided on a basis which involved any consideration of s 363A. Moreover, the obiter comments in Uddin were published after the decision in Sun was handed down and there was no reference in Uddin to the contrary views stated in Sun. The explanation for this appears to be that the decision in Uddin was reserved shortly before the Full Court decision in Sun was handed down. 688

Migration Law

[359.160]

Part 5 – Review of Part 5-reviewable decisions (ss 336M–379G) Division 5 – Part 5-reviewable decisions: conduct of review (ss 357A–367)

s 359

Although the above case was concerned with the failure to respond to a s 359A(1) letter, the principles are equally applicable to a situation where an applicant fails to respond to an invitation under s 359(2): see ss 360(2)(c), 359C(1). [359.140] Tribunal may “get” information by any means In Minister for Immigration and Citizenship v SZKTI (2009) 238 CLR 489; 258 ALR 434; [2009] HCA 30, the respondent had applied for a protection visa. In support of the application, the visa applicant provided the Refugee Review Tribunal with a letter from a local church elder which contained a telephone number. During the course of a hearing before the tribunal, the tribunal telephoned the elder. At the relevant time, s 424(3) of the Act (the equivalent provision to s 359(3)) required that any invitation to a person to give additional information had to be in writing. The Full Court of the Federal Court held that the tribunal’s exercise of jurisdiction miscarried because its “invitation” (by telephone) to the elder of the local church was not in writing. The High Court overturned the Full Court of the Federal Court’s decision on appeal. The court confirmed that s 424(1) did not preclude a tribunal seeking information from a person by telephone. French CJ, Heydon, Crennan, Kiefel and Bell JJ stated at [45]: Section 424(1) puts into statutory form a power to obtain information by asking questions. This is an obvious power to give to an inquisitorial body. Subject to not interfering with the liberty of another, making an enquiry with no power to compel an answer is not an unlawful activity. No adverse consequences flow against the applicant for review if the applicant, or any other person questioned, fails to co-operate or to give the information sought. By comparison, the specific power in s 424(2) governed by ss 424(3) and 424B, to give an invitation in writing to provide additional information, results in the adverse consequence that an applicant who fails to respond to an invitation in writing is deprived of the entitlement to a hearing. These critical distinctions emphasis the fact that the powers in ss 424(1) and 424(2) are, in law, significantly dissimilar.

Therefore, since the tribunal has the general power to “get” information under s 359(1), which is distinct and separate to the specific power to “invite” in writing the provision of information under s 359(2), the tribunal had the power to get information from a person by telephone: Minister for Immigration and Citizenship v SZKTI (2009) 238 CLR 489; 258 ALR 434; [2009] HCA 30 at [47]. [359.160]

A failure to refer to information in the decision will support an inference that the Tribunal did not “have regard” to that information The tribunal is required in most instances, by s 368(1) of the Act, to record its decision in a written statement. A failure to refer to information the tribunal is required to “have regard to” will therefore support an inference that the tribunal did not have regard to that information: NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51; [2005] FCAFC 134 at [212]. However, a failure by the tribunal to refer to information will not, necessarily, mean that it has not been considered. In Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; 273 ALR 223; [2011] HCA 1 at [31], French CJ and Kiefel J observed that, while a court may infer that a matter not mentioned by a tribunal in its written reasons entitles the court to infer that the matter was not considered material, “[t]hat, of course, does not mean that a matter not mentioned in the s 430 statement was not considered”. Accordingly, an assessment needs to be made in each instance as to whether a tribunal has engaged in an “active intellectual process” with the information with which it was required to have regard. Importantly, the proposition that the tribunal is not obliged, in all cases, to refer in its reasons to every item of evidence that was before it (see, for example, SZEHN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1389 at [58]; Minister for Immigration and Citizenship v MZYHS (2011) 119 ALD 534; [2011] FCA 53 at [24]) is not applicable to the situation where the tribunal is obliged, by s 359 of the Act, to “have regard to information”. © 2016 THOMSON REUTERS

689

s 359AA

Migration Act 1958

[359.180]

[359.180]

It is a matter for the Tribunal’s discretion to determine the weight to be given to information that it must have regard to In the absence of any statutory or contextual indication of the weight to be given to factors to which a decision-maker must have regard, it is generally for him or her to determine the appropriate weight to be given to them: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; 66 ALR 299; [1986] HCA 40 at 41 (CLR) per Mason J. In this regard, a court cannot turn a review of an administrative decision into a review of the merits of the decision. Accordingly, proceedings for judicial review should not overzealously scrutinise the reasons of a decision-maker. Those reasons are meant to inform only: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; 136 ALR 481; [1996] HCA 6 at 272 (CLR) per Brennan CJ, Toohey, McHugh and Gummow JJ; SZRLO v Minister for Immigration and Citizenship [2013] FCA 825 at [49].

PRACTICE POINTS [359.200] Method by which invitation given Pursuant to s 359(2), the tribunal may invite a person to give information. Neither the Act nor the Regulations contain any requirements about how the tribunal is to invite a person to give information orally. However, s 359(2) makes it clear that the invitation may be by telephone. A written invitation under s 359(2) must be in accordance with the requirements specified in s 359B. Where a tribunal invites a person in writing to give information under s 359(2) pursuant to: • s 359(3)(a), if the person is not in immigration detention, the invitation must be given by one of the methods specified in s 379A; and • s 359(3)(b), if the person is in immigration detention, the invitation must be given to the person by the method prescribed. Regulation 5.02 prescribes the method and provides that a document is to be served on such a person by giving it to the person himself or herself or to another person authorised by him or her to receive documents on his or her behalf. If the written invitation does not comply with the requirements specified above, it is not a valid invitation pursuant to s 359(2). Therefore, if a person does not respond to an invalid invitation, the consequences in such sections as ss 359C(1) and 360(2)(c) (being that the applicant loses his or her right to appear before the tribunal to give evidence and present arguments) do not apply, as these sections are based on there being a valid written invitation. 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

690

Migration Law

[359AA.20]

Part 5 – Review of Part 5-reviewable decisions (ss 336M–379G) Division 5 – Part 5-reviewable decisions: conduct of review (ss 357A–367)

s 359AA

(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.

[Subs (1) am Act 35 of 2015, s 3 and Sch 4 item 8, with effect from 18 Apr 2015]

(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). [Subs (2) insrt Act 35 of 2015, s 3 and Sch 4 item 9, with effect from 18 Apr 2015] [S 359AA am Act 35 of 2015; insrt Act 100 of 2007, s 3 and Sch 1 item 2]

SECTION 359AA COMMENTARY Scope .............................................................................................................................................. [359AA.20] CONCEPTS

The “meaning of information” ...................................................................................................... [359AA.40] Clear particulars ............................................................................................................................. [359AA.60] Would be the reason, or part of the reason .................................................................................. [359AA.80] Could, would or will be the reason ............................................................................................ [359AA.100] Ensure, as far as is reasonably practicable, that the applicant understands .............................. [359AA.120] KEY CASES

Sections 359AA and 359A work in a complementary manner ................................................. [359AA.140] Information .................................................................................................................................. [359AA.160] Clear particulars of the context in which information appears, including the source of the information, may need to be provided in some instances .............................................................................. [359AA.180] Errors made by Tribunal in giving particulars of information .................................................. [359AA.200] The Tribunal is only obliged to grant an adjournment if it considers the review applicant reasonably needs additional time .................................................................................................................... [359AA.220] The Tribunal is not prevented from using s 359AA as an alternative to s 359A .................... [359AA.240] Use of a transcript in judicial review proceedings .................................................................... [359AA.260] Sections 359AA(b)(iii) and (iv) .................................................................................................. [359AA.280]

[359AA.20] Scope Although the primary purpose of Pt 5 Div 5 of the Act was to codify the requirements of procedural fairness, “in relation to the matters it deals with”, the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294; 215 ALR 162; [2005] HCA 24 made it clear that some provisions in the Division were not simply procedural in nature, but instead required strict compliance: at [77]; see also Explanatory Memorandum to the Migration Amendment (Review Provisions) Bill 2006 (Cth) at 3. Such a literal interpretation was criticised by subsequent courts as requiring a highly technical application of the law in circumstances where little or no injustice could be seen in the way a tribunal had dealt with a given matter: see, for example, SZEWL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 968 at [11] per Allsop J; Explanatory Memorandum to the Migration Amendment (Review Provisions) Bill 2006 (Cth) at 3. Partly to address the issue identified by Allsop J in SZEWL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 968, the Migration Amendment (Review Provisions) Act 2007 (Cth) introduced s 359AA to provide a new discretion for the Tribunal to © 2016 THOMSON REUTERS

691

s 359AA

Migration Act 1958

[359AA.40]

orally give particulars of information and to invite a review applicant to comment on or respond to such information at a hearing. As noted at cl 5 of Sch 1 of the Explanatory Memorandum to the Migration Amendment (Review Provisions) Bill 2006 (Cth), s 359AA complements the tribunal’s obligation under s 359A in that, if the tribunal does not orally give information and seek comments or a response from an applicant at a hearing, it will then be obliged to do so in writing under s 359A. The corollary is that if the tribunal does give such clear particulars and seeks a comment or response from an applicant at a hearing, then the tribunal will be relieved of its obligation to do so under s 359A. Section 359AA is not a source of substantive rights. As explained by the majority in SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415; [2009] FCAFC 46 (SZMCD) at [74]–[75] and [83]–[91], a failure to comply with s 424AA (being the equivalent provision under Pt 7) does not constitute jurisdictional error. However, non-compliance with s 359AA will cast the tribunal back to s 359A. In that event, the tribunal must then comply with s 359A(1): SZMCD at [92] and [103]. A failure to comply with s 359A(1) will constitute jurisdictional error: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294; 215 ALR 162; [2005] HCA 24 at [78], [173] and [208]; SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; 81 ALJR 1190; [2007] HCA 26 at [13].

CONCEPTS [359AA.40] The meaning of “information” The word “information” in this section and in s 359A is not defined in either the Act or the Regulations. The ordinary meaning of the word “information” is “knowledge or facts communicated about a particular subject, event etc; intelligence, news”: Kaur v Minister for Immigration and Border Protection [2013] FCA 1333 at [45]; Brown L, The New Shorter Oxford English Dictionary (4th ed, 1993), p 1364. In SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; 81 ALJR 1190; [2007] HCA 26 (SZBYR) at [18], Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ stated that the meaning of “information” refers to the “existence of evidentiary material or documentation, not to the existence of doubts, inconsistencies or the absence of evidence” or the tribunal’s disbelief. For the purposes of ss 359A and 359AA, “information” does not include the following: • the information referred to in s 359A(4) of the Act – that is, information: – 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: see s 359A(4)(a); – that the applicant gave for the purpose of the applicant for review: see s 359A(4)(b); – that the applicant gave during the process that led to the decision under review, other than oral information the applicant provided to the Department: see s 359A(4)(ba); or – non-disclosable information, as defined in s 5: see s 359A(4)(c); • “the tribunal’s subjective appraisals, thought processes or determinations”: VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471; [2004] FCAFC 123 (VAF) at [24] per Finn and Stone JJ; SZBYR at [18]; Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; 273 ALR 223; [2011] HCA 1 (SZGUR) at [9]; 692

Migration Law

[359AA.80]

Part 5 – Review of Part 5-reviewable decisions (ss 336M–379G) Division 5 – Part 5-reviewable decisions: conduct of review (ss 357A–367)

s 359AA

• “identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps etc”: VAF at [24] per Finn and Stone JJ; SZBYR at [18]; SZGUR at [9]; and • doubts, inconsistencies or the absence of evidence: SZBYR at [18]. Information “does not extend to the ‘prospective reasoning process’ of the Tribunal” and must be information that “would” be the reason, or part of the reasons for affirming the decision, and not information which “could” or “might” be such a reason: SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3 at [18] Perram, Jagot and Griffiths J. [359AA.60] Clear particulars The provision of “clear particulars” requires that the information must be provided with “sufficient specificity”: MZXKH v Minister for Immigration and Citizenship [2007] FCA 663 at [20] and [27]; MZYHF v Minister for Immigration and Citizenship (2010) 118 ALD 534; [2010] FCA 1250; SZMTJ v Minister for Immigration and Citizenship (No 2) (2009) 109 ALD 242; [2009] FCA 486 (SZMTJ). As Flick J stated in SZMTJ at [45], “language which fails to identify information with ‘sufficient specificity’ and which fails to ‘unambiguously’ set forth information may fail to comply with the requirement in s 359AA(1)(a) to provide ‘clear particulars’ of information”. In SZNKO v Minister for Immigration and Citizenship (2010) 184 FCR 505; 267 ALR 35; [2010] FCA 297, Flick J traced the legislative history of the requirement for particulars in s 424A. His Honour noted at [19] that prior versions of s 424A (the equivalent provision to s 359A) had referred merely to “particulars of any information”. “The requirement that ‘clear particulars’ be provided was introduced by the Migration Amendment (Review Provisions) Act 2007 (Cth)”: at [19]. His Honour noted that the change in language could not be ignored and the change from “particulars” to “clear particulars” was somewhat motivated by the concern that extra care should be taken in the giving of particulars. When considering whether clear particulars have been provided it is necessary to consider the character of the information and the clarity with which the information has been provided. As stated by Flick J in SZMTJ v Minister for Immigration and Citizenship (No 2) (2009) 109 ALD 242; [2009] FCA 486 at [52]: Although s 424A(1) imposes the trinity of requirements set forth in paragraphs (a), (b) and (c), it is not considered that compliance with s 424A(1) is necessarily to be approached by considering each of the three requirements as though it were divorced from the rest. The greater the degree of clarity in the “particulars of any information” provided, the less may be the exposition needed to convey the relevant of that information to the review being undertaken; the greater the uncertainty in the information being provided, the greater may be the need to explain why it may be relevant. Section 424A(1)(b) remains a requirement to be satisfied; but the steps to be undertaken to discharge that requirement may well depend upon the clarity with which the information has been identified and indeed the character of that information.

[359AA.80] Would be the reason, or part of the reason For the purposes of ss 359A and 359AA, the information must be “information that the tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review”. In this context, and taking into account the common law concept of procedural fairness, the “information” will usually be adverse information to the applicant. However, not all adverse information will need to be put to an applicant. Adverse information (or any other type of information) which would not be the reason, or part of the reason, for affirming the decision, does not need to be put to an applicant in accordance with this section or s 359A. This is because, even though the information may be adverse, it has not been relied upon in any way by the tribunal to affirm the decision under review. Therefore, it does not need to be put to an applicant for comment. © 2016 THOMSON REUTERS

693

s 359AA

Migration Act 1958

[359AA.100]

In SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; 81 ALJR 1190; [2007] HCA 26, the High Court considered the phrase “would be the reason, or part of the reasons, for affirming the decision that is under review” in the context of s 424A (which is equivalent to s 359A) and noted at [17]: The reasons for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place. The tribunal does not operate in a statutory vacuum, and its role is dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act. The use of the future conditional tense (“would be”) rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance – and independently – of the tribunal’s particular reasoning on the facts of the case. Here, the appropriate criterion was to be found in s 36(1) of the Act, being the provision under which the appellants sought their protection visa. The “reason, or part of the reason, for affirming the decision that is under review” was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention. When viewed in that light, it is difficult to see why the relevant passages in the appellant’s statutory declaration would itself be “information that the tribunal considers would be the reasons, or part of the reason, for affirming the decision that is under review”. Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellant’s claims to be a person to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review.

[359AA.100] Could, would or will be the reason In Minister for Immigration and Citizenship v SZLFX (2009) 238 CLR 507; 258 ALR 448; [2009] HCA 31 at [25], French CJ, Heydon, Crennan, Kiefel and Bell JJ endorsed the comments of Heerey J in MZXBQ v Minister for Immigration and Citizenship (2008) 166 FCR 483; [2008] FCA 319 that s 424A (equivalent in its terms to s 359A) speaks of information which “would”, not which “could” or “might”, be the reason or part of the reason for affirming the decision under review. In MZYFH v Minister for Immigration and Citizenship (2010) 188 FCR 151; 115 ALD 409; [2010] FCA 559 (MZYFH), Bromberg J held that the tribunal had breached its obligations pursuant to s 424AA (the equivalent provision to s 359AA) because, among other things, at [66]–[68]: [b]y telling the applicant that the information “could” form the reason or part of the reason, the tribunal failed to ensure that the applicant understood the view that the tribunal had arrived at, and the full gravity of the consequence of that view upon his claim. In the absence of a proper understanding, the appellant was not put in a position to understand how critical it was for him to respond and to do so convincingly. In the circumstances of this case, the appellant may well have taken the view that the tribunal would regard the evidence of Father Thomas to be of little consequence. As I have said already, it is unclear from the evidence that Father Thomas gave that he even knew of the appellant. Similarly, in relation to evidence of Father Peter, the appellant may well have thought that the tribunal would not give that evidence very much weight. The evidence was unspecific, the basis for the assertions made was not given and the evidence was obviously tainted by Father Peter’s misconception that the appellant was one of the oath breakers who had not returned to India. In those circumstances, and because he was told that the evidence of the Fathers could, rather than would, be the reason or part of the reason for affirming the decision under review, the appellant may well have elected to respond immediately rather than take the benefit of the opportunity provided by s 424AA to seek additional time to provide his response. A full understanding of the gravity of what he was facing may well have impacted upon both the timing and the content of any response that the appellant chose to make.

However, the use of such words as “will” do not necessarily result in a breach of s 359AA. In Singh v Minister for Immigration [2012] FMCA 1005, the tribunal used the word “will” when putting information to an applicant pursuant to s 359AA. Whelan FM accepted the Minister’s 694

Migration Law

[359AA.180]

Part 5 – Review of Part 5-reviewable decisions (ss 336M–379G) Division 5 – Part 5-reviewable decisions: conduct of review (ss 357A–367)

s 359AA

submission that the word “will” was “stronger than the words ‘would’, ‘could’, ‘might’ or ‘may’”, and therefore the matter was distinguishable from MZYFH: at [18]. Her Honour further noted at [19] that the word “will” refers to a “definite future action and a likely prediction” and, by using the word “will”, the tribunal does not “fail to ensure that the Applicant [understands] the relevance and consequence of the information, and [is] fully aware of the full gravity of the consequences of that view upon [the] claim”. [359AA.120]

Ensure, as far as is reasonably practicable, that the applicant understands Sections 359AA(b)(i) and 359A(1)(b) require that the tribunal “ensures, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review”. The tribunal is not only required to provide the applicant with “clear particulars”, but is also required to explain the relevance of the information and the consequences of the tribunal relying upon it: Minister for Immigration and Multicultural Affairs v SZGMF [2006] FCAFC 138. In NBKS v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 156 FCR 205; 237 ALR 592; [2006] FCAFC 174, the Full Federal Court found, amongst other things, that the tribunal had not ensured, as far as reasonably practicable, that the appellant understood why an omission from a doctor’s report was relevant to the decision under review: at [42] per Weinberg J. In this matter, the tribunal had provided a copy of a doctor’s report to the appellants, but the report did not address a particular issue and the tribunal did not explain that it was the absence of this issue which was of relevance.

KEY CASES [359AA.140] Sections 359AA and 359A work in a complementary manner By reason of s 359A(3), the provisions in ss 359A and 359AA operate in a complementary fashion and the tribunal has a discretion as to whether or not to engage the provisions in s 359AA: SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415; [2009] FCAFC 46 at [86]. It is s 359A which “prescribes what must be done”: at [88], [90] and [104] (in reference to ss 424AA and 424A). [359AA.160] Information In SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; 81 ALJR 1190; [2007] HCA 26, the High Court considered the meaning of the term “information” as it applied to s 424A of the Act (which is the equivalent provision to s 359A of the Act). The appellants had initially argued that the tribunal had breached s 424A by failing to put to them certain information – that is, inconsistencies between the statutory declaration provided by an appellant in connection with the protection visa application and oral evidence to the tribunal. The argument in the High Court focused on whether s 424A required the tribunal to put to the appellants for comment relevant passages in the statutory declaration itself from which the inconsistencies arose. Relevantly, Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ found at [17] that the appellants had not demonstrated that the statutory declaration would be the reason, or part of the reason, for affirming the decision under review. They further found that if the reason for affirming the decision was the tribunal’s disbelief of the appellant’s evidence arising from inconsistencies, then disbelief and inconsistencies did not constitute “information” for the purpose of s 424A(1): at [18]. [359AA.180]

Clear particulars of the context in which information appears, including the source of the information, may need to be provided in some instances Whether the tribunal is obliged to give clear particulars of the context from which adverse information has been derived depends upon whether it is relevant (in the sense that it would be © 2016 THOMSON REUTERS

695

s 359AA

Migration Act 1958

[359AA.200]

the reason, or part of the reason, for affirming the decision under review). In SZNKO v Minister for Immigration and Citizenship (2010) 184 FCR 505; 267 ALR 35; [2010] FCA 297 at [23], Flick J said (in relation to ss 424AA and 424A, the equivalent provisions to ss 359AA and 359A) that there may be circumstances in which the requirement to “give information” may not extend to a requirement to disclose the entirety of a document in which such “information” is contained. In those cases, the disclosure of that specific part of a much lengthier document may be sufficient. However, his Honour emphasised that “information” cannot in all cases be clinically divorced from the context in which it appears. How much of that surrounding context must be disclosed “must necessarily depend upon the facts and circumstances of each individual case”. In this regard, it may be necessary in some cases to identify the “source” from which the information has been obtained. Flick J noted that, in essence, the touchstone is that the provision requires the disclosure of however much information is necessary to ensure that the opportunity to comment or respond is “meaningful”. Accordingly, in some cases the disclosure of the “substance” of the information may be sufficient (see NAVM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 99 at [33]), whereas in other cases “clear particulars” may require more: SZNKO v Minister for Immigration and Citizenship (2010) 184 FCR 505; 267 ALR 35; [2010] FCA 297 at [23]. [359AA.200] Errors made by Tribunal in giving particulars of information The consequence of the tribunal misstating information depends, first, on whether it is obliged by s 359A to give “clear particulars” of that information. If the tribunal is obliged to provide “clear particulars” (because the information would be the reason, or part of the reason, for affirming the decision under review), but fails to do so due to inaccuracy, then it will in most instances have failed to provide clear particulars of that information. In the context of s 359AA, this will cast the tribunal back to s 359A: SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415; [2009] FCAFC 46 at [92], [103]. However, where the tribunal misstates information that is not required to be put to an applicant, the consequence will depend on the circumstances of the case. In Sandhu v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 842 at [31], the Federal Court held that the tribunal’s mistake in incorrectly referring to the source of adverse information did not amount to legal error because the source of the information did not form any part of the tribunal’s decision; rather it was the substance of the information that was relevant in that case. On the other hand, a denial of procedural fairness may be established where a tribunal misleads a party in the course of a hearing. This is likely to be the case where the misleading conduct results in the denial of a proper opportunity for a review applicant to be heard in circumstances which affect the outcome: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; 176 ALR 219; [2000] HCA 57 at [4] per Gleeson CJ, at [79] per Gaudron and Gummow JJ, at [127] per Kirby J. [359AA.220]

The Tribunal is only obliged to grant an adjournment if it considers the review applicant reasonably needs additional time If the tribunal utilises s 359AA(a), it is obliged under s 359AA(b)(iii) to advise the applicant that he or she may seek additional time to comment on or respond to the information which has been put to him or her. If the applicant does seek additional time, the tribunal is not obliged to adjourn the review, but only to consider if the applicant reasonably needs additional time. In considering whether the applicant needs additional time, the tribunal is entitled to take into account the history of the matter: Toor v Minister for Immigration [2012] FMCA 804 at [68]. An unreasonable refusal to grant an adjournment, however, is likely to amount to jurisdictional error. The question of what is unreasonable, in this sense, may be discerned from a lack of an evident and intelligible justification for refusing to grant the adjournment: see, for example, 696

Migration Law

[359AA.280]

Part 5 – Review of Part 5-reviewable decisions (ss 336M–379G) Division 5 – Part 5-reviewable decisions: conduct of review (ss 357A–367)

s 359AA

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; 297 ALR 225; 87 ALJR 618; [2013] HCA 18 at [76] per Hayne, Kiefel and Bell JJ (in relation to the operation of s 363(1)(b) of the Act). [359AA.240]

The Tribunal is not prevented from using s 359AA as an alternative to s 359A In Toor v Minister for Immigration [2012] FMCA 804, the Federal Magistrates Court rejected the applicant’s suggestion that the tribunal in that case should have utilised s 359A of the Act rather than s 359AA. Whelan FM observed at [70] : “I am not satisfied that on the facts, or at law, there was any obligation on the tribunal to do so”. [359AA.260] Use of a transcript in judicial review proceedings Generally, a court will not find that a tribunal has failed to comply with the requirements in s 359AA simply from the written reasons. A transcript of the tribunal hearing will usually need to be provided: SZNOA v Minister for Immigration and Citizenship [2010] FCA 60 at [21] per Cowdroy J. However, in MZYFH v Minister for Immigration and Citizenship (2010) 188 FCR 151; 115 ALD 409; [2010] FCA 559, Bromberg J discerned on the face of the tribunal’s decision, without use of a transcript of the tribunal hearing, that the tribunal had breached its obligations under s 424AA because the tribunal: • had not given “clear particulars” of the relevant information; • did not ensure that the applicant understood why the information was relevant to the review; and • did not ensure that the applicant understood the consequences of the information being relied on in affirming the decision that was under review, by using the word “could” instead of “would” when stating that the information could be a reason, or part of the reason, for affirming the decision. [359AA.280] Sections 359AA(b)(iii) and (iv) In Toor v Minister for Immigration [2012] FMCA 804, the applicant applied for a Student (Class TU) visa. It was a precondition to the grant of the visa that the applicant satisfied certain financial capacity criteria. First, a delegate of the Minister refused to grant the visa on the basis that the applicant did not satisfy this criteria. The applicant then sought merits review before the tribunal. During the course of a second hearing, the tribunal referred the applicant to adverse information contained in a report from the Australian High Commission in New Delhi regarding funds held by the applicant’s father. In light of this information, the tribunal asked the applicant at the hearing about the source of the funds and if he wanted an adjournment to consider the adverse information. The applicant requested, and was given, a break of 15 minutes to discuss the information with his adviser. The tribunal then asked if the applicant had had enough time to respond and if he wished to respond to the information. The applicant answered “yes” to both questions. However, towards the end of the hearing, the applicant made a further general request for “more time”, but this request was refused and the tribunal gave an oral decision at the conclusion of the hearing, affirming the decision of the delegate. Before the Federal Magistrates Court, the applicant argued that the tribunal failed to comply with s 359AA(b)(iii) and/or (iv) of the Act in that it failed to advise the applicant that he may seek additional time to comment on or respond to the information, and/or failed to adjourn the review upon request. The Federal Magistrates Court rejected both of these arguments. With respect to the allegation that the tribunal did not comply with s 359AA(b)(iv), Whelan FM noted that the applicant had had almost two years in which to provide satisfactory evidence that he met the financial capacity criteria. He knew what the problems were with the information he had previously been provided © 2016 THOMSON REUTERS

697

s 359A

Migration Act 1958

[359AA.280]

(including before the delegate). The court held at [68] that the tribunal was thereby entitled to take into account the history of the matter in its considerations. However, in response to a suggestion by the Minister that a tribunal need not deal with any further requests for an adjournment if the tribunal has already granted an adjournment, Whelan FM observed at [60] that: I am not satisfied that in all the circumstances having provided a short adjournment, the tribunal would not be obliged to later consider if a further adjournment might not be reasonable in order to allow the applicant to respond to the information. In some circumstances, proposals put by an applicant or information given orally in response might well justify a further adjournment for material to be produced.

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. [Subs (1) am Act 100 of 2007, s 3 and Sch 1 items 3–6]

(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. [Subs (2) subst Act 58 of 2001, s 3 and Sch 3 item 5]

(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. [Subs (3) reinsrt Act 100 of 2007, s 3 and Sch 1 item 7; rep Act 58 of 2001, s 3 and Sch 3 item 5]

(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. [Subs (4) am Act 100 of 2007, s 3 and Sch 1 items 8 and 9]

698

Migration Law

[359A.20]

Part 5 – Review of Part 5-reviewable decisions (ss 336M–379G) Division 5 – Part 5-reviewable decisions: conduct of review (ss 357A–367)

s 359A

(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). [Subs (5) insrt Act 35 of 2015, s 3 and Sch 4 item 10, with effect from 18 Apr 2015] [S 359A am Act 35 of 2015; Act 100 of 2007, s 3 and Sch 1 item 3; Act 58 of 2001; insrt Act 113 of 1998, s 3 and Sch 1 item 22, with effect from 1 Jun 1999]

SECTION 359A COMMENTARY Scope ................................................................................................................................................. [359A.20] CONCEPTS

The meaning of “information” ......................................................................................................... [359A.40] Clear particulars ............................................................................................................................... [359A.60] Would be the reason, or part of the reason ..................................................................................... [359A.80] Could, would or will be the reason ............................................................................................... [359A.100] Information that “is just about a class of persons of which the applicant is a member” ........... [359A.120] Information applicant gave for the purpose of the application for review .................................. [359A.130] Information provided orally by the applicant to the Department ................................................. [359A.140] KEY CASES

Sections 359AA and 359A work in a complementary manner .................................................... [359A.160] Information ..................................................................................................................................... [359A.180] Country information ....................................................................................................................... [359A.200] Clear particulars of the context in which information appears, including the source of the information, may need to be provided in some instances ................................................................................. [359A.220] Errors made by Tribunal in giving particulars of information ..................................................... [359A.240] The Tribunal is not prevented from using s 359AA as an alternative to s 359A ....................... [359A.260] If an applicant fails to respond to a s 359A letter, the applicant may not be entitled to, and the Tribunal may be precluded from inviting the applicant to attend, a hearing under s 360 ........................ [359A.280] PRACTICE POINT

Method by which invitation given ................................................................................................. [359A.300]

[359A.20] Scope Section 359A reflects the codification of the natural justice hearing rule by requiring the tribunal to put certain adverse information to a review applicant for comment or response (subject to the tribunal’s power to use, in the alternative, s 359AA). In SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415; [2009] FCAFC 46 at [71], the Full Court of the Federal Court summarised the policy and purpose reflected in s 424A of the Act (the equivalent provision under Pt 7), as being that the tribunal should be compelled: • to put the visa applicant on fair notice in writing of critical matters of concern to the tribunal; • to ensure that the visa applicant understands the significance of those matters to the decision under review; and • to give the applicant a reasonable opportunity to comment on or to respond to those matters of concern. In SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3, Perram, Jagot and Griffiths J considered the operation of s 424A and stated at [9] that in determining whether s 424A(1) has been breached, the following questions need to be answered: © 2016 THOMSON REUTERS

699

s 359A

Migration Act 1958

[359A.40]

(a) Is there information that the Tribunal considers would be the reasons, or part of the reason, for affirming the decision that is under review within the meaning of s 424A(1)(a)? If the answer to question (1) is “No” s 424A(1) does not apply. If the answer to question (1) is “Yes”, s 424A(1)(a) may or may not apply depending on the answer to question (2). (b) If the answer to question (1) is “Yes”, then is that information excluded from s 424A(1)(a) by s 424A(3), in particular for the purpose of the three present matters, by s 424A(3)(b), being information that the applicant gave for the purpose of the application for review? If the answer to question (2) is “Yes”, s 424A(1)(a) does not apply. If the answer to question (2) is “No”, s 424A(1) may apply depending on the answers to questions (3) and (4). (c) Did the Tribunal comply with s 424AA(a) (being the equivalent to s 359AA) in respect of the information, by giving to the applicant orally clear particulars of any information that the Tribunal considers would be the reasons, or part of the reasons, for affirming the decision that is under review? If the answer to question (3) is “No”, s 424A(1) applies. If the answer to question (3) is “Yes”, s 424A(1) may or may not apply depending on the answer to question (4). (d) If the Tribunal complied with s 424AA(a) in respect if the information, by giving to the applicant orally clear particulars of any information that the Tribunal considers would be the reasons, or part of the reason, for affirming the decision that is under review, did the Tribunal comply with each of s 424AA(b)(i)-(iv)? If the answer to question (4) is “No”, s 424A(1) applies. If the answer to question (4) is “Yes”, s 424A(1) does not apply. (e) If s 424A(1) applies and s 424AA does not apply, did the Tribunal give the applicant the information in accordance with s 424A(2)? If the answer to question (5) is “No”, the Tribunal has breached s 424A. If the answer to question (5) is “Yes”, the Tribunal has not breached s 424A.

CONCEPTS [359A.40] The meaning of “information” The word “information” in this section and s 359AA is not defined under either the Act or the Regulations. The ordinary meaning of the word “information” is “knowledge or facts communicated about a particular subject, event etc; intelligence, news”: Kaur v Minister for Immigration and Border Protection [2013] FCA 1333 at [45]; Brown L, The New Shorter Oxford English Dictionary (4th ed, 1993) p 1364. In SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; 81 ALJR 1190; [2007] HCA 26 (SZBYR) at [18], Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ stated that the word “information” refers to the “existence of evidentiary material or documentation, not to the existence of doubts, inconsistencies or the absence of evidence”, or the tribunal’s disbelief. For the purposes of ss 359A and 359AA, “information” does not include the following: • the information referred to in s 359A(4) of the Act – that is, information: 700

Migration Law

[359A.60]

Part 5 – Review of Part 5-reviewable decisions (ss 336M–379G) Division 5 – Part 5-reviewable decisions: conduct of review (ss 357A–367)

s 359A

– 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: see s 359A(4)(a); – that the applicant gave for the purpose of the application for review: see s 359A(4)(b); – that the applicant gave during the process that led to the decision under review, other than oral information the applicant provided to the Department: see s 359A(4)(ba); or – non-disclosable information, as defined in s 5: see s 359A(4)(c); • “the tribunal’s subjective appraisals, thought processes or determinations”: VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471; [2004] FCAFC 123 (VAF) at [24] per Finn and Stone JJ; SZBYR at [18]; Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; 273 ALR 223; [2011] HCA 1 (SZGUR) at [9]; • “identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps etc”: VAF at [24] per Finn and Stone JJ; SZBYR at [18]; SZGUR at [9]; and • doubts, inconsistencies or the absence of evidence: SZBYR at [18]. Information “does not extend to the ‘prospective reasoning process’ of the Tribunal” and must be information that “would” be the reason, or part of the reasons for affirming the decision, and not information which “could” or “might” be such a reason: SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3 at [18] Perram, Jagot and Griffiths J. [359A.60] Clear particulars The provision of “clear particulars” requires that the information must be provided with “sufficient specificity”: MZXKH v Minister for Immigration and Citizenship [2007] FCA 663 at [20] and [27]; MZYHF v Minister for Immigration and Citizenship (2010) 118 ALD 534; [2010] FCA 1250; SZMTJ v Minister for Immigration and Citizenship (No 2) (2009) 109 ALD 242; [2009] FCA 486 (SZMTJ). As Flick J stated in SZMTJ at [45], “language which fails to identify information with ‘sufficient specificity’ and which fails to ‘unambiguously’ set forth information may fail to comply with the requirement in s 359A(1)(a) to provide ‘clear particulars’ of information”. In SZNKO v Minister for Immigration and Citizenship (2010) 184 FCR 505; (2010) 267 ALR 35; [2010] FCA 297, Flick J traced the legislative history of the requirement for particulars in s 424A. His Honour noted that prior versions of s 424A (the equivalent provision to s 359A) had referred merely to “particulars of any information”. The requirement that “clear particulars” be provided was introduced by the Migration Amendment (Review Provisions) Act 2007 (Cth). His Honour noted that the change in language could not be ignored and that the change from “particulars” to “clear particulars” was somewhat motivated by the concern that extra care should be taken in the provision of particulars. When considering whether clear particulars have been provided, it is necessary to consider the character of the information and the clarity with which that information has been provided. As stated by Flick J in SZMTJ v Minister for Immigration and Citizenship (No 2) (2009) 109 ALD 242; [2009] FCA 486 at [52]: Although s 424A(1) imposes the trinity of requirements set forth in paragraphs (a), (b) and (c), it is not considered that compliance with s 424A(1) is necessarily to be approached by considering each of the three requirements as though it were divorced from the rest. The greater the degree of clarity in the “particulars of any information” provided, the less may be the exposition needed to convey the © 2016 THOMSON REUTERS

701

s 359A

Migration Act 1958

[359A.80]

relevance of that information to the review being undertaken; the greater the uncertainty in the information being provided, the greater may be the need to explain why it may be relevant. Section 424A(1)(b) remains a requirement to be satisfied; but the steps to be undertaken to discharge that requirement may well depend upon the clarity with which the information has been identified and indeed the character of that information.

[359A.80] Would be the reason, or part of the reason For the purposes of ss 359A and 359AA, the information must be “information that the tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review”. In this context, and taking into account the common law concept of procedural fairness, the “information” will usually be adverse information to the applicant. However, not all adverse information will need to be put to an applicant. Adverse information (or any other type of information) which would not be the reason, or part of the reason, for affirming the decision, does not need to be put to an applicant in accordance with this section or s 359A. This is because, even though the information may be adverse, it has not been relied upon in any way by the tribunal to affirm the decision under review. Therefore, it does not need to be put to an applicant for comment. In SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; 81 ALJR 1190; [2007] HCA 26, the High Court considered the term “would be the reason, or part of the reasons, for affirming the decision that is under review” in the context of s 424A (which is the corresponding provision in Pt 7 to s 359A) and noted at [17]: The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place. The tribunal does not operate in a statutory vacuum, and its role is dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act. The use of the future conditional tense (“would be”) rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance – and independently – of the tribunal’s particular reasoning on the facts of the case. Here, the appropriate criterion was to be found in s 36(1) of the Act, being the provision under which the appellants sought their protection visa. The “reason, or part of the reason, for affirming the decision that is under review” was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention. When viewed in that light, it is difficult to see why the relevant passages in the appellants’ statutory declaration would itself be “information that the tribunal considers would be the reasons, or part of the reason, for affirming the decision that is under review”. Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants’ claims to be persons to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review.

[359A.100] Could, would or will be the reason In Minister for Immigration and Citizenship v SZLFX (2009) 238 CLR 507; 258 ALR 448; [2009] HCA 31 at [25], French CJ, Heydon, Crennan, Kiefel and Bell JJ endorsed the comments of Heerey J in MZXBQ v Minister for Immigration and Citizenship (2008) 166 FCR 483; [2008] FCA 319 that s 424A (equivalent in its terms to s 359A) speaks of information which “would”, not which “could” or “might”, be the reason or part of the reason for affirming the decision under review (these comments are equally applicable to the same words which appear in s 359AA). In MZYFH v Minister for Immigration and Citizenship (2010) 188 FCR 151; 115 ALD 409; [2010] FCA 559 (MZYFH) at [66]–[68], Bromberg J held that the tribunal had breached its obligations pursuant to s 424AA (the equivalent provision to s 359AA) because, among other things: By telling the applicant that the information “could” form the reason or part of the reason, the tribunal failed to ensure that the applicant understood the view that the tribunal had arrived at, and the full 702

Migration Law

[359A.130]

Part 5 – Review of Part 5-reviewable decisions (ss 336M–379G) Division 5 – Part 5-reviewable decisions: conduct of review (ss 357A–367)

s 359A

gravity of the consequence of that view upon his claim. In the absence of a proper understanding, the appellant was not put in a position to understand how critical it was for him to respond and to do so convincingly. In the circumstances of this case, the appellant may well have taken the view that the tribunal would regard the evidence of Father Thomas to be of little consequence. As I have said already, it is unclear from the evidence that Father Thomas gave that he even knew of the appellant. Similarly, in relation to evidence of Father Peter, the appellant may well have thought that the tribunal would not give that evidence very much weight. The evidence was unspecific, the basis for the assertions made was not given and the evidence was obviously tainted by Father Peter’s misconception that the appellant was one of the oath breakers who had not returned to India. In those circumstances, and because he was told that the evidence of the Fathers could, rather than would, be the reason or part of the reason for affirming the decision under review, the appellant may well have elected to respond immediately rather than take the benefit of the opportunity provided by s 424AA to seek additional time to provide his response. A full understanding of the gravity of what he was facing may well have impacted upon both the timing and the content of any response that the appellant chose to make.

However, the use of words such as “will” does not necessarily result in a breach of s 359AA. In Singh v Minister for Immigration [2012] FMCA 1005, the tribunal used the word “will” when putting information to an applicant pursuant to s 359AA. Whelan FM accepted the Minister’s submission that the word “will” was “stronger than the words ‘would’, ‘could’, ‘might’ or ‘may’”, and therefore the matter was distinguishable from MZYFH: at [18]. Her Honour further noted at [19] that the word “will” refers to a “definite future action and a likely prediction” and, by “using the word ’will’, the tribunal [does] not fail to ensure that the Applicant [understands] the relevance and consequence of the information, and [is] fully aware of the full gravity of the consequences of that view upon [the] claim”. [359A.120] Information that “is just about a class of persons of which the applicant is a member” In VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 at [14], Gyles and Conti JJ said that the reference to the class of persons in s 424A(3)(a) (which is equivalent, in its terms, to s 359A(4)(a)) is designed to underline the specificity required by precluding any argument that reference to a class would be taken as a reference to all individuals falling within that class. [359A.130] Information applicant gave for the purpose of the application for review Under s 359A(4)(b), information that an applicant gave for the purposes of the application for review does not need to be put to an applicant for comment under s 359A(1). The application for review is a reference to the application to the Tribunal, and does not mean the application to the Minister for the visa: SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3 at [21] Perram, Jagot and Griffiths J. Whether or not subsequent information, that an applicant gives to a Tribunal, will fall within s 359A(4)(b), is to be determined on the facts, however: there is nothing in the text of s 424A(3)(b) which supports any distinction between information proffered by an applicant to the Tribunal of an applicant’s own volition or elicited from an applicant by the answering of the Tribunal’s questions: SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3 at [24] per Perram, Jagot and Griffiths J. Section 424A(3)(b) is the equivalent to s 359A(4)(b) but in the Refugee Review Tribunal context.

The scope of s 424A(3)(b) (the equivalent to s 359A(4)(b)) has been interpreted in the following different ways by the Court: • s 424A(3)(b) does not apply to information provided by an applicant during questioning by the Tribunal during a hearing, rather it applies to information from the visa application which an applicant “expressly adopts and puts forward as part” of the © 2016 THOMSON REUTERS

703

s 359A

Migration Act 1958

[359A.140]

application for review to the Tribunal: NAZY v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 87 ALD 357; [2005] FCA 744 at [37] per Jacobson J; • s 424A(3)(b) can apply to the application for a visa and the documents attached, such as a passport, if the applicant relies upon these in his or her written submissions provided to the Tribunal: M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 at [25] per Gray J; • s 424A(3)(b) applies to information which the applicant “conveyed” to the Tribunal, that is information that the applicant delivered to the Tribunal, “whether in answer to a question asked by the Tribunal or whether volunteered”: VWBF v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 154 FCR 302; [2006] FCA 851 at [48] per Heerey J; • s 424A(3)(b) applies to an earlier statement made by an applicant, for example at an airport interview, if the applicant “repeats the earlier statement at some stage during the course of a hearing, and adopts it as true”. However, if the applicant does not repeat the earlier statement then the Tribunal is required to put that statement to the applicant for comment if it intends to rely upon it: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214; 230 ALR 1;[2006] FCAFC 2 at [179] per Weinberg, see also Moore J at [91] and Allsop J at [264]; • s 424A(3)(b) applies to information that the Tribunal obtained from another source, but which an applicant affirmed during the Tribunal hearing: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214; 230 ALR 1; [2006] FCAFC 2 at [173] per Weinberg, at [91] per Moore J and at [264] per Allsop J; and • s 424A(3)(b) may apply to “complex information or information about controversial facts” which an applicant has given to a Tribunal “by mere affirmation in response to a question by the Tribunal”: SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3 at [25] per Perram, Jagot and Griffiths J. [359A.140] Information provided orally by the applicant to the Department The exception contained in s 359A(4)(ba) does not extend to information that the review applicant has provided orally to the Department. This will include, for instance, information which the applicant provides to a delegate of the Minister during any interview. In such circumstances, the tribunal will remain bound to give the applicant clear particulars of that information if it would be the reason, or part of the reason, for affirming the decision under review: see, for example, SZNBW v Minister for Immigration and Citizenship [2009] FMCA 425 at [41].

KEY CASES [359A.160] Sections 359AA and 359A work in a complementary manner By reason of s 359A(3), the provisions in ss 359A and 359AA operate in a complementary fashion and the tribunal has a discretion as to whether or not to engage the provisions in s 359AA: SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415; [2009] FCAFC 46 (SZMCD) at [86]. It is s 359A which “prescribes what must be done”: SZMCD SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415; [2009] FCAFC 46 at [88], [90] and [104] (in reference to ss 424AA and 424A). [359A.180] Information In SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; 81 ALJR 1190; [2007] HCA 26, the High Court considered the meaning of the term “information” as it applied 704

Migration Law

[359A.220]

Part 5 – Review of Part 5-reviewable decisions (ss 336M–379G) Division 5 – Part 5-reviewable decisions: conduct of review (ss 357A–367)

s 359A

to s 424A of the Act (which is the equivalent provision to s 359A of the Act). The appellants had initially argued that the tribunal had breached s 424A by failing to put to them certain information in regard to inconsistencies between the statutory declaration provided by an appellant in connection with the protection visa application and oral evidence to the tribunal. The argument in the High Court focused on whether s 424A required the tribunal to put to the appellants for comment relevant passages in the statutory declaration itself from which the inconsistencies arose. Relevantly, at [17] Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ found that the appellants had not demonstrated that the statutory declaration would be the reason, or part of the reason, for affirming the decision under review. They also found that if the reason for affirming the decision was the tribunal’s disbelief of the appellant’s evidence arising from the inconsistencies, then disbelief and inconsistencies did not constitute “information” for the purpose of s 424A(1): at [18]. [359A.200] Country information Independent information, commonly referred to as “country information”, will fall within the exclusion provided in s 359A(4)(a), provided it is not specifically about the applicant or another person. In VHAJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 80; 75 ALD 609; [2003] FCAFC 186 at [50], Kenny J summarised the concept of “country information” and why it ordinarily falls within the exclusion contained in s 424A(3)(a) (the equivalent provision to s 359A(4)(a)): It is usual for the tribunal to have regard to information about the social, political, religious and other conditions prevailing in a country relevant to an applicant’s claim for refugee status, with a view to assessing whether other individuals who share his or her racial, religious, political, social or other attributes suffer treatment of a kind amounting to persecution on Convention grounds in that country. Sometimes information of this kind concerns religious practice, government elections, educational opportunities or other matters. This kind of country information is relevant to the tribunal’s decision-making task only because the applicant falls within the class of persons who share an attribute, which, according to his or her claim, gives rise to a well-founded fear of persecution in the country concerned. In this circumstance, the information does not cease to be information ″just about″ a class of persons simply because it can also be characterised as information about religious practice, government elections or educational opportunities. It has been repeatedly held that information of this kind falls within s 424A(3)(a) of the Act.

[359A.220] Clear particulars of the context in which information appears, including the source of the information, may need to be provided in some instances Whether the tribunal is obliged to give clear particulars of the context from which adverse information has been derived depends upon whether it is relevant (in the sense that it would be the reason, or part of the reason, for affirming the decision under review). In SZNKO v Minister for Immigration and Citizenship (2010) 184 FCR 505; 267 ALR 35; [2010] FCA 297 at [23], Flick J said (in relation to ss 424AA and 424A) that there may be circumstances in which the requirement to “give information” may not extend to a requirement to disclose the entirety of a document in which such “information” is contained. In those cases, the disclosure of that specific part of a much lengthier document may be sufficient. However, his Honour emphasised that “information” cannot in all cases be clinically divorced from the context in which it appears. How much of that surrounding context must be disclosed “must necessarily depend upon the facts and circumstances of each individual case”. In this regard, it may be necessary in some cases to identify the “source” from which the information has been obtained. Flick J noted that, in essence, the touchstone is that the provision requires the disclosure of however much information is necessary to ensure that the opportunity to comment or respond is “meaningful”. Accordingly, in some cases the disclosure of the “substance” of information may be sufficient (see NAVM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 99 © 2016 THOMSON REUTERS

705

s 359A

Migration Act 1958

[359A.240]

at [33]), whereas in other cases “clear particulars” may require more: SZNKO v Minister for Immigration and Citizenship (2010) 184 FCR 505; 267 ALR 35; [2010] FCA 297 at [23]. [359A.240] Errors made by Tribunal in giving particulars of information The consequence of the tribunal misstating information depends, first, on whether it is obliged by s 359A to give “clear particulars” of that information. If the tribunal is obliged to provide “clear particulars” (because the information would be the reason, or part of the reason, for affirming the decision under review), but fails to do so due to inaccuracy, then it will in most instances have failed to provide clear particulars of that information. In the context of s 359AA, this will cast the tribunal back to s 359A: SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415; [2009] FCAFC 46 at [92], [103]. However, where the tribunal misstates information that is not required to be put to an applicant, the consequence will depend on the circumstances of the case. In Sandhu v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 842 at [31], the Federal Court held that the tribunal’s mistake in incorrectly referring to the source of adverse information did not amount to legal error because the source of the information did not form any part of the tribunal’s decision; rather, it was the substance of the information that was relevant in that case. On the other hand, a denial of procedural fairness may be established where a tribunal misleads a party in the course of a hearing. This is likely to be the case where the misleading conduct results in the denial of a proper opportunity for a review applicant to be heard in circumstances which affect the outcome: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; 176 ALR 219; [2000] HCA 57 at [4] per Gleeson CJ, at [79] per Gaudron and Gummow JJ, at [127] per Kirby J. [359A.260] The Tribunal is not prevented from using s 359AA as an alternative to s 359A In Toor v Minister for Immigration [2012] FMCA 804, the Federal Magistrates Court rejected the applicant’s suggestion that the tribunal in that case should have utilised s 359A of the Act rather than s 359AA. Whelan FM observed at [70] that “I am not satisfied that on the facts, or at law, there was any obligation on the tribunal to do so”. [359A.280] If an applicant fails to respond to a s 359A letter, the applicant may not be entitled to, and the Tribunal may be precluded from inviting the applicant to attend, a hearing under s 360 If a review applicant is invited under s 359A(1) to comment on or respond to information, but fails to do so, he or she may lose the right to attend a hearing before the tribunal, and the tribunal may be precluded from scheduling any such hearing. In Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413; [2010] FCAFC 40 (Hasran), the review applicant had been invited by the tribunal, under s 359A(1) of the Act (compare s 359(2)), to provide written comments by a certain date. The applicant was warned that if he failed to do so, the tribunal may make a decision on the review without taking any further action to obtain his response, and that the applicant would lose any entitlement he may have under the Act to an oral hearing. The applicant subsequently failed to respond to the letter, and the tribunal made a decision without inviting the applicant to attend a hearing. Among other things, the Full Court of the Federal Court considered the interaction between ss 359A, 359C, 360 and 363A of the Act, and the decisions of Minister for Immigration and Multicultural and Indigenous Affairs v Sun (2005) 146 FCR 498; [2005] FCAFC 201; and M v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 333; 91 ALD 629; [2006] FCA 1247. In Hasran at [25]–[31], the majority observed: In our view, the proper construction and application of s 363A of the Act and the related provisions of Part 5 were correctly stated by the Full Court in Sun and explained by Tracey J in M. 706

Migration Law

[359A.300]

Part 5 – Review of Part 5-reviewable decisions (ss 336M–379G) Division 5 – Part 5-reviewable decisions: conduct of review (ss 357A–367)

s 359B

As Tracey J observed in M at [46], the language of s 363A is clear. It operates so as to remove any discretion which the tribunal may have had to allow a person to do something where a provision of Part 5 states that the person is not entitled to do it. Here, the appellant’s failure to respond to the tribunal’s letter under s 359A had the effect of attracting the cascading operation of ss 359C(2), 360(2)(c) and, critically, s 360(3) which enlivened the application of s 363A. This was because the appellant was invited by the tribunal’s letter under s 359A to comment or respond to the information stated in the tribunal’s letter by 3 August 2009. He did not do so, and accordingly he was a person to whom s 359C(2) applied. The operation of s 360(3) was thereby attracted. The effect of that subsection in the circumstances of this case was that the appellant was not entitled to appear before the tribunal. The operation of s 360(3) then attracted the express terms of s 363A, the effect of which was to provide that the tribunal did not have the power to permit the appellant to appear at an oral hearing. As Tracey J said in M at [46], this approach to construction is consistent with the views of the Full Court in Sun, as well as the Explanatory Memorandum which accompanied the Migration Legislation Amendment Bill (No 5) 1994 (Cth). The contrary view expressed by a Full Court in Uddin v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 218; (2005) 149 FCR 1 (“Uddin”) is explained by the fact that the Full Court in Uddin was not referred to s 363A of the Act and by the fact that the case was not decided on a basis which involved any consideration of s 363A. Moreover, the obiter comments in Uddin were published after the decision in Sun was handed down and there was no reference in Uddin to the contrary views stated in Sun. The explanation for this appears to be that the decision in Uddin was reserved shortly before the Full Court decision in Sun was handed down.

PRACTICE POINT [359A.300] Method by which invitation given A written invitation under s 359A(1) must be in accordance with the requirements specified in s 359B. 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. [Subs (1) am Act 10 of 2009, s 3 and Sch 1 items 4 and 5; Act 100 of 2007, s 3 and Sch 1 items 10 and 11]

(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. [Subs (2) am Act 10 of 2009, s 3 and Sch 1 item 6; Act 100 of 2007, s 3 and Sch 1 items 12 and 13]

(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. [Subs (3) am Act 100 of 2007, s 3 and Sch 1 item 14]

© 2016 THOMSON REUTERS

707

s 359B

Migration Act 1958

[359B.20]

(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. [S 359B am Act 10 of 2009; Act 100 of 2007, s 3 and Sch 1 item 10; insrt Act 113 of 1998, s 3 and Sch 1 item 22, with effect from 1 Jun 1999]

SECTION 359B COMMENTARY Scope ................................................................................................................................................. [359B.20] CONCEPTS

Appropriate in the circumstances ..................................................................................................... [359B.40] Interview ........................................................................................................................................... [359B.60] The prescribed period under s 359B(2) ........................................................................................... [359B.80] Prescribed period and reasonable period in relation to an interview ........................................... [359B.100] If a person is to respond ................................................................................................................ [359B.120] KEY CASES

Failure to specify a period for a response under s 359B(2) ......................................................... [359B.140] Failure to specify the prescribed period, or a reasonable period, means the facility in s 359C is not available ................................................................................................................................. [359B.160] The Tribunal cannot exercise the power under s 359B(4) to extend the period to respond after the expiry of the prescribed period ............................................................................................................. [359B.180]

[359B.20] Scope Section 359B was inserted by the Migration Legislation Amendment Act (No 1) 1998 (Cth) when the tribunal was established. The purpose of this section, along with ss 359, 359A and 359C, is to provide a “code of procedure which the tribunal is to follow in conducting its review”: Explanatory Memorandum to the Migration Legislation Amendment Bill (No 1) 1998 (Cth) at [36]. In M v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 333; 91 ALD 629; [2006] FCA 1247 at [35], Tracey J observed that s 359B is not cast in imperative terms, unlike s 359A. Rather, his Honour stated that s 359B is, on its face, a more flexible provision that is designed to avoid extended delays in the decision-making process.

CONCEPTS [359B.40] Appropriate in the circumstances Section 359B(1) enables the tribunal to specify the way in which a person, who is invited, is to give information for the purposes of s 359, or comment on or respond to information for the purposes of s 359A. Examples of the ways a tribunal may consider appropriate include by telephone or by facsimile machine: Explanatory Memorandum to the Migration Legislation Amendment Bill (No 1) 1998 (Cth) at [36]. [359B.60] Interview According to the Explanatory Memorandum to the Migration Legislation Amendment Bill (No 1) 1998 (Cth) at [36], “interview” in this context does not mean appearance before the 708

Migration Law

[359B.160]

Part 5 – Review of Part 5-reviewable decisions (ss 336M–379G) Division 5 – Part 5-reviewable decisions: conduct of review (ss 357A–367)

s 359B

tribunal. At an interview the applicant may be invited to give additional information or to comment on information provided by the tribunal. The applicant does not have the right to give evidence and present arguments relating to issues arising in relation to the decision under review at an interview conducted pursuant to s 359. [359B.80] The prescribed period under s 359B(2) Under s 5 of the Act, “prescribed” means prescribed by the Regulations. The relevant prescribed periods are contained in reg 4.17. [359B.100] Prescribed period and reasonable period in relation to an interview A breach of s 359B(2) or (3) in relation to the timing of an opportunity to comment will not invalidate a decision where the breach did not produce any unfairness or prejudice to an applicant: SZEXZ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 449 at [49] per Jacobson J (note that special leave to the High Court was refused: see SZEXZ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCATrans 640); Marques v Minister for Immigration [2003] FMCA 488 at [13] per Barnes FM. The object of the section is to ensure that the required interview takes place within a reasonably short period of the invitation: SZDQL v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 144 FCR 356; [2005] FCA 769 at [50] per Sackville J; SZEXZ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 449 at [38] per Jacobson J. [359B.120] If a person is to respond The expression “if a person is to respond” in s 359B(4) indicates that the period to respond has not expired and a tribunal has the power to extend time whilst the person is within the time period allowed for a response: Usman v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 966 at [44] per Pascoe CFM.

KEY CASES [359B.140] Failure to specify a period for a response under s 359B(2) In SZLWQ v Minister for Immigration and Citizenship (2008) 172 FCR 452; [2008] FCA 1406, the parties requested the Federal Court to make orders by consent, which would have had the effect of allowing the appeal, on the basis that the parties agreed that the Refugee Review Tribunal had breached ss 424(3) and 424B (the equivalent provisions to ss 359 and 359B) of the Act. Buchanan J took the unusual step of refusing to make the orders, without hearing further argument, on the basis that his Honour had reservations as to whether any jurisdictional error had been committed. Relevantly, the Refugee Review Tribunal had sent a facsimile to the review applicant’s agent in which the applicant was invited to give information for the purposes of s 424. The facsimile did not specify a period in which the information was to be provided. Buchanan J held at [52] that, in the circumstances of this case, this did not constitute a jurisdictional error. Rather, the only immediate consequence was that the tribunal would not be able to avail itself of the facility in s 424C (equivalent to s 359C) to proceed to make a decision in the absence of the information. [359B.160] Failure to specify the prescribed period, or a reasonable period, means the facility in s 359C is not available If an applicant does not respond to a letter sent under s 359A, provided a time for response has been specified under s 359B(2), s 359C will apply so that the applicant will lose his or her right to attend a hearing. However, if the tribunal does not specify a time for response, for the purposes of s 359B(2), the facility in s 359C of proceeding to a decision without taking any further action will not be © 2016 THOMSON REUTERS

709

s 359C

Migration Act 1958

[359B.180]

available: SZLWQ v Minister for Immigration and Citizenship (2008) 172 FCR 452; [2008] FCA 1406 at [52]. In such circumstances, the tribunal will remain bound to invite the applicant to attend a hearing for the purposes of s 360 of the Act. [359B.180] The Tribunal cannot exercise the power under s 359B(4) to extend the period to respond after the expiry of the prescribed period In Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413; [2010] FCAFC 40 (Hasran), the Full Court of the Federal Court expressed its agreement with the comments of Tracey J in M v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 333; 91 ALD 629; [2006] FCA 1247 that the tribunal cannot enlarge time under s 359B(4) of the Act after the expiry of the date prescribed by a tribunal in any letter sent under s 359A(1). That is because s 359B(4) is cast in the present tense, which means that the power to grant any extension is lost where the prescribed time has expired. The majority in Hasran noted at [48]: That view is re-enforced by the provisions of s 359C(2). If an applicant does not give the comments or response “before the time for giving them has passed” the tribunal’s power to make a decision without taking further action to obtain the applicant’s views is enlivened. This is a further indication that the tribunal’s discretion to extend time is spent if a request is made after the expiry of the prescribed period. The effect of this subsection, when read with s 360(2), s 360(3) and s 363A is that the gate closes on an applicant who fails to respond to a letter under s 359A within the prescribed time. There is simply no discretion to extend the time to respond.

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. [Subs (1) am Act 10 of 2009, s 3 and Sch 1 items 7 and 8]

(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. [Subs (2) am Act 100 of 2007, s 3 and Sch 1 items 15 and 16] [S 359C am Act 10 of 2009, s 3 and Sch 1 item 7; Act 100 of 2007, s 3 and Sch 1 item 15; insrt Act 113 of 1998, s 3 and Sch 1 item 22, with effect from 1 Jun 1999]

SECTION 359C COMMENTARY Scope ................................................................................................................................................. [359C.20] CONCEPTS

Comment on or respond to information .......................................................................................... [359C.40] May make a decision ....................................................................................................................... [359C.60] KEY CASES

Loss of right to appear before the Tribunal .................................................................................... [359C.80] Hearing under s 360 cancelled when s 359C event occurs .......................................................... [359C.100] 710

Migration Law

[359C.40]

Part 5 – Review of Part 5-reviewable decisions (ss 336M–379G) Division 5 – Part 5-reviewable decisions: conduct of review (ss 357A–367)

s 359C

PRACTICE POINT

Reponse to invitation ...................................................................................................................... [359C.120]

[359C.20] Scope Section 359C was inserted by Migration Legislation Amendment Act (No 1) 1998 (Cth) when the tribunal was established. This section, along with ss 359, 359A and 359B, provides a “code of procedure which the tribunal is to follow in conducting its review”: Explanatory Memorandum to the Migration Legislation Amendment Bill (No 1) 1998 (Cth) at [36]. The purpose of the section is “to allow the tribunal to make a decision without delay if the applicant fails to respond to a request for further information or comment within the prescribed period”: Explanatory Memorandum to the Migration Legislation Amendment Bill (No 1) 1998 (Cth) at [37]. Pursuant to s 359C(1), a tribunal may make a decision on the review without taking any further steps to obtain the information if: • the tribunal has sent a valid invitation for an applicant to give information under s 359; and • the applicant has not given the tribunal the information requested within the prescribed time. Pursuant to s 359C(2), a tribunal may make a decision on the review without taking any further steps to obtain the applicant’s views on the information if: • the tribunal has sent a valid invitation for an applicant to comment on or respond to information under s 359A; and • the applicant has not given the tribunal any comments on or a response to the invitation sent under s 359A within the prescribed time. Whether or not an applicant has given the tribunal the requested information, under s 359, or given the tribunal comments or a response, under s 359A, is a jurisdictional fact: Minister for Immigration and Citizenship v Saba Bros Tiling Pty Ltd (2011) 194 FCR 11; 278 ALR 474; [2011] FCA 233 at [19] per Jagot J; SZHFW v Minister for Immigration [2006] FMCA 86 at [27] per Smith FM. A “jurisdictional fact” is a criterion, the satisfaction of which enlivens the decision–maker’s powers: Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; 169 ALR 400; [2000] HCA 5 at [28] per Gleeson CJ, Gummow, Kirby and Hayne JJ. Therefore, before the tribunal can exercise its power to make a decision on the review, either s 359C(1)(a) and (b) or s 359C(2)(a) and (b) must have been satisfied. If they have, then the combined effect of this occurrence and ss 360(3) and 363A is that an applicant is not entitled to appear before the tribunal and the tribunal is bound to proceed with the review: Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413; [2010] FCAFC 40; Khergamwala v Minister for Immigration and Citizenship [2007] FMCA 609 at [18] per Riley FM. However, if s 359C(1)(a) and (b) or s 359C(2)(a) and (b) have not been satisfied, the tribunal is required to invite an applicant to a hearing pursuant to s 360(1): Minister for Immigration and Citizenship v Saba Bros Tiling Pty Ltd (2011) 194 FCR 11; 278 ALR 474; [2011] FCA 233 at [20] per Jagot J.

CONCEPTS [359C.40] Comment on or respond to information Under s 359C(2), the tribunal is only entitled to proceed to make a decision if the applicant has not provided any comments on, or a response to, an invitation sent under s 359A within the prescribed time. © 2016 THOMSON REUTERS

711

s 359C

Migration Act 1958

[359C.60]

A “response” under this section does not require any substantive remark or observation, or grappling with the information put to the review applicant; rather, any answer or reply to an invitation sent under this section will meet the meaning of this term: Minister for Immigration and Citizenship v Saba Bros Tiling Pty Ltd (2011) 194 FCR 11; 278 ALR 474; [2011] FCA 233 at [30] per Jagot J. In that case, a review applicant’s solicitor had replied to an invitation to comment on or respond to particular information sent under s 359A. The reply acknowledged the s 359A invitation, advised that it had been put to the client and that the client wished to appear at a hearing. Even though the tribunal received this response, it proceeded to make a decision under s 359C. Jagot J held that the solicitor’s reply was a “response” for the purposes of ss 359A(1)(c) and 359C(2). Her Honour found that the applicant had provided a response to the information in the invitation and that the Act did not impose any “minimum requirement of content for a response or a comment”: at [30]–[31]. Jagot J stated at [30]: Sections 359A(1)(c) and 359C(2)(b) both use a disjunctive formula: “comment on or respond to” the information in the case of s 359A(1)(c), and “the comments or the response” in the case of s 359C(2)(b). This indicates that an applicant may either “comment on” or “respond to” information in the invitation, or both comment on and respond to the information. The choice – to comment, respond or both – is vested in the applicant to whom the invitation is given. There is no doubt that the ordinary meanings of the two words overlap. As such, a comment may (and mostly will) constitute a response, and a response may include a comment. But the two words are not wholly co-extensive. For example, the Oxford English Dictionary defines “to comment” as “to make comments or remarks [upon]”; by contrast, “to respond” is simply “to answer in speech or writing; to reply”. An invitation to respond, accordingly, is broader than an invitation to comment. A response does not require substantive remarks or observations. It requires merely an answer or reply of any sort to the information in the invitation.

[359C.60] May make a decision Both s 359C(1) and (2) stated that if s 359(1)(a) and (b) or s 359(2)(a) and (b) are satisfied, the tribunal “may make a decision on the review without taking any further action”. Even though the section uses the word “may”, the combined effect of this section and ss 360(3) and 363A is that an applicant loses his or her right to appear before the tribunal and the tribunal does not have the power to invite the applicant to appear before it: see Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413; [2010] FCAFC 40 (discussed below at [359C.80]). This is different to the situation in the Refugee Review Tribunal, which still maintains the discretionary power to invite an applicant to a hearing, even though the applicant may have lost the right to appear: see, for example, SZINT v Minister for Immigration and Multicultural Affairs [2006] FMCA 1259.

KEY CASES [359C.80] Loss of right to appear before the Tribunal If an applicant is invited under s 359(2) to give information or, under s 359A(1), to comment on or respond to information, but fails to do so, he or she will lose the right to appear before the tribunal and the tribunal will be precluded from scheduling any such hearing. In Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413; [2010] FCAFC 40 (Hasran), the review applicant was invited by the tribunal, under s 359A(1) of the Act, to provide written comments or a response by a certain date. The applicant was warned that if he failed to do so, the tribunal may make a decision on the review without taking any further action to obtain his response, and that the applicant would lose any entitlement he may have under the Act to an oral hearing. The applicant subsequently failed to respond to the letter and the tribunal made a decision without inviting the applicant to attend a hearing. Among other things, the Full Court of the Federal Court considered the interaction between ss 359A, 359C, 360 and 363A of the Act, and the decisions of Minister for Immigration and Multicultural and Indigenous Affairs v Sun 712

Migration Law

[359C.100]

Part 5 – Review of Part 5-reviewable decisions (ss 336M–379G) Division 5 – Part 5-reviewable decisions: conduct of review (ss 357A–367)

s 359C

(2005) 146 FCR 498; [2005] FCAFC 201 and M v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 333; 91 ALD 629; [2006] FCA 1247. In Hasran at [25]–[31], the Full Court observed: In our view, the proper construction and application of s 363A of the Act and the related provisions of Part 5 were correctly stated by the Full Court in Sun and explained by Tracey J in M. As Tracey J observed in M at [46], the language of s 363A is clear. It operates so as to remove any discretion which the tribunal may have had to allow a person to do something where a provision of Part 5 states that the person is not entitled to do it. Here, the appellant’s failure to respond to the tribunal’s letter under s 359A had the effect of attracting the cascading operation of ss 359C(2), 360(2)(c) and, critically, s 360(3) which enlivened the application of s 363A. This was because the appellant was invited by the tribunal’s letter under s 359A to comment or respond to the information stated in the tribunal’s letter by 3 August 2009. He did not do so, and accordingly he was a person to whom s 359C(2) applied. The operation of s 360(3) was thereby attracted. The effect of that subsection in the circumstances of this case was that the appellant was not entitled to appear before the tribunal. The operation of s 360(3) then attracted the express terms of s 363A, the effect of which was to provide that the tribunal did not have the power to permit the appellant to appear at an oral hearing. As Tracey J said in M at [46], this approach to construction is consistent with the views of the Full Court in Sun, as well as the Explanatory Memorandum which accompanied the Migration Legislation Amendment Bill (No 5) 1994 (Cth). The contrary view expressed by a Full Court in Uddin v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 218; (2005) 149 FCR 1 (“Uddin”) is explained by the fact that the Full Court in Uddin was not referred to s 363A of the Act and by the fact that the case was not decided on a basis which involved any consideration of s 363A. Moreover, the obiter comments in Uddin were published after the decision in Sun was handed down and there was no reference in Uddin to the contrary views stated in Sun. The explanation for this appears to be that the decision in Uddin was reserved shortly before the Full Court decision in Sun was handed down.

Although the above case was concerned with the failure to respond to a s 359A(1) letter, the principles are equally applicable to a situation where an applicant fails to respond to an invitation under s 359(2): see ss 360(2)(c) and 359C(1). [359C.100] Hearing under s 360 cancelled when s 359C “event” occurs Where an applicant has been invited to attend a hearing under s 360, and then a s 359C “event” transpires, the applicant is not entitled to attend the hearing (which carries the consequence of the hearing being cancelled). In Giri v Minister for Immigration and Citizenship [2011] FCA 928, the tribunal had invited the applicant to attend a scheduled hearing for the purposes of s 360 of the Act. Shortly thereafter, the tribunal also sent a letter to the applicant for the purposes of s 359A and provided a deadline by which a response was to be provided. The applicant did not respond to the s 359A letter and the tribunal proceeded to cancel the hearing on the basis that the applicant was not entitled to appear. The Full Court of the Federal Court upheld the reasoning and decision of the Federal Magistrates Court that, despite the existing right of the applicant to a attend a hearing (on account of being invited pursuant to s 360), once the “s 359C event” transpired, the applicant was not entitled to appear. The “administrative manifestation” of this outcome was that the hearing would naturally need to be cancelled: at [47]; Giri v Minister for Immigration and Citizenship [2011] FMCA 282 at [26].

© 2016 THOMSON REUTERS

713

s 360

Migration Act 1958

[359C.120]

PRACTICE POINT [359C.120] Reponse to invitation Any response to a s 359A invitation, which acknowledges the invitation, will be treated as a “response” for the purposes of s 359C(2)(b) and the applicant will not lose his or her right to appear before the tribunal. Therefore, the tribunal’s power under s 359C(2) will not be enlivened. 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. [Subs (1) am Act 110 of 1995, s 3 and Sch 1 item 17, with effect from 29 Sep 1995]

(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. [Subs (2) am Act 110 of 1995, s 3 and Sch 1 item 18, with effect from 29 Sep 1995]

(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal. [S 360 subst Act 113 of 1998, s 3 and Sch 1 item 22, with effect from 1 Jun 1999; am Act 110 of 1995; former s 130 renum Act 60 of 1994, s 83, with effect from 1 Sep 1994; former s 64M Act 59 of 1989, s 35; insrt Act 59 of 1989, s 26]

SECTION 360 COMMENTARY Scope ................................................................................................................................................... [360.20] CONCEPTS

Invite the applicant to appear ............................................................................................................. [360.40] Issues arising in relation to the decision under review ..................................................................... [360.60] Not entitled to appear ......................................................................................................................... [360.80] KEY CASES

Invitation and opportunity to appear must be meaningful .............................................................. [360.100] Issues arising in relation to the decision under review ................................................................... [360.120] No obligation to give advanced notice of issue ............................................................................... [360.140] Applicant’s consent to decide review without hearing .................................................................... [360.160] Loss of right to appear before Tribunal under s 360(3) .................................................................. [360.180] Issues in interpreting ......................................................................................................................... [360.200] Mental illness .................................................................................................................................... [360.220] Tribunal may be vigorous in testing evidence, within reason ......................................................... [360.240] Misleading applicant in course of hearing ....................................................................................... [360.260] Tribunal has no power to impose conditions on right to give evidence and present arguments .... [360.280] A breach of s 362A may result in a breach of s 360 ...................................................................... [360.300] Appearance by videolink .................................................................................................................. [360.320]

[360.20] Scope The Migration Legislation Amendment Act (No 1) 1998 (Cth) repealed the original version of s 360 and substituted the current version when the tribunal was established. 714

Migration Law

[360.60]

Part 5 – Review of Part 5-reviewable decisions (ss 336M–379G) Division 5 – Part 5-reviewable decisions: conduct of review (ss 357A–367)

s 360

Prior to the insertion of the current section, s 360 formerly provided that the tribunal “must give the applicant an opportunity to appear before it to give evidence”. The current version provides that the tribunal “must invite the applicant to appear before the tribunal to give evidence and present argument”. In Minister for Immigration and Multicultural Affairs v Mohammad (2000) 101 FCR 434; 62 ALD 397; [2000] FCA 1275 at [43], the Full Court of the Federal Court considered the change of this wording in the context of s 425 of the Act (the equivalent provision under Pt 7): This change from the substantive requirement of giving the applicant an opportunity to appear before the tribunal to the procedural requirement of inviting the applicant to appear before the tribunal suggests an intention in the legislature to remove the statutory requirement, which had been construed as requiring the tribunal to give an applicant a genuine and reasonable opportunity to appear before it, and to replace it with a more formal requirement. A further indication that this was the intention of the legislature is provided by the terms of s 425A, which was inserted into the Act by the Amending Act. Section 425A has the effect that, if the applicant is not in immigration detention, the tribunal must give the applicant notice of his or her opportunity to appear before the tribunal by sending a notice to the applicant, by giving a notice to the applicant or a person authorised by the applicant to receive on his or her behalf a document of that kind, or by leaving a notice at the applicant’s place of residence with a person who appears to live there and appears to have turned 16. That is, the amendments effected by the Amending Act changed the requirement that the tribunal notify the applicant that he or she is entitled to appear before the tribunal to a requirement that the tribunal give the applicant, by a specified method, notice in writing containing certain information..

Pursuant to s 360(1), the tribunal has a statutory obligation to: • subject to s 360(2), issue an invitation to an applicant to attend a hearing: Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553; 198 ALR 293; [2003] FCAFC 126 at [33] per Gray, Cooper and Selway JJ; and • provide the applicant with an opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; 231 ALR 592; [2006] HCA 63 at [44] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.

CONCEPTS [360.40] Invite the applicant to appear Pursuant to s 360(1), the tribunal must invite an applicant to appear before it, unless s 360(2) applies. The formal requirements for an invitation under s 360(1) are set out in s 360A. Sections 360 and 360A are to be read together: see, for example, Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC (2006) 150 FCR 439; 231 ALR 630; [2006] FCAFC 73 at [39] per Spender, French and Cowdroy JJ (in relation to ss 425 and 425A of the Act). [360.60] Issues arising in relation to the decision under review Not only is a tribunal required to invite an applicant to a hearing, it must also raise with the applicant the issues relating to the decision under review. In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; 231 ALR 592; [2006] HCA 63 (discussed in further detail at [360.120] below), Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ considered the meaning of these words in the context of s 425 of the Act (the equivalent provision under Pt 7) at [35]: The tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the tribunal. But if the tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell © 2016 THOMSON REUTERS

715

s 360

Migration Act 1958

[360.80]

the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the tribunal (as they may be), it would ordinarily follow that, on review by the tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.

In SZHZD v Minister for Immigration and Multicultural Affairs [2008] FMCA 4 (SZHZD), Barnes FM considered the above passage in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; 231 ALR 592; [2006] HCA 63 and relevantly observed at [39]: An exercise in characterisation must be undertaken to identify what are the “dispositive” or determinative issues in the sense of issues on which the decision to reject the applicant’s claim is based. It is those issues that meet the description of an issue “arising in relation to the decision under review” within the meaning of s 425 [the equivalent provision pertaining to the Refugee Review Tribunal].

The “issues” which arise in relation to the decision under review do not include the factual matters that comprise, or “go to”, the issues themselves: see, for example, SZJUB v Minister for Immigration and Citizenship [2007] FCA 1486 at [25] per Bennett J; SZHZD at [40]–[43] per Barnes FM. The tribunal is not required to identify the significance of the questions that it puts to the applicant or the ultimate matter of issue to which those questions go. A tribunal is not required to descend into all the underlying factual matters of each issue when meeting its obligation under s 360. Nor is a tribunal required to provide “a running commentary upon what it thinks about the evidence that is given”: Minister for Immigration and Citizenship v Applicant A125 of 2003 (2007) 163 FCR 285; 243 ALR 691; [2007] FCAFC 162 at [88]–[89] per Emmett, Weinberg and Lander JJ. [360.80] Not entitled to appear Under s 360(3), an applicant is not entitled to appear if: • the tribunal will decide the review in the applicant’s favour: s 360(2)(a); • the applicant consents to the tribunal deciding the review without the applicant appearing before the tribunal: s 360(2)(b). The consent given under this section must be informed consent: SZIMG v Minister for Immigration and Citizenship (2008) 167 FCR 362; 100 ALD 553; [2008] FCA 368 at [21] per Rares J; Minister for Immigration and Multicultural and Indigenous Affairs v SZFML (2006) 154 FCR 572; 236 ALR 294; [2006] FCAFC 152 at [65] per Spender, French and Cowdroy JJ (discussed at [360.160] below); or • section 359C(1) or (2) apply: s 360(2)(c). Section 359C(1) or (2) will apply if the applicant has failed to respond to an invitation sent under either s 359 or 359A. The combined effect of ss 359C, 360(3) and 363A is that an applicant loses his or her right to appear before the tribunal and the tribunal does not have the power to invite the applicant to a hearing: Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413; [2010] FCAFC 40 (discussed at [360.180] below).

KEY CASES [360.100] Invitation and opportunity to appear must be meaningful The invitation and opportunity to appear before the tribunal to give evidence and present argument must be meaningful and cannot be a “hollow shell or an empty gesture”: Mazhar v Minister for Immigration and Multicultural Affairs (2000) 64 ALD 395; 183 ALR 188; [2000] 716

Migration Law

[360.120]

Part 5 – Review of Part 5-reviewable decisions (ss 336M–379G) Division 5 – Part 5-reviewable decisions: conduct of review (ss 357A–367)

s 360

FCA 1759 at [31] per Goldberg J; NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121 at [30] per Ryan, French and RD Nicholson JJ; Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553; 198 ALR 293; [2003] FCAFC 126 (SCAR) at [33] and [37] per Gray, Cooper and Selway JJ. Where an applicant appears before the tribunal, s 360 requires the tribunal to conduct the hearing in a manner that is fair: see, for example, SCAR at [42] (in relation to s 425); Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575; 114 ALD 666; [2010] FCAFC 41 at [75] per Perram J. In other words, if a hearing is held, it must be a hearing in substance and not merely in form: Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575; 114 ALD 666; [2010] FCAFC 41 (SZNVW) at [76] per Perram J. As observed by Perram J in SZNVW at [77]: Viewed through that prism, it is easy to see how such an obligation has ended up being grafted – not onto the hearing for which the statute does not provide – but on the invitation to that hearing for which it does. This has the consequence, of which SCAR is but an example, that concepts which really relate to the efficacy of hearings – such as fitness for trial and the ability to comprehend trial process – become transplanted from their origin as such into the alien soil of rules concerned with invitations to hearings.

[360.120] Issues arising in relation to the decision under review In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; 231 ALR 592; [2006] HCA 63, Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ considered s 425 of the Act (the equivalent provision under Pt 7). The applicant in that case was employed as a seaman on a ship of the Islamic Republic of Iran Shipping. The applicant jumped ship and applied for a protection visa in Australia. In his statutory declaration in support of his protection visa, the applicant described the way he jumped ship and stated that he feared for his safety because the captain of his ship knew of his interest in the Christian religion. A delegate of the Minister refused the visa, mainly due to the nature and extent of his Christian commitment. The applicant applied to the tribunal. The tribunal affirmed the delegate’s decision, mainly because it rejected as “implausible” certain events claimed to have occurred by the applicant – namely, the applicant’s account of how his ship’s captain came to know of his interest in Christianity, and his account of the captain’s reaction to that knowledge. The delegate had not dealt with the “plausibility” of these events, nor did the delegate base his decision on any aspects of these events. There was nothing in the delegate’s decision to indicate that these aspects of the applicant’s account were in issue. Further, the tribunal did not discuss these issues with the applicant at the hearing, or challenge or say anything to the applicant that would reveal to him that these were live issues. Nor did the tribunal raise these issues with him in writing or in any other way. Therefore, the applicant was not on notice that the plausibility of some of the events he claimed occurred in his statutory declaration was an “issue”. Given that the applicant was not put on notice in relation to these issues, Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ found that the applicant had been denied procedural fairness and that the tribunal had failed to comply with s 425 of the Act by failing to give him a sufficient opportunity to give evidence, or to make submissions, about the determinative issues arising in relation to the decision under review. Relevantly, Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ stated at [36]–[40]: It is also important to recognise that the invitation to an applicant to appear before it to give evidence and make submissions is an invitation that need not be extended if the tribunal considers that it should decide the review in the applicant’s favour. Ordinarily then, as was the case here, the tribunal will begin its interview of an applicant who has accepted the tribunal’s invitation to appear, knowing that it is not persuaded by the material already before it to decide the review in the applicant’s favour. That lack of persuasion may be based on particular questions the tribunal has about specific aspects of the material © 2016 THOMSON REUTERS

717

s 360

Migration Act 1958

[360.140]

already before it; it may be based on nothing more particular than a general unease about the veracity of what is revealed in that material. But unless the tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision. That this is the consequence of the statutory scheme can be illustrated by taking a simple example. Suppose (as was the case here) the delegate concludes that the applicant for a protection visa is a national of a particular country (here, Iran). Absent any warning to the contrary from the tribunal, there would be no issue in the tribunal about nationality that could be described as an issue arising in relation to the decision under review. If the tribunal invited the applicant to appear, said nothing about any possible doubt about the applicant’s nationality, and then decided the review on the basis that the applicant was not a national of the country claimed, there would not have been compliance with s 425(1); the applicant would not have been accorded procedural fairness. When it is said, in the present matter, that the appellant was not put on notice by the tribunal that his account of certain events would be rejected as “implausible”, and that this conclusion was “not obviously … open on the known material”, the focus of the contention must fall upon what was “obviously … open” in the tribunal’s review. That can be identified only by having regard to “the issues arising in relation to the decision under review”. It is those issues which will determine whether rejection of critical aspects of an applicant’s account of events was “obviously … open on the known material”. If the issues on the review of the delegate’s decision by the tribunal are identified no more particularly than by the question “is the applicant entitled to a protection visa?”, rejection of some, or all, aspects of his account of the past events said to found his fears of persecution would self-evidently be a conclusion open to the tribunal. The conclusion would be open because every aspect of the applicant’s claim would be in issue in the tribunal’s review of the delegate’s decision. But if the issues are to be identified more particularly, other questions arise. More than once it has been said that proceedings in the tribunal are not adversarial but inquisitorial in their general character. There is no joinder of issues between parties, and it is for the applicant for a protection visa to establish the claims that are made. As the tribunal recorded in its reasons in this matter, however, that does not mean that it is useful to speak in terms of onus of proof. And although there is no joinder of issues, the Act assumes that issues can be identified as arising in relation to the decision under review. While those issues may extend to any and every aspect of an applicant’s claim to a protection visa, they need not. If it had been intended that the tribunal should consider afresh, in every case, all possible issues presented by an applicant’s claim, it would not be apt for the Act to describe the tribunal’s task as conducting a “review”, and it would not be apt to speak, as the Act does of the issues that arise in relation to the decision under review.

When raising issues with an applicant at a hearing, the tribunal need not state to an applicant that “he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events”: at [47] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ. The tribunal’s statements or questions may be sufficient to indicate to an applicant that everything that he or she says is in issue. Where there are specific aspects of an applicant’s account that may be important to the decision and may be open to doubt, then the “tribunal must at least ask the applicant to explain upon those aspects of the account and ask the applicant to explain why the account should be accepted”: at [47] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ. “This, however, does not require the tribunal to provide a running commentary about what it thinks about the evidence”: at [48] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ. [360.140] No obligation to give advanced notice of issue Even though a tribunal is required to raise with the applicant the issues arising in relation to the decision under review, there is no requirement that a tribunal give the applicant advanced notice of the issues prior to a hearing. In AZAAD v Minister for Immigration and Citizenship (2010) 189 FCR 494; 274 ALR 55; [2010] FCAFC 156, the Full Court of the Federal Court stated that “[t]here is no requirement on 718

Migration Law

[360.180]

Part 5 – Review of Part 5-reviewable decisions (ss 336M–379G) Division 5 – Part 5-reviewable decisions: conduct of review (ss 357A–367)

s 360

the tribunal to give an applicant advance notice of the issues of concern to it, that is to say, in advance of the hearing”: at [39] per Besanko J (with whom Siopis J agreed). [360.160] Applicant’s consent to decide review without hearing Under s 360(2)(b), if an applicant gives his or her consent, a tribunal can make a decision without the applicant appearing before it. However, the consent must be informed and effective in order for the tribunal to be able to make a decision without needing to invite the applicant to appear before it. In Minister for Immigration and Multicultural and Indigenous Affairs v SZFML (2006) 154 FCR 572; 236 ALR 294; [2006] FCAFC 152, the Full Court of the Federal Court considered whether the applicant had consented to the review being determined without a hearing taking place. The applicant’s agent had informed the tribunal that the applicant did not wish to attend, but did so without the applicant’s consent. The Full Court of the Federal Court held that an effective consent was a necessary condition to enliven the tribunal’s power to determine the application without a hearing: at [65] and [74] per Spender, French and Cowdroy JJ. [360.180] Loss of right to appear before Tribunal under s 360(3) If a person is invited to give information under s 359(1), or to comment on or respond to information under s 359A(2), but fails to do so, he or she will lose the right to attend a hearing before the tribunal and the tribunal will be precluded from scheduling any such hearing. In Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413; [2010] FCAFC 40 (Hasran), the review applicant had been invited by the tribunal, under s 359A(1), to provide written comments or a response by a certain date. The applicant was warned that if he failed to do so, the tribunal may make a decision on the review without taking any further action to obtain his response, and the applicant would lose any entitlement he had under the Act to an oral hearing. The applicant subsequently failed to respond to the letter, and the tribunal made a decision without inviting the applicant to attend a hearing. Among other things, the Full Court of the Federal Court considered the interaction between ss 359A, 359C, 360 and 363A of the Act, and the decisions of Minister for Immigration and Multicultural and Indigenous Affairs v Sun (2005) 146 FCR 498; [2005] FCAFC 201; and M v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 333; 91 ALD 629; [2006] FCA 1247. In Hasran, the Full Court of the Federal Court observed at [25]–[31]: In our view, the proper construction and application of s 363A of the Act and the related provisions of Part 5 were correctly stated by the Full Court in Sun and explained by Tracey J in M. As Tracey J observed in M at [46], the language of s 363A is clear. It operates so as to remove any discretion which the tribunal may have had to allow a person to do something where a provision of Part 5 states that the person is not entitled to do it. Here, the appellant’s failure to respond to the tribunal’s letter under s 359A had the effect of attracting the cascading operation of ss359C(2), 360(2)(c) and, critically, s 360(3) which enlivened the application of s 363A. This was because the appellant was invited by the tribunal’s letter under s 359A to comment or respond to the information stated in the tribunal’s letter by 3 August 2009. He did not do so, and accordingly he was a person to whom s 359C(2) applied. The operation of s 360(3) was thereby attracted. The effect of that subsection in the circumstances of this case was that the appellant was not entitled to appear before the tribunal. The operation of s 360(3) then attracted the express terms of s 363A, the effect of which was to provide that the tribunal did not have the power to permit the appellant to appear at an oral hearing. As Tracey J said in M at [46], this approach to construction is consistent with the views of the Full Court in Sun, as well as the Explanatory Memorandum which accompanied the Migration Legislation Amendment Bill (No 5) 1994 (Cth). The contrary view expressed by a Full Court in Uddin v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 218; (2005) 149 FCR 1 © 2016 THOMSON REUTERS

719

s 360

Migration Act 1958

[360.200]

(“Uddin”) is explained by the fact that the Full Court in Uddin was not referred to s 363A of the Act and by the fact that the case was not decided on a basis which involved any consideration of s 363A. Moreover, the obiter comments in Uddin were published after the decision in Sun was handed down and there was no reference in Uddin to the contrary views stated in Sun. The explanation for this appears to be that the decision in Uddin was reserved shortly before the Full Court decision in Sun was handed down.

[360.200] Issues in interpreting In certain circumstances, the standard of interpretation, or the errors made, may result in a jurisdictional error if the applicant was not able to properly give evidence and present arguments. In Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230, the majority of the Full Court of the Federal Court stated at [17] and [22] that a visa applicant who claims inadequate interpretation must establish that: • the standard of interpretation at the tribunal hearing was so inadequate that the applicant was effectively prevented from giving evidence; or • errors made by the interpreter at the tribunal hearing were material to the conclusions of the tribunal adverse to the applicant. This approach reflects the reasoning of Kenny J in in Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6; 56 ALD 231; [1999] FCA 507. In that case, Kenny J held, at [45], that in order to constitute vitiating error, the departure from the standard of adequate interpretation must “relate to a matter of significance for the applicant’s claim or the tribunal’s decision”. In deciding whether that had occurred, the court considered at [41] per Kenny J: the responsiveness of the interpreted answers to the questions asked, the coherence of those answers, the consistency of one answer with another and the rest of the case sought to be made and, more generally, any evidence confusion in exchanges between the tribunal and the interpreter.

See also SZHEW v Minister for Immigration and Citizenship [2009] FCA 783 at [45]–[64] per Jagot J. For further commentary regarding the obligations on the tribunal for providing interpreting services, see s 366C. [360.220] Mental illness Although a review applicant may suffer from a mental illness, this in itself does not mean that the applicant is incapable of availing himself or herself of the right to meaningfully appear before the tribunal. Rather, the question is whether, by reason of the illness, the applicant has been unable to give evidence, present arguments and answer questions. If the applicant is not so inhibited, then the affliction of mental illness will not undermine the tribunal’s invitation to appear: Minister for Immigration and Citizenship v SZNCR [2011] FCA 369 at [30]–[34] per Tracey J; SZOVP v Minister for Immigration and Citizenship (No 2) [2011] FMCA 442 at [48] per Driver FM. In Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553; 198 ALR 293; [2003] FCAFC 126 at [41], the Full Court of the Federal Court held that, because the review applicant was not in a fit state to represent himself before the Refugee Review Tribunal, the invitation sent under s 425 (the equivalent provision to s 360) was not a meaningful one. The Full Court held, therefore, that the Tribunal did not comply with s 425. [360.240] Tribunal may be vigorous in testing evidence, within reason In Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; 75 ALJR 982; [2001] HCA 28 at [30]–[31], Gleeson CJ, Gaudron and Gummow JJ observed: 720

Migration Law

[360.280]

Part 5 – Review of Part 5-reviewable decisions (ss 336M–379G) Division 5 – Part 5-reviewable decisions: conduct of review (ss 357A–367)

s 360

Where, as in the present case, credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented – often vigorously. Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question. Similar questions by a judge in curial proceedings in which the parties are legally represented may more readily give rise to an apprehension of bias than in the case of inquisitorial proceedings. Where, however, parties are not legally represented in inquisitorial proceedings, care must be taken to ensure that vigorous testing of the evidence and frank exposure of its weaknesses do not result in the person whose evidence is in question being overborne or intimidated. If that should happen, a fair-minded lay observer or a properly informed lay person might readily infer that there is no evidence that the witness can give which can change the decision-maker’s view.

[360.260] Misleading applicant in course of hearing In Bains v Minister for Immigration and Citizenship (2012) 205 FCR 217; 128 ALD 544; [2012] FCA 649 at [40], Bromberg J suggested that a denial of procedural fairness may be established where a tribunal misleads a party in the course of a hearing. This is likely to be the case where the misleading conduct results in the denial of a proper opportunity for a review applicant to be heard in circumstances which affect the outcome: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; 176 ALR 219; [2000] HCA 57 at [4] per Gleeson CJ, at [79] per Gaudron and Gummow JJ and at [127] per Kirby J. [360.280]

Tribunal has no power to impose conditions on right to give evidence and present arguments An applicant’s right to be heard by the tribunal is a statutory right and the tribunal is not authorised to make the exercise of that right conditional upon an applicant responding to an invitation to attend a hearing by a particular date: Xie v Minister for Immigration and Multicultural Affairs (1999) 95 FCR 543; 167 ALR 188; [1999] FCA 1480 (Xie) at [23] per Cooper J; Minister for Immigration and Citizenship v SZIQB [2008] FCAFC 20 at [16] per Branson, Emmett and Bennett JJ. If an applicant fails to respond to an invitation to attend a hearing, the tribunal is not entitled to assume that the person does not wish to attend the hearing: Xie at [23]; SZGZW v Minister for Immigration, Multicultural and Indigenous Affairs [2006] FCA 457 at [13] per Jacobson J. In Xie at [23], Cooper J observed: The RRT had no statutory power to impose conditions on the applicant and his family as to the exercise of their statutory right to give evidence on the hearing of their application for review by imposing time limits within which an election to be heard must be made. Nor was the RRT entitled to make the assumption that a failure to respond meant that the applicants did not wish to attend on the hearing and give oral evidence as was their entitlement. Although it may have been administratively wearisome, the only course open to the RRT when it determined s 424 did not apply, was to set a date which it notified under s 426 and to proceed to a hearing on that date. It was the hearing which was the occasion on which the applicant and his family were entitled to give evidence or not as they then chose. No internal administrative arrangement of the RRT could take away that entitlement of the applicant and his family, certainly not without their informed consent communicated by them in a positive way to the RRT.

In Cabal v Minister for Immigration and Multicultural Affairs [2001] FCA 546 at [17], the Full Court of the Federal Court were cautious to point out that Xie does not stand for the proposition that a tribunal cannot require an applicant to advise, by a certain time, whether he or she will take advantage of the specified hearing. Rather, the court held that it stands for the proposition that the tribunal is not entitled to cancel the hearing, and make a decision without a hearing, simply because the applicant does not reply. © 2016 THOMSON REUTERS

721

s 360A

[360.300]

Migration Act 1958

[360.300] A breach of s 362A may result in a breach of s 360 If a Tribunal incorrectly withholds material requested by an applicant under s 362A, that applicant may be denied a fair hearing under s 360. In Minister for Immigration and Border Protection v Dhillon [2014] FCAFC 157 Mr Dhillon had relevantly been refused a skilled visa on the basis that he had not satisfied Public Interest Criterion 4020 (PIC 4020), the requirement not to give or cause to be given a bogus document (he had also been denied a visa on a separate and independent basis of not satisfying the closely related requirement in cl 886.211). Chief Justice Allsop, Murphy and Pagone JJ held that the Tribunal had incorrectly applied the Privacy Act 1988 (Cth), in not providing certain material requested by the applicant under s 362A. The material was in relation to alleged fraudulent activity by a migration agent and relevant to the issue of PIC 4020. The failure of the Tribunal to provide this information to the applicant meant that he was denied a real opportunity to present his case, in relation to PIC 4020, resulting in a breach of s 360. [360.320] Appearance by videolink In Minister for Immigration and Border Protection v Dhillon [2014] FCAFC 157, Mr Dhillon claimed that s 360 had been breached because the Tribunal conducted the hearing by videolink, in circumstances where Mr Dhilon required an interpreter and the interpreter was only available by telephone. Mr Dhillon’s representatives were in a different State and given that the matter was dealing with the issue of fraud, his personal attendance was required in order for the Tribunal to assess his credibility. Chief Justice Allsop, Murphy and Pagone JJ held that there was no breach of s 360 by the hearing proceeding by videolink, especially since s 366 permitted the Tribunal to take evidence through this mode of communication. 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. [Subs (2) subst Act 58 of 2001, s 3 and Sch 3 item 6]

(3) [Repealed] [Subs (3) rep Act 58 of 2001, s 3 and Sch 3 item 6]

(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. [S 360A am Act 58 of 2001; insrt Act 113 of 1998, s 3 and Sch 1 item 22, with effect from 1 Jun 1999]

SECTION 360A COMMENTARY Scope ................................................................................................................................................. [360A.20] CONCEPTS

Place of hearing ................................................................................................................................ [360A.40]

722

Migration Law

[360A.20]

Part 5 – Review of Part 5-reviewable decisions (ss 336M–379G) Division 5 – Part 5-reviewable decisions: conduct of review (ss 357A–367)

s 360A

KEY CASES

If the notice of invitation complies with s 360A, the Tribunal is under no further obligation to bring to an applicant’s attention the scheduled hearing ............................................................................ [360A.60] The prescribed period of notice need only be given once ............................................................. [360A.80] Section 360A modifies the common law rule that reasonable notice must be given .................. [360A.100] Practical injustice and jurisdictional error ..................................................................................... [360A.120]

[360A.20] Scope This section sets out the notice requirements for inviting an applicant to a hearing under s 360(1). Relevantly, the notice of invitation must: • state the day on which, and the time and place at which, the applicant is scheduled to appear: s 360A(1); • be given to: – an applicant in detention, by giving the notice to “himself or herself, or to another person authorised” by the applicant to “receive documents on his or her behalf”: s 360A(2)(b) and reg 5.02; – an applicant who is not in detention, by one of the methods specified in s 379A: s 360A(2)(a). A notice sent by one of the methods in s 379A is taken to have been received by the applicant in the time specified in s 379C; or – an applicant’s authorised recipient, if s 379G applies, by one of the methods specified in s 379A. A notice sent by one of the methods in s 379A is taken to have been received by an authorised recipient in the time specified in s 379C; • contain the prescribed period of notice of the day on which, and the time and place at which, the applicant is scheduled to appear before the tribunal (or if no period is prescribed, a reasonable period must be provided): s 360(4). Regulation 4.01 sets out the prescribed periods, which are: – for an applicant in detention who is seeking review of a decision under s 338(4) (that is, decisions to refuse to grant, or cancel, a bridging visa of a detainee), the period of notice starts when the applicant receives the notice and ends at the end of two working days after the day of receipt of the notice (or a shorter period, not less than one working day, if the applicant agrees in writing to the shorter period): reg 4.21(2); – for an applicant in detention who is not seeking review of a decision under s 338(4) (that is, decisions to refuse to grant, or cancel, a bridging visa of a detainee), the period of notice starts when the applicant receives the notice and ends at the end of seven days after the day of receipt of the notice (or a shorter period, not less than one working day, if the applicant agrees in writing to the shorter period): reg 4.21(3); – for an applicant not in detention, the period of notice starts when the applicant receives the notice and ends at the end of 14 days after the day of receipt of the notice (or a shorter period, not less than one working day, if the applicant agrees in writing to the shorter period): reg 4.21(4); • contain a statement of the effect of s 362B – that is, that a failure to appear at the hearing may result in the tribunal proceeding to make a decision on the review without taking any further steps to allow or enable the applicant to appear before it: s 360A(5). © 2016 THOMSON REUTERS

723

s 360A

Migration Act 1958

[360A.40]

CONCEPTS [360A.40] Place of hearing Under s 360A(1), the notice must specify the place at which the applicant is scheduled to appear. In Korovata v Minister for Immigration and Multicultural Affairs [2001] FCA 1446, the notice of invitation did not specify the place at which the applicant was scheduled to appear. The notice simply stated that “this will be a telephone hearing”. Emmett J found that s 360A had not been complied with because it did not give the applicant notice of the place at which the applicant was scheduled to appear: at [26]–[27]. An applicant’s right to appear before the tribunal under s 360(1) is a right to appear in person. However, only if an applicant agrees, pursuant to s 366, the tribunal has a discretion to allow an applicant to appear by other means such as by telephone or video-link and nothing more: Korovata v Minister for Immigration and Multicultural Affairs [2001] FCA 1446 at [24]–[25] per Emmett J.

KEY CASES [360A.60] If the notice of invitation complies with s 360A, the Tribunal is under no further obligation to bring to an applicant’s attention the scheduled hearing Sections 360 and 360A are to be read together. Provided an invitation to attend a hearing complies with the requirements of s 360A, the tribunal is under no further obligation to consider if there may be some other way of notifying a review applicant of a scheduled hearing: Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC (2006) 150 FCR 439; 231 ALR 630; [2006] FCAFC 73 (SZFHC) at [39] per Spender, French and Cowdroy JJ (in relation to ss 425 and 425A of the Act). This interpretation is reinforced by the amendment to the wording of s 360, which formerly required the tribunal to give an applicant an “opportunity” to appear, whereas the provision in its present form requires only that the tribunal “invite” the applicant to appear: SZFHC at [41] per Spender, French and Cowdroy JJ. Provided the hearing invitation is given to the applicant as required under s 360(2) (or to an applicant’s authorised recipient, if s 379G applies) and accords with the remaining requirements of s 360A, a review applicant will be deemed to have received the tribunal’s invitation to a hearing, irrespective of whether the applicant in fact did not receive it: SZFHC at [39] per Spender, French and Cowdroy JJ; Enjam v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCCA 1046 at [16] per Hartnett J; VNAA v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 136 FCR 407; [2004] FCAFC 134 at [14] per Sundberg and Hely JJ. [360A.80] The prescribed period of notice need only be given once If the tribunal complies with s 360A(4) and provides an applicant with the “prescribed” period of notice of the day on which the applicant is scheduled to appear, the tribunal is not required to again give the prescribed period of notice in the event the hearing is rescheduled to a later date, or in the event a further hearing is scheduled: Minister for Immigration and Multicultural and Indigenous Affairs v SZFML (2006) 154 FCR 572; 236 ALR 294; [2006] FCAFC 152 at [79]–[83] per Spender, French and Cowdroy JJ; SZDQO v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 144 FCR 251; [2005] FCA 1026 at [29] per Conti J; Ogawa v Minister for Immigration and Citizenship (2011) 199 FCR 51; [2011] FCA 1358 (Ogawa) at [29] per Flick J. Where the tribunal reschedules a hearing, or schedules a further hearing, it will however be required to provide a period of notice that is not “unreasonably short”: Ogawa at [32]–[35] per Flick J. 724

Migration Law

[360A.120]

Part 5 – Review of Part 5-reviewable decisions (ss 336M–379G) Division 5 – Part 5-reviewable decisions: conduct of review (ss 357A–367)

s 360A

In Ogawa, the prescribed period of notice the tribunal was required to give in respect of a scheduled hearing was 14 days. On 7 May 2009, the applicant was invited to attend a hearing scheduled for 4 June 2009, thereby satisfying the prescribed notice requirements. On 13 May 2009 the applicant requested that the hearing be postponed, but the tribunal denied this request. A further application for postponement was made on 29 May 2009, with medical evidence subsequently provided in support of the application. On 2 June 2009, the tribunal cancelled the scheduled hearing. On 23 June 2009, the applicant was invited to attend a hearing on 2 July 2009, which subsequently proceeded. Before the Federal Court, the visa applicant argued that the tribunal’s invitation of 23 June 2009 did not comply with s 360A(4) of the Act on the basis that the prescribed period of notice was not provided. Flick J rejected this argument, relying on the decisions in Minister for Immigration and Multicultural and Indigenous Affairs v SZFML (2006) 154 FCR 572; 236 ALR 294; [2006] FCAFC 152 and SZDQO v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 144 FCR 251; [2005] FCA 1026. However, Flick J emphasised that, in such circumstances, the tribunal is required to provide a period of notice that is not “unreasonably short”. His Honour noted at [36] that the question of what is “reasonable” notice involves an objective determination and reference may be made to the following non-exhaustive factors: • the period “prescribed” for the giving of notice in respect to any initial proposed hearing date; • the complexity of any legal and factual issues to be canvassed at the rescheduled hearing; • any opportunity previously extended to an applicant to assemble factual materials in support of any claims made and any opportunity to marshal such legal arguments in support of those claims; • any need to obtain further materials or evidence that may not have been available in time for the initial scheduled hearing; • whether the opportunity previously extended to an applicant to prepare any claim to be advanced was prejudiced or rendered nugatory for reasons peculiar to an applicant or by reason of changed circumstances; • whether any request was made for a rescheduled hearing to be further postponed or adjourned and, if so, the basis upon which the applicant sought to support that request; and • any assessment by the tribunal member as to the adequacy of the period of notice given. In the circumstances, Flick J was not satisfied that the visa applicant had been given unreasonably short notice of the rescheduled hearing: at [43]. [360A.100] Section 360A modifies the common law rule that “reasonable” notice must be given Citing Lee v Department of Education and Science (1967) 66 LGR 211; R v Thames Magistrates Court; Ex parte Polemis [1974] 1 WLR 1371, in Ogawa v Minister for Immigration and Citizenship (2011) 199 FCR 51; [2011] FCA 1358 at [24] Flick J observed that the common law rules of natural justice require that “reasonable” notice be given of an administrative hearing. However, his Honour noted that common law rules may be modified by statute and that s 360A is such an instance. [360A.120] Practical injustice and jurisdictional error In Minister for Immigration and Citizenship v SZIZO (2009) 238 CLR 627; 259 ALR 405; [2009] HCA 37, French CJ, Gummow, Hayne, Crennan and Bell J considered s 425A (the © 2016 THOMSON REUTERS

725

s 360A

Migration Act 1958

[360A.120]

equivalent provision under Pt 7), along with ss 441A and 441, which are equivalent to ss 379A and 379G. In that matter, the Refugee Review Tribunal failed to provide a notice to the authorised recipient in the manner prescribed by Div 7 inviting the applicants for review to attend a hearing: s 425A. This did not result in any adverse consequence to any of the applicants for review, and all of them, including the authorised recipient, attended the hearing. Relevantly, French CJ, Gummow, Hayne, Crennan and Bell J stated at [34]–[36]: In combination, ss 425A and 441G ensure that an applicant for review receives timely and effective notice of the hearing. They impose obligations which facilitate the conduct of a procedurally fair hearing. However, the manner of providing timely and effective notice of hearing is not an end in itself. The procedural steps dealing with the manner of giving notice are to be distinguished from other components of the statutory statement of the hearing rule, including the obligation to give particulars of adverse information and to invite the applicant to appear to give evidence and to present arguments relating to the issues arising in the decision under review. While the legislature may be taken to have intended that compliance with the steps in ss 441G and 441A would discharge the tribunal’s obligations with respect to the giving of timely and effective notice of the hearing, it does not follow that it was the intention that any departure from those steps would result in invalidity without consideration of the extent and consequences of the departure. The respondents acknowledge that they suffered no injustice by reason of the tribunal’s omission and they do not take issue with the Full Court’s characterisation of the result in the circumstances as being “rather absurd”. The admitted absurdity of the outcome is against acceptance of the conclusion that the legislature intended that invalidity be the consequence of departure from any of the procedural steps leading up to the hearing. In a case in which the tribunal fails to comply with the requirements for the giving of notice of a hearing, the factual determination of whether the applicant for review and his or her authorised recipient received timely and effective notice of the hearing does not require the court to consider how the applicant might have presented his or her case differently had the tribunal complied with the statutory procedures. No question arises, in the case of an applicant who has received timely and effective notice of the hearing, of the loss of an opportunity to advance his or her case. Notwithstanding the detailed prescription of the regime under Divs 4 and 7A and the use of imperative language it was an error to conclude that the provisions of ss 441G and 441A are inviolable restraints conditioning the tribunal’s jurisdiction to conduct and decide a review. They are procedural steps that are designed to ensure that an applicant for review is enabled to properly advance his or her case at the hearing; a failure to comply with them will require consideration of whether in the events that occurred the applicant was denied natural justice. There was no denial of natural justice in this case.

The obligations imposed on s 425A (the equivalent to s 360A) with respect to giving notice of the hearing are directed to ensure that an applicant has adequate time to prepare his or her case: at [33] per French CJ, Gummow, Hayne, Crennan and Bell J. A failure to comply with every obligation in the section will not necessarily result in any jurisdictional error; it will depend upon whether the applicant was denied natural justice, which will require a consideration of all the events that occurred: at [36] per French CJ, Gummow, Hayne, Crennan and Bell J. The decision in SZFOH v Minister for Immigration and Citizenship (2007) 159 FCR 199; 241 ALR 653; [2007] FCAFC 63 (SZFOH) was decided before the High Court’s decision in Minister for Immigration and Citizenship v SZIZO (2009) 238 CLR 627; 259 ALR 405; [2009] HCA 37. However, it is still applicable as the tribunal’s non-compliance with the statutory obligations for a hearing invitation resulted in the applicant being denied natural justice, by the applicant not attending the hearing. In SZFOH, the Full Court of the Federal Court held that, where an applicant nominates a migration adviser as the authorised recipient of correspondence, but the tribunal sends the hearing invitation to the visa applicant personally, and the applicant then does not attend the hearing, the tribunal will have failed to comply with its statutory obligations under s 425A (the equivalent provision under Pt 7). Such an error is jurisdictional: at [29]–[31] per Besanko J (with whom Moore and Buchanan J agreed).

726

Migration Law

[361.20]

Part 5 – Review of Part 5-reviewable decisions (ss 336M–379G) Division 5 – Part 5-reviewable decisions: conduct of review (ss 357A–367)

s 361

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. [Subs (1) am Act 113 of 1998, s 3 and Sch 1 items 23 and 24, with effect from 1 Jun 1999; Act 110 of 1995, s 3 and Sch 1 items 19 and 20, with effect from 29 Sep 1995]

(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. [Subs (2A) insrt Act 110 of 1995, s 3 and Sch 1 item 21, with effect from 29 Sep 1995]

(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. [Subs (3) subst Act 110 of 1995, s 3 and Sch 1 item 22, with effect from 29 Sep 1995]

(4) This section does not apply to the review of a decision covered by subsection 338(4) (certain bridging visa decisions). [Subs (4) am Act 60 of 2015, s 3 and Sch 2 item 47, with effect from 1 Jul 2015; Act 113 of 1998, s 3 and Sch 1 item 25, with effect from 1 Jun 1999; insrt Act 60 of 1994, s 76, with effect from 1 Sep 1994] [S 361 am Act 60 of 2015; Act 113 of 1998; Act 110 of 1995; former s 131 renum Act 60 of 1994, s 83, with effect from 1 Sep 1994; am Act 60 of 1994; former s 64N renum Act 59 of 1989, s 35; insrt Act 59 of 1989, s 26]

SECTION 361 COMMENTARY Scope ................................................................................................................................................... [361.20] CONCEPTS

Written notice ...................................................................................................................................... [361.40] Must have regard to applicant’s notice .............................................................................................. [361.60] KEY CASE

Minister for Immigration and Multicultural Affairs v Maltsin .......................................................... [361.80] PRACTICE POINTS

Non-application to review of decisions ............................................................................................ [361.100]

[361.20] Scope Section 361 requires the tribunal, in any invitation sent to an applicant to attend a scheduled hearing, to notify the applicant of the purpose of the hearing and that the applicant may request the tribunal to obtain oral and/or written evidence. If the applicant makes such a request, the tribunal is required to consider the request, but does not have to comply with it.

© 2016 THOMSON REUTERS

727

s 361

Migration Act 1958

[361.40]

CONCEPTS [361.40] Written notice Under s 361(2) and (2A), an applicant may give the tribunal written notice to call a witness or obtain written material, within seven days after being notified under s 361(1). The request must be in writing, but needs not to be made on the “Request for Hearing” form supplied by the tribunal: Dostanov v Minister for Immigration and Citizenship [2007] FMCA 792 at [33] per Nicholls FM. [361.60] Must have regard to applicant’s notice The expression “to have regard” is understood to mean “to take into account” or “consider”: Minister for Immigration and Multicultural and Indigenous Affairs v Katisat [2005] FCA 1908 at [62] per Bennett J. Under s 361(3), if an applicant notifies a tribunal under s 361(2) or (2A), the tribunal must have regard to the applicant’s notice, but does not need to necessarily comply with it: Minister for Immigration and Multicultural and Indigenous Affairs v Katisat [2005] FCA 1908 (Katisat) at [54] per Bennett J; Minister for Immigration and Multicultural Affairs v Maltsin (2005) 88 ALD 304; [2005] FCAFC 118 (Maltsin) at [37] per Kenny and Lander JJ (with whom Spender J agreed). Whether or not a tribunal has given genuine consideration to a request under this section will depend on the evidence. A tribunal will not commit a jurisdictional error if it fails to mention a request made under s 361 in the decision record: Dostanov v Minister for Immigration [2007] FMCA 792 (Dostanov) at [40] per Nicholls FM. Nor will it commit a jurisdictional error if, having had regard or consideration of a request under s 361, the tribunal decides not to comply with the request: Katisat at [63] per Bennett J. When considering a request under s 361, such as whether or not to take oral evidence from a witness, a tribunal will have given genuine consideration to the request if it takes into account such things as the relevance and potential importance of the outcome of the review of the evidence that could be given by that witness: Katisat at [61] per Bennett J; Maltsin at [38] per Kenny and Lander JJ (with whom Spender J agreed). However, if there is no evidence that a tribunal had considered or had regard to the request, the tribunal will have committed a jurisdictional error: Dostanov at [58] and [59] per Nicholls FM.

KEY CASE [361.80] Minister for Immigration and Multicultural Affairs v Maltsin In Minister for Immigration and Multicultural Affairs v Maltsin (2005) 88 ALD 304; [2005] FCAFC 118 (Maltsin), the applicant gave written notice to the tribunal that he wanted the tribunal to take evidence from himself and four other people, as well as a witness in Russia. At the hearing, the tribunal took evidence from the applicant but not from one other person who had attended the hearing for this purpose. The tribunal must have regard to any notice given by an applicant under s 361(2) or (2A). In Maltsin, Kenny and Lander JJ (with whom Spender J agreed) stated at [38] that this means that the: Tribunal must genuinely apply its mind to the contents of the notice, and in particular, to the question whether it should take the oral evidence of the nominated individuals in accordance with the applicant’s wishes. The tribunal must not merely go through the motions of considering the applicant’s wishes as expressed in the notice … [T]he consideration that the tribunal gives to the wishes of the applicant concerning the evidence to be taken at the hearing must also be genuine. The tribunal must not decline to comply with the applicant’s wishes capriciously, but must take account of such relevant matters as the relevance and potential importance to the outcome of the review of the evidence that could be given by a nominated witness … the sufficiency of any written evidence that has already been given by a 728

Migration Law

[361.100]

Part 5 – Review of Part 5-reviewable decisions (ss 336M–379G) Division 5 – Part 5-reviewable decisions: conduct of review (ss 357A–367)

s 362

witness, and the length of time that would afford the applicant a fair opportunity to put his or her case before the tribunal. These considerations flow from the nature of the tribunal’s overarching objective, which is to provide a review that is “fair, just economical, informal and quick” … The tribunal must bear in mind this statutory objective when considering the weight to be given these matters.

The court considered the evidence and relevant parts of the transcript which dealt with the issue of hearing evidence from the various witnesses and held that the tribunal did not genuinely give regard to the request under s 361(2) and therefore breached s 361(3): at [47] per Kenny and Lander JJ (with whom Spender J agreed). This is because the tribunal did not limit the taking of oral evidence by reference to such relevant considerations as the importance of the proposed evidence for the review, or the time the applicant might reasonably require to fairly put his case: at [47] per Kenny and Lander JJ (with whom Spender J agreed).

PRACTICE POINTS [361.100] Non-application to review of decisions By reason of s 361(4), this provision does not apply to the review of decisions covered by s 338(4) – that is: • a decision to refuse to grant a bridging visa to a non-citizen who is in immigration detention because of that refusal; and • a decision to cancel a bridging visa held by a non-citizen who is in immigration detention because of that cancellation. 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. [Subs (1) am Act 113 of 1998, s 3 and Sch 1 items 26 and 27, with effect from 1 Jun 1999]

(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. [S 362 am Act 60 of 2015, s 3 and Sch 2 item 48, with effect from 1 Jul 2015; Act 113 of 1998; former s 131A renum Act 60 of 1994, s 83, with effect from 1 Sep 1994; insrt Act 60 of 1994, s 77, with effect from 1 Sep 1994]

SECTION 362 COMMENTARY Scope ................................................................................................................................................... [362.20] CONCEPTS

Must have regard to applicant’s request ............................................................................................ [362.40]

© 2016 THOMSON REUTERS

729

s 362

Migration Act 1958

[362.20]

KEY CASE

Minister for Immigration and Multicultural Affairs v Maltsin .......................................................... [362.60]

[362.20] Scope Section 362 provides for applicants seeking review of a decision covered by s 338(4). These are decisions in relation to applicants who are in detention seeking review of either a decision to refuse to grant, or cancel, a bridging visa: s 362(1). This section will apply if: • the applicant requested, in the approved form accompanying his or her application to the tribunal, that the tribunal: – give the applicant the opportunity to appear before it; or – obtain oral evidence from a specified person (or persons); and – the applicant has been invited to a hearing before the tribunal: s 360(1). If the requirements in s 362(1) are met, pursuant to s 362(2) the tribunal must have regard to the applicant’s request, but is not required to obtain evidence from the person (or persons) specified in the applicant’s request.

CONCEPTS [362.40] Must have regard to applicant’s request If the requirements in s 362(1) are met, pursuant to s 362(2) the tribunal must have regard to the applicant’s request, but is not required to obtain evidence from the person (or persons) specified in the applicant’s request: Minister for Immigration and Multicultural and Indigenous Affairs v Katisat [2005] FCA 1908 (Katisat) at [54] per Bennett J; Minister for Immigration and Multicultural Affairs v Maltsin (2005) 88 ALD 304; [2005] FCAFC 118 (Maltsin) at [37] per Kenny and Lander JJ (with whom Spender J agreed). Whether or not a tribunal has given genuine consideration to a request under this section will depend on the evidence. The expression “to have regard” is understood to mean “to take into account” or “consider”: Katisat at [62] per Bennett J. The same principles that were discussed in s 361 (which deals with requests to the tribunal to call witnesses, in relation to decisions not covered by s 338(4)) in relation to the expression “to have regard” are applicable to this section. Therefore, when considering a request under s 362, such as whether or not to take oral evidence from a witness, a tribunal will have given genuine consideration to the request if it takes into consideration such things as the relevance and potential importance of the outcome of the review of the evidence that could be given by that witness: Katisat at [61] per Bennett J; Maltsin at [38] per Kenny and Lander JJ (with whom Spender J agreed).

KEY CASE [362.60] Minister for Immigration and Multicultural Affairs v Maltsin In Minister for Immigration and Multicultural Affairs v Maltsin (2005) 88 ALD 304; [2005] FCAFC 118 (Maltsin), the applicant gave written notice to the tribunal that he wanted the tribunal to take evidence from himself and four other people, as well as a witness in Russia. At the hearing the tribunal took evidence from the applicant, but did not hear from one other person who had attended the hearing for this purpose. The tribunal must have regard to any notice given by an applicant under s 361(2) or (2A). In Maltsin, Kenny and Lander JJ (with whom Spender J agreed) stated at [38] that this means that the: 730

Migration Law

[362A.20]

Part 5 – Review of Part 5-reviewable decisions (ss 336M–379G) Division 5 – Part 5-reviewable decisions: conduct of review (ss 357A–367)

s 362A

Tribunal must genuinely apply its mind to the contents of the notice, and in particular, to the question whether it should take the oral evidence of the nominated individuals in accordance with the applicant’s wishes. The tribunal must not merely go through the motions of considering the applicant’s wishes as expressed in the notice … [T]he consideration that the tribunal gives to the wishes of the applicant concerning the evidence to be taken at the hearing must also be genuine. The tribunal must not decline to comply with the applicant’s wishes capriciously, but must take account of such relevant matters as the relevance and potential importance to the outcome of the review of the evidence that could be given by a nominated witness … the sufficiency of any written evidence that has already been given by a witness, and the length of time that would afford the applicant a fair opportunity to put his or her case before the tribunal. These considerations flow from the nature of the tribunal’s overarching objective, which is to provide a review that is “fair, just economical, informal and quick” … The tribunal must bear in mind this statutory objective when considering the weight to be given these matters.

The court considered the evidence and relevant parts of the transcript, which dealt with the issue of hearing evidence from the various witnesses, and held that the tribunal did not genuinely give regard to the request under s 361(2) and therefore breached s 361(3): at [47] per Kenny and Lander JJ (with whom Spender J agreed). This is because the tribunal did not limit the taking of oral evidence by reference to such relevant considerations as the importance of the proposed evidence for the review, or the time the applicant might reasonably require to fairly put his case: at [47] per Kenny and Lander JJ (with whom Spender J agreed). 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). [S 362A subst Act 113 of 1998, s 3 and Sch 1 item 28, with effect from 1 Jun 1999; insrt Act 110 of 1995, s 3 and Sch 1 item 23, with effect from 29 Sep 1995]

SECTION 362A COMMENTARY Scope ................................................................................................................................................. [362A.20] CONCEPTS

Given or produced to the tribunal ................................................................................................... [362A.40] KEY CASES

Given or produced to the tribunal ................................................................................................... [362A.60]

[362A.20] Scope This section provides that a review applicant is entitled to have access to written material that is before the tribunal, subject to the operation of the Privacy Act 1988 (Cth) and ss 368(1), 375A and 376.

© 2016 THOMSON REUTERS

731

s 362B

Migration Act 1958

[362A.40]

CONCEPTS [362A.40] Given or produced to the Tribunal The tribunal is only required to provide an applicant with copies of documents given or produced to a tribunal member from a person within the tribunal where the information in the document relates to factual matters only. If the information is in the nature of an informed legal opinion or advice, it is not required to be disclosed: Carlos v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 456; [2001] FCA 1087 at [39] per Wilcox, von Doussa and Finkelstein JJ.

KEY CASES [362A.60] Given or produced to the Tribunal In Carlos v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 456; [2001] FCA 1087, the Full Court of the Federal Court expressed its agreement with the judgment of Merkel J (in the court below), and observed at [39] that: We agree with this approach [of Merkel’s J reasoning]. It construes s 362A(1) in a manner consonant with well-developed principles of general administrative law and provides a result consistent with ordinary notions of fairness. The approach ensures that the applicant is informed of any factual material that is put before the tribunal member, whether that material emanates from within the tribunal or outside it, but it does not require the tribunal member to disclose to the applicant the nature or content of any advice or assistance the member may receive from persons within the tribunal in resolving a particular case. An applicant needs to know about the former, but not the latter. And it would be extremely burdensome if tribunal members were required to notify an applicant about every item of assistance they received in conducting a hearing and finalizing a decision.

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. [Subs (1) subst Act 35 of 2015, s 3 and Sch 4 item 11, with effect from 18 Apr 2015]

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. [Subs (1A) insrt Act 35 of 2015, s 3 and Sch 4 item 11, with effect from 18 Apr 2015]

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.

732

Migration Law

[362A.60]

Part 5 – Review of Part 5-reviewable decisions (ss 336M–379G) Division 5 – Part 5-reviewable decisions: conduct of review (ss 357A–367)

s 362B

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. [Subs (1B) insrt Act 35 of 2015, s 3 and Sch 4 item 11, with effect from 18 Apr 2015]

(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. [Subs (1C) insrt Act 35 of 2015, s 3 and Sch 4 item 11, with effect from 18 Apr 2015]

(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. [Subs (1D) insrt Act 35 of 2015, s 3 and Sch 4 item 11, with effect from 18 Apr 2015]

(1E) If the applicant fails to apply for reinstatement within the 14-day 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. [Subs (1E) insrt Act 35 of 2015, s 3 and Sch 4 item 11, with effect from 18 Apr 2015]

(1F) If the Tribunal confirms the decision to dismiss the application, the decision under review is taken to be affirmed. [Subs (1F) insrt Act 35 of 2015, s 3 and Sch 4 item 11, with effect from 18 Apr 2015]

(1G) To avoid doubt, the Tribunal cannot give a decision orally under subsection (1A), (1C) or (1E). [Subs (1G) insrt Act 35 of 2015, s 3 and Sch 4 item 11, with effect from 18 Apr 2015]

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. [Subs (2) am Act 35 of 2015, s 3 and Sch 4 item 11, with effect from 18 Apr 2015] [S 362B am Act 35 of 2015; insrt Act 113 of 1998, s 3 and Sch 1 item 28, with effect from 1 Jun 1999]

SECTION 362B COMMENTARY Scope ................................................................................................................................................. [362B.20] CONCEPTS

Invited under s 360 to appear .......................................................................................................... [362B.40] Does not appear ................................................................................................................................ [362B.60] KEY CASES

Unreasonable refusal to adjourn ...................................................................................................... [362B.80] Reason for non-attendance and discretion ..................................................................................... [362B.100] Does not appear .............................................................................................................................. [362B.120] © 2016 THOMSON REUTERS

733

s 362B

Migration Act 1958

[362B.20]

Returned invitation ......................................................................................................................... [362B.140] Illness and medical certificate ........................................................................................................ [362B.160] Fraud by third party ....................................................................................................................... [362B.180]

[362B.20] Scope The Migration Amendment (Protection and Other Measures) Act 2015 (Cth) repealed the previous s 362B and inserted this provision, which commenced on 18 April 2015. Prior to 18 April 2015, under this section, the tribunal has a discretion to make a decision on the review without taking any further steps to allow or enable the applicant to appear before it, if: • the applicant was validly invited under s 360 (that is, a valid notice under s 360A was sent to the applicant); and • the applicant did not appear before the tribunal on the day on which, or at the time and place at which, the applicant was scheduled to appear: s 360(1). Even if an applicant did not appear, the tribunal still had a discretion to reschedule the hearing: s 362B(2). However, the tribunal’s power to make a decision on the review without rescheduling the hearing was not to be exercised capriciously, but must be exercised reasonably: NBBL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 152 FCR 592; [2006] FCA 1045 at [21] per Greenwood J. A capricious decision is one example of a circumstance that might result in procedural unfairness: SZJQP v Minister for Immigration and Citizenship (2007) 98 ALD 575; 45 AAR 510; [2007] FCA 1613 at [35] per Gilmour J. The amendments introduced by Migration Amendment (Protection and Other Measures)Act 2015 (Cth), give the tribunal the discretion to do either of the following if an applicant does not appear before the tribunal after being validly invited: • make a decision on the review without taking any further action to allow or enable the applicant to appear before it: s 362B(1A)(a). This is identical to the provision that existed prior to 18 April 2015; or • by written statement under s 362C, dismiss the application without any further consideration of the application or information before the tribunal: s 362B(1A)(b). Sections 362B(1B) to (1F) sets out a procedure for re-instatement in the event that the applicant is dismissed under s 362B(1A)(b). According to the Explanatory Memorandum to the Migration Amendment (Protection and Other Measures)Act 2015 (Cth) at [245]: The purpose of this amendment is to clarify that if the applicant fails to appear before the MRT in response to an invitation under section 360 of the Migration Act, the MRT has the option of dismissing the application or making a decision on the review, as is the case under current subsection 362B(1).

There has not been any judicial consideration of the new s 362B. However, subject to any future judicial interpretation to the contrary, new s 36B(1A)(1), will be interpreted in the same way as the previous s 362B(1), as these provisions are in substance in identical terms. The common reasons claimed for non-attendance at a hearing include: • an applicant not receiving an invitation to the hearing: see, for example, Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC (2006) 150 FCR 439; 231 ALR 630; [2006] FCAFC 73; • an applicant being ill: see, for example, NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121; and • fraud or negligence by a migration agent: see, for example, SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; 81 ALJR 1404; [2007] HCA 35. 734

Migration Law

[362B.100]

Part 5 – Review of Part 5-reviewable decisions (ss 336M–379G) Division 5 – Part 5-reviewable decisions: conduct of review (ss 357A–367)

s 362B

CONCEPTS [362B.40] Invited under s 360 to appear Before the tribunal can exercise its discretion under s 362B, the applicant needs to have been invited under s 360 to appear before it. Sections 360 and 360A are to be read together: Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC (2006) 150 FCR 439; 231 ALR 630; [2006] FCAFC 73 at [39] per Spender, French and Cowdroy JJ. If there has not been compliance with s 360A – that is, a valid notice of invitation has not been sent –the tribunal’s power under s 362B is not enlivened and the tribunal will commit a jurisdictional error if it proceeds to exercise its power under this section: see, for example, SZFOH v Minister for Immigration and Citizenship (2007) 159 FCR 199; 241 ALR 653; [2007] FCAFC 63 at [30] per Besanko J; SZBHU v Minister for Immigration and Citizenship [2007] FCA 1614 at [65] per Gilmour J. [362B.60] Does not appear Before the tribunal can exercise its discretion under s 362B, the applicant must not appear before the tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear. This is a jurisdictional fact, which must exist before the tribunal’s power is enlivened: SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; 81 ALJR 1404; [2007] HCA 35 at [35] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ.

KEY CASES [362B.80] Unreasonable refusal to adjourn In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; 297 ALR 225; 87 ALJR 618; [2013] HCA 18, French CJ, Hayne, Kiefel, Bell and Gageler JJ considered a refusal of an adjournment by the tribunal pursuant to the exercise of its statutory power to adjourn the review of a decision under s 363(1)(b) of the Act. It was recognised that an unreasonable refusal by the tribunal to grant an adjournment could result in jurisdictional error if it was established that the tribunal did not conduct a review in the manner required by the Act: at [77]–[87] per Hayne, Kiefel and Bell JJ. In Gazi v Minister for Immigration and Citizenship (now Minister for Immigration and Border Protection) [2013] FCA 1094 (Gazi) at [34], Logan J appropriately pointed out that Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; 297 ALR 225; 87 ALJR 618; [2013] HCA 18 (Li) concerned a refusal by the tribunal to adjourn a review hearing in the exercise of its power to do so conferred by s 363(1)(b) of the Act, which is a separate power to that conferred on the tribunal by s 362B(2). However, in Gazi, Logan J stated that the distinction is without any difference in terms of the questions settled by Li. Logan J held at [34]: As with the power conferred by s 363(1)(b) … the power conferred on the tribunal by s 362B(2) … must be exercised according to law and it will only be so exercised if it is exercised reasonably.

[362B.100] Reason for non-attendance and discretion Where there has been compliance with ss 360 and 360A, a tribunal is not required to make further inquiries if an applicant fails to attend the hearing: SZJQP v Minister for Immigration and Citizenship (2007) 98 ALD 575; 45 AAR 510; [2007] FCA 1613 at [32] per Gilmour J; Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC (2006) 150 FCR 439; 231 ALR 630; [2006] FCAFC 73 at [38]–[39] per Spender, French and Cowdroy JJ. As long as there has been compliance with ss 360 and 360A and an applicant does not attend the hearing, the tribunal may still proceed to make a decision without taking any further steps to allow or enable the applicant to appear: see NADK of 2002 v Minister for Immigration and © 2016 THOMSON REUTERS

735

s 362B

Migration Act 1958

[362B.120]

Multicultural and Indigenous Affairs [2002] FCAFC 184; NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121; VNAA v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 136 FCR 407; [2004] FCAFC 134; NASF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 162; Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC (2006) 150 FCR 439; 231 ALR 630; [2006] FCAFC 73; SZDPB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 110; MZZFI v Minister for Immigration and Border Protection [2013] FCA 1337. As Downes J stated in SZIGQ v Minister for Immigration and Citizenship [2007] FCA 328 at [5] (which was endorsed by Pagone J in MZZFI v Minister for Immigration and Border Protection [2013] FCA 1337 at [10]) in relation to the equivalent provisions to ss 360, 360A and 362B under Pt 7: [T]he authorities are clear that the reason for non-attendance does not matter. If the tribunal has complied with ss 425 and 425A of the Migration Act in inviting an applicant to attend a hearing, it may proceed under s 426A to the Act to consider and decide the matter without conducting any further inquiries.

In SZJQP v Minister for Immigration and Citizenship (2007) 98 ALD 575; 45 AAR 510; [2007] FCA 1613 at [33], Gilmour J stated that he did not take Downes J’s comments to mean that where a tribunal is apprised of the reason for non-attendance that consideration should not be given to such a circumstance. Gilmour J went on to state at [34] that the discretion in this section is “unconfined” and, in those circumstances, the tribunal may have regard to a range of factors in the exercise of its discretion and “that range too is unconfined except in so far as the subject matter, scope and purpose of the statute by implication limit those factors to which the decision maker may legitimately have regard”: see also SZHSQ v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 159; [2006] FCA 1295 at [49] per Rares J. Based on the decisions in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; 297 ALR 225; 87 ALJR 618; [2013] HCA 18 and Gazi v Minister for Immigration and Citizenship (now Minister for Immigration and Border Protection) [2013] FCA 1094 (discussed at [362B.80] above), in some circumstances the applicant’s reason for non-attendance may be relevant in any assessment of whether the tribunal’s refusal to adjourn a hearing was unreasonable. In addition, the tribunal is not required to give reasons for its exercise of the discretion under s 362B: SZJQP v Minister for Immigration and Citizenship (2007) 98 ALD 575; 45 AAR 510; [2007] FCA 1613 at [32] per Gilmour J; SZHSQ v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 159; [2006] FCA 1295 at [60] per Rares J. [362B.120] Does not appear Before the tribunal can proceed to make a decision, the applicant must first not appear on the day on which, or at the time and place at which, the applicant is scheduled to appear for the hearing. In MZXLW v Minister for Immigration and Citizenship [2007] FCA 912, the applicant attended the tribunal and was waiting in the reception area. The applicant required an interpreter, and as one had not yet arrived, he was under the impression that the hearing would not proceed and left the tribunal before the hearing started. The tribunal proceeded to exercise its discretion under s 426A (the equivalent provision to s 362B). Middleton J noted at [12] that whether or not the applicant did appear before the tribunal is a question of fact. The tribunal staff unsuccessfully took steps to locate the applicant after he had left the tribunal and there was no material before the tribunal to explain the applicant’s absence at the scheduled time of the hearing. Middleton J held that there was no error on the tribunal in proceeding as the applicant was not present at the scheduled hearing time: at [20]. 736

Migration Law

[362B.160]

Part 5 – Review of Part 5-reviewable decisions (ss 336M–379G) Division 5 – Part 5-reviewable decisions: conduct of review (ss 357A–367)

s 362B

[362B.140] Returned invitation The tribunal may exercise its power to make a decision under s 362B where it is on notice that an applicant has not received the invitation to the hearing, as long as ss 360 and 360A have been complied with: see, for example, NADK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 184; NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121; VNAA v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 136 FCR 407; [2004] FCAFC 134; NASF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 162; Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC (2006) 150 FCR 439; 231 ALR 630; [2006] FCAFC 73; SZDPB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 110; MZZFI v Minister for Immigration and Border Protection [2013] FCA 1337. In Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC (2006) 150 FCR 439; 231 ALR 630; [2006] FCAFC 73 at [27], the Full Court of the Federal Court held that where the tribunal had sent an applicant a letter inviting him to a hearing in accordance with ss 425 and 425A (the equivalent provisions to ss 360 and 360A) at his address for service, the mere fact that the tribunal received the letter back with a return to sender endorsement did not oblige the tribunal to do anything further to search in its files to see other addresses at which the applicant may be contacted. The Full Court of the Federal Court stated at [38]–[39]: The respondent says the tribunal was on notice that he may not have received the letter because the “Response to Hearing Invitation” form was not returned, because the letter to his residential address was returned unclaimed, and because he did not appear at the hearing. The respondent says that in these circumstances, the tribunal was obliged under s 425 to search both its own and the Department file to attempt to find another method of contacting the respondent. He says that in this case, the tribunal had an obligation to contact the migration agent listed in the respondent’s Department file to find more recent contact details, and possibly also to ring the residential telephone number contained in the respondent’s protection visa application. The submissions of the respondent in this respect are rejected. In view of the decision in VNNA it is clear that ss 425 and 425A of the Migration Act are to be read together. Accordingly, the tribunal, having complied with one of the methods prescribed in s 426A (in fact, two) was under no further obligation to search the papers lodged with it to discover if there might be some other avenue of communicating with the applicant.

[362B.160] Illness and medical certificate The tribunal may, in certain circumstances, proceed to exercise its discretion under s 362B even where an applicant claims to be ill and is unable to attend the hearing, and even provides a medical certificate, as long as the tribunal has exercised its power reasonably. If it does not exercise the power reasonably, it will commit a jurisdictional error: see, for example, SZJQP v Minister for Immigration and Citizenship (2007) 98 ALD 575; 45 AAR 510; [2007] FCA 1613 at [54] per Gilmour J. In Hossain v Minister for Immigration and Multicultural Affairs [2000] FCA 842, the applicant claimed to be ill and that he was not able to attend the tribunal hearing. The applicant provided the tribunal with a medical certificate which stated that the applicant was “unfit for work”, not that he was unfit to attend the tribunal hearing. The tribunal identified that feature and took it up with the applicant, making it clear to him that, subject to the tribunal speaking with the certifying doctor, with his approval, and then telling the applicant that he did not need to attend the hearing, the applicant was to attend the hearing. The applicant’s doctor did not state that the applicant was unable to attend the hearing. Mansfield J found that not only had the tribunal provided the applicant with a genuine opportunity to appear before it, but that the applicant was aware of his obligation to attend and did not. Therefore, the tribunal was entitled to proceed under s 426A (the equivalent provision under Pt 7): at [23] per Mansfield J. © 2016 THOMSON REUTERS

737

s 362B

Migration Act 1958

[362B.180]

In NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121, the applicant requested that the tribunal hearing be adjourned because he was “sick” and had to undergo a hernia operation on a date after the date of the tribunal hearing. The tribunal requested that a medical certificate be provided. Other than documents showing that the applicant was scheduled to have an operation (in a date after the date of the tribunal hearing), the applicant had not provided any further evidence, such as a medical certificate, to support his request for an adjournment or that he was “sick”. The tribunal did not adjourn the hearing and the applicant failed to attend the hearing. The tribunal proceeded under s 426A (the equivalent provision under Pt 7) to make a decision. The Full Court of the Federal Court held that there was no error by the tribunal: at [36]. [362B.180] Fraud by third party Where there has been fraud by a migration agent or third party, resulting in the applicant not attending the hearing, this may affect the validity of a tribunal’s decision to proceed under s 362B. In order to invalidate the tribunal’s decision, an applicant will need to demonstrate that: • the migration agent or third party had engaged in fraudulent conduct (and not merely conduct which is negligent); and • the fraudulent conduct caused the stultification of the operation of the tribunal’s jurisdiction under s 362B: SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; 81 ALJR 1404; [2007] HCA 35. The High Court’s decision in SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; 81 ALJR 1404; [2007] HCA 35 is the key authority on the effect of fraudulent and negligent conduct by a migration agent or third party. In that case, an individual had falsely posed as a solicitor and a migration agent and had advised the applicant for review not to attend the hearing in the Refugee Review Tribunal. Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ held at [48]–[49]: The provisions of Pt 7 obliging the tribunal to invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review (s 425(1)) and empowering the tribunal to make a decision on the review in the absence of an appearance (s 426A) are of central importance for the legislative scheme laid out in Div 4 of Pt 7 (ss 422B-429A) for the conduct of reviews … The fraud of Mr Hussain had the immediate consequence of stultifying the operation of the legislative scheme to afford natural justice to the appellants.

As the third party’s fraud resulted in the stultification of the operation of the natural justice provisions made by Pt 7 Div 4 of the Act (the equivalent to Pt 5 Div 5), the tribunal was “disabled from the due discharge of its imperative statutory functions with respect to the conduct of the review”: at [51] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ. Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ described this as “fraud on the tribunal”: at [51]. The result therefore was that the tribunal’s decision was “no decision at all”: at [52] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ. Importantly, Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ stated at [53]: The significance of the outcome in this appeal should not be misunderstood. The appeal has turned upon the particular importance of the provisions of Div 4 of Pt 7 of the Act for the conduct by the tribunal of review and the place therein of the ss 425 and 426A. In the Full Court French J correctly emphasised that there are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made. The outcome in the present appeal stands apart from the above such considerations. 738

Migration Law

[362B.200]

Part 5 – Review of Part 5-reviewable decisions (ss 336M–379G) Division 5 – Part 5-reviewable decisions: conduct of review (ss 357A–367)

s 362C

[362B.200] Practice point If an application is dismissed pursuant to s 362B(1A)(b), due to an applicant’s failure to appear at a hearing, then the applicant has the option to apply to have his or her application re-instated: s 362B(1B). This application must be made within 14 days of the applicant receiving the notice of the decision under s 362C. The notice under s 362C is to be provided by one of the methods specified in s 379A (see that section for further commentary) and therefore the s 379C governs when the applicant is taken to have received such a notice (see that section for further commentary). If the applicant does not seek reinstatements within the 14 day period, then the tribunal must confirm the decision to dismiss the application by written statement under s 368. 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).

© 2016 THOMSON REUTERS

739

s 362C

Migration Act 1958

[362C.20]

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). [S 362C insrt Act 35 of 2015, s 3 and Sch 4 item 12, with effect from 18 Apr 2015]

SECTION 362C COMMENTARY Scope ................................................................................................................................................. [362C.20] CONCEPTS

Any other material ............................................................................................................................ [362C.40] KEY CASES

The Tribunal is only required to set out its decision, its reasons for the decision, the findings on questions of fact it considers to be material, and the evidence on which those findings of fact are based ......................................................................................................................................... [362C.60] In some circumstances, the absence of a finding on a question of fact in the Tribunal’s written reasons may lead to an inference that the Tribunal did not consider that question of fact to be material – distinction between questions of fact and matters generally ................................................................... [362C.80] No requirement to refer to all the evidence .................................................................................. [362C.100] Findings on evidence and other material under s 362C(2)(c) ...................................................... [362C.120] No requirement to give line-by-line refutation or explain why certain pieces of evidence are implausible ............................................................................................................................. [362C.140] No requirement to record particular findings, in findings and reasons section of a decision ..... [362C.160]

[362C.20] Scope Section 362C was inserted by the Migration Amendment (Protection and Other Measures)Act 2015 (Cth) and commenced on 18 April 2015. According to s 362C, the Tribunal must prepare a written statement of its decision, to dismiss an application for non-appearance, which contains the items specified in s 362C(2)(a) – (d). These provisions are in substantially the same terms as those contained in s 368 of the Act, which relate to the tribunal’s decision on the review application. The purpose of the tribunal preparing the written statement under s 368 is to enable a person affected by the decision to “shape his or her further conduct”, which may include making an application to the courts for judicial review: Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362; 272 ALR 115; [2010] FCAFC 108 at [84] per Rares J. Subject to judicial commentary to the contrary, this would similarly apply to s 362C. In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; 266 ALR 367; [2010] HCA 16 at [31], Gummow ACJ and Kiefel J explained the relevance of written reasons in the context of s 430 of the Act (the equivalent provision in Pt 7 to s 368). Their Honours noted (citations omitted): 740

Migration Law

[362C.60]

Part 5 – Review of Part 5-reviewable decisions (ss 336M–379G) Division 5 – Part 5-reviewable decisions: conduct of review (ss 357A–367)

s 362C

Professor Wade wrote that a system of judicial review which cannot cope with crucial questions of fact necessarily is seriously defective. In Australia that deficiency is alleviated by requirements in various laws … for the obtaining of reasons for the decision. Section 430(1) of the Act is such a provision.

Their Honours went on to observe at [35] that “[o]n the other hand, of provisions such as s 430, it was said in Wu Shan Liang that the reasons are meant to inform and, upon judicial review, are not to be scrutinised in an over-zealous fashion” (footnotes omitted). Accordingly, a breach of s 368(1) is not of itself proof of any jurisdictional error: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; 74 ALJR 405; [2000] HCA 1 at [70] per McHugh J; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; 180 ALR 1; 75 ALJR 1105; [2001] HCA 30; Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362; 272 ALR 115; [2010] FCAFC 108 at [46]–[47] per Kenny J. Nor will a decision by the Tribunal be invalid if there has not been compliance with this section: Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362; 272 ALR 115; [2010] FCAFC 108 at [85] per Rares J. The tribunal must notify an applicant of its non-appearance decision, by notice, given to an applicant within 14 days after the day of the decision and the notice must be sent by one of the methods specified in s 379A (see that section for further commentary).

CONCEPTS [362C.40] Any other material The expression “any other material” in s 362C(2)(c)(ii) is substantially in identical terms to the same expression used in s 368(1)(d), which the courts have found to include personal knowledge and the knowledge that a Tribunal has acquired through exposure to previous claims based on the same subject matter: Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362; 272 ALR 115; [2010] FCAFC 108 at [42] per Kenny J.

KEY CASES [362C.60] The Tribunal is only required to set out its decision, its reasons for the decision, the findings on questions of fact it considers to be material, and the evidence on which those findings of fact are based Under s 362C(2)(c), which uses the same terms as those contained in s 368(1)(c), the Tribunal is required to set out its findings on any material questions of fact. The courts have held that a breach of s 368(1)(c), which is substantially identical to s 368(2)(c), of itself will not amount to a jurisdictional error: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; 180 ALR 1; 75 ALJR 1105; [2001] HCA 30 (Yusuf) at [75] per McHugh, Gummow and Hayne JJ (with whom Gleeson CJ agreed). Section 368(1)(c) has been found not to impose an obligation on the Tribunal to make findings on particular questions of fact that are objectively material: at [5], [9] – [10] per Gleeson CJ, at [68] per McHugh, Gummow and Hayne JJ, at [33]–[34] per Gaudron J and at [217] per Callinan J. In Yusuf , Gleeson CJ, Gaudron, McHugh, Gummow, Hayne, Kirby and Callinan JJ considered s 430(1)(c), the equivalent to s 368(1)(c). Relevantly, Gleeson CJ, Gaudron, McHugh, Gummow, Hayne, Kirby and Callinan JJ considered whether the Refugee Review Tribunal was obliged to make findings on material questions of fact and, if so, whether failure to make such findings was a ground for review by the courts or a ground upon which the court may grant relief. McHugh, Gummow and Hayne JJ (with whom Gleeson CJ agreed) held that the section required the “recording of matters of fact” and that s 430(1)(c) required “the Tribunal to set out the findings of fact which it made”: at [67]. In relation to the issue of whether s 430(1)(c) required © 2016 THOMSON REUTERS

741

s 362C

Migration Act 1958

[362C.80]

the Tribunal to make findings on any and every matter of fact objectively material to the decision, McHugh, Gummow and Hayne JJ (with whom Gleeson CJ agreed) stated at [68]–[69] (emphasis in original): Section 430 does not expressly impose such an obligation. In its terms, it requires no more than that the Tribunal set out the findings which it did make. Neither expressly nor impliedly does this section require the Tribunal to make, and then set out, some findings additional to those which it actually made … [I]t is not right to read “material” as providing an objective or external standard of materiality. A requirement to set out findings and reasons focuses upon the subjective thought processes of the decision-maker. All that s 430(1)(c) obliges the Tribunal to do is set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision. It is not necessary to read s 430 as implying an obligation to make findings in order for it to have sensible work to do. Understanding s 430 as obliging the Tribunal to set out what were its findings on the questions of fact it considered material gives the section important work to do in connection with judicial review of decisions of the Tribunal. It ensures that a person who is dissatisfied with the result at which the Tribunal has arrived can identify the Tribunal’s reasons and the findings it made in reaching that conclusion. The provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material. This may reveal some basis for judicial review by the Federal Court under Pt 8 of the Act, or by this Court in proceedings brought under s 75(v) of the Constitution. For example, it may reveal that the Tribunal made some error of law of the kind mentioned in s 476(1)(e) of the Act, such as incorrectly applying the law to the facts found by the Tribunal. It may reveal jurisdictional error. The Tribunal’s identification of what it considered to be the material questions of fact may demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration.

[362C.80] In some circumstances, the absence of a finding on a question of fact in the Tribunal’s written reasons may lead to an inference that the Tribunal did not consider that question of fact to be material – distinction between questions of fact and matters generally In some circumstances, an inference may be drawn that, where a Tribunal’s written reasons do not contain a finding on a question of fact, the Tribunal did not consider that question of fact to be material: see, for example, Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; 180 ALR 1; 75 ALJR 1105; [2001] HCA 30 (Yusuf) at [69] per McHugh, Gummow and Hayne JJ (with whom Gleeson CJ agreed). However, some care needs to be taken in drawing inferences that “matters”, as opposed to questions of fact, have not been considered due to the absence of a reference to such matters in a Tribunal’s written statement of reasons. In Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; 273 ALR 223; [2011] HCA 1 (SZGUR), French CJ and Kiefel J observed at [31]–[32] (in respect of s 430, which is the equivalent provision to s 368 (which is substantially in identical terms to s 362C(2)(c))): Rares J relied upon a passage from the judgment of McHugh, Gummow and Hayne JJ in Minister for Immigration and Multicultural Affairs v Yusuf in which their Honours said that s 430 “entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material”. That, of course, does not mean that a matter not mentioned in the s 430 statement was not considered. Section 430 presupposes a logical structure to the Tribunal’s reasoning which involves the following steps: 1. 1.Identification of the relevant evidence or material upon which findings of fact can be based. 2. 2.Making findings of fact based on the relevant evidence or material. 3. 3.Reasoning to the decision by application of the relevant legal principles to findings of fact, both primary and inferential. 742

Migration Law

[362C.100]

Part 5 – Review of Part 5-reviewable decisions (ss 336M–379G) Division 5 – Part 5-reviewable decisions: conduct of review (ss 357A–367)

s 362C

Section 430 therefore does not require that the Tribunal make reference, in its reasons, to the disposition of a request from an applicant for a medical examination or for any other investigation. The Tribunal’s consideration of whether or not to exercise its power under s 427(1)(d) in aid of its discretion under s 424(1), whether requested or not, to “get any information that it considers relevant”, is neither evidence nor material nor a fact upon which the Tribunal could base any findings or its ultimate decision. The nature of the Tribunal’s treatment of the agent’s letter of 20 June 2008 in its reasons was consistent with that view of what s 430 requires and the logical structure it presupposes.

Gummow J similarly remarked at [69]–[70]: The question of whether the inference should have been drawn in the present case can only be addressed in the setting provided by the Migration Act, and in particular by reference to the requirement in para (b) of s 430(1) that the Tribunal provide a written statement which sets out the reasons for the decision. Contrary to the reasoning in the Federal Court, para (b) of s 430(1) does not create any requirement that the Tribunal record generally “what it did” in conducting its review, and does not require the Tribunal, in every case, to describe or state the procedural steps taken by it in reviewing the relevant decision. The obligation under s 430(1) focuses upon the thought processes of the Tribunal in reaching its decision on what it considers to be the material questions of fact. The absence of reference in the Tribunal’s reasons to its consideration of the request for a medical examination of the first respondent is to be contrasted with an absence of reference to findings of fact or to evidence and material upon which such findings are based. Section 430(1) deals with the latter in paras (c) and (d); it does not deal with the former. The statute does not require the Tribunal to disclose procedural decisions taken in the course of making its “decision on a review”. There may be situations where a procedural decision forms part of the Tribunal’s “reasons for the decision” under para (b), but that is not so here. An inference that the Tribunal did or omitted to do some act in the course of its review, not being a matter which s 430(1) requires the Tribunal to set out, should not be drawn lightly. Nothing found in the authorities relied upon by Rares J assists in the present case. The statement by McHugh, Gummow and Hayne JJ in Yusuf, given the surrounding context and the authorities collected in the footnote at its conclusion, demonstrates that the reference there was to “matters of fact” or “findings of fact” and not to matters generally, such as the procedures the Tribunal chose to adopt in fulfilling its duty to review the delegate’s decision.

In Minister for Immigration and Citizenship v MZYZA [2013] FCA 572 at [31]–[32], Tracey J synthesised the above principles as follows: The Tribunal was required, by s 430 of the Act, to provide reasons for its decision … In [Yusuf] … McHugh, Gummow and Hayne JJ held that s 430(1) required the Tribunal to “set out its findings on those questions of fact which it considered to be material to the decision which is made and to the reasons it had for reaching that decision.” (Emphasis in original). Their Honours held that if, in its reasons, the Tribunal fails to refer to particular material, a reviewing Court may infer that that “matter … was not considered by the Tribunal to be material.” That does not mean, as French CJ and Kiefel J pointed out in [SZGUR] … that, simply because a matter is not mentioned in the reasons, it was not considered. The “matters” referred to by McHugh, Gummow and Hayne JJ in Yusuf were “matters of fact” or “findings of fact” made or not made by the Tribunal and not “matters generally”.

[362C.100] No requirement to refer to all the evidence In relation to the evidence relied upon to be included in the written reasons, s 368 is in substantially identical terms to s 362C. In Kocakaya v Minister for Immigration and Citizenship [2013] FCA 55, the appellant reiterated his contention, made at first instance, that s 368 of the Act requires the Tribunal to set out in its written statement all of the evidence that was before it. In the appellant’s contention, this required, for instance, that the Tribunal recite verbatim the contents of every piece of evidence that was before the Tribunal. Dodds-Streeton J agreed with the judgment of the Federal Magistrate and rejected the appellant’s argument. Her Honour held at [31] that the Tribunal was only required to record its findings on material questions of fact. It was not required to provide a line-by-line refutation of the appellant’s claims. © 2016 THOMSON REUTERS

743

s 362C

Migration Act 1958

[362C.120]

[362C.120] Findings on evidence and other material under s 362C(2)(c) Section 368(1)(d) of the Act is substantially in identical terms to s 362C(1)(c). These sections require the Tribunal to refer to the evidence or any other material on which the findings of fact were based. Courts have held that a breach of s 368(1)(d) of itself will not amount to a jurisdictional error: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; 74 ALJR 405; [2000] HCA 1 at [70] per McHugh J. In Minister for Immigration and Multicultural Affairs v Li Yue (2000) 176 ALR 66; [2000] FCA 856, the Full Court of the Federal Court considered s 430(1)(d) (the equivalent to s 368(1)(d) (which is in substantially identical terms to s 362C(2)(c))). Hill, Matthews and Lindgren JJ noted at [44]: With respect, we think that the learned primary judge erred in thinking that s 430(1)(d) required that the evidence or other material on which a finding of fact is based be capable of supporting it. In our view, all that is required by s 430(1)(d) is that the RRT identify the evidence or other material on which it, the RRT, in fact based its findings on any material questions of fact.

[362C.140] No requirement to give line-by-line refutation or explain why certain pieces of evidence are implausible Section 362C(2) and s 368(1) are substantially in identical terms. The courts have found that insofar as s 368(1) requires a Tribunal to record its reasons for the decision, that obligation does not extend to explaining why it considered certain pieces of evidence to be implausible, or to give a line-by-line refutation of the evidence. In Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; 74 ALJR 405; [2000] HCA 1, McHugh J considered s 430(1), the equivalent to s 368(1) (which is substantially in identical terms to s 362C). The review applicant claimed that the Refugee Review Tribunal erred by failing to set out findings on material questions of fact, as required by s 430(1)(c). McHugh J stated at [64]–[65]: In Addo, the Court said: Section 430(1) does not impose an obligation to do anything more than to refer to the evidence on which the findings of fact are based. Section 430 does not require a decision-maker to give reasons for rejecting evidence inconsistent with the findings made. Accordingly, there was no failure to comply with s 430(1) of the Act. ... It is not necessary, in order to comply with s 430(1), for the Tribunal to give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine any finding which it made. In my opinion, this passage correctly sets out the effect of s 430(1)(c) and (d). However, the obligation to set out “the reasons for the decision” (s 430(1)(b)) will often require the Tribunal to state whether it has rejected or failed to accept evidence going to a material issue in the proceedings. Whenever rejection of evidence is one of the reasons for the decision, the Tribunal must set that out as one of its reasons. But that said, it is not necessary for the Tribunal to give a line-by-line refutation of the evidence for the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the Tribunal. Indeed, to do so would be contrary to the direction in s 420 of the Act.

His Honour continued at [67]: The Tribunal must give reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word “implausible”. The disbelief arose from the Tribunal’s view that it was inherently unlikely that the events had occurred as alleged. 744

Migration Law

[362C.160]

Part 5 – Review of Part 5-reviewable decisions (ss 336M–379G) Division 5 – Part 5-reviewable decisions: conduct of review (ss 357A–367)

s 363

[362C.160] No requirement to record particular findings, in findings and reasons section of a decision In MZYZA v Minister for Immigration and Citizenship [2013] FMCA 15, the Federal Magistrates Court considered a decision of the Refugee Review Tribunal where the Tribunal had referred to, and discussed, a piece of evidence in its written record, albeit not under the heading “findings and reasons”. Although the applicant (who was self-represented at first instance) did not raise it as an issue before the court, Riley FM discerned error in the Tribunal’s decision on the basis that the Tribunal did not refer to the piece of evidence under the heading, “findings and reasons”. Her Honour found at [19] that, “[i]n the circumstances of this case, and in the absence of any mention of the letter in the ‘Findings and Reasons’ section of the Tribunal’s reasons, I am not persuaded that the Tribunal did consider the letter while actually weighing up the evidence and making its decision”. On appeal, Tracey J in Minister for Immigration and Citizenship v MZYZA [2013] FCA 572 overturned the judgment of Riley FM. His Honour stated at [47]: In my view the first respondent, in the present matter, has failed to establish that it would be appropriate to draw the inference that the Tribunal did not consider the letter. On the contrary, the Tribunal’s reasons make it tolerably clear that it did so. The Tribunal referred to the fact that the letter had been sent and received. The Tribunal member must have read it because he questioned the first respondent about its contents. There could be a number of reasons why the member did not thereafter again refer to the letter. One of these may have been that he did not consider it necessary to do so having regard to authorities such as Addo, Iyer and SZDXZ. Whatever the reason, it cannot be inferred that the contents of the letter had not been considered.

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. [Subs (1) am Act 60 of 2015, s 3 and Sch 2 item 49, with effect from 1 Jul 2015]

(2) The Tribunal may combine the reviews of 2 or more Part 5-reviewable decisions made in respect of the same person. [Subs (2) am Act 60 of 2015, s 3 and Sch 2 item 50, with effect from 1 Jul 2015]

(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. [Subs (3) am Act 60 of 2015, s 3 and Sch 2 items 51 and 52, with effect from 1 Jul 2015]

(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. [Subs (4) am Act 60 of 2015, s 3 and Sch 2 item 53, with effect from 1 Jul 2015]

© 2016 THOMSON REUTERS

745

s 363

Migration Act 1958

[363.20]

(5) [Repealed] [Subs (5) rep Act 60 of 2015, s 3 and Sch 2 item 54, with effect from 1 Jul 2015]

(6) [Repealed] [Subs (6) rep Act 110 of 1995, s 3 and Sch 1 item 24, with effect from 29 Sep 1995]

(7) [Repealed] [Subs (7) rep Act 110 of 1995, s 3 and Sch 1 item 24, with effect from 29 Sep 1995] [S 363 am Act 60 of 2015; Act 110 of 1995; former s 132 renum Act 60 of 1994, s 83, with effect from 1 Sep 1994; former s 64P Act 59 of 1989, s 35; insrt Act 59 of 1989, s 26]

SECTION 363 COMMENTARY Scope ................................................................................................................................................... [363.20] CONCEPTS

Adjourn the review from time to time ............................................................................................... [363.40] The making of investigations ............................................................................................................. [363.60] KEY CASES

The tribunal must not unreasonably refuse to adjourn the review ................................................... [363.80]

[363.20] Scope This section sets out the powers that the tribunal may exercise, at its discretion, in conducting the review. As an inquisitorial body, the tribunal cannot ordinarily be compelled to exercise a discretionary power. Rather, it is required only to be “fair” in the exercise of such powers: Re Minister for Immigration and Multicultural Affairs; Ex parte S154/2002 (2003) 201 ALR 437; 77 ALJR 1909; [2003] HCA 60 at [57] per Gleeson CJ; Hong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 1308 at [40] per Finn J. However, as the decision in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; 297 ALR 225; 87 ALJR 618; [2013] HCA 18 demonstrates, an unreasonable refusal to exercise a power may constitute jurisdictional error.

CONCEPTS [363.40] Adjourn the review from time to time In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; 297 ALR 225; 87 ALJR 618; [2013] HCA 18 (Li), Hayne, Kiefel and Bell JJ stated that Parliament intended that s 363(1)(b) of the Act will be exercised “reasonably”. Hayne, Kiefel and Bell JJ observed at [76] that “unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification”. Although the decision in Li was concerned with s 363(1)(b), the principles in that case are likely to apply to the other subsections of s 363(1), although this issue is yet to be judicially settled. [363.60] The making of investigations In Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; 273 ALR 223; [2011] HCA 1, the High Court considered the equivalent provision to s 363(1)(d). Relevantly, at [22] French CJ and Kiefel J endorsed the ratio of the Full Court of the Federal Court in WAGJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 277 that the provision does not impose any duty on the tribunal to exercise its inquisitorial power by causing an investigation to be undertaken. 746

Migration Law

[363.80]

Part 5 – Review of Part 5-reviewable decisions (ss 336M–379G) Division 5 – Part 5-reviewable decisions: conduct of review (ss 357A–367)

s 363A

Similarly, in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; 83 ALJR 1123; [2009] HCA 39, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ held that there is no general duty imposed on the tribunal to make inquiries. Rather, the duty imposed on the tribunal is a duty to review: at [25]. A tribunal may, in some circumstances, fail to discharge its duty to review if it fails to “make an obvious inquiry about a critical fact, the existence of which is easily ascertained. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction”: at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. However, a tribunal simply not exercising the discretionary power under this section will not of itself amount to a jurisdictional error.

KEY CASES [363.80] The Tribunal must not unreasonably refuse to adjourn the review In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; 297 ALR 225; 87 ALJR 618; [2013] HCA 18, the visa applicant satisfied the fundamental preconditions for the grant of the visa. However, the visa had not been granted by the time of the tribunal hearing. The substance of the matter was that, unless an adjournment was granted, Ms Li would not obtain her visa, even though she had satisfied all the relevant requirements for the grant of the visa for which she had applied. In particular, what was in issue was a request by the visa applicant that the tribunal defer its decision pending completion of an internal review of a third party, the outcome of which would most likely have led to Ms Li being granted the visa for which she had applied. French CJ, Hayne, Kiefel, Bell and Gageler JJ discussed general principles regarding what is reasonable in circumstances where an applicant seeks an adjournment. The ratio of the case emerges from the joint judgment of Hayne, Kiefel and Bell JJ, who held that Parliament intended that s 363(1)(b) of the Act would be exercised “reasonably”: at [63]. Thus, the exercise of the power is to be “legal and regular, not arbitrary, vague and fanciful”; the power must be “exercised within the limit, to which an honest man competent to the discharge of his office ought to confine himself”: at [65]. Hayne, Kiefel and Bell JJ observed at [75] that “what must be evident is that some error has been made in exercising the discretion, such as where a judge acts on a wrong principle or takes irrelevant matters into account”.

Relevantly, Hayne, Kiefel and Bell JJ made the point at [76] that “unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification”. However, Hayne, Kiefel and Bell JJ were careful to confirm that there is an area of “free discretion”, which “resides within the boundaries of legal reasonableness”: at [66]. In this regard, Hayne, Kiefel and Bell JJ stated at [82]: It cannot be suggested that the tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case and to improve upon the evidence. Of course it may decide, in an appropriate case, that “enough is enough”.

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. [S 363A insrt Act 110 of 1995, s 3 and Sch 1 item 25, with effect from 29 Sep 1995]

© 2016 THOMSON REUTERS

747

s 363A

Migration Act 1958

[363A.20]

SECTION 363A COMMENTARY Scope ................................................................................................................................................. [363A.20] KEY CASES

Failure to respond to an invitation under s 359 or a s 359A letter ............................................... [363A.40]

[363A.20] Scope The tribunal is established by the Act and is a statutory body; therefore, its jurisdiction and powers are set out in the Act and Regulations. Under s 363A, the tribunal does not have the power (unless a provision expressly provides otherwise) to permit a person to: • do a thing which the Act specifically states that the person is not entitled to do; or • be assisted or represented by another person, if a provision states that the person is not to be assisted or represented. An example is s 360(3), which states that if any of the circumstances in s 360(2) apply, an applicant is not entitled to appear before the tribunal. Therefore, due to this section, the tribunal does not have the power to invite an applicant to a hearing if the circumstances in s 360(2) apply. There is no equivalent provision to s 363A relation to Part 7-reviewable decisions.

KEY CASES [363A.40] Failure to respond to an invitation under s 359 or a s 359A letter If an applicant is invited under s 359(2) to give information, but fails to do so, he or she may lose the right to attend a hearing before the tribunal and the tribunal may be precluded from scheduling any such hearing. In Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413; [2010] FCAFC 40, the review applicant had been invited by the tribunal, under s 359A(1) of the Act (compare s 359(2)), to provide written comments by a certain date. The applicant was warned that, if he failed to do so, the tribunal may make a decision on the review without taking any further action to obtain his response, and that the applicant would lose any entitlement he may have had under the Act to an oral hearing. The applicant subsequently failed to respond to the letter, and the tribunal made a decision without inviting the applicant to attend a hearing. Among other things, the Full Court of the Federal Court considered the interaction between ss 359A, 359C, 360 and 363A, and the decisions of Minister for Immigration and Multicultural and Indigenous Affairs v Sun (2005) 146 FCR 498; [2005] FCAFC 201 and M v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 333; 91 ALD 629; [2006] FCA 1247. The Full Court of the Federal Court observed at [25]–[31]: In our view, the proper construction and application of s 363A of the Act and the related provisions of Part 5 were correctly stated by the Full Court in Sun and explained by Tracey J in M. As Tracey J observed in M at [46], the language of s 363A is clear. It operates so as to remove any discretion which the tribunal may have had to allow a person to do something where a provision of Part 5 states that the person is not entitled to do it. Here, the appellant’s failure to respond to the tribunal’s letter under s 359A had the effect of attracting the cascading operation of ss 359C(2), 360(2)(c) and, critically, s 360(3) which enlivened the application of s 363A. This was because the appellant was invited by the tribunal’s letter under s 359A to comment or respond to the information stated in the tribunal’s letter by 3 August 2009. He did not do so, and accordingly he was a person to whom s 359C(2) applied. The operation of s 360(3) was thereby attracted. The effect of that subsection in the circumstances of this case was that the appellant was not entitled to appear before the tribunal. 748

Migration Law

[364.20]

Part 5 – Review of Part 5-reviewable decisions (ss 336M–379G) Division 5 – Part 5-reviewable decisions: conduct of review (ss 357A–367)

s 364

The operation of s 360(3) then attracted the express terms of s 363A, the effect of which was to provide that the tribunal did not have the power to permit the appellant to appear at an oral hearing. As Tracey J said in M at [46], this approach to construction is consistent with the views of the Full Court in Sun, as well as the Explanatory Memorandum which accompanied the Migration Legislation Amendment Bill (No 5) 1994 (Cth). The contrary view expressed by a Full Court in Uddin v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 218; (2005) 149 FCR 1 (“Uddin”) is explained by the fact that the Full Court in Uddin was not referred to s 363A of the Act and by the fact that the case was not decided on a basis which involved any consideration of s 363A. Moreover, the obiter comments in Uddin were published after the decision in Sun was handed down and there was no reference in Uddin to the contrary views stated in Sun. The explanation for this appears to be that the decision in Uddin was reserved shortly before the Full Court decision in Sun was handed down.

Although the above case was concerned with the failure to respond to a s 359A(1) letter, the principles are equally applicable to a situation in which an applicant fails to respond to an invitation under s 359(2): see ss 360(2)(c); 359C(1). Therefore, as s 360(3) specifically states that the applicant was not entitled to appear before the tribunal if s 359C(1) or (2) applied, due to s 363A, the tribunal did not have the power to invite the applicant to a hearing. 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. [S 364 subst Act 60 of 2015, s 3 and Sch 2 item 55, with effect from 1 Jul 2015; am Act 146 of 1999; former s 133 renum Act 60 of 1994, s 83, with effect from 1 Sep 1994; former s 64Q Act 59 of 1989, s 35; insrt Act 59 of 1989, s 26]

SECTION 364 COMMENTARY [364.20] Scope Section 364 was repealed and substituted on 1 July 2015 by item 55 of Sch 2 to the Tribunal’s Amalgamation ActTribunals Amalgamation Act 2015 (Cth). The new section is similar to the old s 364, but was replaced with “provisions worded in a way that is better aligned with the

© 2016 THOMSON REUTERS

749

s 365

Migration Act 1958

[365.20]

equivalent provisions” in ss 40(3) to 40(5) of the Administrative Appeals Tribunal Act 1975 (Cth): Revised Explanatory Memorandum to the Tribunals Amalgamation Bill 2014 (Cth) at [812]. The replaced section continues to provide that a person, other than the tribunal member, may take evidence for the purposes of conducting a review. In SZHKA v Minister for Immigration and Citizenship (2008) 172 FCR 1; 249 ALR 58; [2008] FCAFC 138 at [21], Gray J observed (in relation to the equivalent provision, pertaining to a Part 7-reviewable decision) that s 364 represents a scheme designed to enable the tribunal to take evidence by another person in circumstances in which it is difficult for the tribunal member dealing with the review to obtain evidence directly from the applicant. Relevantly, s 364(3)(d) only partially absolves the tribunal from compliance with s 360(1) – the provision excuses the tribunal from inviting an applicant to give evidence, but does not excuse the tribunal from inviting the applicant to present arguments about the issues arising in the case: SZHKA v Minister for Immigration and Citizenship (2008) 172 FCR 1; 249 ALR 58; [2008] FCAFC 138 at [21] per Gray J, where his Honour considered the equivalent to s 364(5) which prior to 1 July 2015 was in the same terms as s 364(3)(d). 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. [Subs (1) subst Act 113 of 1998, s 3 and Sch 1 item 29, with effect from 1 Jun 1999]

(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. [S 365 am Act 113 of 1998; former s 134 renum Act 60 of 1994, s 83, with effect from 1 Sep 1994; am Act 60 of 1994; former s 64R renum Act 59 of 1989, s 35; insrt Act 59 of 1989, s 26]

SECTION 365 COMMENTARY Scope ................................................................................................................................................... [365.20] CONCEPTS

In public ............................................................................................................................................... [365.40] KEY CASES

In public ............................................................................................................................................... [365.60]

[365.20] Scope Pursuant to s 365, any evidence that the tribunal takes from a person appearing before it must be done in public. The tribunal may direct that the oral evidence be taken in private, only if it is satisfied that it is in the public interest to do so, or if it is impractical to take evidence in public: s 365(2) and (3). A tribunal will not breach its obligation under s 360 if it has several matters listed on the same day in the same hearing room, and other applicants are present while another applicant is giving 750

Migration Law

[365.60]

Part 5 – Review of Part 5-reviewable decisions (ss 336M–379G) Division 5 – Part 5-reviewable decisions: conduct of review (ss 357A–367)

s 365

evidence: Kumar v Minister for Immigration and Border Protection [2013] FCCA 1860 at [33]–[34] per Whelan J; Uddin v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCCA 906 at [13]–[14] per Driver J.

CONCEPTS [365.40] In public In determining whether a hearing is conducted in public, the test to be applied is that stated by Gleeson CJ, Gummow, Hayne, Callinan and Crennan JJ in SZAYW v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 230 CLR 486; 229 ALR 423; [2006] HCA 49 at [23] that a proceeding should be open to the public so that “members of the public who wished to be present may attend and observe and see what is going on”.

KEY CASES [365.60] In public In the Herald and Weekly Times v Magistrates’ Court [1999] 3 VR 231; [1999] VSC 136 at [43], Mandie J held that “a proceeding is conducted in open court if the public has a right of admission to that court which is reasonably and conveniently exercisable”. In that case, his Honour was considering whether a committal proceeding should be conducted in open court if a member of the public or media were denied access to any documents in the hand-up brief. In Zeng v Minister for Immigration and Citizenship [2007] FMCA 169, Riley FM considered this case and accepted at [111] that “a hearing is conducted in public if members of the public have a right of admission to the hearing which is ‘reasonably and conveniently exercisable’”.

Instant and immediate access to a hearing room is not a necessary feature of the hearing being held in public: Pelling v Bow County Court [2001] EWCA Civ 122 at [52] per Buxton LJ. The issue is whether members of the public have been sufficiently inhibited from attending and observing the proceedings: Zeng v Minister for Immigration and Citizenship [2007] FMCA 169 at [114] per Riley FM; Pelling v Bow County Court [2001] EWCA Civ 122. In Zeng v Minister for Immigration and Citizenship [2007] FMCA 169, the tribunal door was locked during the hearing so that members of the public were unable to open the door and enter; however, those inside the hearing room could open the door. Therefore, anyone wanting to enter the room had to knock. The tribunal had several attempts at keeping the door open by trying to prop it open with a chair and by placing tape over the locking mechanism. Nevertheless, there was no evidence that any member of the public tried to enter the hearing room or wanted to be present during the hearing. Riley FM found at [115] that the: inconvenience of knocking on the hearing room door, or moving the door handle, or asking a tribunal officer for entry was so great to render the public’s right to attend and observe the tribunal hearing anything other than “reasonably and conveniently exercisable”.

Therefore, her Honour held that the hearing was conducted in public: at [115]. Where a tribunal has failed to conduct a hearing in public and an applicant fails to object to the hearing not being conducted in public, either at the hearing or, at the very latest, before the tribunal hands down its decision, this will amount to a waiver by the applicant of any rights he or she may have had as a result of the hearing not being in public: Zeng v Minister for Immigration and Citizenship [2007] FMCA 169 at [118]–[119] per Riley FM.

© 2016 THOMSON REUTERS

751

s 366

Migration Act 1958

[366.20]

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. [Subs (1) am Act 113 of 1998, s 3 and Sch 1 item 30, with effect from 1 Jun 1999]

(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. [S 366 am Act 113 of 1998; former s 134A renum Act 60 of 1994, s 83, with effect from 1 Sep 1994; insrt Act 60 of 1994, s 79, with effect from 1 Sep 1994]

SECTION 366 COMMENTARY [366.20] Scope Section 366 provides the tribunal with a discretionary power to allow an applicant to appear before it by telephone, closed circuit television, or any other means of communication: s 366(1). This section does not limit an applicant’s right to appear in person under s 360 to just a right to appear by telephone, video-link and nothing more: Korovata v Minister for Immigration and Multicultural Affairs [2001] FCA 1446 at [24]–[25] per Emmett J. The power under s 366(1) is discretionary and permits an applicant to appear by telephone or another means of communication if the applicant wishes to do so: Korovata v Minister for Immigration and Multicultural Affairs [2001] FCA 1446 at [25] per Emmett J; Singh v Minister for Immigration and Citizenship (2012) 266 FLR 85; [2012] FMCA 634 at [22]–[23] per Raphael FM; SZOQA v Minister for Immigration and Citizenship [2011] FMCA 213 at [55] per Barnes FM (upheld on appeal in SZOQA v Minister for Immigration and Citizenship [2001] FCA 907). Where the means for communication is less than perfect, such as the video-link, this of itself will not result in a jurisdictional error if it did not interfere with the applicant’s right to a proper hearing: MZYKV v Minister for Immigration and Citizenship [2012] FMCA 326 at [26] per Riethmuller FM (upheld on appeal in MZYKV v Minister for Immigration and Citizenship [2012] FCA 947). If a tribunal decides to exercise this power in relation to a review which is to be held in public, the tribunal must take such steps as are reasonably necessary to ensure the public nature of the review. 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.

752

Migration Law

[366A.40]

Part 5 – Review of Part 5-reviewable decisions (ss 336M–379G) Division 5 – Part 5-reviewable decisions: conduct of review (ss 357A–367)

s 366C

(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. [S 366A insrt Act 110 of 1995, s 3 and Sch 1 item 26, with effect from 29 Sep 1995]

SECTION 366A COMMENTARY Scope ................................................................................................................................................. [366A.20] KEY CASES

A representative’s understanding of matters does not equate to the applicant’s understanding .... [366A.40]

[366A.20] Scope Section 366A provides for an applicant to be assisted by another person when appearing before the tribunal. However, the tribunal retains a discretion as to whether a review applicant may be assisted, and the extent of any such assistance. Notably, as s 366A(4) makes clear, the statutory restriction on representation applies only to hearings before the tribunal.

KEY CASES [366A.40] A representative’s understanding of matters does not equate to the applicant’s understanding In NAQF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 130 FCR 456; [2003] FCA 781 at [37], Lindgren J observed: Section 366A does not have the effect that any understanding which an assistance may derive from things said by the MRT Member, is deemed, for the purposes of natural justice requirements, to be the understanding of the applicant. But the circumstances of a particular hearing may be such that the inducing of a certain state of mind in an assistant by the Member may be relevant to the question of a failure to observe general law requirements of procedural fairness.

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. [S 366B insrt Act 110 of 1995, s 3 and Sch 1 item 26, with effect from 29 Sep 1995]

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.

© 2016 THOMSON REUTERS

753

s 366C

Migration Act 1958

[366C.20]

(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). [S 366C insrt Act 110 of 1995, s 3 and Sch 1 item 26, with effect from 29 Sep 1995]

SECTION 366C COMMENTARY Scope ................................................................................................................................................. [366C.20] CONCEPTS

Sufficiently proficient in English ..................................................................................................... [366C.40] KEY CASES

Sufficiently proficient in English ..................................................................................................... [366C.60] Quality of interpreting and jurisdictional error ............................................................................... [366C.80]

[366C.20] Scope An applicant appearing before the tribunal may request an interpreter: s 366C(1). The tribunal must comply with this request unless it considers that the applicant is sufficiently proficient in English: s 366C(2). If a tribunal considers that an applicant appearing before it is not sufficiently proficient in English, the tribunal must appoint an interpreter: s 366C(3). In certain circumstances, the tribunal may appoint a person to act as interpreter even if that person is to give evidence: Ahmed v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 156; [2001] FCA 1101 at [18] per Hill J. The intention of s 366C is to ensure that a person appearing before the tribunal is not disadvantaged due to insufficient proficiency in English: Pannu v Minister for Immigration and Multicultural Affairs [2006] FMCA 883 at [19] per Emmett FM. In addition, there is no requirement in the Act or Regulations that the interpreter has any particular qualifications: Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6; 56 ALD 231; [1999] FCA 507 at [31] per Kenny J; Long v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 183; [2000] FCA 1172 at [51] per Mansfield J.

CONCEPTS [366C.40] Sufficiently proficient in English Pursuant to s 366C(2), where an applicant requests an interpreter, the tribunal must comply with that request, unless the tribunal considers the applicant is sufficiently proficient in English. Whether or not an applicant is sufficiently proficient will be determined on a case-by-case basis.

KEY CASES [366C.60] Sufficiently proficient in English Whether an applicant is “sufficiently proficient in English” is to be determined on a case-by-case basis. In Pannu v Minister for Immigration and Multicultural Affairs [2006] FMCA 883, the applicant had requested in writing a Punjabi interpreter. However, there was no interpreter during the hearing; nor did the applicant make any further requests for one. The applicant did not claim to have been disadvantaged by the absence of the interpreter, nor did she make any complaint during the tribunal hearing about this. Emmett FM considered the transcript of the tribunal hearing and found at [20] that it did not “disclose any, or any meaningful, difficulty on the part of the applicant in understanding the tribunal’s questions 754

Migration Law

[366C.80]

Part 5 – Review of Part 5-reviewable decisions (ss 336M–379G) Division 5 – Part 5-reviewable decisions: conduct of review (ss 357A–367)

s 366C

or an inability, or meaningful inability, to fail to respond appropriately”.

Emmett FM was satisfied that the applicant was sufficiently proficient in English, such that an interpreter was not required for the purposes of communication with the tribunal: at [21]. The decision of Emmett FM was upheld on appeal: Pannu v Minister for Immigration and Citizenship [2007] FCA 152 per Nicholson J. In Shrestha v Minister for Immigration and Citizenship [2013] FMCA 32, the applicant stated that she required an interpreter in the response to a hearing invitation; however, she did not identify the language to be interpreted. At the tribunal hearing, no interpreter was provided and neither the applicant nor her representative objected to this. In the decision, the tribunal did not make any reference to s 366C. In the Federal Magistrates Court the applicant deposed that she did not understand various aspects of the tribunal proceeding. Burchardt FM found that the tribunal had failed to consider whether the applicant had sufficiently proficient English and therefore had contravened the “imperative obligation contained in s 366C”: at [36]. [366C.80] Quality of interpreting and jurisdictional error A failure by the tribunal to comply with s 366C would found a ground of judicial review, along with any significant and material mistranslation: Ahmed v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 156; [2001] FCA 1101 at [18] per Hill J; SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294; 215 ALR 162; [2005] HCA 24. However, without anything further, the refusal of an interpreter is not necessarily a breach of s 366C: Uranek v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 37 at [19] per Finn, Dowsett and Jacobson JJ. An applicant claiming that there has been a jurisdictional error due to inadequate interpretation must establish that: • the standard of interpretation at the tribunal hearing was so inadequate that the appellant was effectively prevented from giving evidence at the tribunal; or • errors made by the interpreter at the tribunal hearing were material to the conclusions of the tribunal adverse to the appellant: Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230 at [17] and [22] per Mansfield and Selway JJ; Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6; 56 ALD 231; [1999] FCA 507 at [38]–[46]. In Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6; 56 ALD 231; [1999] FCA 507, Kenny J considered ss 427(7) and 425, which are similar provisions to ss 366C and 360. In that matter, the applicant had been provided with an interpreter and the issue was the adequacy of the interpretation. After a detailed analysis of the transcript of the tribunal hearing, Kenny J set aside the tribunal’s decision because the quality of the interpretation was so poor that the tribunal did not provide the applicant with an effective opportunity to give evidence: at [23]. Kenny J expressed at [29] the standard of interpretation required for a tribunal hearing as follows: Whilst the interpretation at a tribunal hearing need not be at the very highest standard of a first-flight interpreter, the interpretation must, nonetheless, express in one language, as accurately as that language and the circumstances permit, the idea or concept as it has been expressed in the other language.

Kenny J emphasised that the requirements of accuracy and completeness of interpretation, as well as the competency of the interpreter, may be factors in assessing this: at [29] and [31]. Her Honour expressed the departure from the required standard in the following terms at [42]: Whilst it is possible to divine the general thrust of the applicant’s case from the transcript as a whole, his evidence, as given through the interpreter and transcribed, was, as we have seen, repeatedly unresponsive to the questions asked by the tribunal. It was at times incoherent and inexplicably © 2016 THOMSON REUTERS

755

s 366D

Migration Act 1958

[366D.20]

inconsistent with other evidence given. There are a number of exchanges between the interpreter and the tribunal which evidence confusion on the interpreter’s part as to the subject and direction of the tribunal’s inquiry; and it would seem that from time to time difficulties in communication actually led the tribunal to abandon avenues of relevant inquiry. Speaking more generally, it is difficult to believe that the interpretation given is adequately expressive of Mr Perera’s unchallenged account.

Kenny J also held at [45] that, in order to constitute vitiating error, the departure from the standard of adequate interpretation must “relate to a matter of significance for the applicant’s claim or the tribunal’s decision”. In deciding whether that had occurred, Kenny J considered at [41]: the responsiveness of the interpreted answers to the questions asked, the coherence of those answers, the consistency of one answer with another and the rest of the case sought to be made and, more generally, any evident confusion in exchanges between the tribunal and the interpreter.

Her Honour held that in this matter the departure from the standard of interpretation related to matters which were significant to the applicant’s case and the tribunal’s decision: at [46]. 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. [S 366D insrt Act 110 of 1995, s 3 and Sch 1 item 26, with effect from 29 Sep 1995]

SECTION 366D COMMENTARY Scope ................................................................................................................................................. [366D.20] KEY CASES

Procedural fairness ........................................................................................................................... [366D.40]

[366D.20] Scope Section 366D provides that an applicant is not entitled to examine or cross-examine any person appearing before the tribunal to give evidence. An applicant’s right to appear before the tribunal pursuant to an invitation given under s 360(1) does not carry with it the equivalent procedural rights that a party acquires as part of its right to appear before a court: Algama v Minister for Immigration and Multicultural Affairs (2001) 115 FCR 253; 194 ALR 37; [2001] FCA 1884 at [64] per Whitlam, Katz and French JJ; WABZ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 134 FCR 271; 204 ALR 687; [2004] FCAFC 30 at [64] per French and Lee JJ.

KEY CASES [366D.40] Procedural fairness In Dunn v Minister for Immigration and Citizenship [2007] FMCA 1349, an applicant claimed that he had been denied procedural fairness because he had been denied the opportunity to cross-examine the Customs officer who processed his entry and who had been interviewed by the tribunal. Riley FM considered s 366D and held at [31] that: it is clear from that provision that the applicant had no right to cross examine the Customs officer. The Parliament is entitled to remove common law rights by clear words. If there had been any common law right to cross-examine the Customs officer in the circumstances of this case, the Parliament has removed that right with the clear words of s 366D of the Act. Accordingly, the fact that the applicant was not given an opportunity to cross examine the Customs officer is not a jurisdictional error.

756

Migration Law

[367.20]

Part 5 – Review of Part 5-reviewable decisions (ss 336M–379G) Division 6 – Part 5-reviewable decisions: Tribunal decisions (ss 368–368D)

s 368

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. [Subs (1) am Act 60 of 2015, s 3 and Sch 2 item 57, with effect from 1 Jul 2015; Act 113 of 1998, s 3 and Sch 1 item 31, with effect from 1 Jun 1999]

(2) The Tribunal may, with the agreement of the applicant, extend the period in subsection (1) for the purposes of a particular application. [S 367 am Act 60 of 2015, s 3 and Sch 2 item 56, with effect from 1 Jul 2015; Act 113 of 1998; former s 134B renum Act 60 of 1994, s 83, with effect from 1 Sep 1994; insrt Act 60 of 1994, s 79, with effect from 1 Sep 1994]

SECTION 367 COMMENTARY [367.20] Scope The tribunal must notify an applicant of its decision regarding s 338(4) – that is, a decision regarding whether or not to refuse a bridging visa or whether or not to cancel a bridging visa to a person in immigration detention – within the prescribed period. Pursuant to reg 4.27 the prescribed period starts when the application for review is received by the tribunal and ends at the end of seven working days after the day on which the application is received. This period may be extended if the applicant agrees to an extension. DIVISION 6 – PART 5-REVIEWABLE DECISIONS: TRIBUNAL DECISIONS (SS 368–368D) [Div 6 heading subst Act 60 of 2015, s 3 and Sch 2 item 58, with effect from 1 Jul 2015] [Former Div 5 renum Act 60 of 1994, s 83, with effect from 1 Sep 1994]

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. [Subs (1) am Act 35 of 2015, s 3 and Sch 4 items 13–15, with effect from 18 Apr 2015; Act 30 of 2014, s 3 and Sch 1 items 13–16; Act 113 of 1998, s 3 and Sch 1 item 32, with effect from 1 Jun 1999; Act 110 of 1995, s 3 and Sch 1 item 27, with effect from 29 Sep 1995]

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:

© 2016 THOMSON REUTERS

757

s 368

Migration Act 1958

[367.20]

(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. [Subs (2) subst Act 30 of 2014, s 3 and Sch 1 item 17; reinsrt Act 85 of 2008, s 3 and Sch 1 item 6; rep Act 113 of 1998, s 3 and Sch 1 item 33, with effect from 1 Jun 1999]

(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. [Subs (2A) insrt Act 30 of 2014, s 3 and Sch 1 item 17]

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. [Subs (3) am Act 30 of 2014, s 3 and Sch 1 items 17 and 18]

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). [Subs (4) am Act 35 of 2015, s 3 and Sch 4 item 16, with effect from 18 Apr 2015; insrt Act 30 of 2014, s 3 and Sch 1 item 19] [S 368 am Act 35 of 2015; Act 30 of 2014, s 3 and Sch 1 item 12; Act 85 of 2008; Act 113 of 1998, s 3 and Sch 1 item 33, with effect from 1 Jun 1999; Act 110 of 1995; former s 135 renum Act 60 of 1994, s 83, with effect from 1 Sep 1994; former s 64S Act 59 of 1989, s 35; insrt Act 59 of 1989, s 26]

SECTION 368 COMMENTARY Scope ................................................................................................................................................... [368.20] CONCEPTS

Any other material .............................................................................................................................. [368.40] Taken to be made ................................................................................................................................ [368.60] KEY CASES

The Tribunal is only required to set out its decision, its reasons for the decision, the findings on questions of fact it considers to be material, and the evidence on which those findings of fact are based ........................................................................................................................................... [368.80] In some circumstances, the absence of a finding on a question of fact in the Tribunal’s written reasons may lead to an inference that the Tribunal did not consider that question of fact to be material – distinction between questions of fact and matters generally .................................................................... [368.100] No requirement to refer to all the evidence ..................................................................................... [368.120] Findings on evidence and other material under s 368(1)(d) ........................................................... [368.140] No requirement to give line-by-line refutation or explain why certain pieces of evidence are implausible ................................................................................................................................ [368.160] No requirement to record particular findings, in findings and reasons section of a decision ........ [368.180] Functus officio – when the Tribunal’s review function is complete ............................................... [368.200]

758

Migration Law

[368.20]

Part 5 – Review of Part 5-reviewable decisions (ss 336M–379G) Division 6 – Part 5-reviewable decisions: Tribunal decisions (ss 368–368D)

s 368

[368.20] Scope According to s 368, the Tribunal must prepare a written statement of its decision, which contains the items specified in s 368(1)(a) – (d). The purpose of the Tribunal preparing the written statement is to enable a person affected by the decision to “shape his or her further conduct”, which may include making an application to the courts for judicial review: Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362; 272 ALR 115; [2010] FCAFC 108 at [84] per Rares J. In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; 266 ALR 367; [2010] HCA 16 at [31], Gummow ACJ and Kiefel J explained the relevance of written reasons in the context of s 430 of the Act (the equivalent provision in Pt 7 to s 368). Their Honours noted (citations omitted): Professor Wade wrote that a system of judicial review which cannot cope with crucial questions of fact necessarily is seriously defective. In Australia that deficiency is alleviated by requirements in various laws … for the obtaining of reasons for the decision. Section 430(1) of the Act is such a provision.

Their Honours went on to observe at [35] that “[o]n the other hand, of provisions such as s 430, it was said in Wu Shan Liang that the reasons are meant to inform and, upon judicial review, are not to be scrutinised in an over-zealous fashion” (footnotes omitted). Accordingly, a breach of s 368(1) is not of itself proof of any jurisdictional error: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; 74 ALJR 405; [2000] HCA 1 at [70] per McHugh J; Minister for Immigration and Multicultural Affairs v Yusuf (M10 of 2000) (2001) 206 CLR 323; 180 ALR 1; 75 ALJR 1105; [2001] HCA 30; Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362; 272 ALR 115; [2010] FCAFC 108 at [46]–[47] per Kenny J. Nor will a decision by the Tribunal be invalid if there has not been compliance with this section: Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362; 272 ALR 115; [2010] FCAFC 108 at [85] per Rares J. The Migration Amendment Act (No. 30) 2014 (Cth) amended s 368(2) of the Act and inserted s 368(2A). According to the Explanatory Memorandum to the Migration Amendment Bill 2013 (Cth) p 1, the purpose of the amendment is to: put beyond doubt that a decision by the Refugee Review Tribunal or the Migration Review Tribunal on an application for review is taken to be made, other than an oral decision, by making of the written statement, and to have been made on the day, and at the time, the written statement is made.

The amendment was a result of: • the Full Court of the Federal Court’s decision in Minister for Immigration and Citizenship v SZQOY (2012) 206 FCR 25; 294 ALR 84; [2012] FCAFC 131, which held that a decision of the Refugee Review Tribunal was not final until the decision was notified externally; and • the Full Court of the Federal Court’s decision in Minister for Immigration, Multicultural Affairs and Citizenship v SZRNY (2013) 214 FCR; [2013] FCAFC 104, which held that the decision of the Refugee Review Tribunal was not final until both the review applicant and the Secretary of the Department were notified of the decision: Explanatory Memorandum to the Migration Amendment Bill 2013 (Cth) pp 1 – 2. Although this case focused on the words “finally determined” rather than the issue of when a Tribunal has spent its power, the ratio of the decision is equally applicable with respect to both scenarios. As set out in the Explanatory Memorandum to the Migration Amendment Bill 2013 (Cth) p 2, the amendment is to clarify and provide certainty that a decision of the Tribunal is: © 2016 THOMSON REUTERS

759

s 368

Migration Act 1958

[368.40]

taken to be made on the day and at the time when a record of it is made. That finalisation is not dependent upon when the decision is notified or communicated to the review applicant, the visa applicant or the former visa holder.

CONCEPTS [368.40] Any other material The expression “any other material” in s 368(1)(d) can include personal knowledge and the knowledge that a Tribunal has acquired through exposure to previous claims based on the same subject matter: Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362; 272 ALR 115; [2010] FCAFC 108 at [42] per Kenny J. [368.60] Taken to be made The Migration Amendment Act (No. 30) 2014 (Cth) amended s 368(2) of the Act and inserted s 368(2A). As a result of this amendment, a decision is taken to have been made “by the making of the written statement” and “on the day, and at the time, the written statement is made”. There has not been any judicial consideration of this amendment.

KEY CASES [368.80]

The Tribunal is only required to set out its decision, its reasons for the decision, the findings on questions of fact it considers to be material, and the evidence on which those findings of fact are based Under s 368(1)(c), the Tribunal is required to set out its findings on any material questions of fact. A breach of s 368(1)(c) of itself will not amount to a jurisdictional error: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; 180 ALR 1; 75 ALJR 1105; [2001] HCA 30 (Yusuf) at [75] per McHugh, Gummow and Hayne JJ (with whom Gleeson CJ agreed). This section does not impose an obligation on the Tribunal to make findings on particular questions of fact that are objectively material: at [5], [9]–[10] per Gleeson CJ, at [68] per McHugh, Gummow and Hayne JJ, at [33]–[34] per Gaudron J and at [217] per Callinan J. In Yusuf, Gleeson CJ, Gaudron, McHugh, Gummow, Hayne, Kirby and Callinan JJ considered s 430(1)(c), the equivalent to s 368(1)(c). Relevantly, Gleeson CJ, Gaudron, McHugh, Gummow, Hayne, Kirby and Callinan JJ considered whether the Refugee Review Tribunal was obliged to make findings on material questions of fact and, if so, whether failure to make such findings was a ground for review by the courts or a ground upon which the court may grant relief. McHugh, Gummow and Hayne JJ (with whom Gleeson CJ agreed) held that the section required the “recording of matters of fact” and that s 430(1)(c) required “the Tribunal to set out the findings of fact which it made”: at [67]. In relation to the issue of whether s 430(1)(c) required the Tribunal to make findings on any and every matter of fact objectively material to the decision, McHugh, Gummow and Hayne JJ (with whom Gleeson CJ agreed) stated at [68]–[69] (emphasis in original): Section 430 does not expressly impose such an obligation. In its terms, it requires no more than that the Tribunal set out the findings which it did make. Neither expressly nor impliedly does this section require the Tribunal to make, and then set out, some findings additional to those which it actually made … [I]t is not right to read “material” as providing an objective or external standard of materiality. A requirement to set out findings and reasons focuses upon the subjective thought processes of the decision-maker. All that s 430(1)(c) obliges the Tribunal to do is set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision. It is not necessary to read s 430 as implying an obligation to make findings in order for it to have sensible work to do. Understanding s 430 as obliging the Tribunal to set out what were its findings on 760

Migration Law

Part 5 – Review of Part 5-reviewable decisions (ss 336M–379G) Division 6 – Part 5-reviewable decisions: Tribunal decisions (ss 368–368D)

[368.100]

s 368

the questions of fact it considered material gives the section important work to do in connection with judicial review of decisions of the Tribunal. It ensures that a person who is dissatisfied with the result at which the Tribunal has arrived can identify the Tribunal’s reasons and the findings it made in reaching that conclusion. The provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material. This may reveal some basis for judicial review by the Federal Court under Pt 8 of the Act, or by this Court in proceedings brought under s 75(v) of the Constitution. For example, it may reveal that the Tribunal made some error of law of the kind mentioned in s 476(1)(e) of the Act, such as incorrectly applying the law to the facts found by the Tribunal. It may reveal jurisdictional error. The Tribunal’s identification of what it considered to be the material questions of fact may demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration.

[368.100]

In some circumstances, the absence of a finding on a question of fact in the Tribunal’s written reasons may lead to an inference that the Tribunal did not consider that question of fact to be material – distinction between “questions of fact” and “matters generally” In some circumstances, an inference may be drawn that, where a Tribunal’s written reasons do not contain a finding on a question of fact, the Tribunal did not consider that question of fact to be material: see, for example, Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; 180 ALR 1; 75 ALJR 1105; [2001] HCA 30 (Yusuf) at [69] per McHugh, Gummow and Hayne JJ (with whom Gleeson CJ agreed). However, some care needs to be taken in drawing inferences that “matters”, as opposed to questions of fact, have not been considered due to the absence of a reference to such matters in a Tribunal’s written statement of reasons. In Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; 273 ALR 223; [2011] HCA 1 (SZGUR), French CJ and Kiefel J observed at [31]–[32] (in respect of s 430, being the equivalent provision): Rares J relied upon a passage from the judgment of McHugh, Gummow and Hayne JJ in Minister for Immigration and Multicultural Affairs v Yusuf in which their Honours said that s 430 “entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material”. That, of course, does not mean that a matter not mentioned in the s 430 statement was not considered. Section 430 presupposes a logical structure to the Tribunal’s reasoning which involves the following steps: 1. Identification of the relevant evidence or material upon which findings of fact can be based. 2. Making findings of fact based on the relevant evidence or material. 3. Reasoning to the decision by application of the relevant legal principles to findings of fact, both primary and inferential. Section 430 therefore does not require that the Tribunal make reference, in its reasons, to the disposition of a request from an applicant for a medical examination or for any other investigation. The Tribunal’s consideration of whether or not to exercise its power under s 427(1)(d) in aid of its discretion under s 424(1), whether requested or not, to “get any information that it considers relevant”, is neither evidence nor material nor a fact upon which the Tribunal could base any findings or its ultimate decision. The nature of the Tribunal’s treatment of the agent’s letter of 20 June 2008 in its reasons was consistent with that view of what s 430 requires and the logical structure it presupposes.

Gummow J similarly remarked at [69]–[70]: The question of whether the inference should have been drawn in the present case can only be addressed in the setting provided by the Migration Act, and in particular by reference to the requirement in para (b) of s 430(1) that the Tribunal provide a written statement which sets out the reasons for the decision. Contrary to the reasoning in the Federal Court, para (b) of s 430(1) does not create any requirement that the Tribunal record generally “what it did” in conducting its review, and does not require the Tribunal, in every case, to describe or state the procedural steps taken by it in reviewing the © 2016 THOMSON REUTERS

761

s 368

Migration Act 1958

[368.120]

relevant decision. The obligation under s 430(1) focuses upon the thought processes of the Tribunal in reaching its decision on what it considers to be the material questions of fact. The absence of reference in the Tribunal’s reasons to its consideration of the request for a medical examination of the first respondent is to be contrasted with an absence of reference to findings of fact or to evidence and material upon which such findings are based. Section 430(1) deals with the latter in paras (c) and (d); it does not deal with the former. The statute does not require the Tribunal to disclose procedural decisions taken in the course of making its “decision on a review”. There may be situations where a procedural decision forms part of the Tribunal’s “reasons for the decision” under para (b), but that is not so here. An inference that the Tribunal did or omitted to do some act in the course of its review, not being a matter which s 430(1) requires the Tribunal to set out, should not be drawn lightly. Nothing found in the authorities relied upon by Rares J assists in the present case. The statement by McHugh, Gummow and Hayne JJ in Yusuf, given the surrounding context and the authorities collected in the footnote at its conclusion, demonstrates that the reference there was to “matters of fact” or “findings of fact” and not to matters generally, such as the procedures the Tribunal chose to adopt in fulfilling its duty to review the delegate’s decision.

In Minister for Immigration and Citizenship v MZYZA [2013] FCA 572 at [31]–[32], Tracey J synthesised the above principles as follows: The Tribunal was required, by s 430 of the Act, to provide reasons for its decision … In [Yusuf] … McHugh, Gummow and Hayne JJ held that s 430(1) required the Tribunal to “set out its findings on those questions of fact which it considered to be material to the decision which is made and to the reasons it had for reaching that decision.” (Emphasis in original). Their Honours held that if, in its reasons, the Tribunal fails to refer to particular material, a reviewing Court may infer that that “matter … was not considered by the Tribunal to be material.” That does not mean, as French CJ and Kiefel J pointed out in [SZGUR] … that, simply because a matter is not mentioned in the reasons, it was not considered. The “matters” referred to by McHugh, Gummow and Hayne JJ in Yusuf were “matters of fact” or “findings of fact” made or not made by the Tribunal and not “matters generally”.

[368.120] No requirement to refer to all the evidence In Kocakaya v Minister for Immigration and Citizenship [2013] FCA 55, the appellant reiterated his contention, made at first instance, that s 368 of the Act requires the Tribunal to set out in its written statement all of the evidence that was before it. In the appellant’s contention, this required, for instance, that the Tribunal recite verbatim the contents of every piece of evidence that was before the Tribunal. Dodds-Streeton J agreed with the judgment of the Federal Magistrate and rejected the appellant’s argument. Her Honour held at [31] that the Tribunal was only required to record its findings on material questions of fact. It was not required to provide a line-by-line refutation of the appellant’s claims. [368.140] Findings on evidence and other material under s 368(1)(d) Section 368(1)(d) requires the Tribunal to refer to the evidence or any other material on which the findings of fact were based. A breach of s 368(1)(d) of itself will not amount to a jurisdictional error: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; 74 ALJR 405; [2000] HCA 1 at [70] per McHugh J. This section has been given a similar construction as s 368(1)(c). In Minister for Immigration and Multicultural Affairs v Li Yue (2000) 249 CLR 332; 176 ALR 66; [2000] FCA 856, the Full Court of the Federal Court considered s 430(1)(d) (the equivalent to s 368(1)(d)). Hill, Matthews and Lindgren JJ noted at [44]: With respect, we think that the learned primary judge erred in thinking that s 430(1)(d) required that the evidence or other material on which a finding of fact is based be capable of supporting it. In our view, all that is required by s 430(1)(d) is that the RRT identify the evidence or other material on which it, the RRT, in fact based its findings on any material questions of fact. 762

Migration Law

[368.180]

Part 5 – Review of Part 5-reviewable decisions (ss 336M–379G) Division 6 – Part 5-reviewable decisions: Tribunal decisions (ss 368–368D)

s 368

[368.160]

No requirement to give line-by-line refutation or explain why certain pieces of evidence are implausible Insofar as s 368(1) requires a Tribunal to record its reasons for the decision, that obligation does not extend to explaining why it considered certain pieces of evidence to be implausible, or to give a line-by-line refutation of the evidence. In Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; 74 ALJR 405; [2000] HCA 1, McHugh J considered s 430(1), the equivalent to s 368(1). The review applicant claimed that the Refugee Review Tribunal erred by failing to set out findings on material questions of fact, as required by s 430(1)(c). McHugh J stated at [64]–[65]: In Addo, the Court said: Section 430(1) does not impose an obligation to do anything more than to refer to the evidence on which the findings of fact are based. Section 430 does not require a decision-maker to give reasons for rejecting evidence inconsistent with the findings made. Accordingly, there was no failure to comply with s 430(1) of the Act. … It is not necessary, in order to comply with s 430(1), for the Tribunal to give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine any finding which it made. In my opinion, this passage correctly sets out the effect of s 430(1)(c) and (d). However, the obligation to set out “the reasons for the decision” (s 430(1)(b)) will often require the Tribunal to state whether it has rejected or failed to accept evidence going to a material issue in the proceedings. Whenever rejection of evidence is one of the reasons for the decision, the Tribunal must set that out as one of its reasons. But that said, it is not necessary for the Tribunal to give a line-by-line refutation of the evidence for the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the Tribunal. Indeed, to do so would be contrary to the direction in s 420 of the Act.

His Honour continued at [67]: The Tribunal must give reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word “implausible”. The disbelief arose from the Tribunal’s view that it was inherently unlikely that the events had occurred as alleged.

[368.180]

No requirement to record particular findings, in “findings and reasons” section of a decision In MZYZA v Minister for Immigration and Citizenship [2013] FMCA 15, the Federal Magistrates Court considered a decision of the Refugee Review Tribunal where the Tribunal had referred to, and discussed, a piece of evidence in its written record, albeit not under the heading “findings and reasons”. Although the applicant (who was self-represented at first instance) did not raise it as an issue before the court, Riley FM discerned error in the Tribunal’s decision on the basis that the Tribunal did not refer to the piece of evidence under the heading, “findings and reasons”. Her Honour found at [19] that, “[i]n the circumstances of this case, and in the absence of any mention of the letter in the ‘Findings and Reasons’ section of the Tribunal’s reasons, I am not persuaded that the Tribunal did consider the letter while actually weighing up the evidence and making its decision.” On appeal, Tracey J in Minister for Immigration and Citizenship v MZYZA [2013] FCA 572 overturned the judgment of Riley FM. His Honour stated at [47]: In my view the first respondent, in the present matter, has failed to establish that it would be appropriate to draw the inference that the Tribunal did not consider the letter. On the contrary, the Tribunal’s reasons make it tolerably clear that it did so. The Tribunal referred to the fact that the letter had been © 2016 THOMSON REUTERS

763

s 368A

Migration Act 1958

[368.200]

sent and received. The Tribunal member must have read it because he questioned the first respondent about its contents. There could be a number of reasons why the member did not thereafter again refer to the letter. One of these may have been that he did not consider it necessary to do so having regard to authorities such as Addo, Iyer and SZDXZ. Whatever the reason, it cannot be inferred that the contents of the letter had not been considered.

[368.200] Functus officio - when the Tribunal’s review function is complete The Migration Amendment Act (No. 30) 2014 (Cth) amended s 368(2) of the Act and inserted s 368(2A). As a result of this amendment, a decision is taken to have been made “by the making of the written statement” and “on the day, and at the time, the written statement is made”. Therefore, this is the point at which the Tribunal is functus officio and not able to continue reviewing the decision or make any changes to the decision already made. However, if there is a jurisdictional error with the Tribunal’s decision, then it is no decision at all and it will not be functus officio at the time specified in s 368(2): Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; 76 ALJR 598; 187 ALR 117; [2002] HCA 11. 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. [S 368A subst Act 85 of 2008, s 3 and Sch 1 item 7; am Act 58 of 2001; insrt Act 113 of 1998, s 3 and Sch 1 item 34, with effect from 1 Jun 1999]

SECTION 368A COMMENTARY Scope ................................................................................................................................................. [368A.20] KEY CASES

Functus officio - when the Tribunal’s review function is complete ............................................... [368A.40]

[368A.20] Scope The Migration Legislation Amendment Act (No 1) 2008 (Cth) removed the previous requirement in the Act for the Tribunal to “hand down” decisions and inserted in its place a simplified procedure for notifying parties of a decision: at Sch 1, item 7; see also Explanatory Memorandum to the Migration Legislation Amendment Bill (No 1) 2008 (Cth) at item 7.

KEY CASES [368A.40] Functus officio - when the Tribunal’s review function is complete In Minister for Immigration, Multicultural Affairs and Citizenship v SZRNY (2013) 214 FCR; [2013] FCAFC 104 (SZRNY), a Full Court of the Federal Court held that the decision of the Refugee Review Tribunal was not final until both the review applicant and the Secretary of the 764

Migration Law

[368A.40]

Part 5 – Review of Part 5-reviewable decisions (ss 336M–379G) Division 6 – Part 5-reviewable decisions: Tribunal decisions (ss 368–368D)

s 368D

Department were notified of the decision in writing. Although this case focused on the words “finally determined”, rather than the issue of when a Tribunal has spent its power, the ratio of the decision is equally applicable with respect to both scenarios. If the Full Federal Court’s reasoning in SZRNY were to be applied to s 368A, in circumstances where there is an error by the Tribunal in a first notification, it could have the effect of preventing the Tribunal from validly renotifying the review applicant, or would oblige the Tribunal to recall its review decision and remake it at a later date: see Explanatory Memorandum to the Migration Amendment Bill 2013 (Cth) p 3. To cure this unintended consequence, the Migration Amendment Act (No. 30) 2014 (Cth) amended s 368(2) of the Act and inserted s 368(2A) (no amendment was made to s 368A, as this was not necessary). As a result of this amendment, a decision is taken to have been made “by the making of the written statement” and “on the day, and at the time, the written statement is made”. Therefore, this is the point at which the Tribunal is functus officio and not able to continue reviewing the decision or make any changes to the decision already made. However, if there is a jurisdictional error with the Tribunal’s decision, then it is no decision at all and it will not be functus officio at the time specified in s 368(2): Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; 76 ALJR 598; 187 ALR 117; [2002] HCA 11. [Editor’s note: Sections 368B–368C were repealed by Act 85 of 2008, s 3 and Sch 1 item 7, and have not been reproduced] 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.

© 2016 THOMSON REUTERS

765

s 368D

Migration Act 1958

[368A.40]

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. [S 368D subst Act 35 of 2015, s 3 and Sch 4 item 17, with effect from 18 Apr 2015; Act 30 of 2014, s 3 and Sch 1 item 20; am Act 85 of 2008, s 3 and Sch 1 item 8; insrt Act 113 of 1998, s 3 and Sch 1 item 34, with effect from 1 Jun 1999]

SECTION 368D COMMENTARY Scope ................................................................................................................................................. [368D.20] CONCEPTS

Taken to have been made ................................................................................................................ [368D.40] KEY CASES

Functus officio - when the Tribunal’s review function is complete ............................................... [368D.60] PRACTICE POINT

Copy of written reasons for judicial review ................................................................................... [368D.80] 766

Migration Law

[368D.20]

Part 5 – Review of Part 5-reviewable decisions (ss 336M–379G) Division 6 – Part 5-reviewable decisions: Tribunal decisions (ss 368–368D)

s 368D

[368D.20] Scope The Migration Amendment (Protection and Other Measures) Act 2015 repealed the previous s 368D and inserted this provision, which commenced on 18 April 2015. However, s 38D(1) has not been amended by this Act and was inserted by the Migration Amendment Act (No. 30) 2014 (Cth) According to the Explanatory Memorandum to the Migration Amendment Bill 2013 (Cth) p 1, the purpose of the amendment is to put: beyond doubt that an oral decision by the Refugee Review Tribunal or the Migration Review Tribunal is taken to be made and becomes final on the day and at the time it is given. The Refugee Review Tribunal and the Migration Review Tribunal is taken to be functus officio at that relevant time.

The amendment was a result of: • the Full Court of the Federal Court’s decision in Minister for Immigration and Citizenship v SZQOY (2012) 206 FCR 25; 294 ALR 84; [2012] FCAFC 131, which held that a decision of the Refugee Review Tribunal was not final until the decision was notified externally; and • the Full Court of the Federal Court’s decision in Minister for Immigration, Multicultural Affairs and Citizenship v SZRNY (2013) 214 FCR; [2013] FCAFC 104, which held that the decision of the Refugee Review Tribunal was not final until both the review applicant and the Secretary of the Department were notified of the decision: Explanatory Memorandum to the Migration Amendment Bill 2013 (Cth) pp 1 – 2. Although this case focused on the words “finally determined”, rather than the issue of when a Tribunal has spent its power, the ratio of the decision is equally applicable with respect to both scenarios. The amendments made by the Migration Amendment (Protection and Other Measures) Act 2015 (Cth) now give the tribunal the option to make an “oral statement, which includes the reasons for the decision, instead of a written statement”: Explanatory Memorandum to the Migration Amendment (Protection and Other Measures) Act 2015 (Cth) at [302]. That is, under s 368D(2) the Tribunal has the option to either: • make an oral statement of its decision: s 368D(2)(a); or • make a written statement of its decision: s 368D(2)(b). The written statement is to be provided to the applicant in accordance with s 379A (see further commentary under that section). Where the tribunal makes an oral statement under s 368D(2), then: • an applicant may request, in writing, that a statement of the decision be provided in writing. Section 368D(4) sets out the procedure for making such a request. Under this section the applicant must make the request “within the period prescribed by the regulations”. As of 20 April 2015, no period has been prescribed; • the Minister may request, in writing, that a statement of the decision be provided in writing. Section 368D(5) sets out the procedure for making such a request. There is no prescribed period by which the Minister is to make such a request. • Where a request has been made under either ss 368D(4) or 368D(5), then the tribunal is to provide the written statement to the applicant in accordance with s 379A (see that section for further commentary) and to the Secretary in accordance with s 379B (see that section for further commentary). According to the Explanatory Memorandum to the Migration Amendment (Protection and Other Measures) Act 2015 (Cth) at [307], the amendment to s 368D: © 2016 THOMSON REUTERS

767

s 369

Migration Act 1958

[368D.40]

… does not preclude the MRT, at its discretion and where it considers it appropriate, from providing a written statement in other circumstances. The amendment also does not prevent a court ordering such a written statement to be provided. However, the MRT is obliged to provide a written statement to an applicant only where the applicant has made a request in accordance with new subsection 368D(4).

CONCEPTS [368D.40] Taken to have been made Pursuant to s 368D(1), a decision is taken to have been made on the day and at the time the decision is given orally. There has not been any judicial consideration of this amendment.

KEY CASES [368D.60] Functus officio - when the Tribunal’s review function is complete Migration Amendment Act (No. 30) 2014 (Cth) repealed and substituted s 368D of the Act. As a result, a decision is taken to have been made and notified to the applicant “on the day and at the time the decision is given orally”. Therefore, this is the point at which the Tribunal is functus officio and not able to continue reviewing the decision or make any changes to the decision already made. However, if there is a jurisdictional error with the Tribunal’s decision, then it is no decision at all and it will not be functus officio at the time specified in s 368D: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; 76 ALJR 598; 187 ALR 117; [2002] HCA 11.

PRACTICE POINT [368D.80] Copy of written reasons for judicial review If an applicant intends to seek judicial review of the tribunal’s decision in the Federal Circuit Court, then he or she should ensure that they request a copy of the written reasons in accordance with s 368D(4). This is because, pursuant to r 44.05(2) of the Federal Circuit Court Rules 2001 (Cth), an application for an order to show cause made under s 476 of the Act, is to be made in the approved form and supported by an affidavit which includes a copy of the decision in relation to which the remedy is sought. For the purposes of filing an application for judicial review in the courts, time for filing the application will begin from the date the oral decision is given: Raj v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 346; [2000] FCA 74 at [27] per Lehane J. 369 Certain Tribunal decisions to be published [Repealed] [S 369 rep Act 60 of 2015, s 3 and Sch 2 item 59, with effect from 1 Jul 2015; subst Act 113 of 1998, s 3 and Sch 1 item 35, with effect from 1 Jun 1999; former s 136 renum Act 60 of 1994, s 83, with effect from 1 Sep 1994; former s 64T Act 59 of 1989, s 35; insrt Act 59 of 1989, s 26]

DIVISION 7 – PART 5-REVIEWABLE DECISIONS: OFFENCES (SS 370–371) [Div 7 subst Act 60 of 2015, s 3 and Sch 2 item 60, with effect from 1 Jul 2015; former Div 6 renum Act 60 of 1994, s 83, with effect from 1 Sep 1994]

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.

768

Migration Law

[368D.80]

Part 5 – Review of Part 5-reviewable decisions (ss 336M–379G) Division 8 – Part 5-reviewable decisions: miscellaneous (ss 375–378)

s 373

(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). [S 370 subst Act 60 of 2015, s 3 and Sch 2 item 60, with effect from 1 Jul 2015; am Act 97 of 2001; Act 113 of 1998; former s 141 renum Act 60 of 1994, s 83, with effect from 1 Sep 1994; am Act 24 of 1992; former s 64Y renum Act 59 of 1989, s 35; insrt Act 59 of 1989, s 26]

371 Refusal to be sworn or to answer questions Oath or affırmation (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). [S 371 subst Act 60 of 2015, s 3 and Sch 2 item 60, with effect from 1 Jul 2015; am Act 97 of 2001; former s 142 renum Act 60 of 1994, s 83, with effect from 1 Sep 1994; am Act 24 of 1992; former s 64Z renum Act 59 of 1989, s 35; insrt Act 59 of 1989, s 26]

372 Contempt of Tribunal [Repealed] [S 372 rep Act 60 of 2015, s 3 and Sch 2 item 60, with effect from 1 Jul 2015; former s 143 renum Act 60 of 1994, s 83, with effect from 1 Sep 1994; am Act 24 of 1992, s 6 and Sch 2; former s 64ZA renum Act 59 of 1989, s 35; insrt Act 59 of 1989, s 26]

DIVISION 8 – PART 5-REVIEWABLE DECISIONS: MISCELLANEOUS (SS 375–378) [Div 8 heading subst Act 60 of 2015, s 3 and Sch 2 item 61, with effect from 1 Jul 2015] [Former Div 7 renum Act 60 of 1994, s 83, with effect from 1 Sep 1994]

373 Protection of members and persons giving evidence [Repealed] [S 373 rep Act 60 of 2015, s 3 and Sch 2 item 62, with effect from 1 Jul 2015; former s 144 renum Act 60 of 1994, s 83, with effect from 1 Sep 1994; am Act 184 of 1992; former s 64ZB renum Act 59 of 1989, s 35; insrt Act 59 of 1989, s 26]

© 2016 THOMSON REUTERS

769

s 373

Migration Act 1958

[373.20]

SECTION 373 COMMENTARY Scope ................................................................................................................................................... [373.20] CONCEPTS

Immunity ............................................................................................................................................. [373.40]

[373.20] Scope Section 373 was repealed on 1 July 2015 by item 62 of Sch 2 to the Tribunals Amalgamation Act 2015 (Cth). The section is “not required because equivalent protections in relations to reviews by the amalgamated Tribunal” are provided by s 60 of the Administrative Appeals Tribunal Act 1975 (Cth): Revised Explanatory Memorandum to the Tribunals Amalgamation Bill 2014 (Cth) at [833]. Prior to 1 July 2015, s 373 provided Tribunal members with the same immunity as members of the Administrative Appeals Tribunal in the performance of their duties,.

CONCEPTS [373.40] Immunity The immunity that s 373 provided for Tribunal members in the performance of their duties was not only the same immunity as members of the Administrative Appeals Tribunal, but also the same immunity as a justice of the High Court: Susaki v Minister for Immigration and Multicultural Affairs [2002] FCA 1229 at [31] per Stone J. The immunity of the Administrative Appeals Tribunal is found in s 60(1) of the Administrative Appeals Tribunal Act 1975 (Cth), which provides that a member of the Administrative Appeals Tribunal has, in the performance of his or her duties, “the same protection and immunity as a justice of the High Court”. In Herijanto v Refugee Review Tribunal (2000) 174 ALR 681; 74 ALJR 1398; [2000] HCA 16 at [380], Gaudron J considered that a justice of the High Court has the same protection and immunity as is conferred by the common law. The immunity in s 60(1) of the Administrative Appeals Tribunal Act 1975 (Cth) has been found to extend to being able to refuse to give evidence: SZQFD v Minister for Immigration [2011] FMCA 598 at [22] per Raphael FM; Chiorny v Minister for Immigration and Multicultural Affairs (1997) 73 FCR 237; 44 ALD 605; 154 ALR 191; Muin v Refugee Review Tribunal (S36 of 1999) (2002) 190 ALR 601; 76 ALJR 966; [2002] HCA 30 (Muin). The basis for the immunity was noted by Kirby J in Muin at [197]–[199]: Further, it would be demeaning to the office of the tribunal member and potentially damaging to the independence of the tribunal, if members were effectively obliged to offer testimony in proceedings such as the present for fear that, if they did not, they would be subject to criticism and to inferences adverse to their probity and compliance with the law. I would refrain from expressing any more general principle on this issue than the foregoing. Each case depends upon its own facts and the legislation under which the decision-maker in question operates … … Because there are sound reasons of legal principle to justify the absence of evidence from tribunal members, it would be erroneous for this court to draw any adverse inference from their omission to proffer such evidence in these cases.

The immunity, which includes immunity from suit and compulsion to give evidence, will prevent any adverse inferences being drawn (including adverse inferences in the Jones v Dunkel sense) due to a member not giving evidence: Muin at [25], [118] and [196]–[199]; Applicant M1014 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1190 at [14]. The rule also extends to a failure by the member to give evidence in relation to any aspect of the decision-making process, such as whether or not the member has “read, obtained, considered or 770

Migration Law

[375.20]

Part 5 – Review of Part 5-reviewable decisions (ss 336M–379G) Division 8 – Part 5-reviewable decisions: miscellaneous (ss 375–378)

s 375A

taken into account particular documents”: Applicant M1014 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1190 at [14]; Herijanto v Refugee Review Tribunal (2000) 174 ALR 681; 74 ALJR 1398; [2000] HCA 16. 374 Fees for persons giving evidence [Repealed] [S 374 rep Act 60 of 2015, s 3 and Sch 2 item 62, with effect from 1 Jul 2015; former s 145 renum Act 60 of 1994, s 83, with effect from 1 Sep 1994; former s 64ZC Act 59 of 1989, s 35; insrt Act 59 of 1989, s 26]

SECTION 374 COMMENTARY [374.20] Scope Section 374 was repealed on 1 July 2015 by item 62 of Sch 2 to the Tribunals Amalgamation Act 2015 (Cth). The section is not “required because such payments in relation to reviews by the amalgamated Tribunal” are provided by s 67 of the Administrative Appeals Tribunal Act 1975 (Cth): Revised Explanatory Memorandum to the Tribunals Amalgamation Bill 2014 (Cth) at [834]. 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. [Former s 146 renum Act 60 of 1994, s 83, with effect from 1 Sep 1994; former s 64ZD Act 59 of 1989, s 35; insrt Act 59 of 1989, s 26]

SECTION 375 COMMENTARY [375.20] Scope Pursuant to s 375 the Secretary of the Department shall not give the Tribunal a document, or information, if the Minister has certified in writing that the disclosure of the document or information would be contrary to the public interest. This section is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters that the section deals with: see s 357A(2). 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.

© 2016 THOMSON REUTERS

771

s 375A

Migration Act 1958

[375A.20]

(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. [S 375A insrt Act 110 of 1995, s 3 and Sch 1 item 28, with effect from 29 Sep 1995]

SECTION 375A COMMENTARY Scope ................................................................................................................................................. [375A.20] KEY CASES

Valid certificate ................................................................................................................................. [375A.40] Clear particulars and s 375A ........................................................................................................... [375A.60]

[375A.20] Scope According to s 375A, certain information may be disclosed to the Tribunal and the Tribunal must do all things necessary to ensure that the information is not disclosed to any person other than a member of the Tribunal. The section does not “purport to deal with the release of information in the context of proceedings in a forum other than the Tribunal or to deal in a general way with questions relating to the dissemination of the material”: Kokcinar v Minister for Immigration [2007] FMCA 1035 at [17] per Lindsay FM. This section is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters that the section deals with: see s 357A(2).

KEY CASES [375A.40] Valid certificate A certificate under s 375A applies to both a “document” and to “information”. The certificate will be valid if it only refers to “any matter of information” not being disclosed and need not specifically refer to the non-disclosure of “any matter contained in the document”: Burton v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 149 FCR 20; [2005] FCA 1455 at [44] per Dowsett J. A valid certificate under s 375A must give the reason why disclosure would be contrary to the public interest. For the certificate to satisfy s 375A(1), the public interest reason must be specified in the certificate: Burton v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 149 FCR 20; [2005] FCA 1455 at [46]–[47] per Dowsett J. [375A.60] Clear particulars and s 375A There is conflicting case law in relation to the obligation to provide clear particulars and certain information under such provisions as s 359A, and where a valid certificate has been issued under s 375A. In Davis v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 686, Dowsett J held that a valid s 357A certificate overrides the obligation to provide particulars imposed by s 359A(1) of the Act. This was not because such particulars were “non-disclosable information” pursuant to s 359A(4)(c), but because this definition did not cover information protected under s 375A. Dowsett J stated at [21]: It is curious that material which is the subject of a certificate under s 375A is not expressly excluded from the operation of s 359A. Nonetheless, the obligation to maintain secrecy imposed upon the 772

Migration Law

[375A.60]

Part 5 – Review of Part 5-reviewable decisions (ss 336M–379G) Division 8 – Part 5-reviewable decisions: miscellaneous (ss 375–378)

s 376

Tribunal by s 375A is so specific that the obligation imposed by s 359A must give way to it. This would, in my opinion, be so, even in the absence of s 375A. However that section puts the matter beyond doubt. The obligation conferred upon the Tribunal by s 362A must similarly yield to that imposed by s 375A.

However, in Burton v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 149 FCR 20; [2005] FCA 1455, Wilcox J came to a different conclusion to that of Dowsett J. Wilcox J stated at [40] that Dowsett J: did not advert to the distinction … between the provision of “particulars of any information” that the Tribunal considers would be a reason, or part of a reason, for affirming a delegate’s decision (covered by s 359A(1)) and access to the written material itself (covered by s 362A(1)). There is a real distinction. I think it is analogous to the distinction, familiar to all litigators, between particulars of a claim and the evidence that supports the claim. The command of s 375A(2)(b) is that the Tribunal “do all things necessary to ensure that the document or information is not disclosed” otherwise than to the relevant Tribunal member. Provision of particulars about information need not involve access to any particular document. Take the example mentioned in argument. Suppose the Department has received a letter from a person who deposes to having seen a visa holder pay $5,000 to a relevant nominator on their wedding day. A valid s 375A certificate would prevent the Tribunal allowing the visa holder to have access to that letter, or providing detailed information about it, as would otherwise be the former visa holder’s right under s 362A. However, it seems to me s 375A would not prevent the Tribunal informing the former visa holder, by way of particulars of the information that could constitute a reason, that it was alleged that he or she had paid $5,000 to the nominator on that day. Such particulars would not reveal either the source or the detail of the information conveyed to the Department; they would allow the former visa holder to understand the nature of the case he or she needed to meet.

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. [Subs (1) am Act 110 of 1995, s 3 and Sch 1 items 29 and 30, with effect from 29 Sep 1995]

(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

© 2016 THOMSON REUTERS

773

s 376

Migration Act 1958

[376.20]

(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. [Subs (3) am Act 110 of 1995, s 3 and Sch 1 item 31, with effect from 29 Sep 1995] [S 376 am Act 110 of 1995; former s 147 renum Act 60 of 1994, s 83, with effect from 1 Sep 1994; former s 64ZE Act 59 of 1989, s 35; insrt Act 59 of 1989, s 26]

SECTION 376 COMMENTARY Scope ................................................................................................................................................... [376.20] KEY CASES

No jurisdictional error if non-compliance by Secretary .................................................................... [376.40] Tribunal may have regard to document or information and disclosure ............................................ [376.60] PRACTICE POINT

Information or document falls under definition of “non-disclosable information” .......................... [376.80]

[376.20] Scope According to s 376, the Tribunal may be given a document or information which the Minister has certified, in writing, the disclosure of which would be contrary to the public interest (but not for the reasons in s 375), but which could form the basis for a claim of non-disclosure in a judicial proceeding, or was given in confidence and s 375A does not apply: s 376(1). This section is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters that the section deals with: see s 357A(2).

KEY CASES [376.40] No jurisdictional error if non-compliance by Secretary Section 376(2) states that the Secretary of the Department is required to give the Tribunal the document or information. Any error by the Secretary in complying with s 376(2) will not result in a Tribunal’s decision being tainted with jurisdictional error: WZANC v Minister for Immigration (No 2) (2012) 210 FCR 585; 135 ALD 247; [2012] FCA 1461 at [53] per Gilmour J; WZANC v Minister for Immigration (No 2) (2012) 266 FLR 121; [2012] FMCA 504 at [92] per Lucev FM; SZOIN v Minister for Immigration and Citizenship (2011) 191 FCR 123; 276 ALR 247; [2011] FCAFC 38 at [65]–[66] per Bennett and McKerracher JJ. [376.60] Tribunal may have regard to document or information and disclosure Under s 376(3) the Tribunal may have regard to the document or information provided under this section. If it considers it appropriate, the Tribunal may also disclose any matter contained in the document or information to an applicant or a person who has given oral or written evidence. Failure by the Secretary of the Department to give the appropriate notice under s 376(2)(a) does not prevent a Tribunal from having regard to the document or information: WZANC v Minister for Immigration (No 2) (2012) 210 FCR 585; 135 ALD 247; [2012] FCA 1461 at [58] per Gilmour J. Providing a notice under s 376(2)(a) is not a jurisdictional fact and not an essential precondition to the Tribunal exercising its powers in conducting a review: at [60]. The Tribunal has a discretion whether or not to disclose the material; however the Tribunal: “should effect a satisfactory compromise between the demands of disclosure and confidentiality by disclosing as much as possible of the substance, but not the detail, of the material”: NAVK v Minister for 774

Migration Law

[376.80]

Part 5 – Review of Part 5-reviewable decisions (ss 336M–379G) Div 8A - Part 5-reviewable decisions: giving/receiving documents (ss 379AA-379G)

s 379

Immigration and Multicultural and Indigenous Affairs (2004) 135 FCR 567; [2004] FCAFC 160 at [86] per Beaumont, Conti and Crennan JJ; S103 v Minister for Immigration [2005] FMCA 1148 at [34] per Smith J.

PRACTICE POINT [376.80]

Information or document falls under definition of “non-disclosable information” Where the information or document provided under this section falls under the definition of “non-disclosable information” in s 5(1), pursuant to s 359A(4)(c) it will not need to be put to an applicant for comment in accordance with s 359A. 377 Disclosure of confidential information [Repealed] [S 377 rep Act 60 of 2015, s 3 and Sch 2 item 62, with effect from 1 Jul 2015; former s 148 renum Act 60 of 1994, s 83, with effect from 1 Sep 1994; am Act 24 of 1992; former s 64ZF renum Act 59 of 1989, s 35; insrt Act 59 of 1989, s 26]

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. [Former s 149 renum Act 60 of 1994, s 83, with effect from 1 Sep 1994; am Act 24 of 1992, s 6 and Sch 2; former s 64ZG renum Act 59 of 1989, s 35; insrt Act 59 of 1989, s 26]

379 Sittings of Tribunal [Repealed] [S 379 rep Act 60 of 2015, s 3 and Sch 2 item 62, with effect from 1 Jul 2015; former s 150 renum Act 60 of 1994, s 83, with effect from 1 Sep 1994; former s 64ZH Act 59 of 1989, s 35; insrt Act 59 of 1989, s 26]

DIVISION 8A – PART 5-REVIEWABLE DECISIONS: GIVING AND RECEIVING DOCUMENTS (SS 379AA–379G) [Div 8A heading subst Act 60 of 2015, s 3 and Sch 2 item 63, with effect from 1 Jul 2015; Act 85 of 2008, s 3 and Sch 1 item 10] [Div 8A insrt Act 58 of 2001, s 3 and Sch 3 item 11]

© 2016 THOMSON REUTERS

775

s 379AA

Migration Act 1958

[379AA.20]

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. [Subs (1) am Act 112 of 2008, s 3 and Sch 1 item 1]

(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. [Subs (2) am Act 60 of 2015, s 3 and Sch 2 item 134, with effect from 1 Jul 2015; insrt Act 112 of 2008, s 3 and Sch 1 item 2]

(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. [Subs (2A) insrt Act 112 of 2008, s 3 and Sch 1 item 3]

(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. [Subs (3) insrt Act 112 of 2008, s 3 and Sch 1 item 2] [S 379AA am Act 60 of 2015; Act 112 of 2008; Act 85 of 2008, s 3 and Sch 1 items 11 and 12; insrt Act 58 of 2001, s 3 and Sch 3 item 11]

SECTION 379AA COMMENTARY Scope .............................................................................................................................................. [379AA.20] CONCEPTS

Is taken ........................................................................................................................................... [379AA.40]

[379AA.20] Scope While only certain documents are required to be given by one of the methods specified in s 379A or 379B, other documents might be given in these ways and, if they are, the provisions of ss 379C and 379D may be invoked to determine the time when the document is taken to have been received: see Explanatory Memorandum to the Migration Legislation Amendment (Electronic Transactions and Methods of Notification) Bill 2001 (Cth) at [99]. 776

Migration Law

Part 5 – Review of Part 5-reviewable decisions (ss 336M–379G) [379AA.40] Div 8A - Part 5-reviewable decisions: giving/receiving documents (ss 379AA-379G)

s 379A

CONCEPTS [379AA.40] Is taken Section 379AA(3) provides that, if a document is given to a minor in accordance with s 379AA(2), the Tribunal “is taken to have given” the document to the minor. Section 5(23) relevantly provides that the words “is taken”, when followed by the infinitive form of a verb, have the same force and effect as the words “is deemed” when followed by the infinitive form of that verb. 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. [Subs (1A) am Act 60 of 2015, s 3 and Sch 2 item 134, with effect from 1 Jul 2015; insrt Act 112 of 2008, s 3 and Sch 1 item 4]

(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. [Subs (1B) insrt Act 112 of 2008, s 3 and Sch 1 item 5]

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. [Subs (2) am Act 60 of 2015, s 3 and Sch 2 item 134, with effect from 1 Jul 2015]

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. [Subs (3) am Act 60 of 2015, s 3 and Sch 2 item 134, with effect from 1 Jul 2015]

© 2016 THOMSON REUTERS

777

s 379A

Migration Act 1958

[379AA.40]

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. [Subs (4) am Act 60 of 2015, s 3 and Sch 2 item 134, with effect from 1 Jul 2015; Act 112 of 2008, s 3 and Sch 1 item 6]

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. [Subs (5) am Act 60 of 2015, s 3 and Sch 2 item 134, with effect from 1 Jul 2015; Act 31 of 2014, s 3 and Sch 4 items 28 and 29, with effect from 24 Jun 2014; Act 112 of 2008, s 3 and Sch 1 item 7]

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. [Subs (6) insrt Act 112 of 2008, s 3 and Sch 1 item 8] [S 379A am Act 60 of 2015; Act 31 of 2014; Act 112 of 2008; subst Act 58 of 2001, s 3 and Sch 3 item 10; insrt Act 113 of 1998, s 3 and Sch 1 item 37, with effect from 1 Jun 1999]

SECTION 379A COMMENTARY Scope ................................................................................................................................................. [379A.20] CONCEPTS

Dispatching ....................................................................................................................................... [379A.40] Address ............................................................................................................................................. [379A.60] Address provided to the Tribunal in connection with the review .................................................. [379A.80] Last address (including last residential or business address) ....................................................... [379A.100] Prepaid post includes ordinary post ............................................................................................... [379A.120] Transmitting the document ............................................................................................................ [379A.140] Giving or give ................................................................................................................................ [379A.160] Is taken ........................................................................................................................................... [379A.180] 778

Migration Law

[379A.60]

Part 5 – Review of Part 5-reviewable decisions (ss 336M–379G) Div 8A - Part 5-reviewable decisions: giving/receiving documents (ss 379AA-379G)

s 379A

KEY CASES

Last residential address .................................................................................................................. [379A.200] Incorrect address provided by applicant ........................................................................................ [379A.220] Transmitting the document by email ............................................................................................. [379A.240] No suburb provided in the address for correspondence ............................................................... [379A.260] Postcode is not an essential part of the address ........................................................................... [379A.280] Failure to include the word street in the address on the document ............................................. [379A.300] No error in providing return to sender instructions ...................................................................... [379A.320] PRACTICE POINT

Tribunal must give document to authorised recipient .................................................................. [379A.340]

[379A.20] Scope Section 379A specifies alternative methods that control the ways in which the Tribunal is authorised to give documents to a person (other than the Secretary of the Department). One of these methods must be used whenever a provision of the Act or the Regulations requires the document to be given in conformity with this section: see Explanatory Memorandum to the Migration Legislation Amendment (Electronic Transactions and Methods of Notification) Bill 2001 (Cth) at [100]. However, the Tribunal is free to determine which method to use in any given case: Minister for Immigration and Border Protection v Kim (2014) 220 FCR 494; [2014] FCA 390; Haque v Minister for Immigration and Citizenship (2010) 115 CLR 371; 185 FCR 86; [2010] FCA 461 at [13] and [62] per Jacobson J. Relevantly, this provision mirrors ss 441A and 494B, which deal with the methods by which the Tribunal, in relation to Part 7-reviewbale decisions, and the Minister give documents: see Explanatory Memorandum to the Migration Legislation Amendment (Electronic Transactions and Methods of Notification) Bill 2001 (Cth) at [155].

CONCEPTS [379A.40] Dispatching Under s 379A(4), one of the methods by which the Tribunal can give a person a document is by dating the document and “dispatching” it by prepaid post or other prepaid means. To “dispatch” a document means to send the document: SZOBI v Minister for Immigration and Citizenship (No 2) (2010) 119 ALD 233; [2010] FCAFC 151 at [29] per Bromberg J (Stone and Jagot JJ agreeing) (special leave was refused in SZOBI v Minister for Immigration and Citizenship [2011] HCATrans 347). Accordingly, s 379A(4) concerns the sending of a document, and not the receiving of a document: at [18] per Stone and Jagot JJ (Bromberg J agreeing). [379A.60] Address The term “address” in relation to a person’s residential or business address in s 379A(3) and (4) is “properly identified by the street name and number, where relevant, and suburb. The postcode is not an essential part of the identification”: SZLBR v Minister for Immigration and Citizenship (2008) 216 FLR 141; [2008] FMCA 154 at [40] per Emmett FM. Further, the address for dispatch is the address on the envelope. Therefore, s 379A(4) will be satisfied if the document is posted to the address provided by the applicant (or their authorised recipient), regardless of the address contained on the document inside the envelope: Minister for Immigration and Citizenship v SZKPQ (2008) 166 FCR 84; 101 ALD 5; [2008] FCAFC 21 at [22] per Branson, Emmett and Bennett JJ. Section 379A(4) does not specifically require that the name of the applicant be included on the envelope. However, Moore, Rares and Flick JJ stated in Minister for Immigration and Citizenship v SZMTR (2009) 180 FCR 586; [2009] FCAFC 186 at [36] (in relation to s 494B(4), © 2016 THOMSON REUTERS

779

s 379A

Migration Act 1958

[379A.80]

which is in similar terms to s 379A(4)), that “common sense suggests that the name of that recipient be included on the envelope” or, at least, that an addressee is identified on the envelope. [379A.80] Address provided to the Tribunal in connection with the review The address the Tribunal is to use to deliver documents is the address that a person provided to the Tribunal “in connection with the review”. According to Jagot J in Maroun v Minister for Immigration and Citizenship (2009) 112 ALD 424; [2009] FCA 1284, the words “in connection with the review” are more general than the words “for the purposes of receiving documents”, which appear in s 494B: at [32]. [379A.100] “Last” address (including last residential or business address) The ordinary meaning of the word “last” does not mean “single” or “only”. Rather, it means the “most recent at the time in question”: Maroun v Minister for Immigration and Citizenship (2009) 112 ALD 424; [2009] FCA 1284 at [36]. [379A.120] Prepaid post includes ordinary post Prepaid post includes ordinary post “in respect of which the applicable charge has been paid by way of the fixing of a stamp or other proper means”: Minister for Immigration and Citizenship v SZKPQ (2008) 166 FCR 84; 101 ALD 5; [2008] FCAFC 21 at [12] per Emmett J (Branson and Bennett JJ agreeing). [379A.140] Transmitting the document The words “transmitting the document” under s 379A(5), in relation to the giving of a document by fax, email or other electronic means, relate to the “sending” of the document and do not imply that actual communication must have occurred: Sainju v Minister for Immigration and Citizenship (2010) 185 FCR 86; 115 ALD 371; [2010] FCA 461 at [41], [57] and [71]. [379A.160] Giving or give The words “give” or “giving” in relation to a document are frequently used in s 379A. In VEAN v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 280, Weinberg J noted at [31] that the word “give” is of “wide amplitude” and does not equate with “physically handing over an object”. Further, his Honour noted at [32], in relation to the meaning of the word “give”: “The Concise Oxford Dictionary defines ‘give’, inter alia, as ‘making another the recipient of something in the subject’s possession’. To cause something to be put in the possession of another, relevantly, to give the object to that other.” [379A.180] Is taken Section 379A(6) provides that if a document is given to a minor in accordance with s 379AA(2), the Tribunal “is taken to have given” the document to the minor. Section 5(23) relevantly provides that the words “is taken”, when followed by the infinitive form of a verb, have the same force and effect as the words “is deemed” when followed by the infinitive form of that verb.

KEY CASES [379A.200] Last residential address In Minister for Immigration and Border Protection v Kim (2014) 220 FCR 494; [2014] FCA 390, Ms Kim provided both her Australian and South Korean residential addresses on her student visa application form. Buchanan J held that the last residential address provided for receiving documents was Ms Kim’s Australian address as Ms Kim was in Australia at the time she made her application: at [18]. 780

Migration Law

Part 5 – Review of Part 5-reviewable decisions (ss 336M–379G) [379A.280] Div 8A - Part 5-reviewable decisions: giving/receiving documents (ss 379AA-379G)

s 379A

[379A.220] Incorrect address provided by applicant In Cheng v Minister for Immigration and Citizenship (2011) 198 FCR 559; [2011] FCA 1290, the applicant provided the incorrect address in his visa application. The delegate of the Minister sent the letter refusing the visa to the incorrect address provided in the visa application. The result was that the applicant filed his application for review to the Migration Review Tribunal outside the time limit specified in s 347. The Migration Review Tribunal therefore found that it did not have jurisdiction to consider his application. Flick J held that there was no error in the Migration Review Tribunal’s finding because the notification letter was correctly sent, under s 494B, to the last address provided to the Minister. It did not matter that the address provided to the Minister was actually the wrong address as this was the address provided by the applicant: at [46]–[47]. Although this case concerned s 494B of the Act, the Federal Court’s comments are likely to be applicable to s 379A. [379A.240] Transmitting the document by email In Sainju v Minister for Immigration and Citizenship (2010) 185 FCR 86; 115 ALD 371; [2010] FCA 461, Jacobson J considered the words “transmitting the document by … email” in reg 2.55(3)(d). The words in this regulation are identical to those contained in ss 494B(5) and 379A(5). The applicant in this matter provided an email address in her application for revocation of the cancellation of her student visa. A delegate of the Minister sent the applicant the decision not to revoke the cancellation to the applicant’s email address provided in the application form. The applicant claimed that she did not receive this email and therefore was out of time to file an application for review in the Tribunal. Jacobson J held that the word “transmitting” means “sending” and a person is taken to have received the document at the end of the day on which it was sent: at [57]. His Honour stated that “the relevant question is when was the email sent, not when it came to the attention of the addressee”: at [77]. [379A.260] No suburb provided in the address for correspondence In SZRVF v Minister for Immigration and Citizenship [2013] FCCA 764, the applicant applied for a protection visa and provided the Department with the following address for correspondence: “PO Box NSW 1835.” No suburb was provided. A delegate of the Minister notified the applicant, under s 66, that her application for a protection visa had been refused. Pursuant to s 494B(4), the notification letter was sent to the address provided by the applicant, but included the suburb “Auburn” (which the applicant had not specified in the address for correspondence). The applicant failed to make an application for review to the Refugee Review Tribunal within the time period specified in s 412 and therefore the Refugee Review Tribunal found that it did not have jurisdiction. The applicant claimed that the Minister failed to comply with s 494B(4) because the notification letter was not sent to the address that she had provided because it included the suburb “Auburn”. Burn J held that the inclusion of the suburb name on the notification letter did not render the address incorrect and that therefore there had been compliance with s 494B(4): at [31]. Although this case concerned s 494B of the Act, the Federal Circuit Court’s comments are likely to be applicable to s 379A. [379A.280] Postcode is not an essential part of the address There is authority to the effect that a postcode is not an essential part of an address and, therefore, failure to include a postcode or failure to correctly record a postcode on a notification letter will not result in non-compliance with the notification provisions under the Act. For example, in SZKGF v Minister for Immigration and Citizenship [2008] FCAFC 84, the Refugee Review Tribunal sent a letter to the applicant pursuant to s 424A inviting the applicant to comment on certain information. The invitation letter was purportedly sent, pursuant to © 2016 THOMSON REUTERS

781

s 379A

Migration Act 1958

[379A.300]

s 441A(4), by prepaid post to the last address for correspondence provided to the Refugee Review Tribunal (this provision is in similar terms to s 379A(4)). However, the invitation letter contained the incorrect postcode. Stone, Jacobson and Edmonds JJ held, at [11], that the postcode was not a part of the address and therefore did not result in non-compliance with the notification provisions. In reaching this conclusion, Stone, Jacobson and Edmonds JJ relied upon the decision in SZLBR v Minister for Immigration and Citizenship (2008) 216 FLR 141; [2008] FMCA 154. In that matter, the applicant, in his review application, had provided the Refugee Review Tribunal with the following address for correspondence: “288/226 Elizabeth Street Surry Hills NSW 2010”. The Refugee Review Tribunal sent a letter, pursuant to s 425 of the Act, inviting the applicant to a hearing. The invitation letter was purportedly sent, pursuant to s 441A(4), by prepaid post to the last address for correspondence provided to the Refugee Review Tribunal (this provision is in similar terms to s 379A(4)). However, the invitation letter contained the incorrect postcode. Emmett FM held at [38]–[41]: The compliance with s 441A of the Act requires dispatch, relevantly, by prepaid post to the last address for service. In considering the meaning of address, I have regard to the definition of “address” in the New Shorter Oxford Dictionary as, inter alia, “the name of the place to which anyone’s letters etc are directed; ones place of residence”. The use of the word “place” in that definition, to my mind, signifies a physical location. The Macquarie Dictionary defines “place” as, inter alia, “an open space, or square, in a city or town; an area, especially one regarded as an entity and identifiable by name, used for habitation, as a city, town, or village”. In light of those definitions, the address of “one’s place of residence” is properly identified by the street name and number, where relevant, and suburb. The postcode is not an essential part of the identification of that physical location. In the matter before this Court, the letter was sent by prepaid post to “288/226 Elizabeth Street Surry Hills”, being the physical location of the place of residence provided by the applicant and identified by the street name and number and suburb. Accordingly, I am satisfied that, in the circumstances, the Tribunal has complied with the requirements of the statutory regime as imposed by ss 425, 425A and 441A of the Act.

[379A.300] Failure to include the word “street” in the address on the document In SZOQY v Minister for Immigration and Citizenship [2011] FMCA 120, in his application for review, the applicant provided the Refugee Review Tribunal with the following address for correspondence: “28 The Boulevard Street, Lidcombe”. The Refugee Review Tribunal sent a letter, pursuant to s 425 of the Act, inviting the applicant to a hearing. Pursuant to s 441A(4) (which is in similar terms to s 379A(4)), the invitation letter was sent by prepaid post to the address “28 The Boulevard, Lidcombe”, the last address for correspondence provided to the Refugee Review Tribunal. The invitation letter failed to contain the word “Street” in the address. The letter was returned “unclaimed” and the applicant failed to appear at the hearing. The Minister tendered evidence that the address “28 The Boulevard Street, Lidcombe” did not exist and that the address “28 The Boulevard, Lidcombe” was the applicant’s actual address. The Minister also tendered evidence that an officer from Australia Post had actually attended the correct address, but that since there was no-one at the address at that time, the officer left a card advising that an item of mail was available for collection from Lidcome Post Office. The item was not collected and was subsequently returned to the Refugee Review Tribunal. Cameron FM held that there was no jurisdictional error and that the Refugee Review Tribunal had complied with s 441A(4) because it had sent the invitation to the applicant’s actual (and correct) address: at [23]. His Honour stated at [23]: In this connection, it must be recalled that the address notified by the applicant was incorrect because it contained the redundant word – “Street”. I accept the Minister’s submission that his error has no greater 782

Migration Law

Part 5 – Review of Part 5-reviewable decisions (ss 336M–379G) [379A.340] Div 8A - Part 5-reviewable decisions: giving/receiving documents (ss 379AA-379G)

s 379B

significance than if the applicant had misspelt “Boulevard”. As the address “28 Boulevard Street, Lidcombe” did not exist but “28 The Boulevard, Lidcombe” did and was the applicant’s actual address, it would be absurd to conclude that making a minor alteration to the advised address when addressing the hearing invitation, which had the effect that the address was correctly cited, led to the outcome that the Tribunal had not complied with s 441A(4).

[379A.320] No error in providing return to sender instructions The inclusion of such words as “if not delivered within 7 days, return to GPO Box #### Sydney NSW 2001” on the envelope will not mean that the Tribunal has failed to dispatch a document within the meaning of s 379A(4) or caused any miscarriage in the method for the giving of documents under this section: SZOBI v Minister for Immigration and Citizenship (No 2) (2010) 119 ALD 233; [2010] FCAFC 151 at [22] per Stone and Jagot JJ (special leave was refused in SZOBI v Minister for Immigration and Citizenship [2011] HCATrans 347).

PRACTICE POINT [379A.340] Tribunal must give document to authorised recipient Pursuant to s 379G(1), if a person gives the Tribunal written notice of an authorised recipient, then for the purposes of s 379A, the Tribunal must give the authorised recipient 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. [Subs (2) am Act 60 of 2015, s 3 and Sch 2 item 134, with effect from 1 Jul 2015]

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. [Subs (3) am Act 60 of 2015, s 3 and Sch 2 item 134, with effect from 1 Jul 2015]

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

© 2016 THOMSON REUTERS

783

s 379B

Migration Act 1958

[379B.20]

(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. [Subs (4) am Act 60 of 2015, s 3 and Sch 2 item 134, with effect from 1 Jul 2015; Act 31 of 2014, s 3 and Sch 4 items 30 and 31, with effect from 24 Jun 2014] [S 379B am Act 60 of 2015; Act 31 of 2014; insrt Act 58 of 2001, s 3 and Sch 3 item 11]

SECTION 379B COMMENTARY Scope ................................................................................................................................................. [379B.20] CONCEPTS

Dispatching ....................................................................................................................................... [379B.40] Transmitting the document ............................................................................................................... [379B.60] Giving or give ................................................................................................................................... [379B.80]

[379B.20] Scope Section 379B specifies alternative methods by which the Tribunal is authorised to give documents to the Secretary of the Department. One of these methods must be used where a provision in the Act or the Regulations requires the document to be given in conformity with this section. However, the Tribunal is free to determine which method to use. The methods are the same as those contained in s 379A, except that there is no need for a separate provision dealing with giving documents to a person at the Secretary’s notified address: see Explanatory Memorandum to the Migration Legislation Amendment (Electronic Transactions and Methods of Notification) Bill 2001 (Cth) at [104].

CONCEPTS [379B.40] Dispatching According to s 379B(3), one of the methods by which the Tribunal can give the Secretary of the Department a document is by dating the document and “dispatching” it by post or other means. To “dispatch” a document means to send the document: SZOBI v Minister for Immigration and Citizenship (No 2) (2010) 119 ALD 233; [2010] FCAFC 151 at [29] per Bromberg J (Stone and Jagot JJ agreeing) (special leave was refused in SZOBI v Minister for Immigration and Citizenship [2011] HCATrans 347). Accordingly, s 379B(3) concerns the sending of a document, and not the receiving of a document: at [18] per Stone and Jagot JJ (Bromberg J agreeing). [379B.60] Transmitting the document Section 379A(4) provides that, in relation to the giving of a document by fax, email or other electronic means, the words “transmitting the document” relate to the “sending” of the document and do not imply that actual communication must have occurred: Sainju v Minister for Immigration and Citizenship (2010) 185 FCR 86; 115 ALD 371; [2010] FCA 461 at [41], [57] and [71]. [379B.80] Giving or give The words “give” or “giving” in relation to a document are frequently used in s 379A. In VEAN v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 280 at [31], Weinberg J noted that the word “give” is a word of “wide amplitude” and does not equate with “physically handing over an object”. Further, his Honour noted at [32], in relation to the meaning of the word “give”: 784

Migration Law

[379B.80]

Part 5 – Review of Part 5-reviewable decisions (ss 336M–379G) Div 8A - Part 5-reviewable decisions: giving/receiving documents (ss 379AA-379G)

s 379C

The Concise Oxford Dictionary defines “give”, inter alia, as “making another the recipient of something in the subject’s possession”. To cause something to be put in the possession of another, is, relevantly, to give the object to that other.

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. [Subs (5) am Act 31 of 2014, s 3 and Sch 4 items 32 and 33, with effect from 24 Jun 2014]

(6) [Repealed] [Subs (6) rep Act 106 of 2014, s 3 and Sch 6 item 4, with effect from 25 Sep 2014]

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. [Subs (7) insrt Act 112 of 2008, s 3 and Sch 1 item 9] [S 379C am Act 106 of 2014; Act 31 of 2014; Act 112 of 2008; insrt Act 58 of 2001, s 3 and Sch 3 item 11]

© 2016 THOMSON REUTERS

785

s 379C

Migration Act 1958

[379C.20]

SECTION 379C COMMENTARY Scope ................................................................................................................................................. [379C.20] CONCEPTS

Taken to have received the document ............................................................................................. [379C.40] KEY CASES

Section 379C does not create a rebuttable presumption ................................................................. [379C.60] Time periods and natural justice ...................................................................................................... [379C.80] PRACTICE POINT

Tribunal must send document to authorised recipient .................................................................. [379C.100]

[379C.20] Scope Where any of the subsections of s 379C have effect, a person will be deemed to have received a document, regardless of what events actually transpired. Section 379C is, accordingly, a “statutory deeming provision” that “does not create a rebuttable presumption that notification has occurred”: Minister for Immigration and Citizenship v Manaf (2009) 111 ALD 437; [2009] FCA 963 at [21] per Sundberg J (in relation to s 494C, which is in similar terms). Rather, the section “provides that in certain circumstances, a person is taken to have received a document”: Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172 at [13] per Spender, Kiefel and Dowsett JJ (in relation to s 494C, which is in similar terms). Accordingly, a court on review cannot inquire into whether or not in fact a document has, or has not, been received. “The Act conclusively provides for this effect”: Kim v Minister for Immigration and Multicultural Affairs (2014) 220 FCR 494; [2006] FCAFC 64 at [8]. Relevantly, this provision mirrors the methods in ss 441A and 494B, which deal with the circumstances in which a person is taken to have received a document from the Tribunal, in relation to a Part 7-reviewable decision, and the Minister.

CONCEPTS [379C.40] Taken to have received the document Section 5(23) of the Act clarifies the meaning of the phrase “is taken” by providing that “[t]o avoid doubt, in this Act is taken, when followed by the infinitive form of a verb, has the same force and effect as is deemed when followed by the infinitive form of that verb.” The expression “taken to have received the document” appears in s 379C(2), (3), (4), (5) and (7). In considering the meaning of this phrase, Spender J observed in Murphy v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 135 FCR 550; [2004] FCA 657 at [69] in relation to s 494C(4): The person is “taken to have received the document”, in the circumstances of this case, seven working days after the date of the document. In my view this provision manifests an intention that a person is taken to have received the document seven working days after the date of the document, without qualification. There is nothing to indicate that the effect of the subsection is to be read as if there was a proviso that a person was not taken to have received the document where the documents had been returned undelivered to the sender within seven working days after the date of the document, or that the subsection operates in its terms only “until the contrary is proved”.

By sending a document by one of the methods in s 379A, a person is “taken to have received the document” at the time specified in s 379C, regardless of whether the document was actually received: SZNZL v Minister for Immigration and Citizenship (2010) 186 FCR 271; [2010] FCA 621 at [36] per Barker J (in relation to s 494C, which is in similar terms). 786

Migration Law

[379C.60]

Part 5 – Review of Part 5-reviewable decisions (ss 336M–379G) Div 8A - Part 5-reviewable decisions: giving/receiving documents (ss 379AA-379G)

s 379C

KEY CASES [379C.60] Section 379C does not create a rebuttable presumption The deeming provisions in s 379C are mandatory and it is not possible for an applicant to tender evidence to rebut the time when the applicant is deemed to have received the document (other than in s 379C(7) in relation to circumstances where the document has not been given in accordance with s 379A). In Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172 (Xie), the Full Federal Court of Australia considered whether s 494C(4) (which is in similar terms to s 379C(4)), which applies to documents dispatched by pre-paid post or other pre-paid means, created an irrebuttable presumption as to the time of receipt of the documents, or whether evidence could be brought to establish the actual time of receipt. The applicant in that matter applied for a student visa and provided the Department with a postal address for receiving documents. The delegate of the Minister refused to grant the visa and notified the applicant by letter sent according to the provisions of s 494B(4) by registered post to the address provided by the applicant. The applicant did not collect the letter from Australia Post and therefore was out of time to file an application for review with the Migration Review Tribunal. The applicant claimed that since he did not receive the notification letter within the 21-day period provided for under s 494C(4), the deeming provisions in that section did not apply. Spender, Kiefel and Dowsett JJ held at [13] that: Subsection 494C(4) does not purport to create a rebuttable presumption of fact. It provides that in certain circumstances, a person is to be “taken to have received the document …”. Nothing in the section suggests that this is merely a rebuttable presumption.

Spender, Kiefel and Dowsett JJ quoted with approval Spender J’s comment in Murphy v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 135 FCR 550; [2004] FCA 657 at [69] in relation to s 494C(4): In my view this provision manifests an intention that a person is taken to have received the document seven working days after the date of the document, without qualification. There is nothing to indicate … that the subsection operates in its terms only “until the contrary is proved”.

In Tay v Minister for Immigration and Citizenship (2010) 183 FCR 163; [2010] FCAFC 23, the Full Federal Court of Australia considered whether s 494C(5) (which is in similar terms to s 379C(5)), which applies to documents transmitted by fax, email or other electronic means, created a rebuttable presumption of fact and whether the applicant could lead evidence to show that she did not receive the document on the day it was deemed to be received in accordance with s 494C(5). Dowsett, Stone and Bennett JJ, accepting the reasoning in Xie, held that s 494C(4) and (5) were identical and therefore the reasoning in Xie was equally applicable to s 494C(5): at [19]. Dowsett, Stone and Bennett JJ stated at [24]–[25]: Section 494C makes very detailed provision for determining when a document is taken (deemed) to have been received from the Minister. Those provisions must be construed in a statutory context of similarly detailed provisions concerning the methods by which the Minister may give documents to a person when this is a requirement (s 494B) and when it is not required (s 494A) and the identification of the authorised recipient of documents (s 494D). These provisions all evidence concern that there should be certainty in the transfer of documents from the Minister both as to the method and as to the time of delivery. This was recognised by the Full Court in Xie leading it to conclude that s 494C(4) did not create a rebuttable presumption … That s 494C(5) does not create a rebuttable presumption of fact is supported not only by our construction of the relevant statutory and regulatory provisions, but also by extrinsic material relevant © 2016 THOMSON REUTERS

787

s 379C

Migration Act 1958

[379C.80]

to the introduction of these provisions. Sections 494A, 494B, 494C and 494D were introduced into the Migration Act by the Migration Legislation Amendment (Electronic Transactions and Methods of Notification) Act 2001 (Cth). On 5 April 2001, in his second reading speech concerning the bill that preceded this Act, the Minister for Immigration and Multicultural Affairs said: These amendments essentially consolidate into the Migration Act existing provisions found in either the Migration Act or the migration regulations. They clarify when notification of a decision occurs and on what date. This is critical for review mechanisms, as an application for review must be made within a specified period, or the case is out of time.

[379C.80] Time periods and natural justice The period of time prescribed in s 379C(2) – (5) for when a document is deemed to have been received is not capable of being extended. In Cheng v Minister for Immigration and Citizenship (2011) 198 FCR 559; [2011] FCA 1290, the applicant wrote the incorrect address on his visa application. The delegate of the Minister sent the letter refusing the visa to the incorrect address provided in the visa application. The result was that the applicant filed his application for review to the Migration Review Tribunal outside the time limit specified in s 347. The Migration Review Tribunal therefore found that it did not have jurisdiction to consider his application. Flick J held that there was no error in the Migration Review Tribunal’s finding because the notification letter was correctly sent under s 494B (which is in similar terms to s 379A) to the last address provided to the Minister. It did not matter that the address provided to the Minister was actually the wrong address as this was the address provided by the applicant: at [46]–[47]. In addition, the applicant claimed that he was denied natural justice because he was not given an opportunity to be heard in relation to the incorrect address and the application of s 494C (which is in similar terms to s 379C). In this regard, Flick J was of the view that the applicant’s argument was without substance: at [23]. Even if the applicant was entitled to be heard on these issues, there is nothing meaningful that the applicant could have said: at [27]. Flick J stated at [29]: Given the absence of any power to extend the time within which an application for review may be made, and an apparent acceptance of the underlying factual basis upon which the Tribunal declined jurisdiction, the utility of extending any opportunity to be heard in respect to the return of the letter and the circumstances in which the erroneous address was provided remains elusive. It may well have been a “a hollow opportunity”: SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940 at [39] per Bennett J. “Whether one talks in terms of procedural fairness or natural justice”, it will be recalled that “the concern of the law is to avoid practical injustice”: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6 at [37], 214 CLR 1 at 14 per Gleeson J. See also: Button v R [2010] NSWCCA 264 at [15] per Latham J (Simpson and Kirby JJ agreeing); Medan v R [2011] WASCA 142 at [59] per Buss JA (Pullin JA and Hall J agreeing); Re Roth; Ex parte Cazaly Iron Pty Ltd [2011] WASC 226 at [30] per Beech J. In SZNZL [2010] FCA 621 at [46], 186 FCR 271 at 279 a question was similarly raised as to whether “issues of procedural fairness arise in connection with the Tribunal’s consideration of whether it has jurisdiction”.

PRACTICE POINT [379C.100] Tribunal must send document to authorised recipient If an applicant has notified the Tribunal of an authorised recipient under s 379G, the Tribunal must send the document to the authorised recipient. In those circumstances, the applicant is deemed to have received the document in the time specified in s 379C.

788

Migration Law

[379D.20]

Part 5 – Review of Part 5-reviewable decisions (ss 336M–379G) Div 8A - Part 5-reviewable decisions: giving/receiving documents (ss 379AA-379G)

s 379D

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. [Subs (4) am Act 31 of 2014, s 3 and Sch 4 items 34 and 35, with effect from 24 Jun 2014]

(5) [Repealed] [Subs (5) rep Act 106 of 2014, s 3 and Sch 6 item 4, with effect from 25 Sep 2014] [S 379D am Act 106 of 2014; Act 31 of 2014; insrt Act 58 of 2001, s 3 and Sch 3 item 11]

SECTION 379D COMMENTARY Scope ................................................................................................................................................. [379D.20] CONCEPTS

Taken to have received the document ............................................................................................. [379D.40] KEY CASES

Section 379D does not create a rebuttable presumption ................................................................ [379D.60]

[379D.20] Scope Where any of the subsections of s 379D have effect, the Secretary of the Department will be deemed to have received a document regardless of what events actually transpired. Section 379D is, accordingly, a “statutory deeming provision” that “does not create a rebuttable presumption that notification has occurred”: Minister for Immigration and Citizenship v Manaf (2009) 111 ALD 437; [2009] FCA 963 at [21] per Sundberg J (in relation to s 494C, which is in similar terms). Rather, the section “provides that in certain circumstances, a person is taken to have received a document”: Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172 at [13] per Spender, Kiefel and Dowsett JJ (in relation to s 494C, which is in similar terms). © 2016 THOMSON REUTERS

789

s 379D

Migration Act 1958

[379D.40]

Accordingly, a court on review cannot inquire into whether or not in fact a document has, or has not, been received. “The Act conclusively provides for this effect”: Kim v Minister for Immigration and Multicultural Affairs (2014) 220 FCR 494; [2006] FCAFC 64 at [8].

CONCEPTS [379D.40] Taken to have received the document Section 5(23) of the Act clarifies the meaning of the phrase “is taken” by providing: “To avoid doubt, in this Act ‘is taken’, when followed by the infinitive form of a verb, has the same force and effect as ‘is deemed’ when followed by the infinitive form of that verb.” The phrase “taken to have received the document” appears in s 379C(2), (3), (4), (5) and (7). In considering the meaning of this phrase, Spender J observed in Murphy v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 135 FCR 550; [2004] FCA 657 at [69], in relation to s 494C(4): The person is “taken to have received the document”, in the circumstances of this case, seven working days after the date of the document. In my view this provision manifests an intention that a person is taken to have received the document seven working days after the date of the document, without qualification. There is nothing to indicate that the effect of the subsection is to be read as if there was a proviso that a person was not taken to have received the document where the documents had been returned undelivered to the sender within seven working days after the date of the document, or that the subsection operates in its terms only “until the contrary is proved”.

By sending a document by one of the methods set out in s 379AA, the Secretary is “taken to have received the document” at the time specified in s 379D regardless of whether the document was actually received: SZNZL v Minister for Immigration and Citizenship (2010) 186 FCR 271; [2010] FCA 621 at [36] per Barker J (in relation to s 494C, which is in similar terms).

KEY CASES [379D.60] Section 379D does not create a rebuttable presumption The deeming provisions in s 379D are mandatory and it is not possible for a person to tender evidence to rebut the time when the Secretary is deemed to have received the document. In Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172 (Xie), the Full Federal Court of Australia considered whether s 494C(4) (which is in similar terms to s 379D(3), which applies to documents dispatched by prepaid post or other prepaid means) created an irrebuttable presumption as to the time of receipt of the documents, or whether evidence could be brought to establish the actual time of receipt. The applicant in that matter applied for a student visa and provided the Department with a postal address for receiving documents. The delegate of the Minister refused to grant the visa and notified the applicant by letter sent according to the terms of s 494B(4) by registered post to the address provided by the applicant. The applicant did not collect the letter from Australia Post and therefore was out of time to file an application for review with the Migration Review Tribunal. The applicant claimed that since he did not receive the notification letter within the 21-day period provided for under s 494C(4), the deeming provisions in that section did not apply. Spender, Kiefel and Dowsett JJ held at [13] that: Subsection 494C(4) does not purport to create a rebuttable presumption of fact. It provides that in certain circumstances, a person is to be “taken to have received the document …”. Nothing in the section suggests that this is merely a rebuttable presumption. 790

Migration Law

[379D.60]

Part 5 – Review of Part 5-reviewable decisions (ss 336M–379G) Div 8A - Part 5-reviewable decisions: giving/receiving documents (ss 379AA-379G)

s 379F

Their Honours quoted with approval Spender J’s comment in Murphy v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 135 FCR 550; [2004] FCA 657 at [69], in relation to s 494C(4), that: In my view this provision manifests an intention that a person is taken to have received the document seven working days after the date of the document, without qualification. There is nothing to indicate … that the subsection operates in its terms only “until the contrary is proved”.

In Tay v Minister for Immigration and Citizenship (2010) 183 FCR 163; [2010] FCAFC 23, the Full Federal Court of Australia considered whether s 494C(5) (which is in similar terms to s 379D(4)), which applies to documents transmitted by fax, email or other electronic means, created a rebuttable presumption of fact and whether the applicant could lead evidence to show that she did not receive the document on the day it was deemed to have been received in accordance with s 494C(5). Dowsett, Stone and Bennett JJ, accepting the reasoning in Xie, held that s 494C(4) and (5) were identical and that therefore the reasoning in Xie was equally applicable to s 494C(5): at [19]. Dowsett, Stone and Bennett JJ stated at [24]–[25]: Section 494C makes very detailed provision for determining when a document is taken (deemed) to have been received from the Minister. Those provisions must be construed in a statutory context of similarly detailed provisions concerning the methods by which the Minister may give documents to a person when this is a requirement (s 494B) and when it is not required (s 494A) and the identification of the authorised recipient of documents (s 494D). These provisions all evidence concern that there should be certainty in the transfer of documents from the Minister both as to the method and as to the time of delivery. This was recognised by the Full Court in Xie leading it to conclude that s 494C(4) did not create a rebuttable presumption …. That s 494C(5) does not create a rebuttable presumption of fact is supported not only by our construction of the relevant statutory and regulatory provisions, but also by extrinsic material relevant to the introduction of these provisions. Sections 494A, 494B, 494C and 494D were introduced into the Migration Act by the Migration Legislation Amendment (Electronic Transactions and Methods of Notification) Act 2001 (Cth). On 5 April 2001, in his second reading speech concerning the bill that preceded this Act, the Minister for Immigration and Multicultural Affairs said: These amendments essentially consolidate into the Migration Act existing provisions found in either the Migration Act or the migration regulations. They clarify when notification of a decision occurs and on what date. This is critical for review mechanisms, as an application for review must be made within a specified period, or the case is out of time.

379E

Tribunal may give copies of documents [Repealed]

[S 379E rep Act 60 of 2015, s 3 and Sch 2 item 64, with effect from 1 Jul 2015; insrt Act 58 of 2001, s 3 and Sch 3 item 11]

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. [S 379EA insrt Act 85 of 2008, s 3 and Sch 1 item 13]

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

© 2016 THOMSON REUTERS

791

s 379F

Migration Act 1958

[379D.60]

(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. [S 379F am Act 60 of 2015, s 3 and Sch 2 items 65–67, 133 and 134, with effect from 1 Jul 2015; insrt Act 58 of 2001, s 3 and Sch 3 item 11]

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. [Subs (1) am Act 60 of 2015, s 3 and Sch 2 item 133, with effect from 1 Jul 2015; Act 106 of 2014, s 3 and Sch 4 item 1, with effect from 25 Sep 2014]

(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). [Subs (1A) am Act 60 of 2015, s 3 and Sch 2 item 133, with effect from 1 Jul 2015; insrt Act 106 of 2014, s 3 and Sch 4 item 2, with effect from 25 Sep 2014]

(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. [Subs (3) am Act 106 of 2014, s 3 and Sch 4 item 3, with effect from 25 Sep 2014]

(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. [Subs (3A) insrt Act 106 of 2014, s 3 and Sch 4 item 4, with effect from 25 Sep 2014]

(4) [Repealed] [Subs (4) rep Act 106 of 2014, s 3 and Sch 4 item 5, with effect from 25 Sep 2014]

(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. [S 379G am Act 60 of 2015; Act 106 of 2014; insrt Act 58 of 2001, s 3 and Sch 3 item 11]

792

Migration Law

[379G.60]

Part 5 – Review of Part 5-reviewable decisions (ss 336M–379G) Div 8A - Part 5-reviewable decisions: giving/receiving documents (ss 379AA-379G)

s 379G

SECTION 379G COMMENTARY Scope ................................................................................................................................................. [379G.20] CONCEPTS

Notice ................................................................................................................................................ [379G.40] Address ............................................................................................................................................. [379G.60] Give the authorised recipient ........................................................................................................... [379G.80] Giving or give ................................................................................................................................ [379G.100] Vary or withdraw the notice .......................................................................................................... [379G.120] KEY CASES

Letter addressed to applicant, care of the authorised recipient .................................................... [379G.140] Section 379G(3) and varying the notice under s 379G(1) ........................................................... [379G.160] Fraud practised by an authorised recipient may render a decision of the Tribunal invalid ........ [379G.180] The Tribunal must give the authorised recipient, instead of the applicant, relevant documents .... [379G.200] PRACTICE POINT

Applicant deemed to have received document ............................................................................. [379G.220]

[379G.20] Scope If an applicant gives the Tribunal written notice of the name and address of another person being authorised to receive documents then, instead of giving them to the applicant, the Tribunal must give that other person any documents that the Tribunal would otherwise have given the applicant: s 379G(1). By giving the authorised recipient a document, the Tribunal is taken to have given that document to the applicant: s 379G(2). The applicant may vary or withdraw the notice given under s 379G(1): s 379G(3). The primary object of s 379G is “to eliminate uncertainty as to whether a document has been given to an applicant”: Le v Minister for Immigration and Citizenship (2007) 157 FCR 321; [2007] FCAFC 20 at [25] per Emmett, Allsop and Middleton JJ (in relation to s 494D, which is in similar terms).

CONCEPTS [379G.40] Notice According to s 379G(1), the applicant is to give the Tribunal written notice of the name and address of the authorised recipient. This section does not require that the notice be in any particular form. Under s 495, the Minister has a discretion to approve forms, but that power is expressly limited to other provisions of the Act where the expression “approved form” is used. Section 379G(1) is not such a provision: MZZDJ v Minister for Immigration and Border Protection (2013) 215 FCR 153; 137 ALD 466; [2013] FCAFC 156 at [24] per Jagot, Bromberg and Mortimer JJ (in relation to s 494D, which is in similar terms). In addition, there is no requirement that the notice under s 379G(1) be signed: Jalagam v Minister for Immigration and Citizenship [2009] FCA 197 at [36] per Edmonds J. [379G.60] Address According to s 379G(1), the applicant is to give the Minister written notice of the name and address of the authorised recipient. The term “address” is not defined in the Act, and in this section it is not to be read as “limited to a postal address or street address”: MZZDJ v Minister for Immigration and Border Protection (2013) 215 FCR 153; 137 ALD 466; [2013] FCAFC 156 at [29] per Jagot, Bromberg and Mortimer JJ (in relation to s 494D, which is in similar terms). The term “address” is to be read consistently with the way that term is used in s 379A and, therefore, it can be applied to an electronic address, including email: at [30] per Jagot, Bromberg and Mortimer JJ. © 2016 THOMSON REUTERS

793

s 379G

Migration Act 1958

[379G.80]

[379G.80] Give the authorised recipient The expression “give the authorised recipient, instead of the applicant” is not to be construed narrowly, so that a letter that is sent to a person, care of that person’s authorised recipient, will not constitute a “giving” of that letter to the authorised recipient: VEAN v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 280 at [31] per Weinberg J (in relation to s 494D, which is in similar terms). [379G.100] Giving or give The word “give” is a word of “wide amplitude” and does not equate with “physically handing over an object”: VEAN v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 280 at [31] per Weinberg J (in relation to s 494D, which is in similar terms). [379G.120] Vary or withdraw the notice According to s 379G(3), an applicant can vary or withdraw the notice under s 379G(1) appointing an authorised recipient. While a “withdrawal” is “an absolute act and operates on the entire written notice” (MZZDJ v Minister for Immigration and Border Protection (2013) 215 FCR 153; 137 ALD 466; [2013] FCAFC 156 (MZZDJ) at [31] per Jagot, Bromberg and Mortimer JJ (in relation to s 494D, which is in similar terms)), “to vary” means to alter the notice: MZZDJ at [32] per Jagot, Bromberg and Mortimer JJ.

KEY CASES [379G.140] Letter addressed to applicant, care of the authorised recipient Where an applicant has an authorised recipient under s 379G, there will be compliance with s 379A(4) if the envelope is addressed to the authorised recipient. The letter inside the envelope may refer to the applicant. In Minister for Immigration and Citizenship v SZKPQ (2008) 166 FCR 84; 101 ALD 5; [2008] FCAFC 21 (SZKPQ), the applicant applied for a protection visa and had an authorised recipient pursuant to s 494D (which is in similar terms to s 379G). A delegate of the Minister refused the visa on the basis that while the notification letter was addressed to the applicant, care of his authorised recipient, the letter was sent by prepaid post in an envelope addressed only to the authorised recipient. Bennett, Emmett and Branson JJ held that there had been compliance with s 494B(4), even though the notification letter was addressed to the applicant and not to his authorised recipient. Emmett J stated at [25]: Section 494D(1) clearly contemplates that a document addressed to an applicant for a visa, which would otherwise have been given to that person, must be given to the authorised recipient. That provision tends to indicate that a letter such as the delegate’s letter in the present case ought to be addressed to a visa applicant rather than to the authorised recipient. The scheme of the legislation is that the authorised recipient is to be given the document that would otherwise have been given to the visa applicant. It is inconsistent with that notion that the document should itself be addressed to the authorised recipient rather than the applicant for a visa.

Emmett, Bennett and Branson JJ considered the cases of VEAN of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 570; 204 ALR 80; [2003] FCAFC 311 (VEAN) and SZFOH v Minister for Immigration and Citizenship (2007) 159 FCR 199; 241 ALR 653; [2007] FCAFC 63 (SZFOH). Emmett J (with whom Bennett and Branson JJ agreed) held at [26] that the matter before the court in SZKPQ was distinguishable from VEAN, because in that case the notification document was sent to the authorised recipient in an envelope addressed to the visa applicant care of that visa applicant’s authorised recipient. Emmett J (with whom Bennett and Branson JJ agreed) stated at [26] that to the extent that the decision in VEAN: 794

Migration Law

Part 5 – Review of Part 5-reviewable decisions (ss 336M–379G) [379G.180] Div 8A - Part 5-reviewable decisions: giving/receiving documents (ss 379AA-379G)

s 379G

suggests either that notification documents must contain within them the address of the authorised recipient or may not contain the address of an applicant for a visa, the decision should not be followed. In so far as the second case [SZFOH] construed the first case [VEAN] in that way, that construction was erroneous.

[379G.160] Section 379G(3) and varying the notice under s 379G(1) In MZZDJ v Minister for Immigration and Border Protection (2013) 215 FCR 153; 137 ALD 466; [2013] FCAFC 156, the applicant applied for a protection visa and had given notice under s 494D(1) (which is in similar terms to s 379G) of his authorised recipient. The applicant and his authorised recipient attended an interview with a delegate of the Minister. At that interview, the authorised recipient informed the delegate that she would be overseas and requested that the delegate notify her of the decision by email. The delegate forgot about this and sent the notification letter, refusing to grant the visa, to the authorised recipient by prepaid post. When this was brought to the delegate’s attention, the delegate attempted to re-notify the applicant of the decision by sending it by email to the applicant’s authorised recipient. When the applicant attempted to file an application for review with the Refugee Review Tribunal, the Tribunal found that it did not have jurisdiction to consider the application because it was lodged out of time. This is because the applicant was validly notified by the first notification letter sent to the authorised recipient by prepaid post. Jagot, Bromberg and Mortimer JJ considered the word “notice” in s 494D and found that the section did not require notices to be in any particular form: at [24]. Their Honours stated at [26]: The level of formality required (or not required) by s 494D is not without significance. The absence of strict prescriptions about form underlines the facultative nature of this provision: it is intended to give applicants a readily accessible means of ensuring communication in relation to their visa applications is undertaken in the most effective manner if they do not wish, for whatever reason, to be entirely responsible for receiving communications and taking necessary action.

In addition, Jagot, Bromberg and Mortimer JJ were of the view that the term “address” in s 494D should be consistent with s 494B and that therefore an address can be an electronic one, such as an email: at [29]–[30]. In relation to s 494D(3), which permits an applicant to either withdraw the notice under s 494D(1) or to vary it, Jagot, Bromberg and Mortimer JJ found at [42] that the term “vary” should not be read narrowly. Therefore, in relation to a variation of a notice under s 494D(1), their Honours were of the view that: • the variation of the notice can be permanent or temporary: at [33]; • the variation can be oral: at [34]; and • the variation can be made by the authorised person under s 494D(1): at [35]. Given the above, Jagot, Bromberg and Mortimer JJ held that the applicant’s authorised recipient had made an oral variation to the notice under s 494D at the interview with the delegate. Therefore, the first notification letter sent by the delegate to the authorised recipient by prepaid post was not “given” to the applicant and the Tribunal erred by relying on this notification to find that it did not have jurisdiction. [379G.180]

Fraud practised by an authorised recipient may render a decision of the Tribunal invalid Where a document is given to an authorised recipient pursuant to s 379G(1), but the authorised recipient has practised fraud on the Tribunal with the consequence, for example, that an applicant does not in fact receive the document (due to the fraud, and not mere negligence etc), any decision of the Tribunal may be rendered invalid (notwithstanding that the Tribunal is taken to have given the document to the applicant for the purposes of s 379G(2)). © 2016 THOMSON REUTERS

795

s 379G

Migration Act 1958

[379G.200]

The High Court’s decision in SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; 81 ALJR 1404; [2007] HCA 35 is the key authority on the effect of fraudulent and negligent conduct by a migration agent or third party. In this case, the Refugee Review Tribunal sent a document to the applicant’s authorised recipient, pursuant to s 441G(1) (which is in similar terms to s 379G(1)), inviting the applicant to attend a hearing. Relevantly, the authorised recipient had falsely posed as a solicitor and migration agent and had advised the applicant for review not to attend the hearing in the Refugee Review Tribunal. As the third party’s fraud resulted in the stultification of the operation of the natural justice provisions made by Pt 7 Div 4 of the Act (the equivalent to Pt 5 Div 5, but pertaining to the Refugee Review Tribunal), the Tribunal was “disabled from the due discharge of its imperative statutory functions with respect to the conduct of the review”: at [51] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ. The court described this as “fraud on the Tribunal” (at [51]) and that therefore, the Tribunal’s decision it was “no decision at all”: at [52] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ. Importantly, their Honours stated at [53]: The significance of the outcome in this appeal should not be misunderstood. The appeal has turned upon the particular importance of the provisions of Div 4 of Pt 7 of the Act for the conduct by the Tribunal of review and the place therein of the ss 425 and 426A. In the Full Court French J correctly emphasised that there are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made. The outcome in the present appeal stands apart from and above such considerations.

[379G.200]

The Tribunal “must” give the authorised recipient, instead of the applicant, relevant documents In Lee v Minister for Immigration and Citizenship (2007) 159 FCR 181; 241 ALR 363; [2007] FCAFC 62, the appellant had applied to the Migration Review Tribunal for review of a decision. The appellant relevantly appointed an authorised recipient for the purposes of s 379G(1). The Tribunal subsequently sent a letter to the appellant directly, but failed to send it to the authorised recipient. The Minister led evidence of actual delivery of the document to the appellant himself and argued, therefore, that there was no failure to comply with s 379G(1). The Full Court of the Federal Court held that s 379G(1) “is expressed in mandatory terms, and the tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant”. Further, the qualification in s 379G(2) that the Tribunal can give a copy of the document to the applicant does not supplant the Tribunal’s obligation to give a copy of the document to the authorised recipient: at [34] per Besanko J (Moore and Buchanan JJ agreeing). In addition, Besanko J rejected the Minister’s suggestion that proof of actual service of a document on the applicant will overcome the failure of the Tribunal to comply with s 379G(1): at [38] per Besanko J (Moore and Buchanan JJ agreeing).

PRACTICE POINT [379G.220] Applicant deemed to have received document Where a document is sent to an authorised recipient, an applicant is deemed to have received the document in the time period specified in s 379C.

796

Migration Law

[379G.220]

Part 5 – Review of Part 5-reviewable decisions (ss 336M–379G) Division 9 - Referral of decisions to AAT [Repealed] (ss 380-393)

s 379G

DIVISION 9 – REFERRAL OF DECISIONS TO ADMINISTRATIVE APPEALS TRIBUNAL [REPEALED] (SS 380–393) [Div 9, ss 380–393, rep Act 60 of 2015, s 3 and Sch 2 item 68, with effect from 1 Jul 2015; former Div 8 renum Act 60 of 1994, s 83, with effect from 1 Sep 1994; insrt Act 184 of 1992, s 26, with effect from 1 Sep 1994]

© 2016 THOMSON REUTERS

797

PART 6 – MIGRATION REVIEW TRIBUNAL [REPEALED] (SS 394–407) [Pt 6, ss 394–407, rep Act 60 of 2015, s 3 and Sch 2 item 69, with effect from 1 Jul 2015; subst Act 113 of 1998, s 3 and Sch 2 item 9, with effect from 1 Jun 1999; former Pt 4 renum Act 60 of 1994, s 83, with effect from 1 Sep 1994; former Pt IIIA Act 59 of 1989, s 35; insrt Act 59 of 1989, s 27]

PART 6 COMMENTARY [Pt 6.20] Scope Part 6 was repealed on 1 July 2015 by item 69 of the Tribunal’s Amalgamation Act 2015 (Cth). At this time, the Migration Review Tribunal was amalgamated into the Administrative Appeals Tribunal by the Tribunals Amalgamation Act 2015 (Cth). Parts II and III and s 64 of the Administrative Appeals Tribunal Act 1975 (Cth) deal with the establishment of the Administrative Appeals Tribunal, registries and provision for officers.

© 2016 THOMSON REUTERS

799

PART 7 – REVIEW OF PART 7-REVIEWABLE DECISIONS (SS 408–441G) [Pt 7 heading subst Act 60 of 2015, s 3 and Sch 2 item 70, with effect from 1 Jul 2015] [Former Pt 4A renum Act 60 of 1994, s 83, with effect from 1 Sep 1994; insrt Act 184 of 1992, s 31]

PART 7 COMMENTARY Scope ................................................................................................................................................... [Pt 7.20] Further reading ................................................................................................................................... [Pt 7.40]

[Pt 7.20] Scope Part 7 of the Act provides that certain visa decisions are reviewable by the Administrative Appeals Tribunal (Tribunal) and deals with aspects of the Tribunal’s operation. Part 7-reviewable decisions were previously reviewed by the Migration Review Tribunal. That Tribunal was amalgamated into the Administrative Appeals Tribunal on 1 July 2015 by the Tribunals Amalgamation Act 2015 (Cth), which now hears merits review applications of certain migration decisions in its Migration and Refugee Division. Prior to legislative reforms introduced in the late 1980s, the scope for review of migration decisions was confined to limited internal review (including the ability to petition the Minister), investigation by the Ombudsman or the Human Rights Commission or, in some circumstances, through the Administrative Appeals Tribunal. Additionally, judicial review was available in the Federal Court and the High Court: (see Crock M, Immigration and Refugee Law in Australia (The Federation Press, Sydney, 1998) p 250). On 4 September 1987, a Committee to Advise on Australia’s Immigration Policies (chaired by Stephen FitzGerald) was established with a wide brief to examine immigration policy and legislation. The result was a three-volume report, commonly referred to as the “FitzGerald Report”: see Parliament of Australia, Committee to Advise on Australia’s Immigration Policies, Immigration: A Commitment to Australia (Australian Government Publishing Service, Canberra, 1988). The FitzGerald Report concluded that the major deficiency in the Act was “the broad and unstructured nature of the discretionary powers contained in the Act” which “created a great deal of uncertainty”: FitzGerald Report, p 113. In response, the Migration Legislation Amendment Act 1989 (Cth) was enacted as the first in a suite of reforms. The changes introduced by this legislation were explained in the Second Reading speech: The wide discretionary powers conferred by the Migration Act have long been a source of public criticism. Decision-making guidelines are perceived to be obscure, arbitrarily changed and applied, and subject to day-to-day political intervention in individual cases. Accordingly this Bill proposes a decision-making system in which policies governing entry to and stay in Australia will, for the first time, be spelt out in the migration legislative scheme. Parliament, then through its powers of disallowance, will be able to monitor those policies.

The Migration Legislation Amendment Act 1989 (No 59) (Cth) created a two-tiered system of review of prescribed decisions under the Act. The first tier provided for internal review by authorised officers of certain decisions. These decisions were reviewed by a unit within the © 2016 THOMSON REUTERS

801

s 408

Migration Act 1958

[Pt 7.40]

Department known as the Migration Internal Review Office (MIRO). The second tier involved external review by a body called the Immigration Review Tribunal (IRT). The IRT operated “independently of the Department” and its objective was to provide for a “mechanism of review that is fair, just, economical and quick”: Explanatory Memorandum to the Migration Legislation Amendment Bill 1989 (Cth) at [2]. These changes were followed soon after by further amendments made by the Migration Reform Act 1992 (Cth). This legislation introduced the “Refugee Review Tribunal”, which was vested with sole responsibility for providing “determinative, independent merits review of refugee status matters”: Explanatory Memorandum to the Migration Reform Bill 1992 Migration (Delayed Visa Applications) Tax Bill 1992 (Cth) at [40]. The creation of the Refugee Review Tribunal in 1992 was said to represent the completion of an initiative that had begun in 1989 to provide for independent and determinative review of decisions under the Act. It was envisaged that the Tribunal would provide quality independent merits review at a low cost, would simplify access to review by applicants, address community concerns about impartial decision-making, and lessen the scope for merits review by the Federal Court, thereby lessening the number of applications for judicial review: Explanatory Memorandum to the Migration Reform Bill 1992 Migration (Delayed Visa Applications) Tax Bill 1992 (Cth) at [39]–[41]. To further streamline the merits review process, in 1998 MIRO and the IRT were merged to form the Migration Review Tribunal. This was followed soon after by the partial codification in 2002 of the rules of procedural fairness which the courts had significantly developed in the preceding 20 years or so. The new Part 5, Division 5 directed the Migration Review Tribunal on its procedure, while Part 7, Division 4 directed the Refugee Review Tribunal: see, generally, Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth) and the Explanatory Memorandum to the Migration Legislation Amendment (Procedural Fairness) Bill 2002. As already noted, on 1 July 2015, both the Migration Review Tribunal and Refugee Review Tribunal amalgamated with the Administrative Appeals Tribunal through the Tribunals Amalgamation Act 2015 (Cth). The “existing codes of procedure under Parts 5 and 7” of the Act now apply to the Administrative Appeals Tribunal sitting in its Migration and Refugee Division: Explanatory Memorandum to the Tribunals Amalgamation Bill 2015 (Cth) at [24]–[25]. [Pt 7.40] Further reading Crock M and Berg L, Immigration Refugees and Forced Migration: Law, Policy and Practice in Australia (The Federation Press, Sydney, 2011). Chaaya M, “Proposed Changes to the Review of Migration Decisions: Sensible Reform Agenda or Political Expediency?” [1997] SydLawRw 28; (1997) 19(4) Sydney Law Review 547. Parliament of Australia website: http://www.aph.gov.au (accessed 26 October 2014). Department of Immigration and Border Protection website: http://www.immi.gov.au (accessed 26 October 2014).

DIVISION 1 – INTERPRETATION (SS 408–410) 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.

802

Migration Law

Part 7 - Review of Part 7-reviewable decisions (ss 408-441G) Division 1 – Interpretation (ss 408–410)

s 410

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. [S 408 am Act 60 of 2015, s 3 and Sch 2 item 154, with effect from 1 Jul 2015; reinsrt Act 60 of 2015, s 3 and Sch 2 item 71, with effect from 1 Jul 2015; rep Act 60 of 2015, s 3 and Sch 2 item 69, with effect from 1 Jul 2015; am Act 146 of 1999; subst Act 113 of 1998, s 3 and Sch 2 item 9, with effect from 1 Jun 1999; former s 165 renum Act 60 of 1994, s 83, with effect from 1 Sep 1994; former s 64ZY Act 59 of 1989, s 35; insrt Act 59 of 1989, s 27]

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. [S 409 reinsrt Act 60 of 2015, s 3 and Sch 2 item 71, with effect from 1 Jul 2015; rep Act 113 of 1998, s 3 and Sch 2 item 9, with effect from 1 Jun 1999; former s 166 insrt Act 59 of 1989, s 35, with effect from 20 Dec 1989]

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. [Def am Act 60 of 2015, s 3 and Sch 2 items 139 and 140, with effect from 1 Jul 2015; insrt Act 35 of 2015, s 3 and Sch 4 item 18, with effect from 18 Apr 2015]

Deputy Principal Member [Repealed] [Def rep Act 60 of 2015, s 3 and Sch 2 item 72, with effect from 1 Jul 2015; insrt Act 110 of 1995, s 3 and Sch 1 item 38, with effect from 29 Sep 1995]

member means a member of the Tribunal.

© 2016 THOMSON REUTERS

803

s 410

Migration Act 1958

officer of the Tribunal has the meaning given by the Administrative Appeals Tribunal Act 1975. [Def insrt Act 60 of 2015, s 3 and Sch 2 item 73, with effect from 1 Jul 2015]

Part 7-reviewable decision: see section 411. [Def insrt Act 60 of 2015, s 3 and Sch 2 item 73, with effect from 1 Jul 2015]

Principal Member [Repealed] [Def rep Act 60 of 2015, s 3 and Sch 2 item 74(a), with effect from 1 Jul 2015]

Registrar means the Registrar of the Tribunal. Tribunal [Repealed] [Def rep Act 60 of 2015, s 3 and Sch 2 item 74(b), with effect from 1 Jul 2015] Note: Tribunal means the Administrative Appeals Tribunal. See the definition in subsection 5(1). [S 410 am Act 60 of 2015, s 3 and Sch 2 item 75, with effect from 1 Jul 2015; Act 35 of 2015; Act 110 of 1995; former s 166A renum Act 60 of 1994, s 83, with effect from 1 Sep 1994; insrt Act 184 of 1992, s 31]

DIVISION 2 – PART 7-REVIEWABLE DECISIONS (SS 411–418) [Div 2 heading subst Act 60 of 2015, s 3 and Sch 2 item 76, with effect from 1 Jul 2015]

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 (ii) [Repealed] (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). [Subs (1) am Act 60 of 2015, s 3 and Sch 2 item 135, with effect from 1 Jul 2015; Act 135 of 2014, s 3 and Sch 5 items 19 and 20, with effect from 16 Dec 2014; Act 30 of 2014, s 3 and Sch 3 items 2 and 4; Act 121 of 2011, s 3 and Sch 1 items 31 and 32; Act 60 of 1994, s 82 and Sch 1 item 106, with effect from 1 Sep 1994; Act 59 of 1993, s 28; Act 59 of 1993, s 20]

(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;

804

Migration Law

Part 7 - Review of Part 7-reviewable decisions (ss 408-441G) Division 2 – Part 7-reviewable decisions (ss 411–418)

[411.20]

s 411

(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. [Subs (2) am Act 60 of 2015, s 3 and Sch 2 item 135, with effect from 1 Jul 2015; Act 135 of 2014, s 3 and Sch 4 item 17, with effect from 18 Apr 2015; Act 129 of 2014, s 3 and Sch 2 item 21, with effect from 11 Dec 2014]

(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. [Subs (3) subst Act 114 of 1998, s 3 and Sch 1 item 13] [S 411 am Act 60 of 2015, s 3 and Sch 2 item 77, with effect from 1 Jul 2015; Act 135 of 2014; Act 129 of 2014; Act 30 of 2014; Act 121 of 2011; Act 114 of 1998; former s 166B renum Act 60 of 1994, s 83, with effect from 1 Sep 1994; am Act 60 of 1994; Act 59 of 1993; insrt Act 184 of 1992, s 32, with effect from 1 Jul 1993]

SECTION 411 COMMENTARY Scope .................................................................................................................................................... [411.20] CONCEPTS

Decisions made before 1 September 1994 ......................................................................................... [411.40] Other than decisions made under Part 2A of the Migration (Review) Regulations ......................... [411.60] Migration zone .................................................................................................................................... [411.80] Conclusive certificate ........................................................................................................................ [411.100] Fast track decisions ........................................................................................................................... [411.110] KEY CASES

A primary decision that is affected by jurisdictional error will still constitute a Part 7-reviewable decision ..................................................................................................................................... [411.140] If the Minister breaches s 47(3) and considers an invalid visa application, s 69(1) will render any decision made in respect of that application as being valid ................................................................. [411.160] Section 411 is an exhaustive list of decisions that are reviewable by the Tribunal ....................... [411.180] The issue of a certificate under s 411(3) may be subject to judicial review .................................. [411.220]

[411.20] Scope Section 411 sets out the type of decisions made under the Act that are reviewable by the Tribunal under Pt 7. In essence, the Tribunal has jurisdiction to review decisions where a non-citizen has been refused a protection visa. The predecessor to s 411 (s 166B) was inserted by the Migration Reform Act 1992 (Cth), which created the Refugee Review Tribunal and vested it with sole responsibility for providing “determinative, independent merits review of refugee status matters”: Explanatory Memorandum to the Migration Reform Bill 1992 Migration (Delayed Visa Applications) Tax Bill 1992 (Cth) at [40], [352]–[354]. Prior to the creation of the Refugee Review Tribunal (which took effect on 1 September 1994), decisions made in respect of persons who sought to invoke Australia’s obligations under the Convention relating to the Status of Refugees (1951) (Refugees Convention), as amended by the Protocol relating to the Status of Refugees (1967) (Refugees Protocol), were made by the “Refugee Status Review Committee”. Relevantly, if a particular decision under the Act is not a “Part 5-reviewable decision” (see s 338), a “Part 7-reviewable decision”, or is not otherwise reviewable by the Tribunal under any other provision of the Act, then merits review will not be available. Rather, the visa applicant © 2016 THOMSON REUTERS

805

s 411

Migration Act 1958

[411.40]

will be limited to seeking judicial review in either the High Court, the Federal Court or the Federal Circuit Court (see Pt 8), as the case may be.

CONCEPTS [411.40] Decisions made before 1 September 1994 The Tribunal came into existence on 1 September 1994, which was the day on which relevant provisions of the Migration Reform Act 1992 (Cth) took effect. Prior to this date, there was no dedicated independent body that determined whether persons qualified for refugee status under the Refugees Convention, as amended by the Refugees Protocol. Rather, such decisions were made by the “Refugee Status Review Committee”, which had no statutory basis and whose jurisdiction was limited to making non-binding recommendations to the Minister. In addition, from 1 September 1994, persons wishing to invoke Australia’s obligations under the Refugees Convention, as amended by the Refugees Protocol, were required to apply for a protection visa under the Act: see s 36. This replaced the former system whereby such persons would be required to apply to the Refugee Status Review Committee for recognition of “refugee status”, and thereby obtain an “entry permit” (being formal authority to remain in Australia). Accordingly, the general reference to “decisions” made prior to 1 September 1994 in respect of the Refugees Convention, as amended by the Refugees Protocol, ensured that persons who sought to invoke Australia’s protection obligations prior to that date were afforded the same merits review opportunities as those persons who were, from that date, able to formally apply for a protection visa under the Act. [411.60] Other than decisions made under Part 2A of the Migration (Review) Regulations Section 411(1)(b) provides that the Tribunal may review decisions to refuse to grant or to cancel entry visas or entry permits for which recognition as a refugee is a criterion where such decisions were taken before the commencement of the predecessor to s 36 – that is, s 26B. According to the Explanatory Memorandum to the Migration Reform Bill 1992 Migration (Delayed Visa Applications) Tax Bill 1992 (Cth) at [352], this is to allow the Tribunal to review decisions made prior to the commencement of the new legislative structure for considering applications for protection on refugee grounds, except where a review decision had been made under the review arrangements which existed prior to the commencement of the Tribunal. [411.80] Migration zone The phrase “migration zone” is defined by s 5 to mean the area consisting of the States, the Territories, “Australian resource installations” and “Australian sea installations” (these latter two concepts are likewise defined in s 5). This includes land at mean low water, sea within the limits of a State or a Territory, including ports and piers or similar structures (any part of which is connected to land or to ground under such sea area). [411.100] Conclusive certificate According to the Explanatory Memorandum to the Migration Reform Bill 1992 Migration (Delayed Visa Applications) Tax Bill 1992 (Cth) at [355], the predecessor to s 411(3) – that is, s 166B(3) – provides that the Minister may issue a conclusive certificate on grounds of prejudice to Australia’s security, defence, international relations or in circumstances where a review conducted by the Tribunal would require it to consider Cabinet or Cabinet committee documents. Further, use of the word “may” in s 411(3) means that the power is discretionary. Relevantly, s 33(2A) of the Acts Interpretation Act 1901 (Cth) provides that, where a person, court or body 806

Migration Law

[411.140]

Part 7 - Review of Part 7-reviewable decisions (ss 408-441G) Division 2 – Part 7-reviewable decisions (ss 411–418)

s 411

may do a particular act or thing, and the word “may” is used, the act or thing may be done at the discretion of the person, court or body. In Nguyen Thanh Trong v Minister of Immigration Local Government and Ethnic Affairs (1996) 66 FCR 239; 42 ALD 255; [1996] FCA 1674, Merkel J applied s 33(2A) of the Acts Interpretation Act 1901 (Cth) to s 166B (being the predecessor to s 411) but held that, if that section did not apply, his Honour would in any event have arrived at the same conclusion in relation to the discretion conferred: at [37].

KEY CASES [411.140]

A primary decision that is affected by jurisdictional error will still constitute a Part 7-reviewable decision An error in the making of a primary decision (whether by the Minister or his or her delegate) do not prevent the decision from being an “Part 7-reviewable decision”. To understand why, it is necessary to have regard to the following related provisions in the Act: • s 69(1) provides that non-compliance by the Minister with subdiv AA, AB or s 494D in relation to a visa application, “does not mean that a decision to grant or refuse to grant the visa is not a valid decision but only means that the decision might have been the wrong one and might be set aside if reviewed”; • s 411 refers to the types of decisions that are reviewable by the Tribunal. In each instance, the word “decision” is used (for example, a “decision to refuse”) to define a Part 7-reviewable decision, but does not import the words “valid decision” in this context; • s 415(1) provides that the “Tribunal may, for the purposes of review of a Part 7-reviewable decision, exercise all the powers and discretions that are conferred by [the] Act on the person who made the decision”. In Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307; [1979] FCA 21 at [12] (Lawlor), Bowen CJ observed, in relation to whether the Administrative Appeals Tribunal had jurisdiction to review a purported revocation of a licence where there was no statutory power to revoke the licence, that “decision” means a “decision in fact made, regardless of whether or not it is a legally effective decision”. In Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495; 62 ALD 513; [2000] FCA 906 (Yilmaz), the applicant had submitted an incomplete application for a protection visa, but noted in his application that he would provide the balance of the information required at a later stage. Before the applicant provided the information, a delegate of the Minister made a decision to refuse to grant the visa. On appeal, a Full Court of the Federal Court considered the consequence of the delegate considering an incomplete, and therefore invalid, application for a visa. Relevantly, Gyles J (Spender J agreeing, Marshall J in dissent, but not on this point) had regard to the above legislative provisions, and observed at [88]: In my opinion, these principles are to be applied in the present setting. Brian Lawlor … was a landmark decision in the early days of the jurisdiction of the AAT which had been established to conduct review of certain administrative decisions on the merits as part of a comprehensive set of administrative law reforms. The decision has stood now for over 20 years without dissent and has been regularly applied. It must be taken to have been the law when the RRT provisions were framed. The decision of the delegate … was in fact a decision to refuse to grant a protection visa within the meaning of s 411(1)(c), even if invalid … There are no degrees of invalidity … This analysis does, however, elucidate s 69. In my opinion, it is intended to have the same effect as does the application of the Lawlor principle.

In Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 211 ALR 261; [2004] FCAFC 248, the applicant argued that the decision of the delegate, which was subsequently considered by the Migration Review Tribunal (as it was then known), was “no decision at all” as it was affected by jurisdictional error. A Full Court of the Federal Court © 2016 THOMSON REUTERS

807

s 411

Migration Act 1958

[411.160]

followed the reasoning of Gyles J in Yilmaz and observed at [28] that the expression “decision”, when used in s 338 (the equivalent provision to s 411), ought not be construed in some way so as to refer only to a decision that has been made by a delegate after full compliance with the mandatory procedural prescriptions. The court stated that there is nothing in Pt 5 of the Act which would suggest that the Tribunal does not have the power or obligation to review a decision properly brought before it where the delegate may have failed to comply with a procedural requirement, or in some other way may have committed an error of law. Having regard to s 349(1) (the equivalent provision to s 415(1)), the court also observed at [32] that the Migration Review Tribunal (as it was then known) was, in consequence, able to “cure” a defect in a decision of the Minister or his or her delegate. [411.160]

If the Minister breaches s 47(3) and considers an invalid visa application, s 69(1) will render any decision made in respect of that application as being valid Section 47(3) provides that the Minister is not to consider an application that is not a valid application. On the other hand, s 69(1) provides that non-compliance by the Minister with subdiv AA (which includes s 47), AB or s 494D in relation to a visa application, “does not mean that a decision to grant or refuse to grant the visa is not a valid decision but only means that the decision might have been the wrong one and might be set aside if reviewed”. In Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495; 62 ALD 513; [2000] FCA 906 (Yilmaz) at [81], Gyles J (with whom Spender J agreed, Marshall J in dissent) held that a decision of a delegate made in respect of an otherwise invalid application, although it would involve a contravention of s 47(3), is rendered valid by the operation of s 69(1). Gyles J reasoned: It is thus clear that s 69 relieves against invalidity based upon a breach of s 47. It is entirely reasonable that this should be so. The Minister is bound not to consider an invalid application, and should not do so. If the Minister does so, however, why should the applicant be penalised for, or affected by, the Minister’s mistake? If a visa has been granted, but the application had been invalid on some ground, it would be unreasonable to have it declared invalid in proceedings thereafter, when the remedy had been in the Minister’s own hands at the time … Viewed in this way, s 69 prevents approbation and reprobation by the executive to the disadvantage of the applicant.

Further, Gyles J in Yilmaz (Spender J agreeing, Marshall J in dissent) rejected any suggestion that the wording of s 65(1) was inconsistent with the above conclusion. His Honour stated at [83]: It seems to be that the words “after considering a valid application for a visa” in that section do not form part of the conditions of exercise of the power, but are, rather, the assumption upon which the section proceeds. This is not surprising, since it would be assumed that the Minister would obey s 47, which is directed to the very point. As non-compliance with s 47 is plainly covered by s 69, I do not find any inconsistency between it and s 65, which is directed to those elements … which must be met before a visa can be granted.

[411.180]

Section 411 is an exhaustive list of decisions that are reviewable by the Tribunal The Tribunal only has the power to review the decisions that are listed in s 411. Any other decisions made under the Act, which are not listed in s 411, are not reviewable. For example, in Suh v Minister for Immigration and Citizenship (2009) 175 FCR 515; 108 ALD 470; [2009] FCAFC 42, a Full Court of the Federal Court considered s 338 of the Act. Relevantly, the review applicants were seeking review of the decision by the delegate not to grant a subclass 442 visa (Occupational Trainee) because they did not satisfy cl 442.222(1), which required a nomination in respect of the occupational training to have been lodged and approved by the Minister. The Full Court of the Federal Court held that a decision under cl 442.221(1) is not a decision listed 808

Migration Law

[411.220]

Part 7 - Review of Part 7-reviewable decisions (ss 408-441G) Division 2 – Part 7-reviewable decisions (ss 411–418)

s 412

in s 338, nor a prescribed decision under s 338(9), and therefore the Tribunal did not have jurisdiction to review it: at [23] per Spender, Buchanan and Perram JJ. [411.220]

The issue of a certificate under s 411(3) may be subject to judicial review In Nguyen Thanh Trong v Minister of Immigration Local Government and Ethnic Affairs (1996) 66 FCR 239; 42 ALD 255; [1996] FCA 1674, 17 persons had applied for protection visas. The applications, which were determined by delegates of the Minister, resulted in three persons being determined to be refugees and the remaining 14 not to be refugees. Subsequently, and without prior notice, the Minister issued conclusive certificates under s 166B (which was similar in terms to s 339) in relation to each of the claimants whose claim for protection had been refused. The effect of the certificates was to make the delegates’ decisions non “Part 7-reviewable decisions”, which meant the decisions were no longer subject to review by the Tribunal. The applicant sought judicial review of the Minister’s decision to issue a certificate. In considering a court’s ability to review a decision by the Minister to issue a certificate, Merkel J held at [46] that: • the Minister has a discretion whether to issue a conclusive certificate upon forming the requisite belief; • the discretion is a broad one and is confined only by the requirement that its exercise be consistent with the scope, subject matter and purpose of the power conferred; • in forming the requisite belief the Minister is only required to have regard to the matters set out in the provision (that is, the “national interest”); • a decision made under the section is not immune from review. However, the width of the discretion and the subjective nature of any decision, insofar as it is conditional on the formation of a belief, necessarily result in very limited grounds for administrative review. In light of the limited grounds of administrative review available in respect of a decision to issue a certificate, the court dismissed the applicant’s challenge on the basis of an alleged error of law, failure to have regard to Australia’s treaty obligations and failure to exercise a fair, impartial and independent discretion. Merkel J stated at [59] that the applicant’s ground that the Minister failed to afford natural justice or procedural fairness was “the only substantial ground of challenge”. His Honour cited with approval at [61] the comments of Mason CJ, Dawson, Toohey and Gaudron JJ in Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; 66 ALJR 271; [1992] HCA 10 at 576 (CLR), where their Honours held that the duty to afford procedural fairness arises, if at all, because the impugned power involved is one which may “destroy, defeat or prejudice a person’s rights, interests or legitimate expectations”. Merkel J found, at [62]–[68], that s 166B met this description and that, therefore, the applicant was entitled to procedural fairness. The court found that the failure of the Minister to give the applicant prior notice of his intention to issue a conclusive certificate, and not give the applicant an opportunity to be heard, breached the rules of natural justice. Therefore, the court held that the decision was invalid. 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). [Subs (1) am Act 60 of 2015, s 3 and Sch 2 item 135, with effect from 1 Jul 2015]

© 2016 THOMSON REUTERS

809

s 412

Migration Act 1958

[412.20]

(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). [Subs (4) am Act 60 of 2015, s 3 and Sch 2 item 135, with effect from 1 Jul 2015] [S 412 am Act 60 of 2015, s 3 and Sch 2 item 78, with effect from 1 Jul 2015; former s 166BA renum Act 60 of 1994, s 83, with effect from 1 Sep 1994; insrt Act 184 of 1992, s 32, with effect from 1 Jul 1993]

SECTION 412 COMMENTARY Scope ................................................................................................................................................... [412.20] CONCEPTS

Approved form .................................................................................................................................... [412.40] Prescribed period ................................................................................................................................. [412.60] Prescribed fee ...................................................................................................................................... [412.80] Migration zone .................................................................................................................................. [412.100] KEY CASES

No power to extend the prescribed period to file an application .................................................... [412.120] Section 412(1)(b) creates an envelope of time during which the application must be made ........ [412.140] If proper notification of the delegate’s decision is not given, time does not commence, thereby precluding an applicant from applying to the Tribunal for review .......................................................... [412.160] Valid notification of an Part 5-reviewable decision cannot be undone, so the prescribed period will immediately commence regardless of subsequent events ....................................................... [412.180] The requirement to use the approved form is amenable to substantial compliance ...................... [412.200] Substantial compliance of an approved form where passport details not provided ....................... [412.220] Distinction between the requirement to make an application on a specific form, and an obligation to complete that form in the prescribed manner ......................................................................... [412.240] The requirement for a specified person to make the application is not amenable to substantial compliance. Either the correct person applies, or they do not .................................................................... [412.260] PRACTICE POINT

Where a Part 7-reviewable decision is made in respect of a person who fails to apply to the Tribunal for review in accordance with s 412, application may, in the alternative, be made to the High Court for judicial review .......................................................................................................................... [412.300] Approved forms ................................................................................................................................. [412.320]

[412.20] Scope This section sets out the prerequisites that must be complied with for the Tribunal to be apprised of jurisdiction to hear and determine an application for merits review.

CONCEPTS [412.40] Approved form According to s 5, the words “approved form” mean, in respect of a particular provision of the Act, a form approved by the Minister in writing for the purposes of that provision. Section 495 states that the Minister may, in writing, approve a form for the purposes of a provision of the Act in which the expression “approved form” is used. Further, according to s 496(1), the Minister may delegate the power to approve such forms. 810

Migration Law

[412.140]

Part 7 - Review of Part 7-reviewable decisions (ss 408-441G) Division 2 – Part 7-reviewable decisions (ss 411–418)

s 412

On 25 February 2005, the Minister, by instrument in writing, revoked all existing delegations made in relation to the Principal Member of the Tribunal. By the same instrument, the Minister delegated to the Principal Member, among other things, the power to approve forms for the purposes of s 495 of the Act. Accordingly, all application forms to the Tribunal are approved by the Principal Member of the Tribunal. [412.60] Prescribed period Section 412(1)(b) “fixes the maximum period within which applications may be made” to the Tribunal, “but authorises the making of regulations prescribing shorter periods”: Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172 (Xie) at [5] per Spender, Kiefel and Dowsett JJ. Regulation 4.31 of the Migration Regulations 1994 (Cth) (Regulations) sets out the prescribed periods for making applications to the Tribunal. For applicants in immigration detention, the prescribed period in which an application for review must be given to the Tribunal is seven working days commencing on the day the applicant is taken to be notified of a Part 7-reviewable decision (or, if that day is not a working day, the first working day after that day): reg 4.31(1). If an applicant is not in immigration detention, the prescribed period is 28 days, commencing on the day the applicant is notified of the decision: reg 4.31(2). Even though the language in s 412(1)(b) – that is, 28 days “after the notification of the decision” – differs to the language in reg 4.31(1) – that is, seven days – nothing turns on this inconsistency: see, for example, Xie at [5] per Spender, Kiefel and Dowsett JJ. [412.80] Prescribed fee Regulation 4.31B(1)(c) prescribes the fee to be $1,540 for applications made on or after 1 July 2011. However, pursuant to reg 4.31B(2), the fee is not payable until after the Tribunal has made its decision - that is, within seven days of the time when notice of the decision of the Tribunal is taken to have been received by the applicant in accordance with s 441C of the Act. Where the Tribunal determines that the applicant for the visa is a person to whom Australia has protection obligations, no fee is payable: reg 4.31B(3). Pursuant to reg 4.31BA, the fee is increased in accordance with reg 4.13BB on each biennial anniversary of 1 July 2011. [412.100] Migration zone The phrase “migration zone” is defined by s 5 to mean the area consisting of the States, the Territories, “Australian resource installations” and “Australian sea installations” (these latter two concepts are likewise defined in s 5). This includes land at mean low water, sea within the limits of a State or a Territory, including ports and piers or similar structures (any part of which is connected to land or to ground under such sea area).

KEY CASES [412.120] No power to extend the prescribed period to file an application The Tribunal does not have the power, either under the Act or the Regulations, to extend the prescribed periods in s 412(1)(b) or under reg 4.31B: Patel v Minister for Immigration and Citizenship [2012] FCA 145 at [7] per Marshall J. [412.140]

Section 412(1)(b) creates an envelope of time during which the application must be made In Hasan v Minister for Immigration and Citizenship (2010) 184 FCR 523; 114 ALD 602; [2010] FCA 375 (Hasan), the applicant had filed an application for review nearly five months after notification of the primary decision of the delegate. The Migration Review Tribunal (as it © 2016 THOMSON REUTERS

811

s 412

Migration Act 1958

[412.160]

was then known) held that it did not have jurisdiction to deal with an application filed outside the prescribed period. The appellants argued that no effective notice of the delegate’s decision had been given, and sought an order compelling the Tribunal to hear and determine the application for review. North J found that proper notification had not been given and that, therefore, the time within which to file an application to review the delegate’s decision had not commenced. However, because time had not “started”, the Tribunal did not have jurisdiction to deal with the application and could not therefore be compelled to hear and determine it. His Honour observed at [29]: The regulation [reg 4.10, the equivalent provision pertaining to the Migration Review Tribunal] appears to establish an envelope of time with a beginning and an end. It seems to require that the application be given to the Tribunal within that envelope. On this view, an application given after the end of the period would not comply with the requirement. Similarly, an application given before the start of the period would not comply with the requirement.

North J held at [58] that, because the application for review was given before the prescribed period commenced, the Migration Review Tribunal (as it was then known) could not be compelled to embark on a hearing. In the circumstances, his Honour directed the Minister to provide proper notice of the delegate’s decision. In SZOFE v Minister for Immigration and Citizenship (2010) 185 FCR 129; 269 ALR 343; [2010] FCAFC 79, Buchanan and Nicholas JJ expressed agreement with North J in Hasan that the language of the Regulations (regs 4.31B and 4.10 in relation to the Migration Review Tribunal (as it was then known)) appears to establish an envelope of time within which an application must be made. [412.160] If proper notification of the delegate’s decision is not given, time does not commence, thereby precluding an applicant from applying to the Tribunal for review Where proper notification of the delegate’s decision is not given in accordance with the requirements of s 66, time does not commence, thereby precluding an applicant from applying to the Tribunal for review: see, for example, Hasan v Minister for Immigration and Citizenship (2010) 184 FCR 523; 114 ALD 602; [2010] FCA 375 at [29], [58]; SZOFE v Minister for Immigration and Citizenship (2010) 185 FCR 129; 269 ALR 343; [2010] FCAFC 79 at [61]–[63]. [412.180] Valid notification of an Part 5-reviewable decision cannot be “undone”, so the prescribed period will immediately commence regardless of subsequent events Once an applicant has been validly notified of the delegate’s decision, it is not possible to “re-notify” the recipient. Where an applicant is therefore sent more than one letter notifying him or her of the decision, the time which the applicant will have to apply to the Tribunal will begin from the first letter that is validly sent. In Minister for Immigration and Citizenship v Abdul Manaf (2009) 111 ALD 437; [2009] FCA 963, Ms Abdul Manaf lodged an application for a further business visa, which the delegate refused. The delegate sent the notification letter and decision to the address provided by Ms Abdul Manaf. After having sent the notification letter and decision to that address, Ms Abdul Manaf informed the Department that she had changed her address. A second notification letter, with the decision, was then resent, not to the new address, but to an address that did not exist. Both the first and second notification letters were returned to the Department. Once Ms Abdul Manaf was made aware of the decision, she applied to the Migration Review Tribunal (as it was then known) for review. The Tribunal found that the applicant was validly notified by the first letter sent, and therefore it did not have jurisdiction to consider the application as it had been filed outside the prescribed period provided for under s 347 (the equivalent provision to s 412. 812

Migration Law

[412.200]

Part 7 - Review of Part 7-reviewable decisions (ss 408-441G) Division 2 – Part 7-reviewable decisions (ss 411–418)

s 412

Ms Abdul Manaf applied for judicial review of the Tribunal’s decision. At first instance, O’Dwyer FM held that the Tribunal had erred in finding that Ms Abdu Manaf had been validly notified by the first notification letter. This is because the second renotification letter invalidated the first notification, and because the second renotification letter had been sent to the wrong address, it did not satisfy the legislative scheme and therefore Ms Abdul Manaf had not been validly notified. On appeal, Sundberg J held that the first notification letter attaching the decision was validly sent, and that therefore time to apply to the Tribunal for review had begun. Since the first notification was validly sent, it was not possible to renotify Ms Abdul Manaf as there could not be more than one timetable for the commencement of the review application to the Tribunal. [412.200]

The requirement to use the approved form is amenable to substantial compliance In determining whether an applicant has provided an “approved form” to the Tribunal for the purposes of s 412(1)(a), regard must be had to the applicability of s 25C of the Acts Interpretations Act 1901 (Cth), which relevantly provides: Where an Act prescribes a form, then strict compliance with the form is not required and substantial compliance is sufficient.

In MZAIC v Minister for Immigration and Border Protection [2015] FCAFC 25 (MZAIC), Kenny, Tracey, Robertson and Mortimer JJ upheld an appeal by the appellant in relation to a decision by the Federal Circuit Court which held that the Tribunal did not err by finding that it did not have jurisdiction to consider the appellant’s application because he had used a superseded version of the approved form. The Full Court of the Federal Court considered whether in such circumstances it was possible for there to be substantial compliance in relation to s 412(1)(a) by applying s 25C of the Acts Interpretations Act 1901. Justices Kenny, Tracey, Robertson and Mortimer held that s 25C of the Acts Interpretations Act 1901 (Cth) applies to s 412(1)(a) in relation to the provision of an approved form. That is, where a person has used a superseded form in circumstances where that person is not expressly or impliedly prohibited from using the approved form, then it is possible to have substantial compliance. In MZAIC Kenny, Tracey, Robertson and Mortimer JJ distinguished SZJDS v Minister for Immigration and Citizenship (2012) 201 FCR 1; 126 ALD 78; [2012] FCAFC 27 in relation to the issue of whether the provision of an approved form under s 412(1)(a) was amendable to substantial compliance on the basis that s 25C of the Acts Interpretations Act 1901 (Cth) applies to this section. In SZJDS v Minister for Immigration and Citizenship (2012) 201 FCR 1; 126 ALD 78; [2012] FCAFC 27, the appellant had lodged a valid application form with the Migration Review Tribunal (as it was then known) for the purposes of s 347(1)(a) (the equivalent provision to s 412(1)(a)). However, the appellant inserted, with the valid application form, part of an invalid form which had previously been completed and which directed the Tribunal to send correspondence to the appellant’s solicitor. The valid application form, on the other hand, provided only the appellant’s address as the relevant address for correspondence purposes. The Tribunal subsequently sent an invitation to the appellant to attend a hearing, via the appellant’s solicitors. The appellant was not informed of this invitation by the solicitor. On appeal, the appellant argued that the Tribunal ought to have sent all correspondence to himself, rather than to his solicitor, because the direction to send correspondence to his solicitor was contained on an invalid application form which had previously been completed and which pre-dated the completion of the valid application form. The Full Court of the Federal Court allowed the appeal, finding that the inclusion of part of the invalid form was essentially a nullity. In coming to their decision, Rares and Cowdroy JJ stated at [26]–[28], [34]: © 2016 THOMSON REUTERS

813

s 412

Migration Act 1958

[412.220]

Two different scenarios can arise where legislation requires a specific form to be used to make an application. The first arises where a specific form is required to be used to make an application. In this instance, it is essential that the specified form be used. Here, there is no scope for partial or substantial compliance with the requirement to use the particular form. Either an applicant uses the correct form, or the applicant does not. If the applicant does not use the correct form, the attempt to make an application using the wrong form will be invalid. The second scenario arises where an applicant uses the prescribed form, but fails in some respect to complete it accurately or fully. In this instance, the failure does not necessarily result in an invalid application. That is because of the operation of s 35C of the Acts Interpretation act 1901 (Cth) which provides that where “… an Act prescribes a form, then unless the contrary intention appears, strict compliance with the form is not required and substantial compliance is sufficient”. The distinction between the first and second scenarios is that a person cannot partially or substantially comply with the requirement to use the specific form; the application will be valid only if he or she uses the specific form, otherwise the application is invalid. On the other hand, if the person substantially complies with the directions on that specific form, depending on the circumstances, a partial failure to complete it in accordance with its stated directions may not affect its validity.

In MZAIC, Kenny, Tracey, Robertson and Mortimer JJ considered the above reasoning and stated at [24] to [25]: To the extent that the reasoning in these paragraphs suggests that s 25C does not apply to s 412(1)(a) of the Migration Act we respectfully disagree with that meaning. SZJDS is readily to be distinguished as in that case the appellant was not within the particular class of applicant for review contemplated by the form he used as he was not in immigration detention. … In the present case, however, all that appears is that the appellant used a superseded form but one which was directed to the applicants of his class and where the form, although superseded, had not been approved for different purposes.

It appears that in very special circumstances, such as those that existed in SZJDS v Minister for Immigration and Citizenship (2012) 201 FCR 1; 126 ALD 78; [2012] FCAFC 27, that is where a person is not able to use a particular form or a person does not fall within the class of persons who are able to use a particular form, then it is not possible to have substantial compliance. However, according to MZAIC where a person, who is able to use a particular, uses a superseded form, then it is possible to have substantial compliance. [412.220]

Substantial compliance of an approved form where passport details not provided In MZAIC v Minister for Immigration and Border Protection [2015] FCAFC 25 (MZAIC), Kenny, Tracey, Robertson and Mortimer JJ held that the appellant had substantially complied with s 412(1)(a) by providing a superseded application form to the Tribunal which did not contain his passport details. At [58] of the decision Kenny, Tracey, Robertson and Mortimer JJ set out their reasoning that there had been substantial compliance, namely because: • the purpose of the application form was to indicate that an applicant invokes the jurisdiction of the Tribunal and for that purpose it states who the applicant is and identifies the decision to be challenged; • the application attached a copy of the notification letter from the delegate refusing his visa and that letter contained the appellant’s name, date of birth, client ID, application ID and file number; • many applicants to the Tribunal would not have passport numbers; • the request for passport numbers in the application appears to be directed to the administrative convenience of the Tribunal; 814

Migration Law

[412.260]

Part 7 - Review of Part 7-reviewable decisions (ss 408-441G) Division 2 – Part 7-reviewable decisions (ss 411–418)

s 412

• the request for the passport number in the application is merely a further or additional means to collect information about the person applying for review; • pursuant to s 418(3) of the Act, the Secretary is required to provide the Tribunal with documents in his or her control, which will include the appellant’s passport number. [412.240]

Distinction between the requirement to make an application on a specific form, and an obligation to complete that form in the prescribed manner In SZJDS v Minister for Immigration and Citizenship (2012) 201 FCR 1; 126 ALD 78; [2012] FCAFC 27, the appellant had lodged a valid application form with the Migration Review Tribunal (as it was then known) for the purposes of s 347(1)(a) (the equivalent provision to s 412(1)(a)). However, the appellant inserted, with the valid application form, part of an invalid form which had previously been completed and which directed the Tribunal to send correspondence to the appellant’s solicitor. The valid application form, on the other hand, provided only the appellant’s address as the relevant address for correspondence purposes. The Tribunal subsequently sent an invitation to the appellant to attend a hearing, via the appellant’s solicitors. The appellant was not informed of this invitation by the solicitor. On appeal, the appellant argued that the Tribunal ought to have sent all correspondence to himself, rather than to his solicitor, because the direction to send correspondence to his solicitor was contained on an invalid application form which had previously been completed and which pre-dated the completion of the valid application form. The Full Court of the Federal Court allowed the appeal, finding that the inclusion of part of the invalid form was essentially a nullity. In coming to their decision, Rares and Cowdroy JJ stated at [26]–[28], [34]: Two different scenarios can arise where legislation requires a specific form to be used to make an application. The first arises where a specific form is required to be used to make an application. In this instance, it is essential that the specified form be used. Here, there is no scope for partial or substantial compliance with the requirement to use the particular form. Either an applicant uses the correct form, or the applicant does not. If the applicant does not use the correct form, the attempt to make an application using the wrong form will be invalid. The second scenario arises where an applicant uses the prescribed form, but fails in some respect to complete it accurately or fully. In this instance, the failure does not necessarily result in an invalid application. That is because of the operation of s 35C of the Acts Interpretation act 1901 (Cth) which provides that where “… an Act prescribes a form, then unless the contrary intention appears, strict compliance with the form is not required and substantial compliance is sufficient”. The distinction between the first and second scenarios is that a person cannot partially or substantially comply with the requirement to use the specific form; the application will be valid only if he or she uses the specific form, otherwise the application is invalid. On the other hand, if the person substantially complies with the directions on that specific form, depending on the circumstances, a partial failure to complete it in accordance with its stated directions may not affect its validity. … A failure to use “the approved form”, such as occurred when the applicant lodged [the invalid application form], was a failure properly to make an application to the Tribunal within the meaning of ss 347(1)(a) and 348(1). Its jurisdiction was only invoked later … when the appellant lodged [the valid application form].

[412.260]

The requirement for a specified person to make the application is not amenable to substantial compliance. Either the correct person applies, or they do not Section 412(2) and (3) set out the persons who may apply to the Tribunal for review. In Assi v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 260 (Assi), the applicant had personally lodged an application for review with the Administrative © 2016 THOMSON REUTERS

815

s 413

[412.300]

Migration Act 1958

Appeals Tribunal. The Tribunal decided that it did not have jurisdiction to consider the application because the applicant was not entitled to make the application. Rather, the Tribunal found that, pursuant to s 347(2)(b), only the applicant’s sponsor or nominator was entitled to apply for review on the applicant’s behalf. The Federal Magistrates Court upheld the AAT’s finding, noting at [62] that the Tribunal did not have power to amend an application made to the Tribunal by someone other than the person entitled to make an application under the Act. Although the court in Assi did not express itself in such words, the comments of the majority in SZJDS v Minister for Immigration and Citizenship (2012) 201 FCR 1; 126 ALD 78; [2012] FCAFC 27 (SZJDS) at [26]–[28] are apposite to the situation in which a particular person is required to make an application. In that case, the Full Court of the Federal Court held that the requirement to file an application form in the “approved form” is not subject to substantial compliance - either the correct form is filed or it is not. It may therefore be inferred that where a particular person is required to make an application, the concept of substantial compliance has no application - either the correct person applies to the Tribunal or they do not. However, it is to be noted that the court in Assi [2005] FMCA 260 left open the possibility of another person making an application where he or she acts as a disclosed agent for the party who is required to lodge the application form: at [52], [59]. In MZAIC v Minister for Immigration and Border Protection [2016] FCAFC 25 (MZAIC), at [24] to [25] Kenny, Tracey, Robertson and Mortimer JJ accepted the reasoning at [26]–[28] in SZJDS and noted at [48] that is not possible to have substantial compliance where a person is expressly or impliedly prohibited from using a form, as was the case in MZAIC.

PRACTICE POINT [412.300]

Where a Part 7-reviewable decision is made in respect of a person who fails to apply to the Tribunal for review in accordance with s 412, application may, in the alternative, be made to the High Court for judicial review In MZXOT v Minister for Immigration and Citizenship (2008) 233 CLR 601; 247 ALR 58; [2008] HCA 28, the Minister had refused to grant the plaintiff a protection visa under s 36 of the Act. The plaintiff applied to the Tribunal for review, but failed to comply with s 412. The plaintiff therefore applied to the High Court for judicial review pursuant to the High Court’s original jurisdiction under s 75(v) of the Constitution. Among other things, the plaintiff sought orders remitting the “primary decision” of the Minister to the Federal Magistrates Court for determination on the basis that ss 476, 476A, 476B and 484 of the Act curtailed, limited or impaired the constitutional role of the High Court – that is, by placing an undue burden on the High Court’s resources. The High Court rejected this argument, and refused to remit the matter. Kirby J, in agreeing with the conclusions reached by Gleeson CJ, Gummow and Hayne JJ, found that there was no such burden and that, therefore, the case for remittal had not been made out: at [59]. [412.320] Approved forms The Tribunal publishes on its website the approved form for the purposes of s 412. 413 Refugee Review Tribunal to deal with the backlog of review applications [Repealed] [S 413 rep Act 60 of 2015, s 3 and Sch 2 item 79, with effect from 1 Jul 2015; Former s 166BAA renum Act 60 of 1994, s 83, with effect from 1 Sep 1994; insrt Act 59 of 1993, s 30]

816

Migration Law

[414.40]

Part 7 - Review of Part 7-reviewable decisions (ss 408-441G) Division 2 – Part 7-reviewable decisions (ss 411–418)

s 414

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. [Subs (1) am Act 60 of 2015, s 3 and Sch 2 item 135, with effect from 1 Jul 2015]

(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). [S 414 am Act 60 of 2015, s 3 and Sch 2 item 80, with effect from 1 Jul 2015; former s 166BB renum Act 60 of 1994, s 83, with effect from 1 Sep 1994; insrt Act 184 of 1992, s 32, with effect from 1 Jul 1993 Cross-reference: Ministerial Directions: Consideration of Protection Visa applications (Direction No. 56): The purpose of this Direction is to guide decision-makers performing functions or exercising powers under ss 65, 414 or 415 when considering an application for the grant of a Protection Visa and when reviewing a decision to refuse to grant a Protection Visa.]

SECTION 414 COMMENTARY Scope ................................................................................................................................................... [414.20] CONCEPTS

Valid application is made .................................................................................................................... [414.40] KEY CASES

The Tribunal is required to apply the law as it stands at the date it makes its decision ................. [414.60] Duty to review, not to make inquiries ................................................................................................ [414.80] The duty to review is a duty to arrive at the correct or preferable decision ................................. [414.100] The nature of the Tribunal’s review function – difference between the functions of the Tribunal under Part 5 and Part 7 .............................................................................................................................. [414.120]

[414.20] Scope Section 414 provides that if an application to the Tribunal is properly made, the Tribunal must review the decision, unless a conclusive certificate under s 411(3) has been issued. The Tribunal may exercise all the powers and discretions conferred by the Act on the original decision-maker. It may vary or affirm the decision, remit the matter for reconsideration or set aside and substitute a new decision: SZQVV v Minister for Immigration and Citizenship (2012) 130 ALD 472; [2012] FCA 871 at [37] per Greenwood J. However, according to Minister for Immigration and Multicultural and Indigenous Affairs v Ahmed (2005) 143 FCR 314; [2005] FCAFC 58 at [36] per Hely, Gyles and Allsop JJ, the Tribunal is not vested with a: wider substantive jurisdiction (in the administrative sense) than the delegate had. The powers conferred on the Tribunal are for the purposes of reviewing the decisions: see s 349. The review is not an exercise in judicial review of the kind contemplated by s 39B(1) of the Judiciary Act 1903 (Cth). The review is of the MRT-reviewable decision of the delegate. The subject matter of that review is to be identified by examining the boundaries of the administrative controversy before the delegate.

CONCEPTS [414.40] Valid application is made Under s 414, the Tribunal can only review an application that is validly made under s 412. Section 412 sets out the requirements for making an application to the Tribunal. In exercising the powers under s 414, when an application is made to the Tribunal, a Tribunal member must decide whether the application was validly made under s 412 and whether the application concerns a “Part 7-reviewable decision”. This function could not be delegated to an officer in the registry: Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2002] © 2016 THOMSON REUTERS

817

s 414

Migration Act 1958

[414.60]

FCAFC 305 (Lee) at [35] per Madgwick J. However, where this function has been performed by an officer in the registry and the application is out of time and therefore not properly made, it would be futile for a court to remit the matter to the Tribunal for reconsideration by a Tribunal member, as ultimately the Tribunal will not have jurisdiction to consider the application: Lee at [41] per Madgwick J.

KEY CASES [414.60]

The Tribunal is required to apply the law as it stands at the date it makes its decision The effect of s 414(1) is to require the Tribunal to review a “Part 7-reviewable decision”. In exercising the power conferred by s 415(1) of the Act, the Tribunal is required to apply the law as it stood at the date of the review (that is, at the date it makes its decision): M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 146; 199 ALR 290; [2003] FCAFC 131 (M38/2002) at [48]–[49] per Goldberg, Weinberg and Kenny JJ. Determining what the law is at the time the Tribunal makes its decision depends on what rights a visa applicant has accrued since applying for the visa, and whether any of those rights have been expressly extinguished by Parliament. Section 7(2)(c) of the Acts Interpretation Act 1901 (Cth) provides that where an Act repeals or amends another Act, the repeal or amendment does not “affect any right, privilege, obligation or liability acquired, accrued or incurred under the affected Act”. However, s 7(2)(c) must be read in light of s 2(2), which provides that the application of the Acts Interpretation Act 1901 (Cth) is “subject to a contrary intention” (that is, a contrary intention expressed by Parliament in the amending Act). In Esber v Commonwealth (1992) 174 CLR 430; 106 ALR 577; [1992] HCA 20 (Esber), the High Court considered s 8(c) and (e) of the Acts Interpretation Act 1901 (Cth), which were in similar form to s 7(c) and (e) (when read with s 2(2) of that Act). Relevantly, the appellant had challenged in the Administrative Appeals Tribunal a decision by a delegate of the Commissioner for Employees’ Compensation not to allow the appellant to convert weekly compensation payments into a lump sum. Mascon CJ, Deane, Toohey and Gaudron JJ noted that the first step in consideration of s 8 is to identify the right which was acquired or accrued under the repealed Act. Mason CJ, Deane, Toohey and Gaudron JJ held at [21]: Once the appellant lodged an application to the [Administrative Appeals] Tribunal to review the delegate’s decision, he had a right to have the decision of the delegate reconsidered and determined by the [Administrative Appeals] Tribunal. It was not merely “a power to take advantage of an enactment” … Nor was it a mere matter of procedure … it was a substantive right … Section 8 of the Acts Interpretation Act protects anything that may truly be described as a right, “although that right might fairly be called inchoate or contingent” … This was such a right. It was a right in existence at the time the 1971 Act was repealed. That being so, and in the absence of a contrary intention, the right was protected by s 8 of the Acts Interpretation Act and was not affected by the repeal of the 1971 Act.

In Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen (2001) 177 ALR 473; 75 ALJR 542; [2001] HCA 10 (Cohen) at [28], McHugh J cited the above passage with approval in the context of considering how amendments to the Act and the Regulations ought to be construed. Relevantly, in Cohen, the plaintiff had applied for a “special need relative” visa in October 1998. Subsequently, a visa criterion the plaintiff had sought to satisfy, the “special need relative” criterion, had been removed pursuant to an amending Regulation, effective from 1 December 1998. Further, the “special need relative” class of visa was repealed altogether, effective from 1 November 1999, pursuant to a different amending Regulation. Transitional provisions contained in the latter legislation made it clear, however, that, if an application for a “special 818

Migration Law

[414.80]

Part 7 - Review of Part 7-reviewable decisions (ss 408-441G) Division 2 – Part 7-reviewable decisions (ss 411–418)

s 414

need relative” visa had not been finally determined by 1 November 1999, the Regulations “as in force immediately before 1 November 1999” would continue to apply. The problem faced by the plaintiff was that the Regulations as in force immediately before 1 November 1999 did not contain the “special need relative” criterion, the provision he had relied upon when he applied for the visa, as that criterion had been removed by the earlier amending Regulation. Applying the ratio expressed by the majority in Esber at [21], McHugh J held at [29] that the plaintiff had accrued a “right”, by virtue of s 65(1) of the Act, to have his application for the visa considered by reference to the criteria which applied at the date the application was lodged. His Honour held, in accordance with the Acts Interpretation Act 1901 (Cth), that this right could only be adversely affected by clearly expressed legislation. In the circumstances, the removal of the “special need relative” criterion by the first amending Regulation, and the removal of the “special need relative” class of visa by the latter amending Regulation, did not express any such clear intention. Accordingly, McHugh J held that the applicant had a right to have his visa application determined on the basis that the “special need relative” criterion remained applicable. The decisions in Esber, Cohen and M38/2002 are consistent with each other and are also consistent with the terms of s 7(2)(c) of the Acts Interpretation Act 1901 (Cth). Relying on these authorities, the following general propositions emerge: • the Tribunal is required to apply the law as it stands at the date the Tribunal makes its decision; • what the “law” is depends first upon whether a person has accrued any “rights” and, second, whether those rights have been adversely affected by clearly expressed legislation; and • in relation to visa applications specifically, a person has a “right”, by virtue of s 65(1) of the Act, to have their application for a visa determined by reference to the visa criteria which applied at the date on which the visa application was lodged. Whether those criteria are to be applied at the date on which the primary decision-maker, or the Tribunal, makes a decision, depends on whether any amending legislation has clearly expressed an intention to remove and/or amend that criteria. [414.80] Duty to review, not to make inquiries The Tribunal’s duty is to review a Part 7-reviewable decision, not to make inquiries. In Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; 273 ALR 223; [2011] HCA 1, the High Court considered the Tribunal’s powers under s 427. Relevantly, French CJ and Kiefel J at [22] endorsed the ratio of the Full Court of the Federal Court in WAGJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 277 that the provision does not impose any duty on the Tribunal to exercise its inquisitorial power by causing an investigation to be undertaken. Similarly, in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; 83 ALJR 1123; [2009] HCA 39, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ held that there is no general duty imposed on the Tribunal to make inquiries. Rather, the duty imposed on the Tribunal is a duty to review: at [25]. A Tribunal may, in some circumstances, fail to discharge its duty to review if it fails to: “make an obvious inquiry about a critical fact, the existence of which is easily ascertained. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction”: at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. © 2016 THOMSON REUTERS

819

s 414

Migration Act 1958

[414.100]

[414.100]

The duty to review is a duty to arrive at the correct or preferable decision In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; 297 ALR 225; 87 ALJR 618; [2013] HCA 18, the High Court considered a refusal of an adjournment by the Migration Review Tribunal (as it was then known) pursuant to the exercise of its statutory power to adjourn the review of a decision under s 363(1)(b) of the Act. It was recognised that an unreasonable refusal by the Tribunal to grant an adjournment could result in jurisdictional error if it was established that the Tribunal did not conduct a review in the manner required by the Act: see Hayne, Kiefel and Bell JJ at [77]–[87]. In discussing the Tribunal’s obligation to conduct a review in a manner that is “reasonable”, Gageler J noted at [93] that s 348(1) (the equivalent provision to s 414(1)) “imposes an overriding duty on the MRT to ‘review the decision’: that is, ‘to arrive at the correct or preferable decision in the case before it according to the material before it’” (citing Bushell v Repatriation Commission (1992) 175 CLR 408; 109 ALR 30; [1992] HCA 47). [414.120]

The nature of the Tribunal’s review function – difference between the functions of the Tribunal under Part 5 and Part 7 The functions of the tribunal under Part 5 and Part 7 in reviewing a decision not to grant a visa, are “informed by the statutory criteria for the grant of such visas”: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; 219 ALR 27; [2004] FCAFC 263 (NABE) at [44] per Black CJ, French and Selway JJ. The task of the Tribunal under Part 7 is to review decisions regarding protection visas. In Huai Xin Li v Minister for Immigration and Citizenship (2008) 102 ALD 354; [2008] FCA 902 at [22], the Federal Court described this task (emphasis in original): A protection visa is not a prescribed class of visa, but is a class referred to in s 31(2), and in s 36, of the Act itself. A criterion for the grant of a protection visa is set out in s 36(2), namely … that the applicant be a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention. Under reg 866.211 of the Regulations, there are also criteria that the applicant claims to be a person to whom Australia has protection obligations under the Convention and that the applicant makes specific claims under the Convention. In the case of an application for a protection visa, therefore, the claims which the applicant actually makes constitute the definitional elements of the application. As is clear from cases such as Htun and Dranichnikov, the courts have regarded such claims as more than merely pieces of evidence in support of a contention that there exists a fear of one of the kinds referred to in the Convention. They have been regarded, it seems, as definitional with respect to the very question which comes before the relevant decision-maker.

Accordingly, the imposition of the word “claim” in the criteria to be met for the grant of a protection visa, when considered in the context of ss 36(2)(a) and 36(2)(aa), creates a mandatory consideration. Applying the reasoning of the Full Court of the Federal Court in NABE at [44], the function of the Tribunal when acting under Part 7 therefore is, among other things, to consider an applicant’s “claims”. A failure by the Tribunal to consider such “claims” will be a failure to take into account a “relevant consideration” and will therefore be a constructive failure to exercise jurisdiction: see, for example, Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 44; [2001] FCA 1802 at [14] per Merkel J (Spender and Allsop JJ agreeing), at [42] per Allsop J (Spender and Merkel JJ agreeing); Minister for Immigration and Multicultural Affairs v Yusuf (M10 of 2000) (2001) 206 CLR 323; 180 ALR 1; [2001] HCA 30 at [95] per McHugh, Gummow and Hayne JJ; Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 at [44]–[47] per French, Sackville and Hely JJ. 820

Migration Law

[414.120]

Part 7 - Review of Part 7-reviewable decisions (ss 408-441G) Division 2 – Part 7-reviewable decisions (ss 411–418)

s 415

A failure by the Tribunal acting in accordance with Part 7 to address an applicant’s “claims” may also give rise to a denial of procedural fairness: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; 77 ALJR 1088; [2003] HCA 26 at [24] per Gummow and Callinan JJ. On the other hand, where the Tribunal is exercising jurisdiction under Part 5, is not compelled to consider “claims” as the concept of “claims” is peculiar to the criteria for a protection visa only. Jessup J explained the different role of the Migration Review Tribunal (as it was then known) in Huai Xin Li v Minister for Immigration and Citizenship (2008) 102 ALD 354; [2008] FCA 902 at [23], where his Honour stated: By contrast, at least relevantly to the present case, the entitlement of an applicant to a spouse visa is not structured around the nature of the claims which he or she makes. The elements of an applicant’s case, as it were, are the components of the definition of “spouse” in reg 1.15A. Undoubtedly the decision-maker is required to consider each of those components, and it is not suggested in the present case that the Tribunal did not do so. The matters which must be considered are stated objectively and, in some respects, broadly. It is inevitable that, under these broad categories, the decision-maker will base his or her decision upon evidence. Such evidence, however, whether advanced by the applicant or obtained otherwise, is not, in my view, of the same legal nature as the “claims”, made by an applicant for a protection visa, by reference to which the decision whether to grant a visa of the latter kind must be made.

Accordingly, as established by the Full Court of the Federal Court in NABE at [44], the task of the Tribunal, when exercising jurisdiction under Part 5, will be informed by reference to the particular visa that the applicant has applied for. 414A Period within which Refugee Review Tribunal must review decision on protection visas [Repealed] [S 414A rep Act 135 of 2014, s 3 and Sch 7 item 14, with effect from 16 Dec 2014; insrt Act 141 of 2005, s 3 and Sch 1 item 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. [Subs (1) am Act 60 of 2015, s 3 and Sch 2 item 135, with effect from 1 Jul 2015]

(2) The (a) (b) (c)

Tribunal may: affirm the decision; or vary the decision; or 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.

[Subs (2) am Act 35 of 2015, s 3 and Sch 4 item 19, with effect from 18 Apr 2015]

(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.

© 2016 THOMSON REUTERS

821

s 415

Migration Act 1958

[415.20]

(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. [S 415 am Act 60 of 2015, s 3 and Sch 2 item 81, with effect from 1 Jul 2015; Act 35 of 2015; former s 166BC renum Act 60 of 1994, s 83, with effect from 1 Sep 1994; insrt Act 184 of 1992, s 32, with effect from 1 Jul 1993 Cross-reference: Ministerial Directions: Consideration of Protection Visa applications (Direction No. 56): The purpose of this Direction is to guide decision-makers performing functions or exercising powers under ss 65, 414 or 415 when considering an application for the grant of a Protection Visa and when reviewing a decision to refuse to grant a Protection Visa.]

SECTION 415 COMMENTARY Scope ................................................................................................................................................... [415.20] CONCEPTS

Prescribed matter or power to remit ................................................................................................... [415.40] Directions ............................................................................................................................................. [415.60] Substitute a new decision ................................................................................................................... [415.80] KEY CASES

No general power of remittal ........................................................................................................... [415.100] Tribunal can only substitute a decision that is of the same kind as the decision under review .... [415.120]

[415.20] Scope Section 415 provides the Tribunal with the same powers and discretions that are conferred by the Act on the person who made the decision that is being reviewed. However, the Explanatory Memorandum to the Migration Reform Bill 1992 Migration (Delayed Visa Applications) Tax Bill 1992 (Cth) at [359] states that the Tribunal does not have the discretion “to make a decision on compassionate or humanitarian grounds outside the grounds established under the Act” and Regulations. The Tribunal’s power of reviewing a decision is “restricted to a consideration of whether or not that decision was the ‘correct or preferable’ decision, and nothing more”: Minister for Immigration and Multicultural Affairs v Sharma (1999) 90 FCR 513; [1999] FCA 31 at [37] per Weinberg J (in respect of the same provision pertaining to Part 5).

CONCEPTS [415.40] Prescribed matter or power to remit Pursuant to s 415(2)(c), the Tribunal may remit a matter for reconsideration if the decision relates to a “prescribed matter”. Relevantly, reg 4.33(1) of the Regulations prescribes that an application for a protection visa is a “prescribed matter”. [415.60] Directions Section 415(2)(c) provides that the Tribunal may remit certain matters in accordance with such “directions” (or recommendations) of the Tribunal as are permitted by the Regulations. However, the permissible directions that may be made by the Tribunal are confined to: • the prescribed criteria for the relevant class of the visa: Minister for Immigration and Citizenship v Dhanoa (2009) 180 FCR 510; [2009] FCAFC 153 at [70] per Jagot and Foster JJ (special leave refused – see Dhanoa v Minister for Immigration and Citizenship [2010] HCATrans 200); and • those permitted by the Regulations: Poudyal v Minister for Immigration [2005] FMCA 265 at [19] per Smith FM. 822

Migration Law

Part 7 - Review of Part 7-reviewable decisions (ss 408-441G) Division 2 – Part 7-reviewable decisions (ss 411–418)

[415.100]

s 415

The following directions are permitted by the Regulations: • that the applicant must be taken to have satisfied the criteria for the visa that are specified in the direction: reg 4.33(2); • that the applicant satisfies each matter specified in the direction that relates to establishing whether the applicant is a person to whom Australia has protection obligations under the 1951 Refugees Convention as amended by the 1967 Refugees Protocol: reg 4.33(3)(a); and • that the applicant satisfies each matter specified in the direction that relates to establishing whether the applicant is a person to whom Australia has protection obligations because there are substantial grounds for believing that if he or she is removed from Australia to a receiving country there is a real risk that they will suffer significant harm: reg 4.33(4)(a). On the other hand, the following directions are expressly not permitted by the Regulations: • that the applicant satisfies a matter specified in Art 1F, 32 or 33(2) of the 1951 Refugees Convention as amended by the 1967 Refugees Protocol: reg 4.33(3)(b); • that the applicant satisfies a matter that relates to establishing whether there are serious reasons for considering that the applicant: – has committed a crime against peace, a war crime or a crime against humanity, as defined by an international instrument mentioned in reg 2.03B: reg 4.33(b)(i); – has committed a serious non-political crime before entering Australia: reg 4.33(b)(ii); or – has been guilty of acts contrary to the purposes and principles of the United Nations: reg 4.33(b)(iii); • that the applicant satisfies a matter that relates to establishing whether there are reasonable grounds for believing that: – the applicant is a danger to Australia’s security: reg 4.33(c)(i); or – the applicant, 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: reg 4.33(c)(ii). [415.80] Substitute a new decision Section 415(2)(d) provides the Tribunal with the power to set aside a decision and substitute a new decision. This power is qualified by, and limited to, the Part 7-reviewable decision itself. The Tribunal does not have the power to substitute a decision at large – that is, about any other matter “within the ambit of any provisions of the Act”: Minister for Immigration and Multicultural Affairs v Sharma (1999) 90 FCR 513; [1999] FCA 31 at [36] per Weinberg J; Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 76 FCR 301; [1997] FCA 551 at 311 per Goldberg J.

KEY CASES [415.100] No general power of remittal Section 415 does not vest the Tribunal with a general power of remittal. Rather, the power to remit is subject to any direction or recommendation that is permitted by the Regulations: Minister for Immigration and Citizenship v Dhanoa (2009) 180 FCR 510; [2009] FCAFC 153 © 2016 THOMSON REUTERS

823

s 415

Migration Act 1958

[415.120]

(Dhanoa) at [53] per Jagot and Foster JJ (special leave refused – see Dhanoa v Minister for Immigration and Citizenship [2010] HCATrans 200). In Minister for Immigration and Citizenship v Dhanoa (2009) 180 FCR 510; [2009] FCAFC 153 (special leave refused – see Dhanoa v Minister for Immigration and Citizenship [2010] HCATrans 200), Mr Dhanoa had applied for a Skilled – Independent Overseas Student (Residence) (Class DD) visa. On the application form, he indicated that he intended to invest $100,000 in a designated security and thereby achieve the required points for the grant of the visa. Due to the score on Mr Dhanoa’s English language test, even if he had invested the money in a designated security, he would still not have had the requisite points for the grant of the visa. Given there was no utility in doing so, the delegate of the Minister therefore did not invite Mr Dhanoa to invest in a designated security and refused to grant the visa. Mr Dhanoa applied to the Migration Review Tribunal (as it was then known) for review. During the review, Mr Dhanoa sat another English language test and received a higher score, thereby receiving more points towards his visa. If he had invested the money in a designated security he would have achieved the necessary points for the visa. However, Mr Dhanoa was unable to invest in a designated security because he had not received any invitation from the Department to invest in such a security (which was a precondition to investing the money). Mr Dhanoa requested that the Tribunal remit the matter to the delegate on the basis that he would lodge the money in a designated security when the Department invited him to do so. The Tribunal did not do so and affirmed the delegate’s decision because Mr Dhanoa did not have the requisite points for the visa. Mr Dhanoa applied to the Federal Magistrates Court on the basis that the Tribunal fell into jurisdictional error by not considering its power to remit the matter to the Minister’s delegate for further consideration under s 349(2)(c) (the equivalent provision in Part 5 to s 415(2)(c)). The Federal Magistrate allowed Mr Dhanoa’s appeal. The Minister appealed to the Full Court of the Federal Court and Jagot and Foster JJ upheld the Minister’s appeal. Jagot and Foster JJ held that the Tribunal did not have power to remit the matter and therefore did not have any obligation to consider doing so: at [72]. In relation to s 349(2)(c), the Tribunal does not have a power to remit a matter without a direction or recommendation, which must be permitted by the Regulations: Dhanoa at [53] per Jagot and Foster JJ. In relation to Mr Dhanoa, the Tribunal did not have the power to remit the matter to the Minister for reconsideration under s 349(2)(c) because: there was no permissible direction or recommendation the Tribunal could make so as to enliven its power to do so. The Tribunal could not remit the matter generally without any direction and could not remit the matter for a direction relating to Mr Dhanoa having achieved 20 points for his IELTS test on 12 July 2008 because the language component is not a “specified criterion for the visa” within the meaning of reg 4.15(1)(b). The specified criterion is the qualifying score of 120 points which Mr Dhanoa, pursuant to the assessment as required, did not satisfy for the reasons the Tribunal gave.

[415.120]

Tribunal can only substitute a decision that is of the same kind as the decision under review Where a Tribunal exercises its power under s 415(2)(d) to set aside a decision and substitute a new one, the Tribunal can only substitute a decision that is of the same kind as the Part 7-reviewable decision it had reviewed. For example, in Minister for Immigration and Multicultural Affairs v Sharma (1999) 90 FCR 513; [1999] FCA 31, Mr Sharma sought review in the Immigration Review Tribunal (IRT) (an antecedent to the present Tribunal) of a decision to cancel his student visa. The IRT set aside the decision to cancel Mr Sharma’s student visa and purported to “substitute” a new decision that Mr Sharma be granted a new student visa (as his previous student visa was about to expire). The 824

Migration Law

[415.120]

Part 7 - Review of Part 7-reviewable decisions (ss 408-441G) Division 2 – Part 7-reviewable decisions (ss 411–418)

s 416

Minister applied to the Federal Court for judicial review of this decision. Weinberg J set aside the IRT’s decision to substitute a decision that Mr Sharma be granted a new student visa. His Honour held at [63] that: The issue properly before the IRT was not whether or not the respondent had an entitlement to a new student visa but rather whether or not the cancellation decision was the “correct and preferable” decision. It was that decision alone which could be affirmed or set aside. In setting aside that decision, the IRT was not empowered under the Act to grant a new student visa even if it thought that such an order was necessary or appropriate.

Weinberg J explained at [36]–[37]: The powers conferred upon the IRT, which include the powers and discretions conferred by the Act upon the person which made the “IRT-reviewable decision” were conferred by s 349(1) “for the purposes of the review of an IRT-reviewable decision”. They were not conferred for any other purposes. Among the powers conferred was the power to “substitute a new decision” – s 349(2)(d). That power is not, however, a power to make a decision at large about any matter falling within the ambit of any of the provisions of the Act. It is rather a power qualified by, and limited to, the “IRT-reviewable decision” itself – Jayasinghe v Minister for Immigration and Ethnic Affairs … at 311; Minister for Immigration and Multicultural Affairs v Ozmanian [1996] FCA 1017; (1996) 71 FCR 1 at 25. In the present case, the “IRT-reviewable decision” was the decision to cancel the student visa. The respondent herself identified it in that way in her application to the IRT for review. Regulation 4.09(d) of the Regulations makes it plain that such a decision, standing alone, is “IRT-reviewable”. The power which the IRT possessed in reviewing that decision was therefore, prima facie, quite limited. It was, in my view, restricted to a consideration of whether or not that decision was the “correct or preferable” decision, and nothing more.

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”). [S 416 subst Act 60 of 2015, s 3 and Sch 2 item 82, with effect from 1 Jul 2015; former s 166BD renum Act 60 of 1994, s 83, with effect from 1 Sep 1994; insrt Act 184 of 1992, s 32, with effect from 1 Jul 1993]

© 2016 THOMSON REUTERS

825

s 416

Migration Act 1958

[415.120]

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. [Subs (2) am Act 59 of 1993, s 25]

(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. [Former s 166BE renum Act 60 of 1994, s 83, with effect from 1 Sep 1994; am Act 59 of 1993; insrt Act 184 of 1992, s 32, with effect from 1 Jul 1993]

SECTION 417 COMMENTARY Scope ................................................................................................................................................... [417.20] CONCEPTS

Public interest ...................................................................................................................................... Exercised by the Minister personally ................................................................................................. Minister does not have a duty to consider whether to exercise the power - power compellable .................................................................................................................................

[417.40] [417.60] is non[417.80]

KEY CASES

The Minister is under no duty to afford a person procedural fairness in determining whether or not to exercise the power under s 417, nor are departmental officers under a duty to afford a person procedural fairness in determining whether or not to refer an application under s 417 to the Minister for his or her consideration ...................................................................................................... [417.100] 826

Migration Law

[417.100]

Part 7 - Review of Part 7-reviewable decisions (ss 408-441G) Division 2 – Part 7-reviewable decisions (ss 411–418)

s 417

PRACTICE POINTS

No power to consider matter in relation to s 417 ........................................................................... [417.120]

[417.20] Scope Section 417 provides the Minister with the power to substitute a new, and more favourable, decision for the decision of the Tribunal if the Minister considers it is in the public interest to do so. This power is exercisable by the Minister personally, and the Minister does not have any duty to consider whether or not to exercise this power in any particular case. The Explanatory Memorandum to the Migration Reform Bill 1992 Migration (Delayed Visa Applications) Tax Bill 1992 (Cth) at [361] states that the operation of the provision: means that the actions of the Minister in declining to consider the exercise of this power, or in declining to exercise the power after considering its exercise, will not give rise to any right of review, whether merits or judicial review.

CONCEPTS [417.40] Public interest The Minister has the discretion to substitute a more favourable decision if he or she thinks that it is in the public interest to do so. The expression “public interest” is not defined in the Act or Regulations. In Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636; 290 ALR 616; [2012] HCA 31, French CJ and Kiefel J stated at [30]: The powers so conferred are conditioned upon a ministerial judgment of the “public interest”. That is a term to which it is difficult to give a precise content. It has been described in this Court as: a discretionary value judgment to be made by reference to undefined factual matters, confined only “in so far as the subject matter and the scope and purpose of the statutory enactments may enable … given reasons to be [pronounced] definitely extraneous to any object the legislature could have had in view”.

[417.60] Exercised by the Minister personally The power under this section must be exercised by the Minister personally and cannot be delegated. [417.80]

Minister does not have a duty to consider whether to exercise the power - power is non-compellable Section 417(7) sets out that the Minister does not have a duty to consider whether to exercise the power under s 417(1) in respect of any decision of the Tribunal. Accordingly, the power is said to be “non-compellable”, and cannot be enlivened by a request for its exercise nor by the existence of circumstances which might be thought, in the public interest, to attract its application: Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636; 290 ALR 616; [2012] HCA 31 at [30] per French CJ and Kiefel J, at [99(i)] per Gummow, Hayne, Crennan and Bell JJ.

KEY CASES [417.100]

The Minister is under no duty to afford a person procedural fairness in determining whether or not to exercise the power under s 417, nor are departmental officers under a duty to afford a person procedural fairness in determining whether or not to refer an application under s 417 to the Minister for his or her consideration In Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636; 290 ALR 616; [2012] HCA 31, French CJ, Kiefel, Gummow, Hayne, Crennan, Bell and Heydon JJ held © 2016 THOMSON REUTERS

827

s 417

Migration Act 1958

[417.100]

that the principles of procedural fairness do not apply to the dispensing provisions of ss 48B, 195A, 351 and 417 of the Act: at [50], [53], [99], [110]–[111] and [118]. The four plaintiffs (Plaintiff S10, Plaintiff S49, Plaintiff S51 and Plaintiff S42), each non-citizens who had unsuccessfully applied for visas to remain in Australia, applied to the High Court in relation to their failure to attract the exercise by the Minister of his non-compellable, non-delegable personal discretion to make decisions in favour of unsuccessful visa applicants and persons in detention. Those powers are contained in ss 48B (Minister may grant a protection visa to person whose application for protection has already been refused), 195A (Minister may grant a visa to a person in immigration detention), 351 (Minister may substitute a decision of the Tribunal made under Part 5 for a decision more favourable) and 417 (Minister may substitute a decision of the Tribunal made under Part 7 for a decision more favourable). Relevantly, Plaintiff S10 was refused a protection visa and the Tribunal affirmed that decision. Plaintiff S10 then, unsuccessfully, applied to the Federal Magistrates Court and Federal Court for judicial review and to the High Court for special leave. Subsequently, Plaintiff S10 requested that the Minister exercise his powers under ss 417 and 48B. His request under s 417 was referred to the Minister, who determined that he did not wish to consider the exercise of that power. In relation to his request under s 48B, the relevant departmental officers declined to refer this request to the Minister. Plaintiff S10 applied to the High Court on the basis that there was a breach of procedural fairness in the way the Minister and the departmental officers dealt with his requests under ss 417 and 48B. Plaintiff S10’s application, and the other four plaintiffs’ applications, dealt with whether the executive power of the Commonwealth is constrained by a requirement that procedural fairness be afforded to a person whose rights, interests or legitimate expectations may be destroyed, defeated or prejudiced by its exercise. French CJ and Kiefel J held at [4] that: the consideration by officers of the Department of the requests by the plaintiffs for the Minister to consider exercising non-compellable powers under the Act did not attract the requirements of procedural fairness. Further, the Minister is not obliged to accord procedural fairness, in the form of the so-called hearing rule, in personally considering whether to exercise the Minister’s discretion under ss 48B, 195A, 351 or 417.

Their Honours came to this conclusion on the basis that the Minister is not under any duty to respond to a request for his or her consideration of the exercise of power under s 417 (and ss 48B, 195A and 315). As there was no statutory duty to consider such an application, “no question of procedural fairness arises when the Minister declines to embark upon such a consideration”: at [50]. In addition, French CJ and Kiefel J rejected the plaintiffs’ submissions that the issue of ministerial guidelines in relation to the dispensing provisions involved a decision by the Minister to consider the exercise of the powers conferred by s 417 (and ss 48B, 195A and 351) and held that “there was no implied requirement that the guidelines be applied in such a way as to accord with the hearing rule aspect of procedural fairness”: at [52]. Gummow, Hayne, Crennan and Bell JJ observed the following significant characteristics of s 417 (and ss 48B, 195A and 351), at [99(i)]–[99(ix)], that: • the powers conferred under that section must be exercised by the Minister personally, and cannot be delegated; • the tabling requirements render the Minister accountable to each House of the Parliament; 828

Migration Law

[417.120]

Part 7 - Review of Part 7-reviewable decisions (ss 408-441G) Division 2 – Part 7-reviewable decisions (ss 411–418)

s 417

• the exercise of the powers under the section are not preconditioned by the making of a request by any other person, and if a request is made, there is no requirement to consider it; • the exercise of the powers is preconditioned on: – the Minister having decided to consider whether to exercise the power; and – the Minister thinking that it is in the public interest to do so; • the expression “public interest” does not have any fixed or precise content and will involve a value judgment; • the personal circumstances of an individual may be taken into account, but they are not mandatory relevant considerations; • individual interests and rights are dealt with by provisions of the Act regulating applications and providing for review of decisions concerning visas; • the premise of s 351 is that on a merits review the Tribunal has determined that there is no right to the visa sought; and • against that background, the focus of s 351 is upon the Minister’s view of the public interest rather than the satisfaction of the conditions for the visa. In light of the above, Gummow, Hayne, Crennan and Bell JJ held at [100]: The cumulative significance of the matters referred to above in (i)-(ix) is to disclose a situation akin to that identified by Brennan J in South Australia v O’Shea, namely where a senior officer standing at the peak of the administration of the statute is not required to give an opportunity for a hearing in every case affecting an individual who has had an opportunity of a merits review in the course of the administrative process. Upon their proper construction and in their application to the present cases, the dispensing provisions are not conditioned on observance of the principles of procedural fairness. In particular, there was no requirement to provide to the plaintiffs the opportunities to be heard which they assert in their submissions. The use in the provisions of the Act in question here of language emphatic both of the distinctive nature of the powers conferred upon the Minister (as personal, non-compellable, “public interest” powers), and of the availability of access to the exercise of those powers only to persons who have sought or could have sought, but have not established their right to, a visa is of determinative significance. It reveals the “necessary intendment” referred to in the Offshore Processing Case that the provisions are not attended by a requirement for the observance of procedural fairness.

PRACTICE POINTS [417.120] No power to consider matter in relation to s 417 Neither the Federal Circuit Court nor the Federal Court has the power to consider a matter in relation to s 417 because: • according to s 476(2)(d), the Federal Circuit Court does not have jurisdiction to consider matters which fall within s 474(7) (this section includes matters relating to s 417); and • according to s 476A(1), the Federal Court only has original jurisdiction in relation to the matters listed in that section (s 417 is not listed). Pursuant to s 75(v) of the Constitution, the High Court has original jurisdiction to hear matters in which a writ of mandamus, prohibition or an injunction is sought against an officer of the Commonwealth. Where an application for prerogative relief is filed in the High Court’s original jurisdiction challenging a matter in relation to the exercise (or non-exercise) of the discretion in s 417, the granting of such relief would serve no useful purpose. This is because the power under this section is non-compellable – that is, the Minister is under no duty to exercise that © 2016 THOMSON REUTERS

829

s 418

Migration Act 1958

[418.20]

power: Re Minister for Immigration and Multicultural and Indigenous Affairs (2003) 211 CLR 441; 195 ALR 1; [2003] HCA 1 at [100] per Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ. 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. [Subs (1) am Act 60 of 2015, s 3 and Sch 2 item 84, with effect from 1 Jul 2015]

(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. [S 418 am Act 60 of 2015, s 3 and Sch 2 item 83, with effect from 1 Jul 2015; former s 166BF renum Act 60 of 1994, s 83, with effect from 1 Sep 1994; insrt Act 184 of 1992, s 32, with effect from 1 Jul 1993]

SECTION 418 COMMENTARY Scope ................................................................................................................................................... [418.20] CONCEPTS

Prescribed number of copies ............................................................................................................... [418.40] Other document ................................................................................................................................... [418.60] KEY CASES

Compliance with s 418(2) is not a precondition to the Tribunal exercising its review function .... [418.80] Procedural fairness and s 418(2) and (3) ......................................................................................... [418.100]

[418.20] Scope According to s 418, the Registrar must notify the Secretary of the Department of any application for review to the Tribunal, and the Secretary must provide the Registrar with various documents, such as the decision under review and any documents in the Secretary’s possession or control that the Secretary considers relevant to the review.

CONCEPTS [418.40] Prescribed number of copies For the purposes of s 418(2), the prescribed number of copies of statement about the decision under review is one: see reg 4.34. [418.60] Other document The expression “other document” in s 418(3) means a document other than the documents referred to in s 418(2): Muin v Refugee Review Tribunal (2002) 190 ALR 601; 76 ALJR 966; [2002] HCA 30 at [19]. 830

Migration Law

[418.100]

Part 7 - Review of Part 7-reviewable decisions (ss 408-441G) Division 3 – Part 7-reviewable decisions: Tribunal powers (ss 420–420B)

s 420

KEY CASES [418.80]

Compliance with s 418(2) is not a precondition to the Tribunal exercising its review function Under s 418(2), the Secretary of the Department must comply with the requirements set out therein within 10 working days after being notified of the application to the Tribunal. However, the Secretary’s compliance with s 418(2) is not a precondition to the exercise by the Tribunal of its review function, nor does the section create an obligation on the Tribunal to consider the documents referred to by the section: S487 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1309 at [32] per Sackville J; S487 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 125 at [7] per Moore, Branson and Emmett JJ. [418.100] Procedural fairness and s 418(2) and (3) A failure by the Secretary of the Department to comply with either of s 418(2) or (3) will not amount to a denial of procedural fairness or a jurisdictional error on behalf of the Tribunal: see, for example, Matete v Minister for Immigration and Citizenship [2008] FCA 1876 at [19] per Buchanan J. In SZOIN v Minister for Immigration and Citizenship (2011) 191 FCR 123; 276 ALR 247; [2011] FCAFC 38, the applicant applied for a protection visa, which was refused by a delegate of the Minister. The Tribunal affirmed the delegate’s decision. The applicant was in detention where various medical assessments had been conducted, including an assessment by a clinical psychologist at the New South Wales “Services for the Treatment and Rehabilitation of Torture and Trauma Survivors” and other post-traumatic stress assessments. The Secretary of the Department did not provide any of these medical assessments to the Tribunal. The applicant applied for judicial review on the basis that the Tribunal’s decision was tainted by a breach of the requirements of procedural fairness, as set out in s 418, because the Secretary of the Department did not provide the medical assessments to the Tribunal. The Full Court of the Federal Court held that the failure by the Secretary to satisfy the obligation in s 418 did not mean that the Tribunal’s decision was tainted by jurisdictional error: at [59]–[66] per Bennett and McKerracher JJ, and at [93] per Rares J. In addition, Bennett and McKerracher JJ held that the Secretary’s obligation under s 418(3) to provide information to the Tribunal is a continuing one, and the Secretary was required to provide new information that was relevant to the Tribunal’s considerations as that information came to hand: at [57]. 419 Certain decisions made by members of the Tribunal in their capacity as delegates of the Minister to be treated as decisions of the Tribunal for certain purposes [Repealed] [S 419 rep Act 60 of 2015, s 3 and Sch 2 item 85, with effect from 1 Jul 2015; former s 166BG renum Act 60 of 1994, s 83, with effect from 1 Sep 1994; insrt Act 59 of 1993, s 32]

DIVISION 3 – PART 7-REVIEWABLE DECISIONS: TRIBUNAL POWERS (SS 420–420B) [Div 3 heading subst Act 60 of 2015, s 3 and Sch 2 item 86, with effect from 1 Jul 2015]

420 Refugee Review 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

© 2016 THOMSON REUTERS

831

s 420

Migration Act 1958

[420.20]

(b) must act according to substantial justice and the merits of the case. [S 420 am Act 60 of 2015, s 3 and Sch 2 items 87–89, with effect from 1 Jul 2015; former s 166C renum Act 60 of 1994, s 83, with effect from 1 Sep 1994; insrt Act 184 of 1992, s 32, with effect from 1 Jul 1993]

SECTION 420 COMMENTARY Scope ................................................................................................................................................... [420.20] CONCEPTS

Fair, just, economical, informal and quick ......................................................................................... [420.40] Not bound by technicalities, legal forms or rules of evidence / shall act according to substantial justice and the merits of the case ................................................................................................................. [420.60]

[420.20] Scope Section 420 was amended on 1 July 2015 by item 87 of Sch 2 to the Tribunals Amalgamation Act 2015 (Cth) to remove subsection (1), which previously provided that the Tribunal’s objective is to provide a mechanism of review that is “fair, just, economical, informal and quick”. That objective has been removed as it is supplanted by s 2A of the Administrative Appeals Tribunal Act 1975 (AAT Act), which provides that: In carrying out its function, the Tribunal must purse the objective of providing a mechanism of review that: (a) is accessible; and (b) is fair, just economical, informal and quick; and (c) is proportionate to the importance and complexity of the matter; and (d) promotes public trust and confidence in the decision-making of the Tribunal

Section 420 and s 2A of the AAT Actserves a facultative, rather than a restrictive, purpose. In Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; 162 ALR 577; [1999] HCA 21, Gleeson CJ and McHugh J observed at [49]: [L]egislative provisions similar to s 420 … are intended to be facultative, not restrictive. Their purpose is to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law, and regarded as inappropriate to tribunals. The extent to which they free tribunals from obligations applicable to the courts of law may give rise to dispute in particular cases, but that is another question.

In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; 297 ALR 225; 87 ALJR 618; [2013] HCA 18, French CJ considered the legislative history and context of s 353 (the equivalent provision in Part 5 to s 420) at [13]–[15] (citations omitted): The requirements of s 353(2) are in the same terms as those applied to the RRT by s 420(2) of the Act. The language is familiar. Its ancestry dates back to statutory directions to Courts of Requests in the 17th century to make such orders “as they shall find to stand with equity and good conscience”. That statutory formula evolved and was applied to tribunals in Australia both before and after Federation. An early example was the statute re-establishing the Court of Requests in the Colony of New South Wales in 1842, which became the Small Debts Court, and was required to decide matters “in a summary way, and according to equity and good conscience”. The rolled-up direction to “act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms” was considered by the Court of Appeal of New South Wales in Qantas Airways Ltd v Gubbins. As pointed out by Gleeson CJ and Handley JA in that case, the collocation has no fixed legal meaning independent of the statutory context in which it is found. So too, s 353(2) is to be understood in its statutory context. That context makes clear that it cannot operate to allow the MRT to act other than according to the law set out in the Act in the exercise of its function of review, including the exercise of the powers and discretions conferred upon it in aid of that function. The MRT is not excused from compliance with the criteria of lawfulness, fairness and 832

Migration Law

Part 7 - Review of Part 7-reviewable decisions (ss 408-441G) Division 3 – Part 7-reviewable decisions: Tribunal powers (ss 420–420B)

[420.60]

s 420A

rationality that lie at the heart of administrative justice albeit their content is found in the provisions of the Act and the corresponding regulations and, subject to the Act and those regulations, the common law. Section 353(2) shares with s 353(1) a facultative rather than restrictive purpose. The two paragraphs of s 353(2) “describe the general nature of review proceedings and require the Tribunal to operate as an administrative body with flexible procedures and not as a body with technical rules of the kind that have sometimes been adopted by quasi-judicial tribunals.” Its facultative character was illustrated in Minister for Immigration and Multicultural Affairs v Bhardwaj. Gleeson CJ observed that s 353 allowed a precursor tribunal, the Immigration Review Tribunal, to reopen its own decision when it learned that the decision was based upon an administrative error.

Further, as French CJ observed at [16], s 353 (the equivalent provision to s 420) does not import substantive common law requirements of procedural fairness and, therefore, cannot give rise, on its own, to grounds for judicial review.

CONCEPTS [420.40] Fair, just, economical, informal and quick Section 420 was amended on 1 July 2015 by item 87 of Sch 2 to the Tribunals Amalgamation Act 2015 (Cth) to remove subsection (1), which previously provided that the Tribunal’s objective is to provide a mechanism of review that is “fair, just, economical, informal and quick”. That objective has been removed as it is supplanted by s 2A of the Administrative Appeals Tribunal Act 1975 (AAT Act), together with other broadly stated aims. In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; 297 ALR 225; 87 ALJR 618; [2013] HCA 18 at [14], French CJ noted that the “rolled-up direction” to “act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms” was considered by the Court of Appeal of New South Wales in Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26; 28 ALD 538; 45 IR 292. In that case, Gleeson CJ and Handley JA observed that these words have no fixed legal meaning independent of the statutory context in which they are found. Accordingly, French CJ noted that the Tribunal is “not excused from compliance with the criteria of lawfulness, fairness and rationality that lie at the heart of administrative justice”. [420.60]

Not bound by technicalities, legal forms or rules of evidence / shall act according to substantial justice and the merits of the case In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; 297 ALR 225; 87 ALJR 618; [2013] HCA 18 at [14], French CJ noted that the “rolled-up direction” to “act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms” was considered by the Court of Appeal of New South Wales in Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26; 28 ALD 538; 45 IR 292. In that case, Gleeson CJ and Handley JA observed that these words have no fixed legal meaning independent of the statutory context in which they are found. Accordingly, French CJ noted that the Tribunal is “not excused from compliance with the criteria of lawfulness, fairness and rationality that lie at the heart of administrative justice”. 420A

Principal Member may give directions [Repealed]

[S 420A rep Act 60 of 2015, s 3 and Sch 2 item 90, with effect from 1 Jul 2015; am Act 35 of 2015; insrt Act 113 of 1998, s 3 and Sch 3 item 1, with effect from 1 Mar 1999]

© 2016 THOMSON REUTERS

833

s 420A

[420.60]

Migration Act 1958

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. [Subs (1) subst Act 60 of 2015, s 3 and Sch 2 item 141, with effect from 1 Jul 2015]

(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. [S 420B am Act 60 of 2015; insrt Act 35 of 2015, s 3 and Sch 4 item 22, with effect from 18 Apr 2015]

[Editor’s note: Sections 421–422A were repealed by Act 60 of 2015, s 3 and Sch 1 item 90, with effect from 1 Jul 2015, and have not been reproduced.] DIVISION 4 – PART 7-REVIEWABLE DECISIONS: CONDUCT OF REVIEW (SS 422B–429A) [Div 4 heading subst Act 60 of 2015, s 3 and Sch 2 item 91, with effect from 1 Jul 2015]

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. [Subs (3) insrt Act 100 of 2007, s 3 and Sch 1 item 17] [S 422B am Act 100 of 2007; insrt Act 60 of 2002, s 3 and Sch 1 item 6]

SECTION 422B COMMENTARY Scope ................................................................................................................................................. [422B.20] CONCEPTS

Natural justice hearing rule .............................................................................................................. [422B.40] In relation to the matters it deals with ............................................................................................ [422B.60] Fair and just ...................................................................................................................................... [422B.80] KEY CASES

Natural justice hearing rule is not qualified or excluded in relation to offshore visa applicants .... [422B.100] In relation to the matters it deals with .......................................................................................... [422B.120] Some concepts of common law procedural fairness continue to apply ....................................... [422B.140] Some provisions are not procedural .............................................................................................. [422B.160] PRACTICE POINTS

Section 422B does not provide reveiw applicant with rights ....................................................... [422B.180]

834

Migration Law

[422B.20]

Part 7 - Review of Part 7-reviewable decisions (ss 408-441G) Division 4 – Part 7-reviewable decisions: conduct of review (ss 422B–429A)

s 422B

[422B.20] Scope Section 422B was inserted by the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth). Section 422B(1) makes it clear that Pt 7 Div 4 of the Act (which deals with how the tribunal conducts its reviews) is an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. Further, s 422B(2) states that ss 416, 437 and 438 (which deal with the disclosure of confidential information to the tribunal) and Div 7A (which deals with how the tribunal is to provide documents), insofar as they relate to Div 4, are an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters with which they deal. The purpose of s 422B is to ensure that the “codes of procedure” referred to in this section are an exhaustive statement of the requirements of the natural justice hearing rule: Explanatory Memorandum to the Migration Legislation Amendment (Procedural Fairness) Bill 2002 (Cth) at [1]. This section was inserted as a result of the High Court’s decision in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; 179 ALR 238; [2001] HCA 22 (Miah), in which the court held that the exclusion of common law natural justice requirements required clear legislative intention: at [53]–[54] per Gleeson CJ and Hayne J, at [90] per Gaudron J, at [126]–[127] per McHugh J and at [183] per Kirby J. In Miah, the High Court considered whether a delegate had denied the applicants procedural fairness by failing to put to them for comment certain country information. At the relevant time, Pt 2 Div 3 subdiv AB of the Act laid down what Gleeson CJ and Hayne J described as a “code of procedure for dealing fairly, efficiently and quickly with visa applications”: at [28]. It did not contain any other statement other than the one contained in this section – that the Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule. Gleeson CJ and Hayne J commented at [43] that “there is a difference between a code of procedure for dealing with visa applications and a comprehensive statement of the requirements of natural justice”. The majority were of the view that it is possible to exclude the rule of natural justice; however, in order to do so, the legislation must be clear that the intention is for it to be excluded: at [53]–[54] per Gleeson CJ and Hayne J, at [90] per Gaudron J, at [126]–[127] per McHugh J and at [183] per Kirby J. Necessarily, therefore, the wording in s 422B ensures that the natural justice hearing rule is excluded. In the Second Reading speech for the Migration Legislation Amendment (Procedural Fairness) Bill 2002 (Cth), the Minister noted that the proposed amendments were necessary to restore the Parliament’s original intention that the Act should contain codes of procedure that allow fair, efficient and legally certain decision-making processes that do not replace the common law requirement of the natural justice hearing rule. The Migration Amendment (Review Provisions) Act 2007 (Cth) inserted s 422B(3) to provide that, when the Tribunal carries out its procedures and requirements in relation to the natural justice hearing rule under this section, it would be required to do so in a fair and just way: see Explanatory Memorandum to the Migration Amendment (Review Provisions) Bill 2006 (Cth) at [1]. The purpose of this subsection is to complement s 420(1), which provides that the Tribunal’s objective in carrying out its function is to provide a mechanism of review that is fair, just, economical, informal and quick: Explanatory Memorandum to the Migration Amendment (Review Provisions) Bill 2006 (Cth) at [1]. The Explanatory Memorandum to the Migration Legislation Amendment (Procedural Fairness) Bill 2002 (Cth) at item 8 also clarifies the relationship between the amendments relating to the “codes of procedure” and s 474 of the Act, which deals with privative clauses. According to the Explanatory Memorandum to the Migration Legislation Amendment (Procedural Fairness) Bill 2002 (Cth), “it is intended that the privative clause should protect from invalidity anything done © 2016 THOMSON REUTERS

835

s 422B

Migration Act 1958

[422B.40]

or omitted to be done in relation to any matter dealt with in any provision taken to be an exhaustive statement of the natural justice hearing rule”: at [49]. However, if the Tribunal has committed a jurisdictional error, no migration decision will have been made and the privative clause provisions will have no operation: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; 195 ALR 24; [2003] HCA 2 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. The concept of a privative clause is discussed further under s 474. According to item 8 of the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth), the introduction of this section does not intend to “limit the scope or operation of section 474 in relation to anything done, or omitted to be done, in relation to any matter dealt with” in this section. Despite the clear intentions of Parliament to seek to narrow the application of procedural fairness in relation to the matters the Tribunal deals with, the courts have been cautious to adopt such a strict approach. As Hayne J observed in Minister for Immigration, Multicultural and Indigenous Affairs v WACO [2004] HCATrans 430, “there are hours of innocent amusement yet to be had about the effect of section 422B”. Section 422B does not itself provide a review applicant with substantive rights. That is, s 422B is not capable of being “breached” in the strict sense. Rather, together with s 420, s 422B conditions the exercise of the operative parts of the Division: see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; 297 ALR 225; 87 ALJR 618; [2013] HCA 18 at [58] per Hayne, Kiefel and Bell JJ (in relation to ss 353 and 357A). The express constraint imposed by s 422B(2) makes it “unarguable” that some additional requirements of “fairness” are otherwise to be implied by recourse to s 420 or 422B: Minister for Immigration and Citizenship v SZMOK (2009) 110 ALD 15; 257 ALR 427; [2009] FCAFC 83 at [17]. As the Full Court of the Federal Court observed in that case at [14], “[p]rovisions such as those found in s 420(1) are intended to be facultative, not restrictive. Their purpose is to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law and regarded as inappropriate to Tribunals.”

CONCEPTS [422B.40] Natural justice hearing rule The phrase “natural justice hearing rule”, or any variation thereof, is not defined in the Act. Natural justice usually requires that a person whose interests are to be affected by a decision be given an opportunity to comment and respond to material which is adverse to his or her interests: Kioa v West (1985) 159 CLR 550; 62 ALR 321; [1985] HCA 81 (Kioa) at 582 (CLR) per Mason J, at 628 – 629 per Brennan J. Natural justice and procedural fairness require a decision-maker to bring to an applicant’s attention the critical issues or factors on which its decision is likely to turn in order for the applicant to have the opportunity of dealing with them: Kioa at 587 (CLR); VAAC v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 168; [2003] FCAFC 74 at [27]. In discharging this duty, a decision-maker needs to bring to an applicant’s attention the “substance” of adverse information which the decision-maker considers may bear upon the decision to be made: Plaintiff M61/2010 v Commonwealth (2010) 243 CLR 319; 272 ALR 14; [2010] HCA 41 at [91] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ. Procedural fairness may require the identification to the applicant of “any adverse conclusion which has been arrived at which would not obviously be open on the known material” (Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; 34 ALD 324; 127 ALR 699 at [30]), whether that is material provided by the applicant or 836

Migration Law

[422B.100]

Part 7 - Review of Part 7-reviewable decisions (ss 408-441G) Division 4 – Part 7-reviewable decisions: conduct of review (ss 422B–429A)

s 422B

from other sources. For the requirements of natural justice to be satisfied it is sufficient if the “gravamen or substance of the issue or factor is brought to the applicant’s attention” or that the applicant is “on notice of its essential features”: NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 at [25], referring to Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs (2000) 103 FCR 539; 175 ALR 706; [2000] FCA 1113 at [557]. In the ordinary case, natural justice requires that an opportunity should be given to a person affected by a decision to deal with any adverse information that is “credible, relevant and significant”: see, for example, Kioa at 629 (CLR) per Brennan J. Where a statute confers a power to destroy or prejudice a person’s rights or interests, principles of natural justice regulate the exercise of that power: see Annetts v McCann (1990) 170 CLR 596; 97 ALR 177; [1990] HCA 57 at 598 (CLR) per Mason CJ, Deane and McHugh JJ. In Kioa at 609 (CLR) Brennan J stated that: when the statute does not expressly require that the principles of natural justice be observed, the court construes the statute on the footing that “the justice of the common law will supply the omission of the legislature”. The true intention of the legislation is thus ascertained.

Similarly, in Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1; 195 ALR 502; [2003] HCA 6 at [37], Gleeson CJ observed that procedural fairness is not an abstract concept; it is essentially practical and the concern is to avoid practical injustice. [422B.60] In relation to the matters it deals with The declaration that the subdivision is taken to be an exhaustive statement of the requirements of the natural justice hearing rule is qualified by the words “in relation to the matters it deals with”: Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; 267 ALR 204; 84 ALJR 507; [2010] HCA 23 at [35] per French CJ, Gummow, Hayne, Crennan and Kiefel JJ. In other words, insofar as common law rules of procedural fairness are codified under this Division, the codification only applies to the subject “matter” the Division “deals with” (that is, ss 423 – 429A, 437 – 438 and Div 7A). Where the Division does not “deal with” certain subject “matter”, common law rules of procedural fairness continue to apply. [422B.80] Fair and just In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; 297 ALR 225; 87 ALJR 618; [2013] HCA 18 at [58], Hayne, Kiefel and Bell JJ stated (in relation to the equivalent provision, under Part 5): In any event, what is fair and just is not to be ascertained by reading s 357A(3) alone, but by reading it as it applies to the actions of the Tribunal in the conduct of a review … What is fair and just in relation to the particular act may be discerned, to an extent, from the purpose of the provision which requires that the act be done or which gives the discretionary power to the Tribunal to perform the act, as well as from the purpose of surrounding provisions and Div 5 as a whole.

KEY CASES [422B.100] Natural justice hearing rule is not qualified or excluded in relation to offshore visa applicants In Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; 115 ALD 493; 267 ALR 204; 84 ALJR 507; [2010] HCA 23 (Saeed), the High Court considered s 51A of the Act. That provision is almost identical to s 422B, which was inserted by the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth), partly in response to the High Court’s decision in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; 179 ALR 238; 75 ALJR 889; 22(8) Leg Rep 2; [2001] HCA 22. In Saeed, Ms Saeed, © 2016 THOMSON REUTERS

837

s 422B

Migration Act 1958

[422B.120]

a citizen of Pakistan, was outside Australia and applied for a Skilled – Independent Visa (subclass 175), on the basis of being a cook. As part of the application, Ms Saeed provided documents that she had worked at a restaurant in Rawalpindi. An Australian immigration officer in Pakistan investigated Ms Saeed’s claims and discovered that no employee records were kept on the premises of the restaurant and that no woman had ever worked in the kitchen. On the basis of this information, the delegate advised Ms Saeed that her evidence about her work was false and misleading, and refused to grant the visa. The High Court considered the terms of ss 51A and 57 (which deal with the provision of information to applicants) and concluded that the natural justice hearing rule is excluded only insofar as it concerns onshore visa applicants, and is not excluded in relation to visa applicants who are not in Australia: at [56] per French CJ, Gummow, Hayne, Crennan and Kiefel JJ. Since the natural justice hearing rule applies to visa applicants offshore, the delegate was therefore required to provide Ms Saeed with an opportunity to answer the adverse material. [422B.120] In relation to the matters it deals with In Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; 267 ALR 204; 84 ALJR 507; [2010] HCA 23 (Saeed), the High Court considered the scope of the expression “in relation to the matters it deals with” and the various cases which had previously interpreted this phrase. French CJ, Gummow, Hayne, Crennan and Kiefel JJ (found “plainly correct”) endorsed the conclusions reached by: • Lindgren J in NAQF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 130 FCR 456; [2003] FCA 781 that the expression “the matters it deals with” in s 357A(1) requires a search to be made of the operative provisions within Div 5 for a provision “dealing with” a “relevant matter”. The plural form of “matters” suggests that the inquiry might be directed to a number of such provisions: at [38]; and • French J in WAID v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 220 at [58] that s 422B requires “exploration in terms of its construction and identification of the ‘matters’ to which it applies”. To place the High Court’s judgment in Saeed in context, it is necessary to have regard to some earlier decisions. In VXDC v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 146 FCR 562; [2005] FCA 1338 (VXDC), the Full Court of the Federal Court expressed the view that s 51A of the Act (which is similar, in terms, to s 422B) operated to exclude the common law natural justice hearing rule altogether: at [30]. Subsequently, in Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214; 231 ALR 412; [2006] FCAFC 61 (Lay Lat), the Full Court of the Federal Court expressed its agreement with the observations made at [30] in VXDC: at [65]–[68]. However, in Antipova v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 151 FCR 480; [2006] FCA 584 (Antipova), Gray J, sitting alone, expressed disagreement with the court’s judgment in VXDC and did not accept that the judgment in Lay Lat was “plainly correct” and therefore declined to follow that decision: at [96]–[98]. In Saeed v Minister for Immigration and Citizenship (2009) 176 FCR 53; [2010] FCAFC 41, the Full Court of the Federal Court stated it was not open to Gray J in Antipova not to follow Lay Lat, and expressed its view that Lay Lat was correct: at [42]–[46]. However, in allowing the appeal in Saeed, the High Court, although not expressing any view as to the correctness of either Lay Lat or Antipova, clearly adopted the ratio decidendi of Gray J in Antipova by asserting that “the declaration in s 51A(1), that the subdivision is to be taken as an exhaustive statement of the requirements of the natural justice hearing rule, is qualified by the words ‘in relation to the matters it deals with’”.

838

Migration Law

[422B.180]

Part 7 - Review of Part 7-reviewable decisions (ss 408-441G) Division 4 – Part 7-reviewable decisions: conduct of review (ss 422B–429A)

s 423

[422B.140] Some concepts of common law procedural fairness continue to apply In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; 297 ALR 225; 87 ALJR 618; [2013] HCA 18, the High Court considered a refusal of an adjournment by the Tribunal pursuant to the exercise of its statutory power to adjourn the review of a decision under s 363(1)(b) of the Act (which is similar, in its terms, to s 427(1)(b)). It was recognised that an unreasonable refusal by the Tribunal to grant an adjournment could result in jurisdictional error if it was established that the Tribunal did not conduct a review in the manner required by the Act: at [77]–[87] per Hayne, Kiefel and Bell JJ. This decision demonstrates that Pt 5 Div 5 (and, commensurately, Pt 7 Div 4) is not an “exhaustive statement” in the general sense, as common law rules of procedural fairness, such as those concerning unreasonableness, continue to apply to the way in which the Tribunal performs its review task. [422B.160] Some provisions are not procedural In SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294; 215 ALR 162; [2005] HCA 24 (SAAP) at [77], McHugh J made it clear that some provisions in the Division are not procedural in nature, but instead require strict compliance. His Honour observed that “[t]here can be no ‘partial compliance’ with a statutory obligation to accord procedural fairness. Either there has been compliance or there has not”. For example, prior to the introduction of s 424AA by the Migration Amendment (Review Provisions) Act 2007 (Cth), there was no scope for a Tribunal to put adverse information to a review applicant orally as s 424A strictly required that such information be put to an applicant in writing: SAAP at [77].

PRACTICE POINTS [422B.180] Section 422B does not provide reveiw applicant with rights Section 422B does not itself provide a review applicant with substantive rights. In other words, s 422B is not capable of being “breached” in the strict sense. Rather, together with s 420, s 422B conditions the exercise of the operative parts of the Division: see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; 297 ALR 225; 87 ALJR 618; [2013] HCA 18 at [58] per Hayne, Kiefel and Bell JJ (in relation to the equivalent provisions under Part 5). 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. [S 423 am Act 60 of 2015, s 3 and Sch 2 item 92, with effect from 1 Jul 2015; former s 166D renum Act 60 of 1994, s 83, with effect from 1 Sep 1994; insrt Act 184 of 1992, s 32, with effect from 1 Jul 1993]

SECTION 423 COMMENTARY Scope ................................................................................................................................................... [423.20] CONCEPTS

Issues arising in relation to the decision under review ..................................................................... [423.40]

© 2016 THOMSON REUTERS

839

s 423

Migration Act 1958

[423.20]

KEY CASES

A review applicant’s right to give a written statement, or a written argument, may be exercised at any time ............................................................................................................................................. [423.60] PRACTICE POINT

Exclusion of adverse information ....................................................................................................... [423.80]

[423.20] Scope Section 423 gives an applicant the opportunity to provide to the Tribunal a statutory declaration in relation to any matter of fact that the applicant wants the Tribunal to consider, and a written argument relating to the issues arising in relation to the decision under review. It is not mandatory that an applicant provide a statutory declaration or written argument. The information usually provided is information that an applicant considers will advance his or her case: Minister for Immigration and Citizenship v Chamnam You [2008] FCA 241 at [19]. The applicant’s right to provide a statutory declaration or written argument is not limited by any other provision in this Division which requires the applicant to provide any other information: Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413; [2010] FCAFC 40 at [34] per Jacobson, Gilmour and Foster JJ (in relation to the equivalent provision under Part 5). Section 423(1)(a) differs to the equivalent provision pertaining to Part 5–reviewable decisions, (s 358(1)(a)) which instead requires matters of fact that an applicant wishes the Tribunal to consider to be contained in a written statement only (rather than a statutory declaration). The Explanatory Memorandum to the Migration Reform Bill 1992 Migration (Delayed Visa Applications) Tax Bill 1992 (Cth), does not explain why s 423(1)(a) places a higher evidentiary onus on a review applicant than does s 358(1)(a); nor have the differences been the subject of judicial comment. However, the reason for the difference is perhaps unsurprising as persons who have applied for a protection visa under s 36 of the Act will often attest to matters regarding their country of origin that the Tribunal will not be able to independently verify. To that extent, the Tribunal will rely on the evidence of a protection visa applicant to a greater degree than a person who has applied for another class of visa (which the Tribunal, under Part 5, will likely be able to test and verify by other means).

CONCEPTS [423.40] Issues arising in relation to the decision under review In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; 231 ALR 592; [2006] HCA 63 (SZBEL) at [35], the majority considered the meaning of the words, “issues arising in relation to the decision under review” in the context of s 425 of the Act: The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.

In SZHZD v Minister for Immigration and Multicultural Affairs [2008] FMCA 4 (SZHZD) at [39], Barnes FM considered the above passage in SZBEL and relevantly observed: An exercise in characterisation must be undertaken to identify what are the “dispositive” or determinative issues in the sense of issues on which the decision to reject the applicant’s claim is based. 840

Migration Law

[423.80]

Part 7 - Review of Part 7-reviewable decisions (ss 408-441G) Division 4 – Part 7-reviewable decisions: conduct of review (ss 422B–429A)

s 423A

It is those issues that meet the description of an issue “arising in relation to the decision under review” within the meaning of s 425 [the equivalent provision to that contained in s 360].

The “issues” which arise in relation to the decision under review do not include the factual matters that comprise, or “go to”, the issues themselves: see, for example, SZJUB v Minister for Immigration and Citizenship [2007] FCA 1486 at [25] per Bennett J; SZHZD at [40]–[43].

KEY CASES [423.60]

A review applicant’s right to give a written statement, or a written argument, may be exercised at any time In Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413; [2010] FCAFC 40, the court considered a scenario where the Tribunal had sent Mr Hasran a letter pursuant to s 359A (the equivalent provision to s 424A) inviting him to comment on certain information and requesting a date by which that information was to be provided. Mr Hasran did not respond by the due date and, on the following day, requested an extension of time to respond to the s 359A letter. The Tribunal sent Mr Hasran a further letter on 5 August 2009 in which it stated that, since Mr Hasran had not responded to the s 359A letter within the specified time period, the Tribunal was unable to grant him an extension and, further, he had also lost his right to appear before the Tribunal to give evidence and present arguments. Mr Hasran sought judicial review of the Tribunal’s decision on the basis that the Tribunal’s letter dated 5 August 2009 denied him the opportunity to put before the Tribunal written material in support of his case. The Full Federal Court considered that this issue turned on the construction of the letter dated 5 August 2009 and on the terms of s 358 (the equivalent provision to s 423). The Full Federal Court was of the view that Mr Hasran was entitled under s 358 to give the Tribunal a written statement and written arguments and that the opportunity to do so was separate from, and unaffected by, the loss of his entitlement to appear before the Tribunal: at [34]. The letter did not specifically state that Mr Hasran was still entitled under s 358 of the Act to present a written statement and written arguments. Nonetheless, the Full Federal Court was of the view that the letter did not purport to deny him the opportunity to do so: at [38].

PRACTICE POINT [423.80] Exclusion of adverse information Any adverse information contained in a document provided by an applicant pursuant to s 423(1) of the Act is excluded under s 424A(3)(b) from being required to be put to the applicant for the purposes of s 424A(1): see, for example, SZEPR v Minister for Immigration [2005] FMCA 1608 at [14]. 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

© 2016 THOMSON REUTERS

841

s 423A

Migration Act 1958

[423A.20]

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. [S 423A insrt Act 35 of 2015, s 3 and Sch 1 item 14, with effect from 18 Apr 2015]

SECTION 423A COMMENTARY Scope ................................................................................................................................................. [423A.20] Practice point .................................................................................................................................... [423A.40]

[423A.20] Scope The Migration Amendment (Protection and Other Measures) Act 2015 (Cth) inserted this provision, which commenced on 18 April 2015. Pursuant to this section, the former Refugee Review Tribunal is to draw adverse credibility inferences where an applicant for a protection visa: • raises a claim that was not raised before the delegate of the Minister at first instance; or • presents evidence that was not presented to the delegate of the Minister at first instance; and • had not provided a reasonable explanation as to why the claim or evidence were not raised or presented to the delegate at first instance. According to the Explanatory Memorandum to the Migration Amendment (Protection and Other Measures) Act 2015 (Cth) at [74], s 5AAA, which provides that it is an applicant’s responsibility to particularise his or her claims for protection and provide the necessary evidence to establish the claim, supports s 423A and “the purpose is to ensure that protection visa applicants are forthcoming with all of their claims and evidence as soon as possible”. Therefore, an applicant is supposed to provide all relevant information to the Minister in his or her application for a protection visa, and prior to the delegate of the Minister making the primary decision: Explanatory Memorandum to the Migration Amendment (Protection and Other Measures) Act 2015 (Cth) at [73]. According to the Explanatory Memorandum to the Migration Amendment (Protection and Other Measures) Act 2015 (Cth) at [73]: A claim made be raised, or evidence may be presented in the application by way of, but not limited to, details in the application form, at an interview, in a response to a request, or information volunteered by the applicant at any stage prior to the primary decision.

Based on the common law, it has always been a function of the former Refugee Review Tribunal to make findings of fact in relation the credibility of an applicant: Re Minister for Immigration and Multicultural Affairs; Ex parte Duraurajasingham (2000) 58 ALD 609; 168 ALR 407; 74 ALJR 405; [2000] HCA 1 at [67] per McHugh J, as long as the adverse credibility findings were open on the material before the Tribunal; Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558–559 per O’Connor, Branson and Marshall JJ; NAFJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 91 at [10] per Conti J. Therefore, the former Refugee Review Tribunal has always had the discretion to make adverse credibility findings where an applicant has raised new claims or presented new evidence, which was not before the delegate of the Minister at first instance. There is no judicial consideration of this section, however, the section appears to narrow the former Refugee Review Tribunal’s functions in relation to new claims and evidence. It appears that the former Refugee Review Tribunal’s function ″is″ to draw an inference unfavourable to the credibility of the claim or evidence, if: 842

Migration Law

[423A.40]

Part 7 - Review of Part 7-reviewable decisions (ss 408-441G) Division 4 – Part 7-reviewable decisions: conduct of review (ss 422B–429A)

s 424

• the applicant has raised a new claim or presented new evidence, which was not raised before the delegate of the Minister made the primary decision; and • the former Refugee Review Tribunal is satisfied that the applicant does not have a reasonable explanation why the new claim or new evidence was not raised or presented before the primary decision was made. This section now imposes the additional requirement that the former Refugee Review Tribunal be “satisfied” that there is not a “reasonable explanation” for the delay in raising the new claim or providing the new evidence. The section does not provide any guidance as to what may amount to a “reasonable explanation”, nor does the explanatory memorandum to the amending Act. Further, the only other section to refer to a “reasonable explanation” is s 91W and there is no judicial commentary on this term in relation to s 91W. [423A.40] Practice point Section 423A applies to an application for a protection visa which was made on or after 18 April 2015. 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. [Subs (1) am Act 100 of 1995, s 3 and Sch 1 item 11, with effect from 1 Sep 1994]

(2) Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information. [Subs (2) am Act 10 of 2009, s 3 and Sch 1 items 9 and 10]

(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. [Subs (3) am Act 10 of 2009, s 3 and Sch 1 item 11; subst Act 58 of 2001, s 3 and Sch 3 item 12] [S 424 am Act 10 of 2009, s 3 and Sch 1 item 9; Act 58 of 2001; subst Act 113 of 1998, s 3 and Sch 3 item 3, with effect from 1 Mar 1999; am Act 100 of 1995; former s 166DA renum Act 60 of 1994, s 83, with effect from 1 Sep 1994; insrt Act 184 of 1992, s 32, with effect from 1 Jul 1993]

SECTION 424 COMMENTARY Scope ................................................................................................................................................... [424.20] CONCEPTS

Person .................................................................................................................................................. [424.40] May get information that it considers relevant .................................................................................. [424.60] Tribunal must have regard to information ......................................................................................... [424.80] KEY CASES

No duty to inquire ............................................................................................................................. [424.100] If an applicant fails to respond to a s 424 invitation, the applicant may not be entitled to a hearing under s 424 ......................................................................................................................................... [424.120] Tribunal may get information by any means ................................................................................... [424.140] A failure to refer to information in the decision will support an inference that the Tribunal did not have regard to that information ........................................................................................................ [424.160] © 2016 THOMSON REUTERS

843

s 424

Migration Act 1958

[424.20]

It is a matter for the Tribunal’s discretion to determine the weight to be given to information that it must have regard to ........................................................................................................................... [424.180] PRACTICE POINTS

Method by which invitation given ................................................................................................... [424.200]

[424.20] Scope The current version of s 424 was inserted by the Migration Legislation Amendment Act (No 1) 1998 (Cth). The purpose of this section, along with ss 424A, 424B and 424C, is to provide a “code of procedure which the Tribunal is to follow in conducting its review”: Explanatory Memorandum to the Migration Legislation Amendment Bill (No 1) 1998 (Cth) at [117]. The power conferred on the Tribunal by this section is permissive, or facultative, rather than mandatory: Dissanayake v Minister for Immigration and Multicultural Affairs [2002] FCA 976 at [18]; VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459 at [27]; Minister for Immigration and Citizenship v SZKTI (2009) 238 CLR 489; 258 ALR 434; [2009] HCA 30 (SZKTI) at [27]–[28]. In other words, while the Tribunal has power to seek information, there is no express duty placed upon it by this section to do so. Section 424(1) gives the Tribunal a discretionary power to “get any information that it considers relevant” and, if it does, it must have regard to it. Section 424(2) is a separate and different power to that contained in s 424(1): SZKTI at [45]. The power in s 424(2) permits the Tribunal to invite a person, either orally or in writing, to “give information”. The written information must be in accordance with s 424(3). The general power in s 424(1) is not limited by s 424(2) and a Tribunal will not commit a jurisdictional error if it does not follow the procedures in s 424(2) when it “gets” information. In addition, s 424 does not prevent an applicant from providing the Tribunal with information the applicant considers pertinent to his or her application: Minister for Immigration and Multicultural and Indigenous Affairs v Sun (2005) 146 FCR 498; [2005] FCAFC 201 at [50]. Section 424 does not contain an equivalent provision to that contained in s 359(4). in relation to Part 5–reviewable decisions.

CONCEPTS [424.40] Person Section 424(2) refers to inviting a “person” to give information. “Person” in this context: • refers to a “natural person”: SZLPO v Minister for Immigration and Citizenship (2009) 177 FCR 1; 255 ALR 407; [2009] FCAFC 51 (SZLPO) at [103]–[108] per Lindgren, Stone and Bennett JJ; and • is limited by reference to a person whose identity is known at the time of extending the invitation: SZLPO at [109] per Lindgren, Stone and Bennett JJ. It is not necessary that the “person” is the review applicant. The powers under s 424(1) and (2) permit the Tribunal to seek information from anyone, including a person at the Department of Foreign Affairs and Trade (DFAT): Dowlat v Minister for Immigration [2009] FMCA 171 at [10] and [30]–[32] per Driver FM; SZLTR v Minister for Immigration and Citizenship [2008] FCA 1889 at [33]–[34] per Siopis J. However, a request to DFAT generally (and not to a natural person) or a request to DFAT to determine who to approach, will fall outside the scope of this section: SZLPO at [119]–[120] per Lindgren, Stone and Bennett JJ; SZMXP v Minister for Immigration [2009] FMCA 495 at [4] per Driver FM. In addition, the “person” from whom the information is sought need not be the primary holder of the information. For example, the Tribunal may invite a person at DFAT to make inquiries with 844

Migration Law

[424.100]

Part 7 - Review of Part 7-reviewable decisions (ss 408-441G) Division 4 – Part 7-reviewable decisions: conduct of review (ss 422B–429A)

s 424

Afghanistan’s Consulate General in Quetta, or may communicate with a person at DFAT to get information about an applicant’s status in the Awami League: Dowlat v Minister for Immigration [2009] FMCA 171 at [10] and [30]–[32] per Driver FM; SZLTR v Minister for Immigration [2008] FCA 1889 at [33]–[34] per Siopis J. In certain circumstances DFAT may be treated as the agent of the Tribunal, where the invitation from the Tribunal to DFAT requests the recipient at DFAT to contact a particular person: SZLPO at [119]–[120] per Lindgren, Stone and Bennett JJ. [424.60] May get information that it considers relevant The words “may get information that it considers relevant” in s 424(1) confer a general power and do not restrict or limit the Tribunal’s powers in any way, other than in the requirement that the Tribunal “must have regard to that information in making the decision”: see Minister for Immigration and Citizenship v SZKTI (2009) 238 CLR 489; 258 ALR 434; [2009] HCA 30 at [37] per French CJ, Heydon, Crennan, Kiefel and Bell JJ. [424.80] Tribunal must have regard to information In Singh v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 152; 194 ALR 599; [2001] FCA 389, the Federal Court considered the words “have regard to” in the context of s 54(1) of the Act. Sackville J noted at [57]: Equally, I do not think that s 54(1) is satisfied merely by the Minister, as the decision-maker, being aware of the information in the application. The expression “have regard to” suggests a process of consideration of information. In order to consider something it is doubtless necessary to know that the thing exists, but more is needed. A decision-maker may be aware of information without paying any attention to it or giving it any consideration.

In SZOAU v Minister for Immigration and Citizenship [2010] FMCA 606 at [19], Nicholls FM stated that the above comments of Sackville J are applicable to the same words which appear in s 424 of the Act. In Minister for Immigration and Multicultural and Indigenous Affairs v Katisat [2005] FCA 1908 at [62], the Federal Court observed that the phrase “to have regard” (as that phrase appears in s 361(3)) means “to take into account” or to “consider”. In SZRLO v Minister for Immigration and Citizenship [2013] FCA 825, the Federal Court considered the words “have regard to” under s 424(1). The court held at [49] that to comply with the requirements of that section, “the Tribunal must engage in ‘an active intellectual process’ in which information obtained pursuant to s 424(1) receives the Tribunal’s ‘genuine’ consideration” (citing NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51; [2005] FCAFC 134 at [46]; Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248; 274 ALR 438; [2010] FCAFC 145).

KEY CASES [424.100] No duty to inquire Section 424 gives the Tribunal wide discretionary powers to investigate an applicant’s claims; however, it does not impose any general duty on the Tribunal to make inquiries: Re Minister for Immigration and Multicultural Affairs; Ex parte Cassim (2000) 175 ALR 209; 74 ALJR 1404; [2000] HCA 50 at [12]–[13] per McHugh J; Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426; 192 ALR 256; [2001] FCA 274; Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; 273 ALR 223; [2011] HCA 1 at [20]. There is no general duty imposed on the Tribunal to make inquiries. Rather, the duty imposed on the Tribunal is a duty to review: Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; 83 ALJR 1123; [2009] HCA 39 (SZIAI) at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. A Tribunal may, in some circumstances, fail to discharge its duty to © 2016 THOMSON REUTERS

845

s 424

Migration Act 1958

[424.120]

review if it fails to “make an obvious inquiry about a critical fact, the existence of which is easily ascertained. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction”: SZIAI at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. However, a Tribunal simply not exercising the discretionary power under this section will not of itself amount to jurisdictional error. [424.120]

If an applicant fails to respond to a s 424 invitation, the applicant may not be entitled to a hearing under s 424 If an applicant is invited under s 424(2) to give information, but fails to do so, he or she may lose the right to attend a hearing before the Tribunal: see, for example, Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413; [2010] FCAFC 40 (Hasran); Minister for Immigration and Multicultural and Indigenous Affairs v Sun (2005) 146 FCR 498; [2005] FCAFC 201 and M v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 333; 91 ALD 629; [2006] FCA 1247 (M). This is a consequence of the interaction between ss 424, 424C and 425. That is, if an applicant fails to respond to an invitation by the Tribunal under s 424, the consequence will be to attract the cascading operation of ss 424C(1) and 425(2)(c). The result is that the review applicant will not be entitled to appear before the Tribunal to give evidence and present arguments: see, generally, M at [25]–[31]. Critically, however, there is a departure in the processes between the Tribunal under Part 7 and Part 5. As the Full Court of the Federal Court made clear in Hasran, where a review applicant fails to respond to a s 359 (equivalent provision to s 424) invitation, not only will the applicant lose the entitlement to appear before the Tribunal, but the Tribunal itself, by operation of s 363A, will not have the power or discretion to conduct a hearing (even if it wanted to). There is no such consequence in respect of the conduct of reviews by the Tribunal under Part 7; however, as the Tribunal retains a discretionary power to schedule a hearing if it considers it necessary (although the review applicant will have no “entitlement” under s 425). As Driver FM observed in SZQLJ v Minister for Immigration and Citizenship [2011] FMCA 932 at [35], “the Tribunal [when acting under Part 7], unlike the Tribunal [acting under Part 5], is not required to deny an applicant a hearing opportunity to which he or she has been invited because of a non-provision of requested information” (emphasis added). [424.140] Tribunal may “get” information by any means In Minister for Immigration and Citizenship v SZKTI (2009) 238 CLR 489; 258 ALR 434; [2009] HCA 30, the respondent had applied for a protection visa. In support of the application, the visa applicant provided the former Refugee Review Tribunal with a letter from a local church elder which contained a telephone number. During the course of a hearing before the Tribunal, the Tribunal telephoned the elder. At the relevant time, s 424(3) of the Act required that any invitation to a person to give additional information had to be in writing. The Full Federal Court held that the Tribunal’s exercise of jurisdiction miscarried because its “invitation” (by telephone) to the elder of the local church was not in writing. The High Court overturned the Full Federal Court’s decision on appeal. The court confirmed that s 424(1) did not preclude a Tribunal seeking information from a person by telephone. French CJ, Heydon, Crennan, Kiefel and Bell JJ stated at [45]: Section 424(1) puts into statutory form a power to obtain information by asking questions. This is an obvious power to give to an inquisitorial body. Subject to not interfering with the liberty of another, making an enquiry with no power to compel an answer is not an unlawful activity. No adverse consequences flow against the applicant for review if the applicant, or any other person questioned, fails to co-operate or to give the information sought. By comparison, the specific power in s 424(2) governed by ss 424(3) and 424B, to give an invitation in writing to provide additional information, results in the 846

Migration Law

[424.200]

Part 7 - Review of Part 7-reviewable decisions (ss 408-441G) Division 4 – Part 7-reviewable decisions: conduct of review (ss 422B–429A)

s 424

adverse consequence that an applicant who fails to respond to an invitation in writing is deprived of the entitlement to a hearing. These critical distinctions emphasise the fact that the powers in ss 424(1) and 4242(2) are, in law, significantly dissimilar.

Therefore, since the Tribunal has the general power to “get” information under s 424(1), which is distinct and separate to the specific power to “invite” in writing the giving of information under s 424(2), the Tribunal had the power to get information from a person by telephone: Minister for Immigration and Citizenship v SZKTI (2009) 238 CLR 489; 258 ALR 434; [2009] HCA 30 at [47]. [424.160] A failure to refer to information in the decision will support an inference that the Tribunal did not “have regard” to that information In most instances the Tribunal is required, by s 430(1) of the Act, to record its decision in a written statement. A failure to refer to information the Tribunal is required to “have regard to” will therefore support an inference that the Tribunal did not have regard to that information: NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51; [2005] FCAFC 134 at [212]. However, a failure by the Tribunal to refer to information will not, necessarily, mean that it has not been considered. In Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; 273 ALR 223; [2011] HCA 1 at [31], French CJ and Kiefel J observed that, while a court may infer that a matter not mentioned by a Tribunal in its written reasons entitles the court to infer that the matter was not considered material, “[t]hat, of course, does not mean that a matter not mentioned in the s 430 statement was not considered”. Accordingly, an assessment needs to be made in each instance as to whether a Tribunal has engaged in an “active intellectual process” with the information to which it was required to have regard. Importantly, the proposition that the Tribunal is not obliged, in all cases, to refer in its reasons to every item of evidence that was before it (see, for example, SZEHN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1389 at [58]; Minister for Immigration and Citizenship v MZYHS (2011) 119 ALD 534; [2011] FCA 53 at [24]) is not applicable to the situation where the Tribunal is obliged, by s 424 of the Act, to “have regard to information”. [424.180] It is a matter for the Tribunal’s discretion to determine the weight to be given to information that it must have regard to In the absence of any statutory or contextual indication of the weight to be given to factors to which a decision-maker must have regard, it is generally for him or her to determine the appropriate weight to be given to them: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; 66 ALR 299; [1986] HCA 40 at 41 (CLR) per Mason J. In this regard, a court cannot turn a review of an administrative decision into a review of the merits of the decision. Accordingly, proceedings for judicial review should not overzealously scrutinise the reasons of a decision-maker. Those reasons are meant to inform only: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; 136 ALR 481; [1996] HCA 6 at 272 (CLR) per Brennan CJ, Toohey, McHugh and Gummow JJ; SZRLO v Minister for Immigration and Citizenship [2013] FCA 825 at [49].

PRACTICE POINTS [424.200] Method by which invitation given Pursuant to s 424(2), the Tribunal may invite a person to give information. Neither the Act, nor the Regulations, contain any requirements about how the Tribunal is to invite a person to give information orally. However, s 424(2) makes it clear that the invitation may be by telephone. A written invitation under s 424(2) must be in accordance with the requirements specified in s 359B. Where a Tribunal invites a person in writing to give information under s 424(2) pursuant to: © 2016 THOMSON REUTERS

847

s 424AA

Migration Act 1958

[424.200]

• section 424(3)(a), if the person is not in immigration detention, the invitation must be given by one of the methods specified in s 441A; and • section 424(3)(b), if the person is in immigration detention, the invitation must be given to the person by the method prescribed. Regulation 5.02 prescribes the method and provides that a document is to be served on such a person by giving it to the person himself or herself, or to another person authorised by him or her to receive documents on his or her behalf. If the written invitation does not comply with the requirements specified above, then it is not a valid invitation pursuant to s 424(2). Therefore, if a person does not respond to an invalid invitation, the consequences in such sections as ss 424C(1) and 424(2)(c) (that is, that the applicant loses his or her right to appear before the Tribunal to give evidence and present arguments) do not apply as these sections are based on there being a valid written invitation. 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. [Subs (1) am Act 35 of 2015, s 3 and Sch 4 item 23, with effect from 18 Apr 2015]

(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). [Subs (2) insrt Act 35 of 2015, s 3 and Sch 4 item 24, with effect from 18 Apr 2015] [S 424AA am Act 35 of 2015; insrt Act 100 of 2007, s 3 and Sch 1 item 18]

SECTION 424AA COMMENTARY Scope .............................................................................................................................................. [424AA.20] CONCEPTS

The meaning of “information” ...................................................................................................... [424AA.40] Clear particulars ............................................................................................................................. [424AA.60] Would be the reason, or part of the reason .................................................................................. [424AA.80] Could, would or will be the reason ............................................................................................ [424AA.100] Ensure, as far as is reasonably practicable, that the applicant understands .............................. [424AA.120] 848

Migration Law

[424AA.40]

Part 7 - Review of Part 7-reviewable decisions (ss 408-441G) Division 4 – Part 7-reviewable decisions: conduct of review (ss 422B–429A)

s 424AA

KEY CASES

Sections 424AA and 424A work in a complementary manner ................................................. [424AA.140] Information .................................................................................................................................. [424AA.160] Clear particulars of the context in which information appears, including the source of the information, may need to be provided in some instances .............................................................................. [424AA.180] Errors made by Tribunal in giving particulars of information .................................................. [424AA.200] The Tribunal is only obliged to grant an adjournment if it considers the review applicant reasonably needs additional time .................................................................................................................... [424AA.220] The Tribunal is not prevented from using s 424AA as an alternative to s 424A .................... [424AA.240] Use of a transcript in judicial review proceedings .................................................................... [424AA.260] Section 424AA(b)(iii) and (iv) ................................................................................................... [424AA.280]

[424AA.20] Scope Although the primary purpose of Pt 7 Div 4 of the Act was to codify the requirements of procedural fairness, “in relation to the matters it deals with”, the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294; 215 ALR 162; [2005] HCA 24 made it clear that some provisions in the Division were not simply procedural in nature, but instead required strict compliance: at [77]; see also Explanatory Memorandum to the Migration Amendment (Review Provisions) Bill 2006 (Cth) at 3. Such a literal interpretation was criticised by subsequent courts as requiring a highly technical application of the law in circumstances where little or no injustice could be seen in the way a Tribunal had dealt with a given matter: see, for example, SZEWL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 968 at [11] per Allsop J; Explanatory Memorandum to the Migration Amendment (Review Provisions) Bill 2006 (Cth) at 3. Partly to address the issue identified by Allsop J in SZEWL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 968, the Migration Amendment (Review Provisions) Act 2007 (Cth) introduced s 424AA to provide a new discretion for the Tribunal to orally give particulars of information and to invite a review applicant to comment on or respond to such information at a hearing. As noted at cl 48 of Sch 1 to the Explanatory Memorandum to the Migration Amendment (Review Provisions) Bill 2006 (Cth), s 424AA complements the Tribunal’s obligation under s 424A in that, if the Tribunal does not orally give information and seek comments or a response from an applicant at a hearing, it will then be obliged to do so in writing under s 424A. The corollary is that if the Tribunal does give such clear particulars and seeks a comment or response from an applicant at a hearing, the Tribunal will be relieved of its obligation to do so under s 424A. Section 424AA is not a source of substantive rights. As explained by the majority in SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415; [2009] FCAFC 46 (SZMCD) at [74]–[75] and [83]–[91], a failure to comply with s 424AA does not constitute jurisdictional error. However, non-compliance with s 424AA will cast the Tribunal back to s 424A. In that event, the Tribunal must then comply with s 424A(1): SZMCD at [92] and [103]. A failure to comply with s 424A(1) will constitute jurisdictional error: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294; 215 ALR 162; [2005] HCA 24 at [78], [173] and [208]; SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; 81 ALJR 1190; [2007] HCA 26 at [13].

CONCEPTS [424AA.40] The meaning of “information” The word “information” in this section and s 424A is not defined under the Act or the Regulations. The ordinary meaning of the word “information” is “knowledge or facts communicated about a particular subject, event etc; intelligence, news”: Kaur v Minister for © 2016 THOMSON REUTERS

849

s 424AA

Migration Act 1958

[424AA.60]

Immigration and Border Protection [2013] FCA 1333 at [45]; Brown L, The New Shorter Oxford English Dictionary (4th ed, 1993) p 1364. In SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; 81 ALJR 1190; [2007] HCA 26 (SZBYR) at [18], Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ stated that the meaning of “information” refers to the “existence of evidentiary material or documentation, not to the existence of doubts, inconsistencies or the absence of evidence” or the Tribunal’s disbelief. For the purposes of ss 424A and 424AA, “information” does not include the following: • the information referred to in s 424A(3) of the Act – that is, information: – 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: see s 424A(3)(a); – that the applicant gave for the purpose of review: see s 424A(3)(b); – that the applicant gave during the process that led to the decision under review, other than oral information the applicant provided to the Department: see s 424A(3)(ba); or – that is non-disclosable information, as defined in s 5: see s 424A(3)(c); • “the Tribunal’s subjective appraisals, thought processes or determinations”: VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471; [2004] FCAFC 123; at [24] per Finn and Stone JJ; SZBYR at [18]; Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; 273 ALR 223; [2011] HCA 1 (SZGUR) at [9]; • “identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps etc”: VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471; [2004] FCAFC 123 at [24] per Finn and Stone JJ; SZBYR at [18]; SZGUR at [9]; and • doubts, inconsistencies or the absence of evidence: SZBYR at [18]. Information “does not extend to the ‘prospective reasoning process’ of the Tribunal” and must be information that “would” be the reason, or part of the reasons for affirming the decision, and not information which “could” or “might” be such a reason: SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3 at [18] Perram, Jagot and Griffiths J. [424AA.60] Clear particulars The provision of “clear particulars” requires that the information must be provided with “sufficient specificity”: MZXKH v Minister for Immigration and Citizenship [2007] FCA 663 at [20] and [27]; MZYHF v Minister for Immigration and Citizenship (2010) 118 ALD 534; [2010] FCA 1250; SZMTJ v Minister for Immigration and Citizenship (No 2) (2009) 109 ALD 242; [2009] FCA 486 (SZMTJ). As Flick J stated in SZMTJ at [45], “language which fails to identify information with ‘sufficient specificity’ and which fails to ‘unambiguously’ set forth information may fail to comply with the requirement in s 424A(1)(a) to provide ‘clear particulars’ of information”. In SZNKO v Minister for Immigration and Citizenship (2010) 184 FCR 505; 267 ALR 35; [2010] FCA 297, Flick J traced the legislative history of the requirement for particulars in s 424A. His Honour noted that prior versions of s 424A had referred merely to “particulars of any information”. The requirement that “clear particulars” be provided was introduced by the Migration Amendment (Review Provisions) Act 2007 (Cth). His Honour noted that the change in 850

Migration Law

[424AA.100]

Part 7 - Review of Part 7-reviewable decisions (ss 408-441G) Division 4 – Part 7-reviewable decisions: conduct of review (ss 422B–429A)

s 424AA

language could not be ignored and that the change from “particulars” to “clear particulars” was somewhat motivated by the concern that extra care should be taken in the giving of particulars. When considering whether clear particulars have been provided, it is necessary to consider the character of the information and the clarity with which the information has been provided. As stated by Flick J in SZMTJ at [52]: Although s 424A(1) imposes the trinity of requirements set forth in paragraphs (a), (b) and (c), it is not considered that compliance with s 424A(1) is necessarily to be approached by considering each of the three requirements as though it were divorced from the rest. The greater the degree of clarity in the “particulars of any information” provided, the less may be the exposition needed to convey the relevance of that information to the review being undertaken; the greater the uncertainty in the information being provided, the greater may be the need to explain why it may be relevant. Section 424A(1)(b) remains a requirement to be satisfied; but the steps to be undertaken to discharge that requirement may well depend upon the clarity with which the information has been identified and indeed the character of that information.

[424AA.80] Would be the reason, or part of the reason For the purposes of ss 424A and 424AA, the information must be “information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review”. In this context, and taking into account the common law concept of procedural fairness, the “information” will usually be adverse information to the applicant. However, not all adverse information will need to be put to an applicant. Adverse information (or any other type of information) which would not be the reason, or part of the reason, for affirming the decision, does not need to be put to an applicant in accordance with this section or s 424A. This is because, even though the information may be adverse, it has not been relied upon in any way by the Tribunal to affirm the decision under review. Therefore, it does not need to be put to an applicant for comment. In SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; 81 ALJR 1190; [2007] HCA 26, the High Court considered the expression “would be the reason, or part of the reasons, for affirming the decision that is under review” in the context of s 424A, and noted at [17]: The reasons for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place. The Tribunal does not operate in a statutory vacuum, and its role is dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act. The use of the future conditional tense (“would be”) rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance – and independently – of the Tribunal’s particular reasoning on the facts of the case. Here, the appropriate criterion was to be found in s 36(1) of the Act, being the provision under which the appellants sought their protection visa. The “reason, or part of the reason, for affirming the decision that is under review” was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention. When viewed in that light, it is difficult to see why the relevant passages in the appellant’s statutory declaration would itself be “information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review”. Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellant’s claims to be a person to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review.

[424AA.100] Could, would or will be the reason In Minister for Immigration and Citizenship v SZLFX (2009) 238 CLR 507; 258 ALR 448; [2009] HCA 31 at [25], French CJ, Heydon, Crennan, Kiefel and Bell JJ endorsed the comments of Heerey J in MZXBQ v Minister for Immigration and Citizenship (2008) 166 FCR 483; [2008] FCA 319; that s 424A speaks of information which “would”, not which “could” or “might”, be © 2016 THOMSON REUTERS

851

s 424AA

Migration Act 1958

[424AA.120]

the reason or part of the reason for affirming the decision under review (these comments are equally applicable to the same words which appear in s 424AA). In MZYFH v Minister for Immigration and Citizenship (2010) 188 FCR 151; 115 ALD 409; [2010] FCA 559 (MZYFH), Bromberg J held that the Tribunal had breached its obligations pursuant to s 424AA because, among other things, at [66]–[68]: By telling the applicant that the information “could” form the reason or part of the reason, the Tribunal failed to ensure that the applicant understood the view that the Tribunal had arrived at, and the full gravity of the consequence of that view upon his claim. In the absence of a proper understanding, the appellant was not put in a position to understand how critical it was for him to respond and to do so convincingly. In the circumstances of this case, the appellant may well have taken the view that the Tribunal would regard the evidence of Father Thomas to be of little consequence. As I have said already, it is unclear from the evidence that Father Thomas gave that he even knew of the appellant. Similarly, in relation to evidence of Father Peter, the appellant may well have thought that the Tribunal would not give that evidence very much weight. The evidence was unspecific, the basis for the assertions made was not given and the evidence was obviously tainted by Father Peter’s misconception that the appellant was one of the oath breakers who had not returned to India. In those circumstances, and because he was told that the evidence of the Fathers could, rather than would, be the reason or part of the reason for affirming the decision under review, the appellant may well have elected to respond immediately rather than take the benefit of the opportunity provided by s 424AA to seek additional time to provide his response. A full understanding of the gravity of what he was facing may well have impacted upon both the timing and the content of any response that the appellant chose to make.

However, the use of words such as “will” does not necessarily result in a breach of s 424AA. In Singh v Minister for Immigration [2012] FMCA 1005, the Tribunal used the word “will” when putting information to an applicant pursuant to s 359AA (the equivalent provision to s 424AA). Whelan FM accepted the Minister’s submission that the word “will” was “stronger than the words ‘would’, ‘could’, ‘might’ or ‘may’”, and therefore the matter was distinguishable from MZYFH: at [18]. Her Honour further noted at [19] that the word “will” refers to a “definite future action and a likely prediction” and that, by “using the word ’will’, the Tribunal [does] not fail to ensure that the applicant [understands] the relevance and consequence of the information, and [is] fully aware of the full gravity of the consequences of that view upon [the] claim”. [424AA.120]

Ensure, as far as is reasonably practicable, that the applicant understands Ss 424AA(b)(i) and 424A(1)(b) require that the Tribunal “ensures, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review”. The Tribunal is not only required to provide the applicant with “clear particulars”, but is also required to explain the relevance of the information and the consequences of the Tribunal’s reliance upon it: Minister for Immigration and Multicultural Affairs v SZGMF [2006] FCAFC 138. In NBKS v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 156 FCR 205; 237 ALR 592; [2006] FCAFC 174, the Full Federal Court found, amongst other things, that the Tribunal had not ensured, as far as reasonably practicable, that the appellant understood why an omission from a doctor’s report was relevant to the decision under review: at [42] per Weinberg J. In this matter, the Tribunal had provided a copy of a doctor’s report to the appellants, but the report did not address a particular issue and the Tribunal did not explain that it was the absence of this issue which was of relevance. 852

Migration Law

[424AA.200]

Part 7 - Review of Part 7-reviewable decisions (ss 408-441G) Division 4 – Part 7-reviewable decisions: conduct of review (ss 422B–429A)

s 424AA

KEY CASES [424AA.140] Sections 424AA and 424A work in a complementary manner By reason of s 424A(2A), the provisions in ss 424A and 424AA operate in a complementary fashion and the Tribunal has a discretion as to whether or not to engage the provisions in s 424AA: SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415; [2009] FCAFC 46 (SZMCD) at [86]. It is s 424A which “prescribes what must be done”: SZMCD at [88], [90] and [104]. [424AA.160] Information In SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; 81 ALJR 1190; [2007] HCA 26, the High Court considered the meaning of the term “information” as it applied to s 424A of the Act. The appellants had initially argued that the Tribunal had breached s 424A by failing to put to them information in regard to inconsistencies between the statutory declaration provided by an appellant in connection with the protection visa application and oral evidence to the Tribunal. The argument in the High Court focused on whether s 424A required the Tribunal to put to the appellants for comment relevant passages in the statutory declaration from which the inconsistencies arose. Relevantly, Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ found at [17] that the appellants had not demonstrated that the statutory declaration would be the reason, or part of the reason, for affirming the decision under review. Also, that if the reason for affirming the decision was the Tribunal’s disbelief of the appellant’s evidence arising from inconsistencies, then disbelief and inconsistencies did not constitute “information” for the purpose of s 424A(1): at [18]. [424AA.180]

Clear particulars of the context in which information appears, including the source of the information, may need to be provided in some instances Whether the Tribunal is obliged to give clear particulars of the context from which adverse information has been derived depends upon whether it is relevant (in the sense that it would be the reason, or part of the reason, for affirming the decision under review). In SZNKO v Minister for Immigration and Citizenship (2010) 184 FCR 505; 267 ALR 35; [2010] FCA 297 (SZNKO) at [23], Flick J said that there may be circumstances in which the requirement to “give information” may not extend to a requirement to disclose the entirety of a document in which such “information” is contained. In those cases, the disclosure of that specific part of a much lengthier document may be sufficient. However, his Honour emphasised that “information” cannot in all cases be clinically divorced from the context in which it appears. How much of that surrounding context must be disclosed “must necessarily depend upon the facts and circumstances of each individual case”. In this regard, it may be necessary in some cases to identify the “source” from which the information has been obtained. Flick J noted that, in essence, the touchstone is that the provision requires the disclosure of however much information is necessary to ensure that the opportunity to comment or respond is “meaningful”. Accordingly, in some cases the disclosure of the “substance” of information may be sufficient (see NAVM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 99 at [33]), whereas in other cases “clear particulars” may require more: SZNKO at [23]. [424AA.200] Errors made by Tribunal in giving particulars of information The consequence of the Tribunal misstating information depends, first, on whether it is obliged by s 424A to give “clear particulars” of that information. If the Tribunal is obliged to provide “clear particulars” (because the information would be the reason, or part of the reason, for affirming the decision under review), but fails to do so due to inaccuracy, then it will in most instances have failed to provide clear particulars of that information. In the context of s 424AA, © 2016 THOMSON REUTERS

853

s 424AA

Migration Act 1958

[424AA.220]

this will cast the Tribunal back to s 424A: SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415; [2009] FCAFC 46 at [92], [103]. However, where the Tribunal misstates information that is not required to be put to an applicant, the consequence will depend on the circumstances of the case. In Sandhu v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 842 at [31], the Federal Court held that the Tribunal’s mistake in incorrectly referring to the source of adverse information did not amount to legal error because the source of the information did not form any part of the Tribunal’s decision; rather it was the substance of the information that was relevant in that case. On the other hand, a denial of procedural fairness may be established where a Tribunal misleads a party in the course of a hearing. This is likely to be the case where the misleading conduct results in the denial of a proper opportunity for a review applicant to be heard in circumstances which affect the outcome: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; 176 ALR 219; [2000] HCA 57 at [4] per Gleeson CJ, at [79] per Gaudron and Gummow JJ and at [127] per Kirby J. [424AA.220]

The Tribunal is only obliged to grant an adjournment if it considers the review applicant reasonably needs additional time If the Tribunal utilises s 424AA(a), it is obliged under s 424AA(b)(iii) to advise the applicant that he or she may seek additional time to comment on or respond to the information which has been put to him or her. If the applicant does seek additional time, the Tribunal is not obliged to adjourn the review but only to consider if the applicant reasonably needs additional time. In considering whether the applicant needs additional time, the Tribunal is entitled to take into account the history of the matter: Toor v Minister for Immigration [2012] FMCA 804 at [68] (in relation to the equivalent provision under Part 5). An unreasonable refusal to grant an adjournment, however, is likely to amount to jurisdictional error. The question of what is unreasonable, in this sense, may be discerned from a lack of an evident and intelligible justification for refusing to grant the adjournment: see, for example, Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; 297 ALR 225; 87 ALJR 618; [2013] HCA 18 at [76] per Hayne, Kiefel and Bell JJ (in relation to the operation of s 363(1)(b) of the Act). [424AA.240]

The Tribunal is not prevented from using s 424AA as an alternative to s 424A In Toor v Minister for Immigration [2012] FMCA 804, the Federal Magistrates Court rejected the applicant’s suggestion that the Tribunal in that case should have utilised s 359A of the Act rather than s 359AA (the equivalent provisions under Part 5). Whelan FM observed at [70] that “I am not satisfied that on the facts, or at law, there was any obligation on the Tribunal to do so”. [424AA.260] Use of a transcript in judicial review proceedings Usually, a court will not find that a Tribunal has failed to comply with the requirements in s 424AA simply from the written reasons, and a transcript of the Tribunal hearing will usually need to be provided: SZNOA v Minister for Immigration and Citizenship [2010] FCA 60 at [21] per Cowdroy J. However, in MZYFH v Minister for Immigration and Citizenship (2010) 188 FCR 151; 115 ALD 409; [2010] FCA 559, Bromberg J discerned on the face of the Tribunal’s decision, without use of a transcript of the Tribunal hearing, that the Tribunal had breached its obligations under s 424AA because the Tribunal: • had not given “clear particulars” of the relevant information; • did not ensure that the applicant understood why the information was relevant to the review; and 854

Migration Law

[424AA.280]

Part 7 - Review of Part 7-reviewable decisions (ss 408-441G) Division 4 – Part 7-reviewable decisions: conduct of review (ss 422B–429A)

s 424A

• did not ensure that the applicant understood the consequences of the information being relied on in affirming the decision that was under review by using the word “could” instead of “would” when stating that the information could be a reason, or part of the reason, for affirming the decision. [424AA.280] Section 424AA(b)(iii) and (iv) In Toor v Minister for Immigration [2012] FMCA 804, a decision in respect of the equivalent provision under Part 5, the visa applicant applied for a Student (Class TU) visa. It was a precondition to the grant of the visa that the applicant satisfied certain financial capacity criteria. First, a delegate of the Minister refused to grant the visa on the basis that the applicant did not satisfy this criteria. The applicant then sought merits review before the Tribunal. During the course of a second hearing, the Tribunal referred the applicant to adverse information contained in a report from the Australian High Commission in New Delhi regarding funds held by the applicant’s father. In light of this information, the Tribunal asked the applicant at the hearing about the source of the funds. The Tribunal further asked the applicant if he wanted an adjournment to consider the adverse information. The applicant requested, and was given, a break of 15 minutes to discuss the information with his adviser. The Tribunal then asked the applicant if he had had enough time to respond and if he wished to respond to the information. The applicant answered “yes” to both questions. However, towards the end of the hearing, the applicant made a further general request for “more time”, but this request was refused and the Tribunal gave an oral decision at the conclusion of the hearing, affirming the decision of the delegate. Before the Federal Magistrates Court, the applicant argued that the Tribunal failed to comply with s 359AA(b)(iii) and/or (iv) of the Act in that it failed to advise the applicant that he may seek additional time to comment on or respond to the information and/or failed to adjourn the review upon request. The Federal Magistrates Court rejected both of these arguments. With respect to the allegation that the Tribunal did not comply with s 359AA(b)(iv), Whelan FM noted that the applicant had had almost two years to provide satisfactory evidence that he met the financial capacity criteria. He knew what the problems were with the information he had previously been provided (including before the delegate). The court held at [68] that the Tribunal was thereby entitled to take into account the history of the matter in its considerations. However, in response to a suggestion by the Minister that a Tribunal need not deal with any further requests for an adjournment if the Tribunal has already granted an adjournment, Whelan FM observed at [60] that: I am not satisfied that in all the circumstances having provided a short adjournment, the Tribunal would not be obliged to later consider if a further adjournment might not be reasonable in order to allow the applicant to respond to the information. In some circumstances, proposals put by an applicant or information given orally in response might well justify a further adjournment for material to be produced.

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

© 2016 THOMSON REUTERS

855

s 424A

Migration Act 1958

(c)

[424AA.280]

invite the applicant to comment on or respond to it.

[Subs (1) am Act 100 of 2007, s 3 and Sch 1 items 19–22]

(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. [Subs (2) subst Act 58 of 2001, s 3 and Sch 3 item 13]

(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. [Subs (2A) insrt Act 100 of 2007, s 3 and Sch 1 item 23]

(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. [Subs (3) am Act 100 of 2007, s 3 and Sch 1 items 24 and 25]

(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). [Subs (4) insrt Act 35 of 2015, s 3 and Sch 4 item 25, with effect from 18 Apr 2015] [S 424A am Act 35 of 2015; Act 100 of 2007, s 3 and Sch 1 item 19; Act 58 of 2001; insrt Act 113 of 1998, s 3 and Sch 3 item 3, with effect from 1 Mar 1999]

SECTION 424A COMMENTARY Scope ................................................................................................................................................. [424A.20] CONCEPTS

The meaning of “information” ......................................................................................................... [424A.40] Clear particulars ............................................................................................................................... [424A.60] Would be the reason, or part of the reason ..................................................................................... [424A.80] Could, would or will be the reason ............................................................................................... [424A.100] Information that is just about a class of persons of which the applicant is a member ............... [424A.120] Information provided orally by the applicant to the Department ................................................. [424A.140] KEY CASES

Sections 424AA and 424A work in a complementary manner .................................................... [424A.160] Information ..................................................................................................................................... [424A.180] Country information ....................................................................................................................... [424A.200] Clear particulars of the context in which information appears, including the source of the information, may need to be provided in some instances ................................................................................. [424A.220] Errors made by Tribunal in giving particulars of information ..................................................... [424A.240] The Tribunal is not prevented from using s 424AA as an alternative to s 424A ....................... [424A.260] If an applicant fails to respond to a s 424A letter, the applicant may not be entitled to a hearing under s 424 ....................................................................................................................................... [424A.280] 856

Migration Law

[424A.20]

Part 7 - Review of Part 7-reviewable decisions (ss 408-441G) Division 4 – Part 7-reviewable decisions: conduct of review (ss 422B–429A)

s 424A

PRACTICE POINTS

Method by which invitation given ................................................................................................. [424A.300]

[424A.20] Scope Section 424A reflects the codification of the natural justice hearing rule by requiring the Tribunal to put certain adverse information to a review applicant for comment or response (subject to the Tribunal’s power to use, in the alternative, s 424AA). In SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415; [2009] FCAFC 46 at [71], the Full Court of the Federal Court summarised the policy and purpose reflected in s 424A of the Act as being that the Tribunal should be compelled to: • put the visa applicant on fair notice in writing of critical matters of concern to the Tribunal; • ensure that the visa applicant understands the significance of those matters to the decision under review; and • give the applicant a reasonable opportunity to comment on or to respond to those matters of concern. In SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3, Perram, Jagot and Griffiths J considered the operation of s 424A and stated at [9] that in determining whether s 424A(1) has been breached, the following questions need to be answered: (a) Is there information that the Tribunal considers would be the reasons, or part of the reason, for affirming the decision that is under review within the meaning of s 424A(1)(a)? If the answer to question (1) is “No” s 424A(1) does not apply. If the answer to question (1) is “Yes”, s 424A(1) may or may not apply depending on the answer to question (2). (b) If the answer to question (1) is “Yes”, then is that information excluded from s 424A(1) by s 424A(3), in particular for the purpose of the three present matters, by s 424A(3)(b), being information that the applicant gave for the purpose of the application for review? If the answer to question (2) is “Yes”, s 424A(1) does not apply. If the answer to question (2) is “No”, s 424A(1) may apply depending on the answers to questions (3) and (4). (c) Did the Tribunal comply with s 424AA(a) in respect of the information, by giving to the applicant orally clear particulars of any information that the Tribunal considers would be the reasons, or part of the reasons, for affirming the decision that is under review? If the answer to question (3) is “No”, s 424A(1) applies. If the answer to question (3) is “Yes”, s 424A(1) may or may not apply depending on the answer to question (4). (d) If the Tribunal complied with s 424AA(a) in respect if the information, by giving to the applicant orally clear particulars of any information that the Tribunal considers would be the reasons, or part of the reason, for affirming the decision that is under review, did the Tribunal comply with each of s 424AA(b)(i)-(iv)? If the answer to question (4) is “No”, s 424A(1) applies. If the answer to question (4) is “Yes”, s 424A(1) does not apply. © 2016 THOMSON REUTERS

857

s 424A

Migration Act 1958

[424A.40]

(e) If s 424A(1) applies and s 424AA does not apply, did the Tribunal give the applicant the information in accordance with s 424A(2)? If the answer to question (5) is “No”, the Tribunal has breached s 424A. If the answer to question (5) is “Yes”, the Tribunal has not breached s 424A.

CONCEPTS [424A.40] The meaning of “information” The word “information” in this section and s 424AA is not defined under the Act or the Regulations. The ordinary meaning of the word “information” is “knowledge or facts communicated about a particular subject, event etc; intelligence, news”: Kaur v Minister for Immigration and Border Protection [2013] FCA 1333 at [45]; Brown L, The New Shorter Oxford English Dictionary (4th ed, 1993) p 1364. In SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; 81 ALJR 1190; [2007] HCA 26 (SZBYR) at [18] Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ stated that the meaning of “information” refers to the “existence of evidentiary material or documentation, not to the existence of doubts, inconsistencies or the absence of evidence” or the Tribunal’s disbelief. For the purposes of ss 424A and 424AA, “information” does not include the following: • the information referred to in s 424A(3) of the Act – that is, information: – 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: see s 424A(3)(a); – that the applicant gave for the purpose of review: see s 424A(3)(b); – that the applicant gave during the process that led to the decision under review, other than oral information the applicant provided to the Department: see s 424A(3)(ba); or – that is non-disclosable information, as defined in s 5: see s 424A(3)(c); • “the Tribunal’s subjective appraisals, thought processes or determinations”: VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471; [2004] FCAFC 123 (VAF) at [24] per Finn and Stone JJ; SZBYR at [18]; Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; 273 ALR 223; [2011] HCA 1 (SZGUR) at [9]; • “identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps etc”: VAF at [24] per Finn and Stone JJ; SZBYR at [18]; SZGUR at [9]; and • doubts, inconsistencies or the absence of evidence: SZBYR at [18]. Information “does not extend to the ‘prospective reasoning process’ of the Tribunal” and must be information that “would” be the reason, or part of the reasons for affirming the decision, and not information which “could” or “might” be such a reason: SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3 at [18] Perram, Jagot and Griffiths J. [424A.60] Clear particulars The provision of “clear particulars” requires that the information must be provided with “sufficient specificity”: MZXKH v Minister for Immigration and Citizenship [2007] FCA 663 at [20] and [27]; MZYHF v Minister for Immigration and Citizenship (2010) 118 ALD 534; [2010] FCA 1250; SZMTJ v Minister for Immigration and Citizenship (No 2) (2009) 109 ALD 242; 858

Migration Law

[424A.80]

Part 7 - Review of Part 7-reviewable decisions (ss 408-441G) Division 4 – Part 7-reviewable decisions: conduct of review (ss 422B–429A)

s 424A

[2009] FCA 486 (SZMTJ). As Flick J stated in SZMTJ at [45], “language which fails to identify information with ‘sufficient specificity’ and which fails to ‘unambiguously’ set forth information may fail to comply with the requirement in s 424A(1)(a) to provide ‘clear particulars’ of information”. In SZNKO v Minister for Immigration and Citizenship (2010) 184 FCR 505; 267 ALR 35; [2010] FCA 297, Flick J traced the legislative history of the requirement for particulars in s 424A. His Honour noted that prior versions of s 424A had referred merely to “particulars of any information”. The requirement that “clear particulars” be provided was introduced by the Migration Amendment (Review Provisions) Act 2007 (Cth). His Honour noted that the change in language could not be ignored and that the change from “particulars” to “clear particulars” was somewhat motivated by the concern that extra care should be taken in the giving of particulars. When considering whether clear particulars have been provided, it is necessary to consider the character of the information and the clarity with which the information has been provided. As stated by Flick J in SZMTJ at [52]: Although s 424A(1) imposes the trinity of requirements set forth in paragraphs (a), (b) and (c), it is not considered that compliance with s 424A(1) is necessarily to be approached by considering each of the three requirements as though it were divorced from the rest. The greater the degree of clarity in the “particulars of any information” provided, the less may be the exposition needed to convey the relevance of that information to the review being undertaken; the greater the uncertainty in the information being provided, the greater may be the need to explain why it may be relevant. Section 424A(1)(b) remains a requirement to be satisfied; but the steps to be undertaken to discharge that requirement may well depend upon the clarity with which the information has been identified and indeed the character of that information.

[424A.80] Would be the reason, or part of the reason For the purposes of ss 424A and 424AA, the information must be “information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review”. In this context, and taking into account the common law concept of procedural fairness, the “information” will usually be adverse information to the applicant. However, not all adverse information will need to be put to an applicant. Adverse information (or any other type of information) which would not be the reason, or part of the reason, for affirming the decision, does not need to be put to an applicant in accordance with this section or s 424A. This is because, even though the information may be adverse, it has not been relied upon in any way by the Tribunal to affirm the decision under review. Therefore, it does not need to be put to an applicant for comment. In SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; 81 ALJR 1190; [2007] HCA 26, the High Court considered the phrase “would be the reason, or part of the reasons, for affirming the decision that is under review” in the context of s 424A and noted at [17]: The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place. The Tribunal does not operate in a statutory vacuum, and its role is dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act. The use of the future conditional tense (“would be”) rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance – and independently – of the Tribunal’s particular reasoning on the facts of the case. Here, the appropriate criterion was to be found in s 36(1) of the Act, being the provision under which the appellants sought their protection visa. The “reason, or part of the reason, for affirming the decision that is under review” was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention. When viewed in that light, it is difficult to see why the relevant passages in the appellants’ statutory declaration would itself be “information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review”. Those portions of the statutory declaration did © 2016 THOMSON REUTERS

859

s 424A

Migration Act 1958

[424A.100]

not contain in their terms a rejection, denial or undermining of the appellant’s claims to be a person to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review.

[424A.100] Could, would or will be the reason In Minister for Immigration and Citizenship v SZLFX (2009) 238 CLR 507; 258 ALR 448; [2009] HCA 31 at [25], French CJ, Heydon, Crennan, Kiefel and Bell JJ endorsed the comments of Heerey J in MZXBQ v Minister for Immigration and Citizenship (2008) 166 FCR 483; [2008] FCA 319 that s 424A speaks of information which “would”, not which “could” or “might”, be the reason or part of the reason for affirming the decision under review. In MZYFH v Minister for Immigration and Citizenship (2010) 188 FCR 151; 115 ALD 409; [2010] FCA 559 (MZYFH) at [66]–[68], Bromberg J held that the Tribunal had breached its obligations pursuant to s 424AA because, among other things: By telling the applicant that the information “could” form the reason or part of the reason, the Tribunal failed to ensure that the applicant understood the view that the Tribunal had arrived at, and the full gravity of the consequence of that view upon his claim. In the absence of a proper understanding, the appellant was not put in a position to understand how critical it was for him to respond and to do so convincingly. In the circumstances of this case, the appellant may well have taken the view that the Tribunal would regard the evidence of Father Thomas to be of little consequence. As I have said already, it is unclear from the evidence that Father Thomas gave that he even knew of the appellant. Similarly, in relation to evidence of Father Peter, the appellant may well have thought that the Tribunal would not give that evidence very much weight. The evidence was unspecific, the basis for the assertions made was not given and the evidence was obviously tainted by Father Peter’s misconception that the appellant was one of the oath breakers who had not returned to India. In those circumstances, and because he was told that the evidence of the Fathers could, rather than would, be the reason or part of the reason for affirming the decision under review, the appellant may well have elected to respond immediately rather than take the benefit of the opportunity provided by s 424AA to seek additional time to provide his response. A full understanding of the gravity of what he was facing may well have impacted upon both the timing and the content of any response that the appellant chose to make.

However, the use of words such as “will” does not necessarily result in a breach of s 424AA. In Singh v Minister for Immigration [2012] FMCA 1005, the Tribunal used the word “will” when putting information to an applicant pursuant to s 359AA (the equivalent provision to s 424AA). Whelan FM accepted the Minister’s submission that the word “will” was “stronger than the words ‘would’, ‘could’, ‘might’ or ‘may’”, and therefore the matter was distinguishable from MZYFH: at [18]. Her Honour further noted that the word “will” refers to a “definite future action and a likely prediction” and that, by using the word “will”, the Tribunal does not “fail to ensure that the applicant [understands] the relevance and consequence of the information, and [is] fully aware of the full gravity of the consequences of that view upon [the] claim”: at [19]. [424A.120] Information that “is just about a class of persons of which the applicant is a member” In VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 at [14], Gyles and Conti JJ said that the reference to the class of persons in s 424A(3)(a) is designed to underline the specificity required by precluding any argument that reference to a class would be taken as a reference to all individuals falling within it. [424A.130] Information applicant gave for the purpose of the application for review Under s 424A(3)(b), information that an applicant gave for the purposes of the application for review does not need to be put to an applicant for comment under s 424A(1). The application for 860

Migration Law

[424A.140]

Part 7 - Review of Part 7-reviewable decisions (ss 408-441G) Division 4 – Part 7-reviewable decisions: conduct of review (ss 422B–429A)

s 424A

review is a reference to the application to the Tribunal, and does not mean the application to the Minister for the visa: SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3 at [21] Perram, Jagot and Griffiths J. Whether or not subsequent information, that an applicant gives to a Tribunal, will fall within s 424A(3)(b), is to be determined on the facts, however: there is nothing in the text of s 424A(3)(b) which supports any distinction between information proffered by an applicant to the Tribunal of an applicant’s own volition or elicited from an applicant by the answering of the Tribunal’s questions: SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3 at [24] per Perram, Jagot and Griffiths J.

The scope of s 424A(3)(b) has been interpreted in the following different ways by the Court: • s 424A(3)(b) does not apply to information provided by an applicant during questioning by the Tribunal during a hearing, rather it applies to information from the visa application which an applicant “expressly adopts and puts forward as part” of the application for review to the Tribunal: NAZY v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 87 ALD 357; [2005] FCA 744 at [37] per Jacobson J; • s 424A(3)(b) can apply to the application for a visa and the documents attached, such as a passport, if the applicant relies upon these in his or her written submissions provided to the Tribunal: M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 at [25] per Gray J; • s 424A(3)(b) applies to information which the applicant “conveyed” to the Tribunal, that is information that the applicant delivered to the Tribunal, “whether in answer to a question asked by the Tribunal or whether volunteered”: VWBF v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 154 FCR 302; [2006] FCA 851 at [48] per Heerey J; • s 424A(3)(b) applies to an earlier statement made by an applicant, for example at an airport interview, if the applicant “repeats the earlier statement at some stage during the course of a hearing, and adopts it as true”. However, if the applicant does not repeat the earlier statement then the Tribunal is required to put that statement to the applicant for comment if it intends to rely upon it: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214; 230 ALR 1; [2006] FCAFC 2 at [179] per Weinberg, see also Moore J at [91] and Allsop J at [264]; • s 424A(3)(b) applies to information that the Tribunal obtained from another source, but which an applicant affirmed during the Tribunal hearing: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214; 230 ALR 1; [2006] FCAFC 2 at [173] per Weinberg, at [91] per Moore J and at [264] per Allsop J; and • s 424A(3)(b) may apply to “complex information or information about controversial facts” which an applicant has given to a Tribunal “by mere affirmation in response to a question by the Tribunal”: SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3 at [25] per Perram, Jagot and Griffiths J. [424A.140] Information provided orally by the applicant to the Department The exception contained in s 424A(3)(ba) does not extend to information that the review applicant has provided orally to the Department. This will include, for instance, information which the applicant provides to a delegate of the Minister during any interview. In such circumstances, the Tribunal will remain bound to give the applicant clear particulars of that information if it would be the reason, or part of the reason, for affirming the decision under review: see, for example, SZNBW v Minister for Immigration and Citizenship [2009] FMCA 425 at [41]. © 2016 THOMSON REUTERS

861

s 424A

Migration Act 1958

[424A.160]

KEY CASES [424A.160] Sections 424AA and 424A work in a complementary manner By reason of s 424A(2A), the provisions in ss 424A and 424AA operate in a complementary fashion and the Tribunal has a discretion as to whether or not to engage the provisions in s 359AA: SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415; [2009] FCAFC 46 (SZMCD) at [86]. It is s 359A which “prescribes what must be done”: SZMCD at [88], [90] and [104] (in reference to ss 424AA and 424A). [424A.180] Information In SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; 81 ALJR 1190; [2007] HCA 26, the High Court considered the meaning of the term “information” as it applied to s 424A of the Act. The appellants had initially argued that the Tribunal had breached s 424A by failing to put to them information in regard to inconsistencies between the statutory declaration provided by an appellant in connection with the protection visa application and oral evidence to the Tribunal. The argument in the High Court focused on whether s 424A required the Tribunal to put to the appellants for comment relevant passages in the statutory declaration from which the inconsistencies arose. Relevantly, Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ found at [17] that the appellants had not demonstrated that the statutory declaration would be the reason, or part of the reason, for affirming the decision under review. Further, if the reason for affirming the decision was the Tribunal’s disbelief of the appellant’s evidence arising from inconsistencies, then disbelief and inconsistencies did not constitute “information” for the purpose of s 424A(1): at [18]. [424A.200] Country information Independent information, commonly referred to as “country information”, will fall within the exclusion provided in s 424A(3)(a), provided it is not specifically about the applicant or another person. In VHAJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 80; 75 ALD 609; [2003] FCAFC 186 at [50], Kenny J summarised the concept of “country information” and why it ordinarily falls within the exclusion contained in s 424A(3)(a): It is usual for the tribunal to have regard to information about the social, political, religious and other conditions prevailing in a country relevant to an applicant’s claim for refugee status, with a view to assessing whether other individuals who share his or her racial, religious, political, social or other attributes suffer treatment of a kind amounting to persecution on Convention grounds in that country. Sometimes information of this kind concerns religious practice, government elections, educational opportunities or other matters. This kind of country information is relevant to the tribunal’s decision-making task only because the applicant falls within the class of persons who share an attribute, which, according to his or her claim, gives rise to a well-founded fear of persecution in the country concerned. In this circumstance, the information does not cease to be information ″just about″ a class of persons simply because it can also be characterised as information about religious practice, government elections or educational opportunities. It has been repeatedly held that information of this kind falls within s 424A(3)(a) of the Act.

[424A.220] Clear particulars of the context in which information appears, including the source of the information, may need to be provided in some instances Whether the Tribunal is obliged to give clear particulars of the context from which adverse information has been derived depends upon whether it is relevant (in the sense that it would be the reason, or part of the reason, for affirming the decision under review). In SZNKO v Minister for Immigration and Citizenship (2010) 184 FCR 505; 267 ALR 35; [2010] FCA 297 (SZNKO) at [23], Flick J said that there may be circumstances in which the requirement to “give information” may not extend to a requirement to disclose the entirety of a document in which 862

Migration Law

[424A.280]

Part 7 - Review of Part 7-reviewable decisions (ss 408-441G) Division 4 – Part 7-reviewable decisions: conduct of review (ss 422B–429A)

s 424A

such “information” is contained. In those cases, the disclosure of that specific part of a much lengthier document may be sufficient. However, his Honour emphasised that “information” cannot in all cases be clinically divorced from the context in which it appears. How much of that surrounding context must be disclosed “must necessarily depend upon the facts and circumstances of each individual case”. In this regard, it may be necessary in some cases to identify the “source” from which the information has been obtained. Flick J noted that, in essence, the touchstone is that the provision requires the disclosure of however much information is necessary to ensure that the opportunity to comment or respond is “meaningful”. Accordingly, in some cases the disclosure of the “substance” of information may be sufficient (see NAVM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 99 at [33]), whereas in other cases, “clear particulars” may require more: SZNKO at [23]. [424A.240] Errors made by Tribunal in giving particulars of information The consequence of the Tribunal misstating information depends, first, on whether it is obliged by s 424A to give “clear particulars” of that information. If the Tribunal is obliged to provide “clear particulars” (because the information would be the reason, or part of the reason, for affirming the decision under review), but fails to do so due to inaccuracy, then it will in most instances have failed to provide clear particulars of that information. In the context of s 424AA, this will cast the Tribunal back to s 424A: SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415; [2009] FCAFC 46 at [92], [103]. However, where the Tribunal misstates information that is not required to be put to an applicant, the consequence will depend on the circumstances of the case. In Sandhu v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 842 at [31], the Federal Court held that the Tribunal’s mistake in incorrectly referring to the source of adverse information did not amount to legal error because the source of the information did not form any part of the Tribunal’s decision; rather it was the substance of the information that was relevant in that case. On the other hand, a denial of procedural fairness may be established where a Tribunal misleads a party in the course of a hearing. This is likely to be the case where the misleading conduct results in the denial of a proper opportunity for a review applicant to be heard in circumstances which affect the outcome: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; 176 ALR 219; [2000] HCA 57 at [4] per Gleeson CJ, at [79] per Gaudron and Gummow JJ and at [127] per Kirby J. [424A.260] The Tribunal is not prevented from using s 424AA as an alternative to s 424A In Toor v Minister for Immigration [2012] FMCA 804, the Federal Magistrates Court rejected the applicant’s suggestion that the Tribunal in that case should have utilised s 359A of the Act rather than s 359AA (the equivalent provisions under Part 5). Whelan FM observed at [70] that “I am not satisfied that on the facts, or at law, there was any obligation on the Tribunal to do so”. [424A.280] If an applicant fails to respond to a s 424A letter, the applicant may not be entitled to a hearing under s 424 If an applicant is invited under s 424A(1) to comment on or respond to information, but fails to do so, he or she may lose the right to attend a hearing before the Tribunal: see, for example, Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413; [2010] FCAFC 40 (Hasran); Minister for Immigration and Multicultural and Indigenous Affairs v Sun (2005) 146 FCR 498; [2005] FCAFC 201 and M v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 333; 91 ALD 629; [2006] FCA 1247 (M). This is a consequence of the interaction between ss 424A, 424C and 425. In other words, if an applicant fails to respond to an invitation by the Tribunal under s 424A(1), the consequence will © 2016 THOMSON REUTERS

863

s 424B

[424A.300]

Migration Act 1958

be to attract the cascading operation of ss 424C(2) and 425(2)(c). The result is that the review applicant will not be entitled to appear before the Tribunal to give evidence and present arguments: see, generally, M at [25]–[31]. Critically, however, there is a departure in the processes between the Tribunal under Part 7 and under Part 5. As the Full Court of the Federal Court made clear in Hasran, where a review applicant fails to respond to a s 359 invitation, not only will the applicant lose the entitlement to appear before the Tribunal, but the Tribunal itself, by operation of s 363A, will not have the power or discretion to conduct a hearing (even if it wanted to). There is no such consequence in respect of the conduct of reviews before the Tribunal when acting under Part 7; however, as the Tribunal retains a discretionary power to schedule a hearing if it considers it necessary (although the review applicant will have no “entitlement” under s 425). As Driver FM observed in SZQLJ v Minister for Immigration and Citizenship [2011] FMCA 932 at [35], “the Tribunal, unlike the Migration Review Tribunal, is not required to deny an applicant a hearing opportunity to which he or she has been invited because of a non-provision of requested information” (emphasis added).

PRACTICE POINTS [424A.300] Method by which invitation given A written invitation under s 424A(1) must be in accordance with the requirements specified in s 424B. 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. [Subs (1) am Act 10 of 2009, s 3 and Sch 1 items 12 and 13; Act 100 of 2007, s 3 and Sch 1 items 26 and 27]

(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. [Subs (2) am Act 10 of 2009, s 3 and Sch 1 item 14; Act 100 of 2007, s 3 and Sch 1 items 28 and 29]

(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. [Subs (3) am Act 100 of 2007, s 3 and Sch 1 item 30]

(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

864

Migration Law

[424B.60]

Part 7 - Review of Part 7-reviewable decisions (ss 408-441G) Division 4 – Part 7-reviewable decisions: conduct of review (ss 422B–429A)

s 424B

(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. [S 424B am Act 10 of 2009; Act 100 of 2007, s 3 and Sch 1 item 26; insrt Act 113 of 1998, s 3 and Sch 3 item 3, with effect from 1 Mar 1999]

SECTION 424B COMMENTARY Scope ................................................................................................................................................. [424B.20] CONCEPTS

Appropriate in the circumstances ..................................................................................................... [424B.40] Interview ........................................................................................................................................... [424B.60] The prescribed period under s 424B(2) ........................................................................................... [424B.80] Prescribed period and reasonable period in relation to an interview ........................................... [424B.100] If a person is to respond ................................................................................................................ [424B.120] KEY CASES

Failure to specify a period for a response under s 424B(2) ......................................................... [424B.140] Failure to specify the prescribed period, or a reasonable period, means the facility in s 424C is not available ................................................................................................................................. [424B.160] The Tribunal cannot exercise the power under s 424B(4) to extend the period to respond after the expiry of the prescribed period ............................................................................................................. [424B.180]

[424B.20] Scope Section 424B was inserted by the Migration Legislation Amendment Act (No 1) 1998 (Cth). The purpose of this section, along with ss 424, 424A and 424C, is to provide a “code of procedure which the Tribunal is to follow in conducting its review”: Explanatory Memorandum to the Migration Legislation Amendment Bill (No 1) 1998 (Cth) at [117]. In M v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 333; 91 ALD 629; [2006] FCA 1247 at [35], Tracey J observed that s 359B (which is the equivalent provision under Part 5) is not cast in imperative terms, unlike s 359A. Rather, his Honour stated that s 359B is, on its face, a more flexible provision that is designed to avoid extended delays in the decision-making process.

CONCEPTS [424B.40] Appropriate in the circumstances Section 424B(1) enables the Tribunal to specify the way in which a person, having been invited, is to give information for the purposes of s 424, or comment on or respond to information for the purposes of s 424A. Examples of the ways a Tribunal may consider appropriate include by telephone or by facsimile machine: Explanatory Memorandum to the Migration Legislation Amendment Bill (No 1) 1998 (Cth) at [117]. [424B.60] Interview According to the Explanatory Memorandum to the Migration Legislation Amendment Bill (No 1) 1998 (Cth) at [117], “interview” in this context does not mean appearance before the Tribunal. At an interview the applicant may be invited to give additional information or to comment on information provided by the Tribunal. The applicant does not have the right to give evidence and present arguments relating to issues arising in relation to the decision under review at an interview conducted pursuant to s 424. © 2016 THOMSON REUTERS

865

s 424B

Migration Act 1958

[424B.80]

[424B.80] The prescribed period under s 424B(2) Under s 5 of the Act, “prescribed” means prescribed by the Regulations. The relevant prescribed periods are contained in regs 4.35, 4.35A, 4.35B and 4.35C. [424B.100] Prescribed period and reasonable period in relation to an interview A breach of s 424B(2) or (3) in relation to the timing of an opportunity to comment will not invalidate a decision where the breach did not produce any unfairness or prejudice to an applicant: SZEXZ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 449 (SZEXZ) at [49] per Jacobson J. (Note that special leave to the High Court was refused: see SZEXZ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCATrans 640 (15 November 2006).) See also Marques v Minister for Immigration [2003] FMCA 488 at [13] per Barnes FM. The object of the section is to ensure that the required interview takes place within a reasonably short period of the invitation: SZDQL v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 144 FCR 356; [2005] FCA 769 at [50] per Sackville J; SZEXZ at [38] per Jacobson J. [424B.120] If a person is to respond The phrase “if a person is to respond” in s 424B(4) indicates that the period to respond has not expired and a Tribunal has the power to extend time whilst the person is within the time period allowed for a response: Usman v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 966 at [44] per Pascoe CFM.

KEY CASES [424B.140] Failure to specify a period for a response under s 424B(2) In SZLWQ v Minister for Immigration and Citizenship (2008) 172 FCR 452; [2008] FCA 1406, the parties requested the Federal Court to make orders by consent which would have had the effect of allowing the appeal, on the basis that the parties agreed that the Tribunal had breached ss 424(3) and 424B of the Act. Buchanan J took the unusual step of refusing to make the orders without hearing further argument, on the basis that his Honour had reservations as to whether any jurisdictional error had been committed. Relevantly, the Tribunal had sent a facsimile to the review applicant’s agent in which the applicant was invited to give information for the purposes of s 424. The facsimile did not specify a period in which the information was to be provided. Buchanan J held at [52] that, in the circumstances of this case, this did not constitute a jurisdictional error. Rather, the only immediate consequence is that the Tribunal would not be able to avail itself of the facility in s 424C to proceed to make a decision in the absence of the information. [424B.160] Failure to specify the prescribed period, or a reasonable period, means the facility in s 424C is not available If an applicant does not respond to a letter sent under s 424A, provided a time for response has been specified under s 424B(2), s 424C will apply and the applicant will lose his or her right to attend a hearing. However, if the Tribunal does not specify a time for response, for the purposes of s 424B(2), the facility in s 424C of proceeding to a decision without taking any further action will not be available: SZLWQ v Minister for Immigration and Citizenship (2008) 172 FCR 452; [2008] FCA 1406 at [52]. In such circumstances, the Tribunal will remain bound to invite the applicant to attend a hearing for the purposes of s 425 of the Act. 866

Migration Law

[424B.180]

Part 7 - Review of Part 7-reviewable decisions (ss 408-441G) Division 4 – Part 7-reviewable decisions: conduct of review (ss 422B–429A)

s 424C

[424B.180] The Tribunal cannot exercise the power under s 424B(4) to extend the period to respond after the expiry of the prescribed period In Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413; [2010] FCAFC 40, the Full Court of the Federal Court expressed its agreement with the comments of Tracey J in M v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 333; 91 ALD 629; [2006] FCA 1247 that the Tribunal cannot enlarge time under s 359B(4) of the Act after the expiry of the date prescribed by a Tribunal in any letter sent under s 359A(1). That is because s 359B(4) (the equivalent provision to s 424B(4)) is cast in the present tense, which means that the power to grant any extension is lost where the prescribed time has expired. The majority noted at [48]: That view is re-enforced by the provisions of s 359C(2). If an applicant does not give the comments or response ″before the time for giving them has passed″ the Tribunal’s power to make a decision without taking further action to obtain the applicant’s views is enlivened. This is a further indication that the Tribunal’s discretion to extend time is spent if a request is made after the expiry of the prescribed period. The effect of this subsection, when read with s 360(2), s 360(3) and s 363A is that the gate closes on an applicant who fails to respond to a letter under s 359A within the prescribed time. There is simply no discretion to extend the time to respond.

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. [Subs (1) am Act 10 of 2009, s 3 and Sch 1 items 15 and 16]

(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. [Subs (2) am Act 100 of 2007, s 3 and Sch 1 items 31 and 32] [S 424C am Act 10 of 2009, s 3 and Sch 1 item 15; Act 100 of 2007, s 3 and Sch 1 item 31; insrt Act 113 of 1998, s 3 and Sch 3 item 3, with effect from 1 Mar 1999]

SECTION 424C COMMENTARY Scope ................................................................................................................................................. [424C.20] CONCEPTS

Comment on or respond to information .......................................................................................... [424C.40] May make a decision ....................................................................................................................... [424C.60] KEY CASES

Loss of right to appear before the Tribunal .................................................................................... [424C.80] PRACTICE POINT

Response acknowledging invitation ............................................................................................... [424C.100]

© 2016 THOMSON REUTERS

867

s 424C

Migration Act 1958

[424C.20]

[424C.20] Scope Section 424C was inserted by the Migration Legislation Amendment Act (No 1) 1998 (Cth) when the Tribunal was established. The purpose of this section, along with ss 424, 424A and 424B, is to provide a “code of procedure which the Tribunal is to follow in conducting its review”: Explanatory Memorandum to the Migration Legislation Amendment Bill (No 1) 1998 (Cth) at [117]. The purpose of this section is “to allow the Tribunal to make a decision without delay if the applicant fails to respond to a request for further information or comment within the prescribed period”: Explanatory Memorandum to the Migration Legislation Amendment Bill (No 1) 1998 (Cth) at [117]. Pursuant to s 424C(1), a Tribunal may make a decision on the review without taking any further steps to obtain the information if: • the Tribunal has sent a valid invitation for an applicant to give information under s 424; and • the applicant has not given the Tribunal the information requested within the prescribed time. Pursuant to s 424C(2), a Tribunal may make a decision on the review without taking any further steps to obtain the applicant’s views on the information if: • the Tribunal has sent a valid invitation for an applicant to comment on or respond to information under s 424A; and • the applicant has not given the Tribunal any comments on or a response to the invitation sent under s 424A within the prescribed time. Whether or not an applicant has given the Tribunal the requested information, under s 424, or given the Tribunal comments or a response, under s 424A, is a jurisdictional fact: Minister for Immigration and Citizenship v Saba Bros Tiling Pty Ltd (2011) 194 FCR 11; 278 ALR 474; [2011] FCA 233 at [19] per Jagot J; SZHFW v Minister for Immigration [2006] FMCA 86 at [27] per Smith FM. A “jurisdictional fact” is a criterion, the satisfaction of which enlivens the decision–maker’s powers: Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; 169 ALR 400; [2000] HCA 5 at [28] per Gleeson CJ, Gummow, Kirby and Hayne JJ. Therefore, before the Tribunal can exercise its power to make a decision on the review, either both s 424C(1)(a) and (b) or s 424C(2)(a) and (b) must have been satisfied. If they have, the combined effect of this occurrence and s 425(3), is that an applicant is not entitled to appear before the Tribunal: see, generally, Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413; [2010] FCAFC 40; Khergamwala v Minister for Immigration and Citizenship [2007] FMCA 609 at [18] per Riley FM. However, if s 424C(1)(a) and (b) or s 424C(2)(a) and (b) have not been satisfied, the Tribunal is required to invite an applicant to a hearing pursuant to s 425(1): Minister for Immigration and Citizenship v Saba Bros Tiling Pty Ltd (2011) 194 FCR 11; 278 ALR 474; [2011] FCA 233 at [20] per Jagot J.

CONCEPTS [424C.40] Comment on or respond to information Under s 424C(2), the Tribunal is only entitled to proceed to make a decision if the applicant has not provided any comments on, or a response to, an invitation sent under s 424A within the prescribed time. A “response” under this section does not require any substantive remark or observation or grappling with the information put to the review applicant; rather, any answer or reply to an invitation sent under this section will meet the meaning of this term: Minister for Immigration and Citizenship v Saba Bros Tiling Pty Ltd (2011) 194 FCR 11; 278 ALR 474; [2011] FCA 233 868

Migration Law

[424C.80]

Part 7 - Review of Part 7-reviewable decisions (ss 408-441G) Division 4 – Part 7-reviewable decisions: conduct of review (ss 422B–429A)

s 424C

at [30] per Jagot J. In that case (which pertained to s 359C, the equivalent provision), a review applicant’s solicitor had replied to an invitation to comment on or respond to particular information sent under s 359A. The reply acknowledged the s 359A invitation, advised that it had been put to the client and that the client wished to appear at a hearing. Even though the Tribunal received this response, it proceeded to make a decision under s 359C. Jagot J held that the solicitor’s reply was a “response” for the purposes of ss 359A(1)(c) and 359C(2). Her Honour found that the applicant had provided a response to the information in the invitation and that the Act did not impose any “minimum requirement of content for a response or a comment”: at [30]–[31]. Jagot J stated at [30]: Sections 359A(1)(c) and 359C(2)(b) both use a disjunctive formula: “comment on or respond to” the information in the case of s 359A(1)(c), and “the comments or the response” in the case of s 359C(2)(b). This indicates that an applicant may either “comment on” or “respond to” information in the invitation, or both comment on and respond to the information. The choice – to comment, respond or both – is vested in the applicant to whom the invitation is given. There is no doubt that the ordinary meanings of the two words overlap. As such, a comment may (and mostly will) constitute a response, and a response may include a comment. But the two words are not wholly co-extensive. For example, the Oxford English Dictionary defines “to comment” as “to make comments or remarks [upon]”; by contrast, “to respond” is simply “to answer in speech or writing; to reply”. An invitation to respond, accordingly, is broader than an invitation to comment. A response does not require substantive remarks or observations. It requires merely an answer or reply of any sort to the information in the invitation.

[424C.60] May make a decision Both s 424C(1) and (2) stated that if s 424 (1)(a) and (b) or (2)(a) and (b) are satisfied, the Tribunal “may make a decision on the review without taking any further action”. Even though the section uses the word “may”, the combined effect of this section with s 425(3) is that an applicant loses his or her right to appear before the Tribunal: see, generally, Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413; [2010] FCAFC 40.

KEY CASES [424C.80] Loss of right to appear before the Tribunal If an applicant is invited under s 424 or 424A to provide or respond to information, but fails to do so, he or she may lose the right to attend a hearing before the Tribunal: see, for example, Hasran v Minister for Immigration and Citizenship (2010) 183 FCR 413; [2010] FCAFC 40 (Hasran); Minister for Immigration and Multicultural and Indigenous Affairs v Sun (2005) 146 FCR 498; [2005] FCAFC 201 and M v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 333; 91 ALD 629; [2006] FCA 1247 (M). This is a consequence of the interaction between ss 424A, 424C and 425. That is, if an applicant fails to respond to an invitation by the Tribunal under s 424A(1), the consequence will be to attract the cascading operation of ss 424C and 425(2)(c). The result is that the review applicant will not be entitled to appear before the Tribunal to give evidence and present arguments: see, generally, M at [25]–[31]. Critically, however, there is a departure in the processes between the Tribunal under Part 7 and under Part 5. As the Full Court of the Federal Court made clear in Hasran, where a review applicant fails to respond to a s 359 invitation, not only will the applicant lose the entitlement to appear before the Migration Review Tribunal, but the Tribunal itself, by operation of s 363A, will not have the power or discretion to conduct a hearing (even if it wanted to). There is no such consequence in respect of the conduct of reviews before the Tribunal when acting under Part 7, however, as the Tribunal retains a discretionary power to schedule a hearing if it considers it necessary (although the review applicant will have no “entitlement” under s 425). As Driver FM observed in SZQLJ v Minister for Immigration and Citizenship [2011] FMCA 932 © 2016 THOMSON REUTERS

869

s 425

Migration Act 1958

[424C.100]

at [35], “the Tribunal, unlike the Migration Review Tribunal, is not required to deny an applicant a hearing opportunity to which he or she has been invited because of a non-provision of requested information” (emphasis added).

PRACTICE POINT [424C.100] Response acknowledging invitation Any response acknowledging a s 424A invitation will be treated as a “response” for the purposes of s 424C(2)(b) and the applicant will not lose his or her right to appear before the Tribunal. Therefore, the Tribunal’s power under s 424C(2) will not be enlivened. 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. [S 425 subst Act 113 of 1998, s 3 and Sch 3 item 3, with effect from 1 Mar 1999; former s 166DB renum Act 60 of 1994, s 83, with effect from 1 Sep 1994; insrt Act 184 of 1992, s 32, with effect from 1 Jul 1993]

SECTION 425 COMMENTARY Scope ................................................................................................................................................... [425.20] CONCEPTS

Invite the applicant to appear ............................................................................................................. [425.40] Issues arising in relation to the decision under review ..................................................................... [425.60] Not entitled to appear ......................................................................................................................... [425.80] KEY CASES

Invitation and opportunity to appear must be meaningful .............................................................. [425.100] Issues arising in relation to the decision under review ................................................................... [425.120] No obligation to give advanced notice of issue ............................................................................... [425.140] Applicant’s consent to decide review without hearing .................................................................... [425.160] Issues in interpreting ......................................................................................................................... [425.180] Mental illness .................................................................................................................................... [425.200] Tribunal may be vigorous in testing evidence, within reason ......................................................... [425.220] Misleading applicant in course of hearing ....................................................................................... [425.240] Tribunal has no power to impose conditions on right to give evidence and present arguments .... [425.260] Appearance by videolink .................................................................................................................. [425.280]

[425.20] Scope The Migration Legislation Amendment Act (No 1) 1998 (Cth) repealed the original version of s 425 and substituted the current version. Prior to the insertion of the current section, s 425 provided that the Tribunal “must give the applicant an opportunity to appear before it to give evidence”. On the other hand, the current 870

Migration Law

[425.60]

Part 7 - Review of Part 7-reviewable decisions (ss 408-441G) Division 4 – Part 7-reviewable decisions: conduct of review (ss 422B–429A)

s 425

version provides that the Tribunal “must invite the applicant to appear before the Tribunal to give evidence and present argument”. In Minister for Immigration and Multicultural Affairs v Mohammad (2000) 101 FCR 434; 62 ALD 397; [2000] FCA 1275, the Full Court of the Federal Court considered the change of this wording and noted at [43]: This change from the substantive requirement of giving the applicant an opportunity to appear before the Tribunal to the procedural requirement of inviting the applicant to appear before the Tribunal suggests an intention in the legislature to remove the statutory requirement, which had been construed as requiring the Tribunal to give an applicant a genuine and reasonable opportunity to appear before it, and to replace it with a more formal requirement. A further indication that this was the intention of the legislature is provided by the terms of s 425A, which was inserted into the Act by the Amending Act. Section 425A has the effect that, if the applicant is not in immigration detention, the Tribunal must give the applicant notice of his or her opportunity to appear before the Tribunal by sending a notice to the applicant, by giving a notice to the applicant or a person authorised by the applicant to receive on his or her behalf a document of that kind, or by leaving a notice at the applicant’s place of residence with a person who appears to live there and appears to have turned 16. That is, the amendments effected by the Amending Act changed the requirement that the Tribunal notify the applicant that he or she is entitled to appear before the Tribunal to a requirement that the Tribunal give the applicant, by a specified method, notice in writing containing certain information.

Pursuant to s 425(1), the Tribunal has a statutory obligation to: • subject to s 425(2), issue an invitation to an applicant to attend a hearing: Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553; 198 ALR 293; [2003] FCAFC 126 at [33] per Gray, Cooper and Selway JJ; and • provide the applicant with an opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; 231 ALR 592; [2006] HCA 63 at [44] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.

CONCEPTS [425.40] Invite the applicant to appear Pursuant to s 425(1), the Tribunal must invite an applicant to appear before it, unless s 425(2) applies. The formal requirements for an invitation under s 425(1) are set out in s 425A. Sections 425 and 425A are to be read together: see, for example, Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC (2006) 150 FCR 439; 231 ALR 630; [2006] FCAFC 73 at [39] per Spender, French and Cowdroy JJ. [425.60] Issues arising in relation to the decision under review Not only is a Tribunal required to invite an applicant to a hearing, it must also raise with the applicant the issues relating to the decision under review. In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; 231 ALR 592; [2006] HCA 63 (SZBEL) (discussed in further detail at [425.120] below), Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ considered the meaning of these words and stated at [35]: The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by © 2016 THOMSON REUTERS

871

s 425

Migration Act 1958

[425.80]

the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.

In SZHZD v Minister for Immigration and Multicultural Affairs [2008] FMCA 4 (SZHZD), Barnes FM considered the above passage in SZBEL and relevantly observed at [39]: An exercise in characterisation must be undertaken to identify what are the “dispositive” or determinative issues in the sense of issues on which the decision to reject the applicant’s claim is based. It is those issues that meet the description of an issue “arising in relation to the decision under review” within the meaning of s 425.

The “issues” which arise in relation to the decision under review do not include the factual matters that comprise, or “go to”, the issues themselves: see, for example, SZJUB v Minister for Immigration and Citizenship [2007] FCA 1486 at [25] per Bennett J; SZHZD at [40]–[43] per Barnes FM. The Tribunal is not required to identify the significance of the questions that it puts to the applicant or the ultimate matter of issue to which those questions go. A Tribunal is not required to descend into all the underlying factual matters of each issue when meeting its obligations under s 425. Nor is a Tribunal required to provide “a running commentary upon what it thinks about the evidence that is given”: Minister for Immigration and Citizenship v Applicant A125 of 2003 (2007) 163 FCR 285; 243 ALR 691; [2007] FCAFC 162 at [88]–[89] per Emmett, Weinberg and Lander JJ. [425.80] Not entitled to appear Under s 425(3), an applicant is not entitled to appear if: • the Tribunal will decide the review in the applicant’s favour: s 425(2)(a); • the applicant consents to the Tribunal deciding the review without the applicant appearing before the Tribunal: s 425(2)(b). The consent given under this section must be informed consent: SZIMG v Minister for Immigration and Citizenship (2008) 167 FCR 362; 100 ALD 553; [2008] FCA 368 at [21] per Rares J; Minister for Immigration and Multicultural and Indigenous Affairs v SZFML (2006) 154 FCR 572; 236 ALR 294; [2006] FCAFC 152 at [65] per Spender, French and Cowdroy JJ (discussed at [425.160] below); or • section 424C(1) or (2) apply: s 425(2)(c). Section 424C(1) or (2) will apply if the applicant has failed to respond to an invitation sent under either s 424 or 424A. The combined effect of ss 424C and 425(3) is that an applicant loses his or her right to appear before the Tribunal. However, unlike the situation in under Part 5, there is no equivalent to s 363A; therefore, the Tribunal still maintains the discretionary power to invite an applicant to a hearing: SZINT v Minister for Immigration and Citizenship [2006] FMCA 1259 at [24] per Smith FM.

KEY CASES [425.100] Invitation and opportunity to appear must be meaningful The invitation and opportunity to appear before the Tribunal to give evidence and present argument must be meaningful and cannot be a “hollow shell or an empty gesture”: Mazhar v Minister for Immigration and Multicultural Affairs (2000) 64 ALD 395; 183 ALR 188; [2000] FCA 1759 at [31] per Goldberg J; NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121 at [30] per Ryan, French and RD Nicholson JJ; Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553; 198 ALR 293; [2003] FCAFC 126 (SCAR) at [33] and [37] per Gray, Cooper and Selway JJ. 872

Migration Law

[425.120]

Part 7 - Review of Part 7-reviewable decisions (ss 408-441G) Division 4 – Part 7-reviewable decisions: conduct of review (ss 422B–429A)

s 425

Where an applicant appears before the Tribunal, s 425 requires the hearing to be conducted in a manner that is fair: see, for example, SCAR at [42]; Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575; 114 ALD 666; [2010] FCAFC 41 at [75] per Perram J. In other words, if a hearing is held, it must be a hearing in substance and not merely in form: Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575; 114 ALD 666; [2010] FCAFC 41 (SZNVW) at [76] per Perram J. As observed by Perram J in SZNVW at [77]: Viewed through that prism, it is easy to see how such an obligation has ended up being grafted – not onto the hearing for which the statute does not provide – but on the invitation to that hearing for which it does. This has the consequence, of which SCAR is but an example, that concepts which really relate to the efficacy of hearings – such as fitness for trial and the ability to comprehend trial process – become transplanted from their origin as such into the alien soil of rules concerned with invitations to hearings.

[425.120] Issues arising in relation to the decision under review In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; 231 ALR 592; [2006] HCA 63, Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ considered s 425 of the Act. The applicant in that case was employed as a seaman on a ship of the Islamic Republic of Iran Shipping. The applicant jumped ship and applied for a protection visa in Australia. In his statutory declaration in support of his protection visa, the applicant described the way he jumped ship and stated that he feared for his safety because the captain of his ship knew of his interest in the Christian religion. A delegate of the Minister refused the visa, mainly due to the nature and extent of his Christian commitment. The applicant applied to the Tribunal. The Tribunal affirmed the delegate’s decision, mainly because it did not accept certain events that, in his statutory declaration, the applicant claimed had occurred. The Tribunal rejected as “implausible” certain events claimed by the applicant – namely, with the applicant’s account of how his ship’s captain came to know of his interest in Christianity, and his account of the captain’s reaction to that knowledge. However, the delegate did not deal with the “plausibility” of these events, nor did the delegate base his decision on any aspects of these events. There was nothing in the delegate’s decision to indicate that these aspects of the applicant’s account were in issue. Further, the Tribunal did not discuss these issues with the applicant at the hearing, or challenge or say anything to the applicant that would reveal to him that these were live issues. In addition, the Tribunal did not raise these issues with the applicant in writing or in any other way. Therefore, the applicant was not on notice that the plausibility of some of the events he claimed occurred in his statutory declaration were at “issue”. Given that the applicant was not put on notice in relation to these issues, Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ found that the applicant had been denied procedural fairness and that the Tribunal had not complied with s 425 of the Act by failing to give him sufficient opportunity to give evidence, or make submissions, about the determinative issues arising in relation to the decision under review. Relevantly, at [36]–[40] Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ stated: It is also important to recognise that the invitation to an applicant to appear before it to give evidence and make submissions is an invitation that need not be extended if the Tribunal considers that it should decide the review in the applicant’s favour. Ordinarily then, as was the case here, the Tribunal will begin its interview of an applicant who has accepted the Tribunal’s invitation to appear, knowing that it is not persuaded by the material already before it to decide the review in the applicant’s favour. That lack of persuasion may be based on particular questions the Tribunal has about specific aspects of the material already before it; it may be based on nothing more particular than a general unease about the veracity of what is revealed in that material. But unless the Tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision. © 2016 THOMSON REUTERS

873

s 425

Migration Act 1958

[425.140]

That this is the consequence of the statutory scheme can be illustrated by taking a simple example. Suppose (as was the case here) the delegate concludes that the applicant for a protection visa is a national of a particular country (here, Iran). Absent any warning to the contrary from the Tribunal, there would be no issue in the Tribunal about nationality that could be described as an issue arising in relation to the decision under review. If the Tribunal invited the applicant to appear, said nothing about any possible doubt about the applicant’s nationality, and then decided the review on the basis that the applicant was not a national of the country claimed, there would not have been compliance with s 425(1); the applicant would not have been accorded procedural fairness. When it is said, in the present matter, that the appellant was not put on notice by the Tribunal that his account of certain events would be rejected as “implausible”, and that this conclusion was “not obviously … open on the known material”, the focus of the contention must fall upon what was “obviously … open” in the Tribunal’s review. That can be identified only by having regard to “the issues arising in relation to the decision under review”. It is those issues which will determine whether rejection of critical aspects of an applicant’s account of events was “obviously … open on the known material”. If the issues on the review of the delegate’s decision by the Tribunal are identified no more particularly than by the question “is the applicant entitled to a protection visa?”, rejection of some, or all, aspects of his account of the past events said to found his fears of persecution would self-evidently be a conclusion open to the Tribunal. The conclusion would be open because every aspect of the applicant’s claim would be in issue in the Tribunal’s review of the delegate’s decision. But if the issues are to be identified more particularly, other questions arise. More than once it has been said that proceedings in the Tribunal are not adversarial but inquisitorial in their general character. There is no joinder of issues between parties, and it is for the applicant for a protection visa to establish the claims that are made. As the Tribunal recorded in its reasons in this matter, however, that does not mean that it is useful to speak in terms of onus of proof. And although there is no joinder of issues, the Act assumes that issues can be identified as arising in relation to the decision under review. While those issues may extend to any and every aspect of an applicant’s claim to a protection visa, they need not. If it had been intended that the Tribunal should consider afresh, in every case, all possible issues presented by an applicant’s claim, it would not be apt for the Act to describe the Tribunal’s task as conducting a “review”, and it would not be apt to speak, as the Act does of the issues that arise in relation to the decision under review.

When raising issues with an applicant at a hearing, the Tribunal need not state to an applicant that “he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events”: at [47] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ. The Tribunal’s statements or questions may be sufficient to indicate to an applicant that everything that he or she says is in issue. Where there are specific aspects of an applicant’s account that may be important to the decision and may be open to doubt, then the “Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted”: at [47] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ. This, however, does not require the Tribunal to provide a running commentary about what it thinks about the evidence: at [48] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ. [425.140] No obligation to give advanced notice of issue Even though a Tribunal is required to raise with the applicant the issues arising in relation to the decision under review, there is no requirement that a Tribunal give the applicant advanced notice of the issues prior to a hearing. In AZAAD v Minister for Immigration and Citizenship (2010) 189 FCR 494; 274 ALR 55; [2010] FCAFC 156, the Full Court of the Federal Court stated that “[t]here is no requirement on the Tribunal to give an applicant advance notice of the issues of concern to it, that is to say, in advance of the hearing”: at [39] per Besanko J (with whom Siopis J agreed). 874

Migration Law

[425.200]

Part 7 - Review of Part 7-reviewable decisions (ss 408-441G) Division 4 – Part 7-reviewable decisions: conduct of review (ss 422B–429A)

s 425

[425.160] Applicant’s consent to decide review without hearing Under s 425(2)(a), if an applicant gives his or her consent, a Tribunal can make a decision without the applicant appearing before it. The consent under this section must be informed and effective in order for the Tribunal to be able to make a decision without needing to invite the applicant to appear before it. In Minister for Immigration and Multicultural and Indigenous Affairs v SZFML (2006) 154 FCR 572; 236 ALR 294; [2006] FCAFC 152, the Full Court of the Federal Court considered whether the applicant had consented to the review being determined without a hearing taking place. The applicant’s agent had informed the Tribunal that the applicant did not wish to attend and that he did so without the applicant’s consent. The Full Court of the Federal Court held that an effective consent was a necessary condition to enliven the Tribunal’s power to determine the application without a hearing: at [65] and [74] per Spender, French and Cowdroy JJ. [425.180] Issues in interpreting In certain circumstances, the standard of interpretation, or the errors made, may result in a jurisdictional error if the applicant was not able to properly give evidence and present arguments. In Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230 at [17] and [22], the majority of the Full Court of the Federal Court stated that a visa applicant who claims inadequate interpretation must establish that: • the standard of interpretation at the Tribunal hearing was so inadequate that the applicant was effectively prevented from giving evidence; or • errors made by the interpreter at the Tribunal hearing were material to the conclusions of the Tribunal adverse to the applicant. • This approach reflects the reasoning of Kenny J in Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6; 56 ALD 231; [1999] FCA 507. In that case, Kenny J held, at [45], that in order to constitute vitiating error, the departure from the standard of adequate interpretation must “relate to a matter of significance for the applicant’s claim or the Tribunal’s decision”. In deciding whether that had occurred, the court considered at [41]: the responsiveness of the interpreted answers to the questions asked, the coherence of those answers, the consistency of one answer with another and the rest of the case sought to be made and, more generally, any evident confusion in exchanges between the Tribunal and the interpreter.

• See also SZHEW v Minister for Immigration and Citizenship [2009] FCA 783 at [45]–[64] per Jagot J. For further commentary regarding the obligations on the Tribunal to provide interpreting services, see s 427(7). [425.200] Mental illness Although a review applicant may suffer from a mental illness, this in itself does not mean that the applicant is incapable of availing himself or herself of the right to meaningfully appear before the Tribunal. Rather, the question is whether, by reason of the illness, the applicant has been unable to give evidence, present arguments and answer questions. If the applicant is not so inhibited, then the affliction of mental illness will not undermine the Tribunal’s invitation to appear: Minister for Immigration and Citizenship v SZNCR [2011] FCA 369 at [30]–[34] per Tracey J; SZOVP v Minister for Immigration and Citizenship (No 2) [2011] FMCA 442 at [48] per Driver FM. © 2016 THOMSON REUTERS

875

s 425

Migration Act 1958

[425.220]

In Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553; 198 ALR 293; [2003] FCAFC 126 at [41], the Full Court of the Federal Court held that, because the review applicant was not in a fit state to represent himself before the former Refugee Review Tribunal, the invitation sent under s 425 was not a meaningful one. The Full Court held, therefore, that the former Refugee Review Tribunal did not comply with s 425. [425.220] Tribunal may be vigorous in testing evidence, within reason In Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; 75 ALJR 982; [2001] HCA 28 at [30]–[31], Gleeson CJ, Gaudron and Gummow JJ observed: Where, as in the present case, credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented – often vigorously. Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question. Similar questions by a judge in curial proceedings in which the parties are legally represented may more readily give rise to an apprehension of bias than in the case of inquisitorial proceedings. Where, however, parties are not legally represented in inquisitorial proceedings, care must be taken to ensure that vigorous testing of the evidence and frank exposure of its weaknesses do not result in the person whose evidence is in question being overborne or intimidated. If that should happen, a fair-minded lay observer or a properly informed lay person might readily infer that there is no evidence that the witness can give which can change the decision-maker’s view.

[425.240] Misleading applicant in course of hearing In Bains v Minister for Immigration and Citizenship (2012) 205 FCR 217; 128 ALD 544; [2012] FCA 649 at [40], Bromberg J suggested that a denial of procedural fairness may be established where a Tribunal misleads a party in the course of a hearing. This is likely to be the case where the misleading conduct results in the denial of a proper opportunity for a review applicant to be heard in circumstances which affect the outcome: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; 176 ALR 219; [2000] HCA 57 at [4] per Gleeson CJ, at [79] per Gaudron and Gummow JJ and at [127] per Kirby J. [425.260]

Tribunal has no power to impose conditions on right to give evidence and present arguments An applicant’s right to be heard by the Tribunal is a statutory right and the Tribunal is not authorised to make the exercise of that right conditional upon an applicant responding to an invitation to attend a hearing by a particular date: Xie v Minister for Immigration and Multicultural Affairs (1999) 95 FCR 543; 167 ALR 188; [1999] FCA 1480 (Xie) at [23] per Cooper J; Minister for Immigration and Citizenship v SZIQB [2008] FCAFC 20 at [16] per Branson, Emmett and Bennett JJ. If an applicant fails to respond to an invitation to attend a hearing, the Tribunal is not entitled to assume that the person does not wish to attend the hearing: Xie at [23]; SZGZW v Minister for Immigration, Multicultural and Indigenous Affairs [2006] FCA 457 at [13] per Jacobson J. In Xie, Cooper J observed at [23]: The RRT had no statutory power to impose conditions on the applicant and his family as to the exercise of their statutory right to give evidence on the hearing of their application for review by imposing time limits within which an election to be heard must be made. Nor was the RRT entitled to make the assumption that a failure to respond meant that the applicants did not wish to attend on the hearing and give oral evidence as was their entitlement. Although it may have been administratively wearisome, the only course open to the RRT when it determined s 424 did not apply, was to set a date which it notified under s 426 and to proceed to a hearing on that date. It was the hearing which was the occasion on which the applicant and his family were entitled to give evidence or not as they then chose. No internal 876

Migration Law

[425.280]

Part 7 - Review of Part 7-reviewable decisions (ss 408-441G) Division 4 – Part 7-reviewable decisions: conduct of review (ss 422B–429A)

s 425A

administrative arrangement of the RRT could take away that entitlement of the applicant and his family, certainly not without their informed consent communicated by them in a positive way to the RRT.

In Cabal v Minister for Immigration and Multicultural Affairs [2001] FCA 546, the Full Court of the Federal Court were cautious to point out, at [17], that Xie does not stand for the proposition that a Tribunal cannot require an applicant to advise, by a certain time, whether he or she will take advantage of the specified hearing. Rather, the court held that it stands for the proposition that the Tribunal is not entitled to cancel the hearing, and make a decision without a hearing, simply because the applicant does not reply. [425.280] Appearance by videolink In Minister for Immigration and Border Protection v Dhillon [2014] FCAFC 157, Mr Dhillon claimed that s 360 (the equivalent to s 425) had been breached because the Tribunal conducted the hearing by videolink, in circumstances where Mr Dhilon required an interpreter and the interpreter was only available by telephone. Mr Dhillon’s representatives were in a different State and given that the matter was dealing with the issue of fraud, his personal attendance was required in order for the Tribunal to assess his credibility. Chief Justice Allsop, Murphy and Pagone JJ held that there was no breach of s 360 by the hearing proceeding by videolink, especially since s 366 (the equivalent to s 429A) permitted the Tribunal to take evidence through this mode of communication. 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. [Subs (2) subst Act 58 of 2001, s 3 and Sch 3 item 14]

(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. [S 425A am Act 58 of 2001; insrt Act 113 of 1998, s 3 and Sch 3 item 3, with effect from 1 Mar 1999]

SECTION 425A COMMENTARY Scope ................................................................................................................................................. [425A.20] CONCEPTS

Place of hearing ................................................................................................................................ [425A.40] KEY CASES

If the notice of invitation complies with s 425A, the Tribunal is under no further obligation to bring to an applicant’s attention the scheduled hearing ............................................................................ [425A.60] The prescribed period of notice need only be given once ............................................................. [425A.80] Section 425A modifies the common law rule that reasonable notice must be given .................. [425A.100] Practical injustice and jurisdictional error ..................................................................................... [425A.120]

© 2016 THOMSON REUTERS

877

s 425A

Migration Act 1958

[425A.20]

[425A.20] Scope This section sets out the notice requirements for inviting an applicant to a hearing under s 425(1). Relevantly, the notice of invitation must: • state the day on which, and the time and place at which, the applicant is scheduled to appear: s 425A(1); • be given to: – an applicant in detention, by giving the notice to “himself or herself, or to another person authorised” by the applicant to “receive documents on his or her behalf”: s 425A(2)(b) and reg 5.02; – an applicant who is not in detention, by one of the methods specified in s 441A: s 425A(2)(a). A notice sent by one of the methods in s 441A is taken to have been received by the applicant in the time specified in s 441C; or – an applicant’s authorised recipient, if s 441G applies, by one of the methods specified in s 441A. A notice sent by one of the methods in s 441A is taken to have been received by an authorised recipient in the time specified in s 441C; • contain the prescribed period of notice of the day on which, and the time and place at which, the applicant is scheduled to appear before the Tribunal (or if no period is prescribed, a reasonable period must be provided): s 425A(3). Regulation 4.35D sets out the prescribed periods, which are: – for an applicant in detention, the period of notice starts when the applicant receives the notice and ends at the end of seven days after the day of receipt of the notice (or a shorter period, not less than one working day, if the applicant agrees in writing to the shorter period): reg 4.35D(2); or – an applicant not in detention, the period of notice starts when the applicant receives the notice and ends at the end of 14 days after the day of receipt of the notice (or a shorter period, not less than one working day, if the applicant agrees in writing to the shorter period): reg 4.35D(3); and • contain a statement of the effect of s 426A, being that a failure to appear at the hearing may result in the Tribunal proceeding to make a decision on the review without taking any further steps to allow or enable the applicant to appear before it: s 425A(4).

CONCEPTS [425A.40] Place of hearing Under s 425A(1), the notice must specify the place at which the applicant is scheduled to appear. In Korovata v Minister for Immigration and Multicultural Affairs [2001] FCA 1446 (Korovata), the notice of invitation did not specify the place at which the applicant was scheduled to appear. The notice simply stated that “this will be a telephone hearing”. Emmett J found that s 360A (the equivalent to s 425A) had not been complied with because it did not give the applicant notice of the place at which the applicant was scheduled to appear: at [26]–[27]. An applicant’s right to appear before the Tribunal under s 425(1) is a right to appear in person. However, only if an applicant agrees, pursuant to s 366 (the equivalent to s 429A), does the Tribunal have a discretion to allow an applicant to appear by other means such as telephone or video-link and nothing more: Korovata at [24]–[25] per Emmett J. 878

Migration Law

[425A.80]

Part 7 - Review of Part 7-reviewable decisions (ss 408-441G) Division 4 – Part 7-reviewable decisions: conduct of review (ss 422B–429A)

s 425A

KEY CASES [425A.60] If the notice of invitation complies with s 425A, the Tribunal is under no further obligation to bring to an applicant’s attention the scheduled hearing Sections 425 and 425A are to be read together. Provided an invitation to attend a hearing complies with the requirements of s 425A, the Tribunal is under no further obligation to consider if there may be some other way of notifying a review applicant of a scheduled hearing: Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC (2006) 150 FCR 439; 231 ALR 630; [2006] FCAFC 73 (SZFHC) at [39] per Spender, French and Cowdroy JJ. This interpretation is reinforced by the amendment to the wording of s 425, which formerly required the Tribunal to give an applicant an “opportunity” to appear, whereas the provision in its present form requires only that the Tribunal “invite” the applicant to appear: SZFHC at [41] per Spender, French and Cowdroy JJ. Provided the hearing invitation is given to the applicant as required under s 425A(2) (or to an applicant’s authorised recipient if s 441G applies) and accords with the remaining requirements of s 425A, a review applicant will be deemed to have received the Tribunal’s invitation to hearing, irrespective of whether the applicant in fact did or did not receive it: SZFHC at [39] per Spender, French and Cowdroy JJ; Enjam v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCCA 1046 at [16] per Hartnett J; VNAA v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 136 FCR 407; [2004] FCAFC 134 at [14] per Sundberg and Hely JJ. [425A.80] The prescribed period of notice need only be given once If the Tribunal complies with s 425A(3) and provides an applicant with the “prescribed” period of notice of the day on which the applicant is scheduled to appear, the Tribunal is not required to again give the prescribed period of notice in the event the hearing is re-scheduled to a later date, or in the event a further hearing is scheduled: Minister for Immigration and Multicultural and Indigenous Affairs v SZFML (2006) 154 FCR 572; 236 ALR 294; [2006] FCAFC 152 at [79]–[83] per Spender, French and Cowdroy JJ; SZDQO v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 144 FCR 251; [2005] FCA 1026 at [29] per Conti J; Ogawa v Minister for Immigration and Citizenship (2011) 199 FCR 51; [2011] FCA 1358 (Ogawa) at [29] per Flick J. Where the Tribunal reschedules a hearing, or schedules a further hearing, it will, however, be required to provide a period of notice that is not “unreasonably short”: Ogawa at [32]–[35] per Flick J. In Ogawa, the prescribed period of notice the Tribunal was required to give in respect of a scheduled hearing was 14 days. On 7 May 2009, the applicant was invited to attend a hearing scheduled for 4 June 2009, thereby satisfying the prescribed notice requirements. On 13 May 2009 the applicant requested that the hearing be postponed, but the Tribunal denied this request. A further application for postponement was made on 29 May 2009, with medical evidence subsequently provided in support of the application. On 2 June 2009, the Tribunal cancelled the scheduled hearing. On 23 June 2009, the applicant was invited to attend a hearing on 2 July 2009, which subsequently proceeded. The visa applicant argued that the Tribunal’s invitation of 23 June 2009 did not comply with s 360A(4) (the equivalent to s 425A(3)) on the basis that the prescribed period of notice was not provided. Flick J rejected this argument, relying on the decisions in Minister for Immigration and Multicultural and Indigenous Affairs v SZFML (2006) 154 FCR 572; 236 ALR 294; [2006] FCAFC 152 and SZDQO v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 144 FCR 251; [2005] FCA 1026. However, Flick J emphasised that, in such © 2016 THOMSON REUTERS

879

s 425A

Migration Act 1958

[425A.100]

circumstances, the Tribunal is required to provide a period of notice that is not “unreasonably short”. His Honour noted at [36] that the question of what is “reasonable” notice involves an objective determination and reference may be made to the following non-exhaustive factors: • the period “prescribed” for the giving of notice in respect to any initial proposed hearing date; • the complexity of any legal and factual issues to be canvassed at the rescheduled hearing; • any opportunity previously extended to an applicant to assemble factual materials in support of any claims made and any opportunity to marshal such legal arguments in support of those claims; • any need to obtain further materials or evidence that may not have been available in time for the initial scheduled hearing; • whether the opportunity previously extended to an applicant to prepare any claim to be advanced was prejudiced or rendered nugatory for reasons peculiar to an applicant or by reason of changed circumstances; • whether any request was made for a rescheduled hearing to be further postponed or adjourned and, if so, the basis upon which the applicant sought to support that request; and • any assessment by the Tribunal member as to the adequacy of the period of notice given. In the circumstances, Flick J was not satisfied that the visa applicant had been given unreasonably short notice of the rescheduled hearing: at [43]. [425A.100] Section 425A modifies the common law rule that “reasonable” notice must be given Citing Lee v Department of Education and Science (1967) 66 LGR 211; R v Thames Magistrates Court; Ex parte Polemis [1974] 1 WLR 1371, Flick J in Ogawa v Minister for Immigration and Citizenship (2011) 199 FCR 51; [2011] FCA 1358 at [24] observed that the common law rules of natural justice require that “reasonable” notice be given of an administrative hearing. However, his Honour noted that common law rules may be modified by statute and that s 360A (the equivalent to s 425A) is such an instance. [425A.120] Practical injustice and jurisdictional error In Minister for Immigration and Citizenship v SZIZO (2009) 238 CLR 627; 259 ALR 405; [2009] HCA 37, French CJ, Gummow, Hayne, Crennan and Bell JJ considered s 425A, along with ss 441A and 441G. In that matter, the Tribunal failed to give a notice inviting the applicants for review to attend a hearing to the authorised recipient in the manner prescribed under s 425A. This did not result in any adverse consequence to any of the applicants for review and all of them, including the authorised recipient, attended the hearing. Relevantly, at [34]–[36] French CJ, Gummow, Hayne, Crennan and Bell JJ stated: In combination, ss 425A and 441G ensure that an applicant for review receives timely and effective notice of the hearing. They impose obligations which facilitate the conduct of a procedurally fair hearing. However, the manner of providing timely and effective notice of hearing is not an end in itself. The procedural steps dealing with the manner of giving notice are to be distinguished from other components of the statutory statement of the hearing rule, including the obligation to give particulars of adverse information and to invite the applicant to appear to give evidence and to present arguments relating to the issues arising in the decision under review. While the legislature may be taken to have intended that compliance with the steps in ss 441G and 441A would discharge the Tribunal’s obligations with respect to the giving of timely and effective 880

Migration Law

[425A.120]

Part 7 - Review of Part 7-reviewable decisions (ss 408-441G) Division 4 – Part 7-reviewable decisions: conduct of review (ss 422B–429A)

s 426

notice of the hearing, it does not follow that it was the intention that any departure from those steps would result in invalidity without consideration of the extent and consequences of the departure. The respondents acknowledge that they suffered no injustice by reason of the Tribunal’s omission and they do not take issue with the Full Court’s characterisation of the result in the circumstances as being “rather absurd”. The admitted absurdity of the outcome is against acceptance of the conclusion that the legislature intended that invalidity be the consequence of departure from any of the procedural steps leading up to the hearing. In a case in which the Tribunal fails to comply with the requirements for the giving of notice of a hearing, the factual determination of whether the applicant for review and his or her authorised recipient received timely and effective notice of the hearing does not require the court to consider how the applicant might have presented his or her case differently had the Tribunal complied with the statutory procedures. No question arises, in the case of an applicant who has received timely and effective notice of the hearing, of the loss of an opportunity to advance his or her case. Notwithstanding the detailed prescription of the regime under Divs 4 and 7A and the use of imperative language it was an error to conclude that the provisions of ss 441G and 441A are inviolable restraints conditioning the Tribunal’s jurisdiction to conduct and decide a review. They are procedural steps that are designed to ensure that an applicant for review is enabled to properly advance his or her case at the hearing; a failure to comply with them will require consideration of whether in the events that occurred the applicant was denied natural justice. There was no denial of natural justice in this case.

The obligations imposed on s 425A with respect to giving notice of the hearing are directed to ensure that an applicant has adequate time to prepare his or her case: at [33] per French CJ, Gummow, Hayne, Crennan and Bell JJ. A failure to comply with every obligation in the section will not necessarily result in any jurisdictional error; it will depend upon whether the applicant was denied natural justice, which will require a consideration of all the events that occurred: at [36] per French CJ, Gummow, Hayne, Crennan and Bell JJ. The decision in SZFOH v Minister for Immigration and Citizenship (2007) 159 FCR 199; 241 ALR 653; [2007] FCAFC 63 (SZFOH) was decided before the High Court’s decision in Minister for Immigration and Citizenship v SZIZO (2009) 238 CLR 627; 259 ALR 405; [2009] HCA 37. However, it is still applicable, as the Tribunal’s non-compliance with the statutory obligations for a hearing invitation resulted in the applicant being denied natural justice by the applicant not attending the hearing. In SZFOH, the Full Court of the Federal Court held that, where an applicant nominates a migration adviser as the authorised recipient of correspondence, but the Tribunal sends the hearing invitation to the visa applicant personally and the applicant then does not attend the hearing, the Tribunal will have failed to comply with its statutory obligations under s 425A. Such an error is jurisdictional: at [29]–[31] per Besanko J (with whom Moore and Buchanan JJ agreed). 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. [Subs (1) am Act 113 of 1998, s 3 and Sch 3 items 4 and 5, with effect from 1 Mar 1999]

(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.

© 2016 THOMSON REUTERS

881

s 426

Migration Act 1958

[426.20]

(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. [S 426 am Act 60 of 2015, s 3 and Sch 2 item 93, with effect from 1 Jul 2015; Act 113 of 1998; former s 166DC renum Act 60 of 1994, s 83, with effect from 1 Sep 1994; insrt Act 184 of 1992, s 32, with effect from 1 Jul 1993]

SECTION 426 COMMENTARY Scope ................................................................................................................................................... [426.20] CONCEPTS

Written notice ...................................................................................................................................... [426.40] Must have regard to applicant’s notice .............................................................................................. [426.60] KEY CASE

Oral evidence ....................................................................................................................................... [426.80]

[426.20] Scope This section requires the Tribunal, in any invitation sent to an applicant to attend a scheduled hearing, to notify the applicant of the purpose of the hearing and that the applicant may request the Tribunal to obtain oral evidence. If the applicant makes such a request, the Tribunal is required to consider the request, but does not have to comply with it.

CONCEPTS [426.40] Written notice Under s 426(2) an applicant may give the Tribunal written notice to call a witness within seven days after being notified under s 426(1). The request must be in writing but needs not to be made on the “Request for Hearing” form supplied by the Tribunal: Dostanov v Minister for Immigration and Citizenship [2007] FMCA 792 at [33] per Nicholls FM. [426.60] Must have regard to applicant’s notice “To have regard” is understood to mean “to take into account” or “consider”: Minister for Immigration and Multicultural and Indigenous Affairs v Katisat [2005] FCA 1908 (Katisat) at [62] per Bennett J. Under s 426(3), if an applicant notifies a Tribunal under s 426(2), the Tribunal must have regard to the applicant’s notice, but does not need to necessarily comply with it: Katisat at [54] per Bennett J; Minister for Immigration and Multicultural Affairs v Maltsin (2005) 88 ALD 304; [2005] FCAFC 118 (Maltsin) at [37] per Kenny and Lander JJ (with whom Spender J agreed). Whether or not a Tribunal has given genuine consideration to a request under this section will depend on the evidence. A Tribunal will not commit a jurisdictional error if it fails to mention a request made under s 426 in the decision record: Dostanov v Minister for Immigration [2007] FMCA 792 at [40] per Nicholls FM. Nor will it commit a jurisdictional error if, having had regard for, or consideration of, a request under s 426, the Tribunal decides not to comply with the request: Katisat at [63] per Bennett J. When considering a request under s 426, a Tribunal will have given genuine consideration to the request if it takes into consideration such things as the relevance and potential importance of the outcome of the review of the evidence that could be given by that witness: Katisat at [61] per Bennett J; Maltsin at [38] per Kenny and Lander JJ (with whom Spender J agreed). However, where there is no evidence that a Tribunal had considered or had regard for the request, then the Tribunal will commit a jurisdictional error: Dostanov v Minister for Immigration [2007] FMCA 792 at [58] and [59] per Nicholls FM. 882

Migration Law

[426.80]

Part 7 - Review of Part 7-reviewable decisions (ss 408-441G) Division 4 – Part 7-reviewable decisions: conduct of review (ss 422B–429A)

s 426A

KEY CASE [426.80] Oral evidence In Minister for Immigration and Multicultural Affairs v Maltsin (2005) 88 ALD 304; [2005] FCAFC 118, the applicant gave written notice to the Tribunal that he wanted the Tribunal to take evidence from himself and four other people, as well as a witness in Russia. At the hearing the Tribunal took evidence from the applicant, but did not hear from one other person, who had attended the hearing for this purpose. The Full Court of the Federal Court considered s 361(2) (the equivalent to s 426(2)) and stated at [38] that the: Tribunal must genuinely apply its mind to the contents of the notice, and in particular, to the question whether it should take the oral evidence of the nominated individuals in accordance with the applicant’s wishes. The Tribunal must not merely go through the motions of considering the applicant’s wishes as expressed in the notice … the consideration that the Tribunal gives to the wishes of the applicant concerning the evidence to be taken at the hearing must also be genuine. The Tribunal must not decline to comply with the applicant’s wishes capriciously, but must take account of such relevant matters as the relevance and potential importance to the outcome of the review of the evidence that could be given by a nominated witness … the sufficiency of any written evidence that has already been given by a witness, and the length of time that would afford the applicant a fair opportunity to put his or her case before the Tribunal. These considerations flow from the nature of the Tribunal’s overarching objective, which is to provide a review that is “fair, just economical, informal and quick” … The Tribunal must bear in mind this statutory objective when considering the weight to be given these matters.

The court considered the evidence and relevant parts of the transcript which dealt with the issue of hearing evidence from the various witnesses and held that the Tribunal did not genuinely give regard to the request under s 361(2), and therefore breached s 361(3) (the equivalent to s 426(3)): at [47] per Kenny and Lander JJ (with whom Spender J agreed). This is because the Tribunal did not limit the taking of oral evidence by reference to such relevant considerations as the importance of the proposed evidence for the review, or the time the applicant might reasonably require to fairly put his case: at [47] per Kenny and Lander JJ (with whom Spender J agreed). 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. [Subs (1) subst Act 35 of 2015, s 3 and Sch 4 item 26, with effect from 18 Apr 2015]

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. [Subs (1A) insrt Act 35 of 2015, s 3 and Sch 4 item 26, with effect from 18 Apr 2015]

© 2016 THOMSON REUTERS

883

s 426A

[426.80]

Migration Act 1958

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. [Subs (1B) insrt Act 35 of 2015, s 3 and Sch 4 item 26, with effect from 18 Apr 2015]

(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. [Subs (1C) insrt Act 35 of 2015, s 3 and Sch 4 item 26, with effect from 18 Apr 2015]

(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. [Subs (1D) insrt Act 35 of 2015, s 3 and Sch 4 item 26, with effect from 18 Apr 2015]

(1E) If the applicant fails to apply for reinstatement within the 14-day 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. [Subs (1E) insrt Act 35 of 2015, s 3 and Sch 4 item 26, with effect from 18 Apr 2015]

(1F) If the Tribunal confirms the decision to dismiss the application, the decision under review is taken to be affirmed. [Subs (1F) insrt Act 35 of 2015, s 3 and Sch 4 item 26, with effect from 18 Apr 2015]

(1G) To avoid doubt, the Tribunal cannot give a decision orally under subsection (1A), (1C) or (1E). [Subs (1G) insrt Act 35 of 2015, s 3 and Sch 4 item 26, with effect from 18 Apr 2015]

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. [Subs (2) am Act 35 of 2015, s 3 and Sch 4 item 26, with effect from 18 Apr 2015] [S 426A am Act 35 of 2015; insrt Act 113 of 1998, s 3 and Sch 3 item 6, with effect from 1 Mar 1999]

SECTION 426A COMMENTARY Scope ................................................................................................................................................. [426A.20] CONCEPTS

Invited under section 425 to appear ................................................................................................ [426A.40] Does not appear ................................................................................................................................ [426A.60] 884

Migration Law

[426A.20]

Part 7 - Review of Part 7-reviewable decisions (ss 408-441G) Division 4 – Part 7-reviewable decisions: conduct of review (ss 422B–429A)

s 426A

KEY CASES

Unreasonable refusal to adjourn ...................................................................................................... [426A.80] Reason for non-attendance and discretion ..................................................................................... [426A.100] Does not appear .............................................................................................................................. [426A.120] Returned invitation ......................................................................................................................... [426A.140] Illness and medical certificate ........................................................................................................ [426A.160] Fraud by third party ....................................................................................................................... [426A.180] PRACTICE POINT

Applicant failure to appear at hearing ........................................................................................... [426A.200]

[426A.20] Scope The Migration Amendment (Protection and Other Measures) Act 2015 (Cth) repealed the previous s 426A and inserted this provision, which commenced on 18 April 2015. Prior to 18 April 2015, under this section, the Tribunal has a discretion to make a decision on the review without taking any further steps to allow or enable the applicant to appear before it if: • the applicant was validly invited under s 425 (that is, a valid notice under s 425A was sent to the applicant); and • the applicant did not appear before the Tribunal on the day on which, or at the time and place at which, the applicant was scheduled to appear: s 425(1). Even if an applicant did not appear, the Tribunal still has a discretion to reschedule the hearing: s 426A(2). However, the Tribunal’s power to make a decision on the review without rescheduling the hearing was not to be exercised capriciously, but must be exercised reasonably: NBBL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 152 FCR 592; [2006] FCA 1045 at [21] per Greenwood J. A capricious decision is one example of a circumstance which might result in procedural unfairness: SZJQP v Minister for Immigration and Citizenship (2007) 98 ALD 575; 45 AAR 510; [2007] FCA 1613 at [35] per Gilmour J. The amendments introduced by Migration Amendment (Protection and Other Measures) Act 2015 (Cth), give the tribunal the discretion to do either of the following if an applicant does not appear before the tribunal after being validly invited: • make a decision on the review without taking any further action to allow or enable the applicant to appear before it: s 426A(1A)(a). This is identical to the provision that existed prior to 18 April 2015; or • by written statement under s 426B, dismiss the application without any further consideration of the application or information before the tribunal: s 426A(1A)(b). Subsections (1B) to (1F) sets out a procedure for re-instatement in the event that the applicant is dismissed under s 426A(1A)(b). According to the Explanatory Memorandum to the Migration Amendment (Protection and Other Measures) Act 2015 (Cth) at [356]: The purpose of this amendment is to clarify that if the applicant fails to appear before the RRT in response to an invitation under section 425 of the Migration Act, the RRT has the option of dismissing the application or making a decision on the review, as is the case under current subsection 426A(1).

There has not been any judicial consideration of the new s 426A. However, subject to any future judicial interpretation to the contrary, new s 426A(1A)(1), will be interpreted in the same way as the previous s 426(1), as these provisions are in substance in identical terms. Common reasons claimed for non-attendance at a hearing include: © 2016 THOMSON REUTERS

885

s 426A

Migration Act 1958

[426A.40]

• an applicant not receiving an invitation to the hearing: see, for example, Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC (2006) 150 FCR 439; 231 ALR 630; [2006] FCAFC 73; • an applicant being ill: see, for example, NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121; and • fraud or negligence by a migration agent: see, for example, SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; 81 ALJR 1404; [2007] HCA 35.

CONCEPTS [426A.40] Invited under section 425 to appear Before the Tribunal can exercise its discretion under s 426A, the applicant needs to have been invited under s 425 to appear before it. Sections 425 and 425A are to be read together: Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC (2006) 150 FCR 439; 231 ALR 630; [2006] FCAFC 73 446 at [39] per Spender, French and Cowdroy JJ. If there has not been compliance with s 425A – that is, a valid notice of invitation has not been sent –the Tribunal’s power under s 426A is not enlivened. If a Tribunal proceeds to exercise its power under this section where no valid notice has been sent under s 425A, the Tribunal will commit a jurisdictional error: see, for example, SZFOH v Minister for Immigration and Citizenship (2007) 159 FCR 199; 241 ALR 653; [2007] FCAFC 63 at [30] per Besanko J; SZBHU v Minister for Immigration and Citizenship [2007] FCA 1614 at [65] per Gilmour J. [426A.60] Does not appear Before the Tribunal can exercise its discretion under s 426A, the applicant must not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear. This is a jurisdictional fact which must exist before the Tribunal’s power is enlivened: SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; 81 ALJR 1404; [2007] HCA 35 at [35] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ.

KEY CASES [426A.80] Unreasonable refusal to adjourn In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; 297 ALR 225; 87 ALJR 618; [2013] HCA 18 (Li), French CJ, Hayne, Kiefel, Bell and Gageler JJ considered the refusal of an adjournment by the Tribunal pursuant to the exercise of its statutory power to adjourn the review of a decision under s 363(1)(b) (the equivalent to s 427(1)(b)). It was recognised that an unreasonable refusal by the Tribunal to grant an adjournment could result in jurisdictional error if it was established that the Tribunal did not conduct a review in the manner required by the Act: at [77]–[87] per Hayne, Kiefel and Bell JJ. In Gazi v Minister for Immigration and Citizenship (now Minister for Immigration and Border Protection) [2013] FCA 1094 (Gazi), Logan J appropriately pointed out at [34] that Li concerned a refusal by the Tribunal to adjourn a review hearing in the exercise of its power to do so conferred by s 363(1)(b) (the equivalent to s 427(1)(b)), being a separate power to that conferred on the Tribunal by s 362B(2) (the equivalent to s 426A(2)). However, in Gazi Logan J stated that the distinction is without any difference in terms of the questions settled by Li. Logan J held at [34]: “As with the power conferred by s 363(1)(b) … the power conferred on the Tribunal by s 362B(2) … must be exercised according to law and it will only be so exercised if it is exercised reasonably.” 886

Migration Law

[426A.100]

Part 7 - Review of Part 7-reviewable decisions (ss 408-441G) Division 4 – Part 7-reviewable decisions: conduct of review (ss 422B–429A)

s 426A

[426A.100] Reason for non-attendance and discretion Where there has been compliance with ss 425 and 425A, a Tribunal is not required to make further inquiries if an applicant fails to attend the hearing: SZJQP v Minister for Immigration and Citizenship (2007) 98 ALD 575; 45 AAR 510; [2007] FCA 1613 at [32] per Gilmour J; Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC (2006) 150 FCR 439; 231 ALR 630; [2006] FCAFC 73 at [38]–[39] per Spender, French and Cowdroy JJ. As long as there has been compliance with ss 425 and 425A and an applicant does not attend the hearing, the Tribunal may still proceed to make a decision without taking any further steps to allow or enable the applicant to appear: see NADK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 184; NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121; VNAA v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 136 FCR 407; [2004] FCAFC 134; NASF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 162; Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC (2006) 150 FCR 439; 231 ALR 630; [2006] FCAFC 73; SZDPB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 110; MZZFI v Minister for Immigration and Border Protection [2013] FCA 1337. As Downes J stated in SZIGQ v Minister for Immigration and Citizenship [2007] FCA 328 at [5] (which was endorsed by Pagone J in MZZFI v Minister for Immigration and Border Protection [2013] FCA 1337 at [10]): [T]he authorities are clear that the reason for non-attendance does not matter. If the Tribunal has complied with ss 425 and 425A of the Migration Act in inviting an applicant to attend a hearing, it may proceed under s 426A to the Act to consider and decide the matter without conducting any further inquiries.

In SZJQP v Minister for Immigration and Citizenship (2007) 98 ALD 575; 45 AAR 510; [2007] FCA 1613 at [33], Gilmour J stated that he did not take Downes J’s comments to mean that the fact that a Tribunal is apprised of the reason for non-attendance should not affect its decision. His Honour went on to state at [34] that the discretion in this section is “unconfined” and that, in those circumstances, the Tribunal may have regard to a range of factors in the exercise of its discretion. He further stated that “that range too is unconfined except in so far as the subject matter, scope and purpose of the statute by implication limit those factors to which the decision maker may legitimately have regard”: see also SZHSQ v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 159; [2006] FCA 1295 (SZHSQ) at [49] per Rares J. In SZHSQ, Rares J stated at [57]: The seriousness of the possibility that a consequence of a decision to proceed to affirm a decision under s 426A(1) that the persecution feared could be suffered is in my opinion part of the subject matter, scope and purpose of the legislation and conditions the way in which the discretion in s 426A(1) falls to be exercised.

Based on the decisions in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; 297 ALR 225; 87 ALJR 618; [2013] HCA 18 and Gazi v Minister for Immigration and Citizenship (now Minister for Immigration and Border Protection) [2013] FCA 1094 (discussed at [426A.80] above), in some circumstances the applicant’s reason for non-attendance may be relevant in any assessment of whether the Tribunal’s refusal to adjourn a hearing was unreasonable. In addition, the Tribunal is not required to give reasons for its exercise of the discretion under s 426A: SZJQP v Minister for Immigration and Citizenship (2007) 98 ALD 575; 45 AAR 510; [2007] FCA 1613 at [32] per Gilmour J; SZHSQ v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 159; [2006] FCA 1295 at [60] per Rares J. © 2016 THOMSON REUTERS

887

s 426A

Migration Act 1958

[426A.120]

[426A.120] Does not appear Before the Tribunal can proceed to make a decision, the applicant must first not appear on the day on which, or at the time and place at which, the applicant is scheduled to appear for the hearing. In MZXLW v Minister for Immigration and Citizenship [2007] FCA 912, the applicant attended the Tribunal and was waiting in the reception area. The applicant required an interpreter, and as one had not yet arrived, he was under the impression that the hearing would not proceed and left the Tribunal before the hearing started. The Tribunal proceeded to exercise its discretion under s 426A. Middleton J noted at [12] that whether or not the applicant did appear before the Tribunal is a question of fact. The Tribunal staff unsuccessfully took steps to locate the applicant after he had left the Tribunal and there was no material before the Tribunal to explain the applicant’s absence at the scheduled time of the hearing. Middleton J held that there was no error on the Tribunal in proceeding as the applicant was not present at the scheduled hearing time: at [20]. [426A.140] Returned invitation The Tribunal may exercise its power to make a decision under s 426A where it is on notice that an applicant has not received the invitation to the hearing, as long as ss 425 and 425A have been complied with: see, for example, NADK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 184; NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121; VNAA v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 136 FCR 407; [2004] FCAFC 134; NASF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 162; Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC (2006) 150 FCR 439; 231 ALR 630; [2006] FCAFC 73 (SZFHC); SZDPB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 110; MZZFI v Minister for Immigration and Border Protection [2013] FCA 1337. In SZFHC at [27], the Full Court of the Federal Court held that where the Tribunal had sent an applicant, at his address for service, a letter inviting him to a hearing in accordance with ss 425 and 425A, the mere fact that the Tribunal received the letter back with a return to sender endorsement did not oblige the Tribunal to do anything further to search in its files to see other addresses at which the applicant may be contacted. The Full Court of the Federal Court stated at [38]–[39]: The respondent says the Tribunal was on notice that he may not have received the letter because the “Response to Hearing Invitation” form was not returned, because the letter to his residential address was returned unclaimed, and because he did not appear at the hearing. The respondent says that in these circumstances, the Tribunal was obliged under s 425 to search both its own and the Department file to attempt to find another method of contacting the respondent. He says that in this case, the Tribunal had an obligation to contact the migration agent listed in the respondent’s Department file to find more recent contact details, and possibly also to ring the residential telephone number contained in the respondent’s protection visa application. The submissions of the respondent in this respect are rejected. In view of the decision in VNNA, it is clear that ss 425 and 425A of the Migration Act are to be read together. Accordingly, the Tribunal, having complied with one of the methods prescribed in s 426A (in fact, two), was under no further obligation to search the papers lodged with it to discover if there might be some other avenue of communicating with the applicant.

[426A.160] Illness and medical certificate The Tribunal may, in certain circumstances, proceed to exercise its discretion under s 426A even where an applicant claims to be ill and is unable to attend the hearing, and even provides a medical certificate, as long as the Tribunal has exercised its power reasonably. If it does not 888

Migration Law

[426A.180]

Part 7 - Review of Part 7-reviewable decisions (ss 408-441G) Division 4 – Part 7-reviewable decisions: conduct of review (ss 422B–429A)

s 426A

exercise the power reasonably, it will commit a jurisdictional error: see, for example, SZJQP v Minister for Immigration and Citizenship (2007) 98 ALD 575; 45 AAR 510; [2007] FCA 1613 at [54] per Gilmour J. In Hossain v Minister for Immigration and Multicultural Affairs [2000] FCA 842, the applicant claimed to be ill and unable to attend the Tribunal hearing. The applicant provided the Tribunal with a medical certificate, which stated that the applicant was “unfit for work”, not that he was unfit to attend the Tribunal hearing. The Tribunal identified that feature and took it up with the applicant, making it clear to him that, subject to the Tribunal speaking with his certifying doctor, with his approval, then telling the applicant that he did not need to attend the hearing, the applicant was even so to attend the hearing. The applicant’s doctor did not state that the applicant was unable to attend the hearing. Mansfield J found that the Tribunal had provided the applicant with a genuine opportunity to appear before it, that the applicant was aware of his obligation to attend and did not. Therefore, the Tribunal was entitled to proceed under s 426A: at [23] per Mansfield J. In NALQ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 121, the applicant requested that the Tribunal hearing be adjourned because he was “sick” and had to undergo a hernia operation on a date after the date of the Tribunal hearing. The Tribunal requested that a medical certificate be provided. Other than documents showing that the applicant was scheduled to have an operation (in a date after the date of the Tribunal hearing), the applicant had not provided any further evidence, such as a medical certificate, to support his request for an adjournment, or that he was “sick”. The Tribunal did not adjourn the hearing and the applicant failed to attend the hearing. The Tribunal proceeded under s 426A to make a decision. The Full Court of the Federal Court held that there was no error by the Tribunal: at [36]. [426A.180] Fraud by third party Where there has been fraud by a migration agent or third party which has resulted in the applicant not attending the hearing, this may affect the validity of a Tribunal’s decision to proceed under s 426A. In order to invalidate the Tribunal’s decision, an applicant will need to demonstrate that: • the migration agent or third party had engaged in fraudulent conduct (and not merely conduct which is negligent); and • the fraudulent conduct caused the stultification of the operation of the Tribunal’s jurisdiction under s 426A: SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; 81 ALJR 1404; [2007] HCA 35 (SZFDE). The High Court’s decision in SZFDE is the key authority on the effect of fraudulent and negligent conduct by a migration agent or third party. In SZFDE, an individual had falsely posed as a solicitor and a migration agent and had advised the applicant for review not to attend the hearing in the Tribunal. Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ held at [48]–[49]: The provisions of Pt 7 obliging the Tribunal to invite the applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review (s 425(1)) and empowering the Tribunal to make a decision on the review in the absence of an appearance (s 426A) are of central importance for the legislative scheme laid out in Div 4 of Pt 7 (ss 422B-429A) for the conduct of reviews … The fraud of Mr Hussain had the immediate consequence of stultifying the operation of the legislative scheme to afford natural justice to the appellants.

As the third party’s fraud resulted in the stultification of the operation of the natural justice provisions made by Pt 7 Div 4 of the Act, the Tribunal was “disabled from the due discharge of © 2016 THOMSON REUTERS

889

s 426B

Migration Act 1958

[426A.200]

its imperative statutory functions with respect to the conduct of the review”: at [51] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ. Their Honours described this as “fraud on the Tribunal”: at [51]. The result, therefore, was that the Tribunal’s decision was “no decision at all”: at [52] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ. Importantly, Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ stated at [53] that: The significance of the outcome in this appeal should not be misunderstood. The appeal has turned upon the particular importance of the provisions of Div 4 of Pt 7 of the Act for the conduct by the Tribunal of review and the place therein of the ss 425 and 426A. In the Full Court French J correctly emphasised that there are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made. The outcome in the present appeal stands apart from and above such considerations.

PRACTICE POINT [426A.200] Applicant failure to appear at hearing If an application is dismissed pursuant to s 426A(1A)(b), due to an applicant’s failure to appear at a hearing, then the applicant has the option to apply to have his or her application re-instated: s 426A(1B). This application must be made within 14 days of the applicant receiving the notice of the decision under s 426B. The notice under s 426B is to be provided by one of the methods specified in s 441A (see that section for further commentary) and therefore the s 441C governs when the applicant is taken to have received such a notice (see that section for further commentary). If the applicant does not seek reinstatements within the 14 day period, then the tribunal must confirm he decision to dismiss the application by written statement under s 430. 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:

890

Migration Law

[426A.200]

Part 7 - Review of Part 7-reviewable decisions (ss 408-441G) Division 4 – Part 7-reviewable decisions: conduct of review (ss 422B–429A)

s 426B

(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). [S 426B insrt Act 35 of 2015, s 3 and Sch 4 item 27, with effect from 18 Apr 2015]

SECTION 426B COMMENTARY Scope ................................................................................................................................................. [426B.20] CONCEPTS

Any other material ............................................................................................................................ [426B.40] KEY CASES

The Tribunal is only required to set out its decision, its reasons for the decision, the findings on questions of fact it considers to be material, and the evidence on which those findings of fact are based ......................................................................................................................................... [426B.60] In some circumstances, the absence of a finding on a question of fact in the Tribunal’s written reasons may lead to an inference that the Tribunal did not consider that question of fact to be material – distinction between questions of fact and matters generally ................................................................... [426B.80] No requirement to refer to all the evidence .................................................................................. [426B.100] Findings on evidence and other material under s 426B(2)(c) ...................................................... [426B.120] No requirement to give line-by-line refutation or explain why certain pieces of evidence are implausible ............................................................................................................................. [426B.140] No requirement to record particular findings, in findings and reasons section of a decision ..... [423B.160]

© 2016 THOMSON REUTERS

891

s 426B

Migration Act 1958

[426B.20]

[426B.20] Scope Section 426B was inserted by the Migration Amendment (Protection and Other Measures) Act 2015 (Cth) and commenced on 18 April 2015. According to s 426B, the Tribunal must prepare a written statement of its decision, to dismiss an application for non-appearance, which contains the items specified in s 426B(2)(a) – (d). These provisions are in substantially the same terms as those contained in s 430 of the Act, which relate to the tribunal’s decision on the review application. The purpose of the tribunal preparing the written statement under s 430 is to enable a person affected by the decision to “shape his or her further conduct”, which may include making an application to the courts for judicial review: Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362; 11 ALD 259; 272 ALR 115; [2010] FCAFC 108 at [84] per Rares J. Subject to judicial commentary to the contrary, this would similarly apply to s 426B. In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; 266 ALR 367; [2010] HCA 16 at [31], Gummow ACJ and Kiefel J explained the relevance of written reasons in the context of s 430 of the Act. Their Honours noted (citations omitted): Professor Wade wrote that a system of judicial review which cannot cope with crucial questions of fact necessarily is seriously defective. In Australia that deficiency is alleviated by requirements in various laws … for the obtaining of reasons for the decision. Section 430(1) of the Act is such a provision.

Their Honours went on to observe at [35] that “[o]n the other hand, of provisions such as s 430, it was said in Wu Shan Liang that the reasons are meant to inform and, upon judicial review, are not to be scrutinised in an over-zealous fashion” (footnotes omitted). Accordingly, a breach of s 430(1) is not of itself proof of any jurisdictional error: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; 74 ALJR 405; [2000] HCA 1 at [70] per McHugh J; Minister for Immigration and Multicultural Affairs v Yusuf (M10 of 2000) (2001) 206 CLR 323; 180 ALR 1; [2001] HCA 30; Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362; 11 ALD 259; 272 ALR 115; [2010] FCAFC 108 at [46]–[47] per Kenny J. Nor will a decision by the Tribunal be invalid if there has not been compliance with this section: Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362; 11 ALD 259; 272 ALR 115; [2010] FCAFC 108 at [85] per Rares J. The tribunal must notify an applicant of its non-appearance decision, by notice, given to an applicant within 14 days after the day of the decision and the notice must be sent by one of the methods specified in s 441A (see that section for further commentary).

CONCEPTS [426B.40] Any other material The expression “any other material” in s 426B(2)(c)(ii) is substantially in identical terms to the same expression used in s 430(1)(d), which the courts have found to include personal knowledge and the knowledge that a Tribunal has acquired through exposure to previous claims based on the same subject matter: Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362; 11 ALD 259; 272 ALR 115; [2010] FCAFC 108 at [42] per Kenny J.

KEY CASES [426B.60] The Tribunal is only required to set out its decision, its reasons for the decision, the findings on questions of fact it considers to be material, and the evidence on which those findings of fact are based Under s 426B(2)(c), which uses the same terms as those contained in s 430(1)(c), the Tribunal is required to set out its findings on any material questions of fact. The courts have held that a breach of s 430(1)(c), which is substantially identical to s 426B(2)(c), of itself will not amount 892

Migration Law

[426B.80]

Part 7 - Review of Part 7-reviewable decisions (ss 408-441G) Division 4 – Part 7-reviewable decisions: conduct of review (ss 422B–429A)

s 426B

to a jurisdictional error: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; 180 ALR 1; [2001] HCA 30 (Yusuf) at [75] per McHugh, Gummow and Hayne JJ (with whom Gleeson CJ agreed). Section 430(1)(c) has been found not to impose an obligation on the tribunal to make findings on particular questions of fact that are objectively material: at [5], [9]–[10] per Gleeson CJ, at [68] per McHugh, Gummow and Hayne JJ, at [33]–[34] per Gaudron J and at [217] per Callinan J. In Yusuf , Gleeson CJ, Gaudron, McHugh, Gummow, Hayne, Kirby and Callinan JJ considered s 430(1)(c). Relevantly, Gleeson CJ, Gaudron, McHugh, Gummow, Hayne, Kirby and Callinan JJ considered whether the former Refugee Review Tribunal was obliged to make findings on material questions of fact and, if so, whether failure to make such findings was a ground for review by the courts or a ground upon which the court may grant relief. McHugh, Gummow and Hayne JJ (with whom Gleeson CJ agreed) held that the section required the “recording of matters of fact” and that s 430(1)(c) required the Tribunal “to set out the findings of fact which it made”: at [67]. In relation to the issue of whether s 430(1)(c) required the Tribunal to make findings on any and every matter of fact objectively material to the decision, McHugh, Gummow and Hayne JJ (with whom Gleeson CJ agreed) stated at [68]–[69] (emphasis in original): Section 430 does not expressly impose such an obligation. In its terms, it requires no more than that the Tribunal set out the findings which it did make. Neither expressly nor impliedly does this section require the Tribunal to make, and then set out, some findings additional to those which it actually made … [I]t is not right to read “material” as providing an objective or external standard of materiality. A requirement to set out findings and reasons focuses upon the subjective thought processes of the decision-maker. All that s 430(1)(c) obliges the Tribunal to do is set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision. It is not necessary to read s 430 as implying an obligation to make findings in order for it to have sensible work to do. Understanding s 430 as obliging the Tribunal to set out what were its findings on the questions of fact it considered material gives the section important work to do in connection with judicial review of decisions of the Tribunal. It ensures that a person who is dissatisfied with the result at which the Tribunal has arrived can identify the Tribunal’s reasons and the findings it made in reaching that conclusion. The provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material. This may reveal some basis for judicial review by the Federal Court under Pt 8 of the Act, or by this Court in proceedings brought under s 75(v) of the Constitution. For example, it may reveal that the Tribunal made some error of law of the kind mentioned in s 476(1)(e) of the Act, such as incorrectly applying the law to the facts found by the Tribunal. It may reveal jurisdictional error. The Tribunal’s identification of what it considered to be the material questions of fact may demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration.

[426B.80] In some circumstances, the absence of a finding on a question of fact in the Tribunal’s written reasons may lead to an inference that the Tribunal did not consider that question of fact to be material – distinction between questions of fact and matters generally In some circumstances, an inference may be drawn that, where a Tribunal’s written reasons do not contain a finding on a question of fact, the Tribunal did not consider that question of fact to be material: see, for example, Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; 180 ALR 1; [2001] HCA 30 (Yusuf) at [69] per McHugh, Gummow and Hayne JJ (with whom Gleeson CJ agreed). However, some care needs to be taken in drawing inferences that “matters”, as opposed to questions of fact, have not been considered due to the absence of a reference to such matters in a Tribunal’s written statement of reasons. In Minister for Immigration and Citizenship v SZGUR © 2016 THOMSON REUTERS

893

s 426B

Migration Act 1958

[426B.80]

(2011) 241 CLR 594; 273 ALR 223; [2011] HCA 1 (SZGUR), French CJ and Kiefel J observed at [31]–[32] (in respect of s 430, which is substantially in identical terms to s 426B(2)(c)): Rares J relied upon a passage from the judgment of McHugh, Gummow and Hayne JJ in Minister for Immigration and Multicultural Affairs v Yusuf in which their Honours said that s 430 “entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material”. That, of course, does not mean that a matter not mentioned in the s 430 statement was not considered. Section 430 presupposes a logical structure to the Tribunal’s reasoning which involves the following steps:

• Identification of the relevant evidence or material upon which findings of fact can be based. • Making findings of fact based on the relevant evidence or material. • Reasoning to the decision by application of the relevant legal principles to findings of fact, both primary and inferential. Section 430 therefore does not require that the Tribunal make reference, in its reasons, to the disposition of a request from an applicant for a medical examination or for any other investigation. The Tribunal’s consideration of whether or not to exercise its power under s 427(1)(d) in aid of its discretion under s 424(1), whether requested or not, to “get any information that it considers relevant”, is neither evidence nor material nor a fact upon which the Tribunal could base any findings or its ultimate decision. The nature of the Tribunal’s treatment of the agent’s letter of 20 June 2008 in its reasons was consistent with that view of what s 430 requires and the logical structure it presupposes.

Gummow J similarly remarked at [69]–[70]: The question of whether the inference should have been drawn in the present case can only be addressed in the setting provided by the Migration Act, and in particular by reference to the requirement in para (b) of s 430(1) that the Tribunal provide a written statement which sets out the reasons for the decision. Contrary to the reasoning in the Federal Court, para (b) of s 430(1) does not create any requirement that the Tribunal record generally “what it did” in conducting its review, and does not require the Tribunal, in every case, to describe or state the procedural steps taken by it in reviewing the relevant decision. The obligation under s 430(1) focuses upon the thought processes of the Tribunal in reaching its decision on what it considers to be the material questions of fact. The absence of reference in the Tribunal’s reasons to its consideration of the request for a medical examination of the first respondent is to be contrasted with an absence of reference to findings of fact or to evidence and material upon which such findings are based. Section 430(1) deals with the latter in paras (c) and (d); it does not deal with the former. The statute does not require the Tribunal to disclose procedural decisions taken in the course of making its “decision on a review”. There may be situations where a procedural decision forms part of the Tribunal’s “reasons for the decision” under para (b), but that is not so here. An inference that the Tribunal did or omitted to do some act in the course of its review, not being a matter which s 430(1) requires the Tribunal to set out, should not be drawn lightly. Nothing found in the authorities relied upon by Rares J assists in the present case. The statement by McHugh, Gummow and Hayne JJ in Yusuf, given the surrounding context and the authorities collected in the footnote at its conclusion, demonstrates that the reference there was to “matters of fact” or “findings of fact” and not to matters generally, such as the procedures the Tribunal chose to adopt in fulfilling its duty to review the delegate’s decision.

In Minister for Immigration and Citizenship v MZYZA [2013] FCA 572 at [31]–[32], Tracey J synthesised the above principles as follows: The Tribunal was required, by s 430 of the Act, to provide reasons for its decision … In [Yusuf] … McHugh, Gummow and Hayne JJ held that s 430(1) required the Tribunal to “set out its findings on those questions of fact which it considered to be material to the decision which is made and to the reasons it had for reaching that decision.” (Emphasis in original). Their Honours held that if, in its reasons, the Tribunal fails to refer to particular material, a reviewing Court may infer that that “matter … was not considered by the Tribunal to be material.” 894

Migration Law

[426B.140]

Part 7 - Review of Part 7-reviewable decisions (ss 408-441G) Division 4 – Part 7-reviewable decisions: conduct of review (ss 422B–429A)

s 426B

That does not mean, as French CJ and Kiefel J pointed out in [SZGUR] … that, simply because a matter is not mentioned in the reasons, it was not considered. The “matters” referred to by McHugh, Gummow and Hayne JJ in Yusuf were “matters of fact” or “findings of fact” made or not made by the Tribunal and not “matters generally”.

[426B.100] No requirement to refer to all the evidence In relation to the evidence relied upon to be included in the written reasons, s 430 is in substantially identical terms to s 426B. In Kocakaya v Minister for Immigration and Citizenship [2013] FCA 55, the appellant reiterated his contention, made at first instance, that s 368 of the Act requires the Tribunal to set out in its written statement all of the evidence that was before it. In the appellant’s contention, this required, for instance, that the Tribunal recite verbatim the contents of every piece of evidence that was before the Tribunal. Dodds-Streeton J agreed with the judgment of the Federal Magistrate and rejected the appellant’s argument. Her Honour held at [31] that the Tribunal was only required to record its findings on material questions of fact. It was not required to provide a line-by-line refutation of the appellant’s claims. [426B.120] Findings on evidence and other material under s 426B(2)(c) Section 430(1)(d) of the Act is substantially in identical terms to s 426B(1)(c). These sections require the Tribunal to refer to the evidence or any other material on which the findings of fact were based. Courts have held that a breach of s 430(1)(d) of itself will not amount to a jurisdictional error: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; 74 ALJR 405; [2000] HCA 1 at [70] per McHugh J. In Minister for Immigration and Multicultural Affairs v Li Yue (2000) 176 ALR 66; [2000] FCA 856, the Full Court of the Federal Court considered s 430(1)(d), which is in substantially identical terms to s 426B(2)(c). Hill, Matthews and Lindgren JJ noted at [44]: With respect, we think that the learned primary judge erred in thinking that s 430(1)(d) required that the evidence or other material on which a finding of fact is based be capable of supporting it. In our view, all that is required by s 430(1)(d) is that the RRT identify the evidence or other material on which it, the RRT, in fact based its findings on any material questions of fact.

[426B.140] No requirement to give line-by-line refutation or explain why certain pieces of evidence are implausible Section 426B(2) and s 430(1) are substantially in identical terms. The courts have found that insofar as s 430(1) requires a Tribunal to record its reasons for the decision, that obligation does not extend to explaining why it considered certain pieces of evidence to be implausible, or to give a line-by-line refutation of the evidence. In Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; 74 ALJR 405; [2000] HCA 1, McHugh J considered s 430(1). The review applicant claimed that the former Refugee Review Tribunal erred by failing to set out findings on material questions of fact, as required by s 430(1)(c). McHugh J stated at [64]–[65]: In Addo, the Court said: Section 430(1) does not impose an obligation to do anything more than to refer to the evidence on which the findings of fact are based. Section 430 does not require a decision-maker to give reasons for rejecting evidence inconsistent with the findings made. Accordingly, there was no failure to comply with s 430(1) of the Act. ... It is not necessary, in order to comply with s 430(1), for the Tribunal to give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine any finding which it made. In my opinion, this passage correctly sets out the effect of s 430(1)(c) and (d). However, the obligation to set out “the reasons for the decision” (s 430(1)(b)) will often require the Tribunal to © 2016 THOMSON REUTERS

895

s 427

Migration Act 1958

[423B.160]

state whether it has rejected or failed to accept evidence going to a material issue in the proceedings. Whenever rejection of evidence is one of the reasons for the decision, the Tribunal must set that out as one of its reasons. But that said, it is not necessary for the Tribunal to give a line-by-line refutation of the evidence for the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the Tribunal. Indeed, to do so would be contrary to the direction in s 420 of the Act.

His Honour continued at [67]: The Tribunal must give reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word “implausible”. The disbelief arose from the Tribunal’s view that it was inherently unlikely that the events had occurred as alleged.

[423B.160] No requirement to record particular findings, in findings and reasons section of a decision In MZYZA v Minister for Immigration and Citizenship [2013] FMCA 15, the Federal Magistrates Court considered a decision of the former Refugee Review Tribunal where the Tribunal had referred to, and discussed, a piece of evidence in its written record, albeit not under the heading “findings and reasons”. Although the applicant (who was self-represented at first instance) did not raise it as an issue before the court, Riley FM discerned error in the Tribunal’s decision on the basis that the Tribunal did not refer to the piece of evidence under the heading, “findings and reasons”. Her Honour found at [19] that, “[i]n the circumstances of this case, and in the absence of any mention of the letter in the ‘Findings and Reasons’ section of the Tribunal’s reasons, I am not persuaded that the Tribunal did consider the letter while actually weighing up the evidence and making its decision”. On appeal, Tracey J in Minister for Immigration and Citizenship v MZYZA [2013] FCA 572 overturned the judgment of Riley FM. His Honour stated at [47]: In my view the first respondent, in the present matter, has failed to establish that it would be appropriate to draw the inference that the Tribunal did not consider the letter. On the contrary, the Tribunal’s reasons make it tolerably clear that it did so. The Tribunal referred to the fact that the letter had been sent and received. The Tribunal member must have read it because he questioned the first respondent about its contents. There could be a number of reasons why the member did not thereafter again refer to the letter. One of these may have been that he did not consider it necessary to do so having regard to authorities such as Addo, Iyer and SZDXZ. Whatever the reason, it cannot be inferred that the contents of the letter had not been considered.

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. [Subs (2) am Act 60 of 2015, s 3 and Sch 2 item 135, with effect from 1 Jul 2015]

(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

896

Migration Law

[427.20]

Part 7 - Review of Part 7-reviewable decisions (ss 408-441G) Division 4 – Part 7-reviewable decisions: conduct of review (ss 422B–429A)

s 427

(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. [Subs (3) am Act 60 of 2015, s 3 and Sch 2 item 95, with effect from 1 Jul 2015]

(4) The Tribunal must not summon a person under paragraph (3)(a) or (b) unless the person is in Australia. (5) [Repealed] [Subs (5) rep Act 60 of 2015, s 3 and Sch 2 item 96, with effect from 1 Jul 2015]

(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. [S 427 am Act 60 of 2015, s 3 and Sch 2 item 94, with effect from 1 Jul 2015; former s 166DD renum Act 60 of 1994, s 83, with effect from 1 Sep 1994; insrt Act 184 of 1992, s 32, with effect from 1 Jul 1993]

SECTION 427 COMMENTARY Scope ................................................................................................................................................... [427.20] Concepts

Adjourn the review from time to time ............................................................................................... [427.40] The making of investigations ............................................................................................................. [427.60] Cross-examine any other person appearing before the Tribunal ....................................................... [427.80] Interpreter .......................................................................................................................................... [427.100] KEY CASES

The Tribunal must not unreasonably refuse to adjourn the review ................................................ [427.120] Procedural fairness in relation to the cross-examination of a witness ............................................ [427.140] Proficient in English for the purposes of s 427(7) .......................................................................... [427.160] Quality of interpretation and jurisdictional error ............................................................................. [427.180]

[427.20] Scope Section 427 sets out the powers that the Tribunal may exercise, at its discretion, in conducting the review. As an inquisitorial body, the Tribunal cannot ordinarily be compelled to exercise a discretionary power. Rather, it is required only to be “fair” in the exercise of such powers: Re Minister for Immigration and Multicultural Affairs; Ex parte S154/2002 (2003) 201 ALR 437; 77 ALJR 1909; [2003] HCA 60 at [57] per Gleeson CJ; Hong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 1308 at [40] per Finn J. However, as the decision in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; 297 ALR 225; 87 ALJR 618; [2013] HCA 18 demonstrates, an unreasonable refusal to exercise a power may constitute jurisdictional error.

© 2016 THOMSON REUTERS

897

s 427

Migration Act 1958

[427.40]

CONCEPTS [427.40] Adjourn the review from time to time In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; 297 ALR 225; 87 ALJR 618; [2013] HCA 18 (Li), Hayne, Kiefel and Bell JJ stated that Parliament intended that s 363(1)(b) (the equivalent to s 427(1)(b)) will be exercised “reasonably”. Their Honours observed at [76] that “unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification”. Although the decision in Li was concerned with s 363(1)(b), the principles in that case are likely to apply to the other subsections of s 363(1), although this issue is yet to be judicially settled. [427.60] The making of investigations In Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; 273 ALR 223; [2011] HCA 1, the High Court considered s 427(1)(d). Relevantly, at [22] French CJ and Kiefel J endorsed the ratio of the Full Court of the Federal Court in WAGJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 277 that the provision does not impose any duty on the Tribunal to exercise its inquisitorial power by causing an investigation to be undertaken. Similarly, in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429; 83 ALJR 1123; [2009] HCA 39, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ held that there is no general duty imposed on the Tribunal to make inquiries. Rather, the duty imposed on the Tribunal is a duty to review: at [25]. A Tribunal may, in some circumstances, fail to discharge its duty to review if it fails to “make an obvious inquiry about a critical fact, the existence of which is easily ascertained. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction”: at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. However, a Tribunal simply not exercising the discretionary power under this section will not of itself amount to a jurisdictional error. [427.80] Cross-examine any other person appearing before the Tribunal Under s 427(6)(b), an applicant is not entitled to examine or cross-examine any person appearing before the Tribunal to give evidence. An applicant’s right to appear before the Tribunal pursuant to an invitation given under s 425(1) does not carry with it the equivalent procedural rights that a party acquires according to its right to appear before a court: Algama v Minister for Immigration and Multicultural Affairs (2001) 115 FCR 253; 194 ALR 37; [2001] FCA 1884 at [64] per Whitlam, Katz and French JJ; WABZ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 134 FCR 271; 204 ALR 687; [2004] FCAFC 30 at [64] per French, Lee and Hill JJ. [427.100] Interpreter Under s 427(7), the Tribunal has a discretion to direct that communication with a person should proceed through an interpreter if the person is not proficient in English. The power is discretionary and the Tribunal is not obliged to direct that a person appearing before it proceed with an interpreter: Singh v Minister for Immigration and Multicultural Affairs (2001) 115 FCR 1; [2001] FCA 1376 (Singh) at [26] per Tamberlin, Mansfield and Emmett JJ. This section should be understood as being facilitative in the sense that it empowers the Tribunal to take steps to ensure that there can be real compliance with s 425(1) of the Act: Singh at [26] per Tamberlin, Mansfield and Emmett JJ. In addition, there is no requirement in the Act or Regulations that the interpreter has any particular qualifications: Perera v Minister for 898

Migration Law

[427.140]

Part 7 - Review of Part 7-reviewable decisions (ss 408-441G) Division 4 – Part 7-reviewable decisions: conduct of review (ss 422B–429A)

s 427

Immigration and Multicultural Affairs (1999) 92 FCR 6; 56 ALD 231; [1999] FCA 507 at [31] per Kenny J; Long v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 183; [2000] FCA 1172 at [51] per Mansfield J. The phrase “proficient in English” under this section refers to “proficiency necessary to enable an applicant to give evidence and present arguments in English”: Singh at [28] per Tamberlin, Mansfield and Emmett JJ (this phrase is discussed further at [426.160] below).

KEY CASES [427.120] The Tribunal must not unreasonably refuse to adjourn the review In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; 297 ALR 225; 87 ALJR 618; [2013] HCA 18, the visa applicant satisfied the fundamental preconditions for the grant of the visa. However, by the time of the Tribunal hearing the visa had not been granted. The substance of the matter was that, unless an adjournment was granted, Ms Li would not obtain her visa, even though she had satisfied all the relevant requirements for the grant of the visa for which she had applied. In particular, what was in issue was a request by the visa applicant that the Tribunal defer its decision pending completion of an internal review of a third party, the outcome of which would most likely have led to Ms Li being granted the visa she had applied for. French CJ, Hayne, Kiefel, Bell and Gageler JJ discussed general principles regarding what is reasonable in circumstances where an applicant seeks an adjournment. The ratio of the case emerges from the joint judgment of Hayne, Kiefel and Bell JJ, who held that Parliament intended that s 363(1)(b) (the equivalent to s 427(1)(b)) would be exercised “reasonably”: at [63]. Thus, the exercise of the power is to be “legal and regular, not arbitrary, vague and fanciful”, and it must be “exercised within the limit, to which an honest man competent to the discharge of his office ought to confine himself”: at [65]. Hayne, Kiefel and Bell JJ observed at [75] that “what must be evident is that some error has been made in exercising the discretion, such as where a judge acts on a wrong principle or takes irrelevant matters into account”. Relevantly, Hayne, Kiefel and Bell JJ made the point at [76] that “unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification”. However, Hayne, Kiefel and Bell JJ were careful to confirm that there is an area of “free discretion” which “resides within the boundaries of legal reasonableness”: at [66]. In this regard, their Honours stated at [82]: It cannot be suggested that the Tribunal is under an obligation to afford every opportunity to an applicant for review to present his or her best possible case and to improve upon the evidence. Of course it may decide, in an appropriate case, that “enough is enough”.

[427.140] Procedural fairness in relation to the cross-examination of a witness In Dunn v Minister for Immigration and Citizenship [2007] FMCA 1349, an applicant claimed that he had been denied procedural fairness because he had been denied the opportunity to cross-examine the Customs officer who processed his entry and who had been interviewed by the Tribunal. Riley FM considered s 366D (the equivalent to s 427(6)(b)), and held at [31]: It is clear from that provision that the applicant had no right to cross examine the Customs officer. The Parliament is entitled to remove common law rights by clear words. If there had been any common law right to cross examine the Customs officer in the circumstances of this case, the Parliament has removed that right with the clear words of s 366D of the Act. Accordingly, the fact that the applicant was not given an opportunity to cross examine the Customs officer is not a jurisdictional error. © 2016 THOMSON REUTERS

899

s 427

Migration Act 1958

[427.160]

[427.160] “Proficient in English” for the purposes of s 427(7) In Singh v Minister for Immigration and Multicultural Affairs (2001) 115 FCR 1; [2001] FCA 1376 (Singh), the Full Court of the Federal Court considered the phrase “proficient in English” for the purposes of s 427(7) and stated at [28] that: the proficiency in English contemplated by [this section] is the proficiency necessary to enable an applicant to give evidence and present arguments in English in order to communicate the substance of his or her case and to respond to issues raised. It does not require any greater expertise in English.

In SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142 at [20], Allsop CJ, Flick and Robertson JJ endorsed this, but noted that this expression may “mask the factual difficulty in evaluating the adequacy of interpretation and the relationship between the materiality and number of errors and overall coherence of expression and understanding”. In Singh, the applicant contended that he was not proficient in English and that therefore the Tribunal was obliged to direct that communication with him should proceed through an interpreter, but did not do so. The applicant relied upon a transcript of the hearing and submitted that his responses to the Tribunal’s questions demonstrated that he was far from well advanced, expert or skilled in speaking English and therefore was not proficient in English. While he was able to understand and give responsive answers to some questions, his answers to important questions were not responsive and demonstrated confusion and misunderstanding. The Full Court of the Federal Court stated at [23]: The mere fact that a person can sufficiently speak the English language to perform mundane or social tasks or even business obligations does not necessarily mean that he or she is able to cope with the added stresses imposed by appearing as a witness in a hearing before a court or tribunal. Thus, an applicant for refugee status may be able to use English for some purposes, even professional purposes, but may be insufficiently proficient to give evidence and make submissions before the Tribunal in support of an application vital to his or her future prospects. The fact that an applicant has sufficient knowledge of English for some purposes does not mean that the applicant will be so proficient that he could cope adequately with the giving and the making of submissions before the Tribunal – Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507 at [34]–[36].

The Full Court of the Federal Court found at [29] that the applicant’s English was at times broken and disjointed, but that it was sufficient to enable him, in a real sense, to give evidence and present arguments relating to the issues that arose in relation to the decision of the delegate to refuse his protection visa. [427.180] Quality of interpretation and jurisdictional error Courts have construed the combined effect of ss 425 and 427(2) as obliging the Tribunal to provide a competent interpreter where the applicant is not proficient in English: Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6; 56 ALD 231; [1999] FCA 507 (Perera) at [17] and [20] per Kenny J; WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511; 77 ALD 1; [2003] FCAFC 171 (WACO) at [64] per Lee, Hill and Carr JJ. VWFY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1723 at [8] per Finkelstein J. In SZHEW v Minister for Immigration and Citizenship [2009] FCA 783 at [46], Jagot J stated: Failure to provide adequate interpretation services may constitute a breach of the Tribunal’s obligation in s 425(1) of the Migration Act to “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” and also may amount to a denial of procedural fairness.

In Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230 (Appellant P119/2002) at [17] and [22], the majority of the Full Court of the Federal Court stated that a visa applicant who claims inadequate interpretation must establish that: 900

Migration Law

[427.180]

Part 7 - Review of Part 7-reviewable decisions (ss 408-441G) Division 4 – Part 7-reviewable decisions: conduct of review (ss 422B–429A)

s 427

• the standard of interpretation at the Tribunal hearing was so inadequate that the applicant was effectively prevented from giving evidence; or • errors made by the interpreter at the Tribunal hearing were material to the conclusions of the Tribunal that were adverse to the applicant. Accordingly, not every error in interpretation will result in a breach of s 425: Appellant P119/2002 at [17] per Mansfield and Selway JJ; WACO at [66]–[69] per Lee, Hill and Carr JJ. The court’s approach in Appellant P119/2002 reflects the reasoning of Kenny J in Perera, which has been applied in many matters: see, for example, VWFY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1723; M175 of 2002 v Minister for Immigration and Citizenship [2007] FCA 1212; SZHEW v Minister for Immigration and Citizenship [2009] FCA 783. The applicant in Perera was a Sinhalese from Sri Lanka who had applied for a protection visa and gave his evidence to a Tribunal through an interpreter. After a detailed analysis of the transcript of the Tribunal hearing, Kenny J set aside the Tribunal’s decision because the quality of the interpretation was so poor that the Tribunal did not give the applicant an effective opportunity to give evidence: at [23]. Kenny J held at [20] that: if not proficient in English, the applicant is effectively unable to exercise his right to give evidence unless an interpreter assists him. The Tribunal is unable to give the applicant an effective opportunity to appear before it to give evidence unless it provides an interpreter to assist. Thus, in my view, if an applicant for refugee status is unable to give evidence in English, the effect of s 425(1)(a) is to necessitate the making of a direction, pursuant to s 427(7), that communication proceed through an interpreter. The terms of any such direction extend to the whole of the hearing and are not limited to the applicant’s evidence.

Her Honour held at [21] that, in these circumstances, without an interpreter the Tribunal is unable to afford an effective opportunity to a non-English speaking applicant to give evidence. The consequence is that, unless an interpreter is provided, the Tribunal will lack jurisdiction to continue the hearing. In relation to circumstances where an interpreter has been provided but the quality of the interpretation is at issue, Kenny J expressed at [29] the standard of interpretation required for a Tribunal hearing as follows: Whilst the interpretation at a Tribunal hearing need not be at the very highest standard of a first-flight interpreter, the interpretation must, nonetheless, express in one language, as accurately as that language and the circumstances permit, the idea or concept as it has been expressed in the other language.

Kenny J emphasised that the requirements of accuracy and completeness of interpretation and the competency of the interpreter may be factors in assessing the standard of interpretation: at [29] and [31]. Her Honour expressed at [42] the departure from the required standard in the following terms: Whilst it is possible to divine the general thrust of the applicant’s case from the transcript as a whole, his evidence, as given through the interpreter and transcribed, was, as we have seen, repeatedly unresponsive to the questions asked by the Tribunal. It was at times incoherent and inexplicably inconsistent with other evidence given. There are a number of exchanges between the interpreter and the Tribunal which evidence confusion on the interpreter’s part as to the subject and direction of the Tribunal’s inquiry; and it would seem that from time to time difficulties in communication actually led the Tribunal to abandon avenues of relevant inquiry. Speaking more generally, it is difficult to believe that the interpretation given is adequately expressive of Mr Perera’s unchallenged account.

Kenny J also held at [45] that, in order to constitute vitiating error, the departure from the standard of adequate interpretation must “relate to a matter of significance for the applicant’s claim or the Tribunal’s decision”. In deciding whether that had occurred, Kenny J considered at [41]: © 2016 THOMSON REUTERS

901

s 428

Migration Act 1958

[428.20]

the responsiveness of the interpreted answers to the questions asked, the coherence of those answers, the consistency of one answer with another and the rest of the case sought to be made and, more generally, any evident confusion in exchanges between the Tribunal and the interpreter.

Her Honour held that in this matter the departure from the standard of interpretation related to matters which were significant to the applicant’s case and the Tribunal’s decision: at [46]. In SZHEW v Minister for Immigration and Citizenship [2009] FCA 783 at [52], Jagot J noted that whether an applicant has been deprived of an opportunity to give evidence by reason of inadequate interpretation involves a qualitative assessment of the conduct of the hearing before the Tribunal as a whole. 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. [S 428 subst Act 60 of 2015, s 3 and Sch 2 item 97, with effect from 1 Jul 2015; am Act 146 of 1999; former s 166DE renum Act 60 of 1994, s 83, with effect from 1 Sep 1994; insrt Act 184 of 1992, s 32, with effect from 1 Jul 1993]

SECTION 428 COMMENTARY [428.20] Scope Section 428 was repealed and substituted on 1 July 2015 by item 97 of Sch 2 to the Tribunals Amalgamation Act 2015 (Cth). The new section is similar to the old s 428, but was replaced with a “provisions worded in a way that is better aligned with the equivalent provisions” in ss 40(3) to 40(5) of the Administrative Appeals Tribunal Act 1975 (Cth): Revised Explanatory Memorandum to the Tribunals Amalgamation Bill 2014 (Cth) at [890]. The replaced section continues to provide that a person, other than the Tribunal member, may take evidence for the purposes of conducting a review. In SZHKA v Minister for Immigration and Citizenship (2008) 172 FCR 1; 249 ALR 58; [2008] FCAFC 138 (SZHKA) at [21], Gray J observed that s 428 represents a scheme designed to enable the Tribunal to take evidence by another person in circumstances in which it is difficult for the Tribunal member dealing with the review to obtain evidence directly from the applicant. 902

Migration Law

[429.60]

Part 7 - Review of Part 7-reviewable decisions (ss 408-441G) Division 4 – Part 7-reviewable decisions: conduct of review (ss 422B–429A)

s 429

Relevantly, s 428(3)(d) only partially absolves the Tribunal from compliance with s 425(1). While the provision excuses the Tribunal from inviting an applicant to give evidence, it does not excuse the Tribunal from inviting the applicant to present arguments about the issues arising in the case: SZHKA at [21] per Gray J, where his Honour considered s 428(5) which prior to 1 July 2015 was in the same terms as s 428(3)(d). 429 Review to be in private The hearing of an application for review by the Tribunal must be in private. [Former s 166DF renum Act 60 of 1994, s 83, with effect from 1 Sep 1994; insrt Act 184 of 1992, s 32, with effect from 1 Jul 1993]

SECTION 429 COMMENTARY Scope ................................................................................................................................................... [429.20] CONCEPTS

Private .................................................................................................................................................. [429.40] KEY CASE

SZAYZ v Minister for Immigration and Indigenous Affairs ............................................................. [429.60]

[429.20] Scope According to s 429, all hearings in the Tribunal are to be conducted in private. As Emmett J observed in Selliah v Minister for Immigration [1999] FCA 615 at [36]: there are good policy reasons for such a requirement. An applicant for a protection visa should be confident that nothing said in the course of a hearing would find its way back to the authorities in the country in which he or she claims to be persecuted. However, the requirement that the RRT conduct the hearing in private is not qualified to mean that it only need to ensure against information reaching the ears of the authorities in the applicant’s country.

One of the “objects of the section is to protect applicants and their families from the risk that publicity regarding their claims might give rise to difficulties for dependents [sic] remaining in the country of origin”: Minister for Immigration and Multicultural and Indigenous Affairs v SZAYW (2005) 145 FCR 523; [2005] FCAFC 154 at [15] per Weinberg J.

CONCEPTS [429.40] Private The meaning of the word “private” in s 429 is to be ascertained by reference to the Act as a whole: Minister for Immigration and Multicultural and Indigenous Affairs v SZAYW (2005) 145 FCR 523; [2005] FCAFC 154 at [11] per Moore J, at [4] per Kiefel J and at [2] per Weinberg J (this term is discussed further below at [429.60]).

KEY CASE [429.60] SZAYZ v Minister for Immigration and Indigenous Affairs In SZAYW v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 230 CLR 486; 229 ALR 423; [2006] HCA 49 (SZAYW), Gleeson CJ, Gummow, Hayne, Callinan and Crennan JJ considered s 429 and the meaning of the word “private” in this section. In SZAYW, the applicant applied for a protection visa as he claimed to fear persecution in Lebanon at the hands of Hezbollah or Islamic Jihad. According to the applicant, there were three © 2016 THOMSON REUTERS

903

s 429

Migration Act 1958

[429.60]

other applicants for protection visas who had shared his experiences in Lebanon. The delegate refused him (and the three other applicants) the visa and he (and the three other applicants) applied to the Tribunal for review. All four applicants were represented by the Refugee Advice and Casework Services Australia Inc, who wrote to the Tribunal and informed it that the four applicants were together for the events that formed their claims and requested that the same member deal with all four applicants. The Tribunal determined that one member would hear the reviews of all four applicants on the same day. The applicant in this case gave his evidence in the presence of two of the three other applicants and inconsistencies with their evidence were discussed with all of them present. Driver FM held that s 429 was breached because the hearing was not held in private: SZAYW v Minister for Immigration and Citizenship [2004] FMCA 796 at [34]. In reaching this conclusion Driver FM relied on his decision in SZAFE v Minister for Immigration [2003] FMCA 410. In Minister for Immigration and Multicultural and Indigenous Affairs v SZAYW (2005) 145 FCR 523; [2005] FCAFC 154, the Full Court of the Federal Court overturned Driver FM’s decision and held that the requirement in s 429, that the hearing be in private, was met. The High Court in SZAYW v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 230 CLR 152; 229 ALR 423; [2006] HCA 49 upheld the Full Court of the Federal Court’s decision. In a joint judgment, Gleeson CJ, Gummow, Hayne, Callinan and Crennan JJ stated at [23], [25] and [26]: The concept of privacy is imprecise, and is not to be equated either with secrecy or isolation. Where, as in s 365, the Act requires that evidence be given “in public”, then the requirement is satisfied if, subject to any relevant provisions of the Act, and to the exercise of the Tribunal’s express or implied powers, the proceedings are open to the public in the sense that members of the public who wish to be present may attend and observe what is going on. Obviously, in order for a hearing to be in private it is necessary that it not be in public. However, it is not sufficient. A hearing would not be in private if, for example, a Tribunal member decided to invite a group of his or her acquaintances to be present. In such a case the hearing would not be open to the general public, but the applicant’s entitlement to privacy would be disregarded. “Public” and “private” are words that are used in contrast, but they do not cover the entire range of possibilities. Furthermore, the question whether proceedings are taking place in public is not the same as the question whether there are present at the proceeding persons who, vis-à-vis an applicant, are to be regarded as members of the public. The group of onlookers, in the example just given, would, vis-à-vis an applicant, properly be regarded as members of the public, but the hearing would not be open to the public because ordinary members of the public, other than members of the group of onlookers specially invited to be present, would be excluded. … It was accepted on both sides that s 429 was enacted to benefit or protect applicants in at least two respects. It is in the nature of proceedings of the kind in question that an applicant may make allegations that could expose the applicant to a risk of reprisals, either in Australia or abroad, if they were made public. A related consideration is that applicants should feel uninhibited in presenting their case to the Tribunal. Since the requirement of privacy is for the benefit of an applicant, it is not open to the Tribunal member to allow anyone to be present at the hearing so long as it is not open to the general public. On the other hand, persons whose presence is reasonably required for purposes of or in connection with the performance of the Tribunal’s functions are clearly within the contemplation of the statute as persons who may be present at the hearing. Obvious examples may include interpreters, security officers, necessary administrative staff and witnesses, although privacy may require the exclusion of witnesses when they are not giving evidence. Subject to the powers of the Tribunal earlier mentioned, it is consistent with the statutory purpose, and with the common use of language, to treat the concept of privacy as embracing, not only agents of an applicant, but also persons whom an applicant desires to be present and this to be made privy to what occurs at a hearing. The girlfriend referred to earlier in these reasons provides an example. If one of the applicants wanted her to be with him for moral support, and the Tribunal member had no reasonable grounds for objecting to her presence during that applicant’s evidence, then her presence would not 904

Migration Law

[429A.40]

Part 7 - Review of Part 7-reviewable decisions (ss 408-441G) Division 4 – Part 7-reviewable decisions: conduct of review (ss 422B–429A)

s 429A

destroy the privacy of the occasion. It is unnecessary for present purposes to examine the extent of a Tribunal member’s powers to exclude such a person. No such issue arises in the present case. A meeting between A and B does not cease to be private if, by mutual consent, one is accompanied by a friend or supporter. There may be cases where a Tribunal member would feel a need to impose some requirement of confidentiality upon an applicant’s friend or supporter but, again, that issue does not arise in this case.

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. [S 429A insrt Act 113 of 1998, s 3 and Sch 3 item 7, with effect from 1 Mar 1999]

SECTION 429A COMMENTARY Scope ................................................................................................................................................. [429A.20] KEY CASES

Section 425 will not be breached if hearing held by videolink ..................................................... [429A.40]

[429A.20] Scope Section 429 provides the Tribunal with a discretionary power to allow an applicant to appear before it by telephone, closed circuit television, or any other means of communication. The section does not limit an applicant’s right to appear in person under s 425 to merely a right to appear by telephone, video-link, and nothing more: Korovata v Minister for Immigration and Multicultural Affairs [2001] FCA 1446 (Korovata) at [24]–[25] per Emmett J. The power under s 429A is discretionary and permits an applicant to appear by telephone or other means of communication if the applicant wishes to do so: Korovata at [25]; Singh v Minister for Immigration and Citizenship (2012) 266 FLR 85; [2012] FMCA 634 at [22]–[23] per Raphael FM; SZOQA v Minister for Immigration and Citizenship [2011] FMCA 213 at [55] per Barnes FM (upheld on appeal in SZOQA v Minister for Immigration and Citizenship [2001] FCA 907). Where the means of communication is less than perfect, such as the video-link, this of itself will not result in a jurisdictional error if it did not interfere with the applicant’s right to a proper hearing: MZYKV v Minister for Immigration and Citizenship [2012] FMCA 326 at [26] per Riethmuller FM (upheld on appeal in MZYKV v Minister for Immigration and Citizenship [2012] FCA 947).

KEY CASES [429A.40] Section 425 will not be breached if hearing held by videolink In Minister for Immigration and Border Protection v Dhillon [2014] FCAFC 157, Mr Dhillon claimed that s 360 (the equivalent to s 425) had been breached because the Tribunal conducted the hearing by videolink, in circumstances where Mr Dhilon required an interpreter and the interpreter was only available by telephone, Mr Dhillon’s representatives were in a different State and given that the matter was dealing with the issue of fraud, his personal attendance was required in order for the Tribunal to assess his credibility Chief Justice Allsop, Murphy and © 2016 THOMSON REUTERS

905

s 430

[429A.40]

Migration Act 1958

Pagone JJ held that there was no breach of s 360 by the hearing proceeding by videolink, especially since s 366 (the equivalent to s 429A) permitted the Tribunal to take evidence through this mode of communication.

DIVISION 5 – PART 7-REVIEWABLE DECISIONS: TRIBUNAL DECISIONS (SS 430–431) [Div 5 heading subst Act 60 of 2015, s 3 and Sch 2 item 98, with effect from 1 Jul 2015]

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. [Subs (1) am Act 35 of 2015, s 3 and Sch 4 items 28–30, with effect from 18 Apr 2015; Act 30 of 2014, s 3 and Sch 1 items 23–25]

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. [Subs (2) subst Act 30 of 2014, s 3 and Sch 1 item 26; reinsrt Act 85 of 2008, s 3 and Sch 1 item 19; rep Act 113 of 1998, s 3 and Sch 3 item 8, with effect from 1 Mar 1999]

(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. [Subs (2A) insrt Act 30 of 2014, s 3 and Sch 1 item 26]

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. [Subs (3) am Act 30 of 2014, s 3 and Sch 1 items 26 and 27]

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:

906

Migration Law

Part 7 - Review of Part 7-reviewable decisions (ss 408-441G) Division 5 - Part 7-reviewable decisions: Tribunal decisions (ss 430-431)

[430.20]

s 430

(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). [Subs (4) am Act 35 of 2015, s 3 and Sch 4 item 31, with effect from 18 Apr 2015; insrt Act 30 of 2014, s 3 and Sch 1 item 28] [S 430 am Act 60 of 2015, s 3 and Sch 2 item 99, with effect from 1 Jul 2015; Act 35 of 2015; Act 30 of 2014, s 3 and Sch 1 item 23; Act 85 of 2008; Act 113 of 1998, s 3 and Sch 3 item 8, with effect from 1 Mar 1999; former s 166E renum Act 60 of 1994, s 83, with effect from 1 Sep 1994; insrt Act 184 of 1992, s 32, with effect from 1 Jul 1993]

SECTION 430 COMMENTARY Scope ................................................................................................................................................... [430.20] CONCEPTS

Any other material .............................................................................................................................. [430.40] Taken to be made ................................................................................................................................ [430.60] KEY CASES

The Tribunal is only required to set out its decision, its reasons for the decision, the findings on questions of fact it considers to be material, and the evidence on which those findings of fact are based ........................................................................................................................................... [430.80] In some circumstances, the absence of a finding on a question of fact in the Tribunal’s written reasons may lead to an inference that the Tribunal did not consider that question of fact to be material - distinction between questions of fact and matters generally .................................................................... [430.100] No requirement to refer to all the evidence ..................................................................................... [430.120] Findings on evidence and other material under s 430(1)(d) ........................................................... [430.140] No requirement to give line-by-line refutation or explain why certain pieces of evidence are implausible ................................................................................................................................ [430.160] No requirement to record particular findings, in findings and reasons section of a decision ........ [430.180] Functus officio - when the Tribunal’s review function is complete ................................................ [430.200]

[430.20] Scope According to s 430, the Tribunal must prepare a written statement of its decision, which contains the items specified in s 430(1)(a) – (d). The purpose of the Tribunal preparing the written statement is to enable a person affected by the decision to “shape his or her further conduct”, which may include making an application to the courts for judicial review: Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362; 11 ALD 259; 272 ALR 115; [2010] FCAFC 108 at [84] per Rares J. In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; 266 ALR 367; [2010] HCA 16 at [31], Gummow ACJ and Kiefel J explained the relevance of written reasons in the context of s 430 of the Act and their Honours noted (citations omitted): Professor Wade wrote that a system of judicial review which cannot cope with crucial questions of fact necessarily is seriously defective. In Australia that deficiency is alleviated by requirements in various laws … for the obtaining of reasons for the decision. Section 430(1) of the Act is such a provision.

Their Honours went on to observe at [35] that, “[on] the other hand, of provisions such as s 430, it was said in Wu Shan Liang that the reasons are meant to inform and, upon judicial review, are not to be scrutinised in an over-zealous fashion” (citations omitted). Accordingly, a breach of s 430(1) is not of itself proof of any jurisdictional error: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; 74 ALJR 405; [2000] HCA 1 at [70] per McHugh J; Minister for Immigration and Multicultural Affairs v Yusuf (M10 of 2000) (2001) 206 CLR 323; 180 ALR 1; [2001] HCA 30; Minister for © 2016 THOMSON REUTERS

907

s 430

Migration Act 1958

[430.40]

Immigration and Citizenship v SZLSP (2010) 187 FCR 362; 11 ALD 259; 272 ALR 115; [2010] FCAFC 108 at [46]–[47] per Kenny J. Nor will a decision by the Tribunal be invalid if there has not been compliance with this section: Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362; 11 ALD 259; 272 ALR 115; [2010] FCAFC 108 at [85] per Rares J. The Migration Amendment Act (No. 30) 2014 amended s 430(2) of the Act and inserted s 430(2A). According to the Explanatory Memorandum to the Migration Amendment Bill 2013 (Cth) p 1, the purpose of the amendment is to: put beyond doubt that a decision by the Refugee Review Tribunal or the Migration Review Tribunal on an application for review is taken to be made, other than an oral decision, by making of the written statement, and to have been made on the day, and at the time, the written statement is made.

The amendment was as a result of: • the Full Court of the Federal Court’s decision in Minister for Immigration and Citizenship v SZQOY (2012) 206 FCR 25; 294 ALR 84; [2012] FCAFC 131, which held that a decision of the former Refugee Review Tribunal was not final until the decision was notified externally; and • the Full Court of the Federal Court’s decision in Minister for Immigration, Multicultural Affairs and Citizenship v SZRNY (2013) 214 FCR 374; [2013] FCAFC 104, which held that the decision of the former Refugee Review Tribunal was not final until both the review applicant and the Secretary of the Department were notified of the decision: Explanatory Memorandum to the Migration Amendment Bill 2013 (Cth) pp 1 – 2. Although this case focused on the words “finally determined” rather than the issue of when a Tribunal has spent its power, the ratio of the decision is equally applicable with respect to both scenarios. According to the Explanatory Memorandum to the Migration Amendment Bill 2013 (Cth) p 2, the amendment is to clarify and provide certainty that a decision of the Tribunal is: taken to be made on the day and at the time when a record of it is made. That finalisation is not dependent upon when the decision is notified or communicated to the review applicant, the visa applicant or the former visa holder.

CONCEPTS [430.40] Any other material The expression “any other material” in s 430(1)(d) can include both personal knowledge and the knowledge that a Tribunal has acquired through exposure to previous claims based on the same subject matter: Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362; 11 ALD 259; 272 ALR 115; [2010] FCAFC 108 at [42] per Kenny J. [430.60] Taken to be made The Migration Amendment Act (No. 30) 2014 amended s 430(2) of the Act and inserted s 430(2A). As a result of this amendment, a decision is taken to have been made “by the making of the written statement” and “on the day, and at the time, the written statement is made”. There has not been any judicial consideration of this amendment.

KEY CASES [430.80]

The Tribunal is only required to set out its decision, its reasons for the decision, the findings on questions of fact it considers to be material, and the evidence on which those findings of fact are based Under s 430(1)(c), the Tribunal is required to set out its findings on any material questions of fact, although a breach of s 430(1)(c) of itself will not amount to a jurisdictional error: Minister 908

Migration Law

[430.100]

Part 7 - Review of Part 7-reviewable decisions (ss 408-441G) Division 5 - Part 7-reviewable decisions: Tribunal decisions (ss 430-431)

s 430

for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; 180 ALR 1; [2001] HCA 30 (Yusuf) at [75] per McHugh, Gummow and Hayne JJ (with whom Gleeson CJ agreed). This section does not impose an obligation on the Tribunal to make findings on particular questions of fact that are objectively material: at [5], [9]–[10] per Gleeson CJ, at [68] per McHugh, Gummow and Hayne JJ, at [33]–[34] per Gaudron J and at [217] per Callinan J. In Yusuf, Gleeson CJ, Gaudron, McHugh, Gummow, Hayne, Kirby and Callinan J considered s 430(1)(c). Relevantly, their Honours considered whether the former Refugee Review Tribunal was obliged to make findings on material questions of fact and, if so, whether failure to make such findings was a ground for review by the courts or a ground upon which the court may grant relief. McHugh, Gummow and Hayne JJ (with whom Gleeson CJ agreed) held that the section required the “recording of matters of fact” and that s 430(1)(c) required “the Tribunal to set out the findings of fact which it made”: at [67]. In relation to the issue of whether s 430(1)(c) required the Tribunal to make findings on any and every matter of fact objectively material to the decision, McHugh, Gummow and Hayne JJ (with whom Gleeson CJ agreed) stated at [68]–[69] (emphasis in original): Section 430 does not expressly impose such an obligation. In its terms, it requires no more than that the Tribunal set out the findings which it did make. Neither expressly nor impliedly does this section require the Tribunal to make, and then set out, some findings additional to those which it actually made … [I]t is not right to read “material” as providing an objective or external standard of materiality. A requirement to set out findings and reasons focuses upon the subjective thought processes of the decision-maker. All that s 430(1)(c) obliges the Tribunal to do is set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision. It is not necessary to read s 430 as implying an obligation to make findings in order for it to have sensible work to do. Understanding s 430 as obliging the Tribunal to set out what were its findings on the questions of fact it considered material gives the section important work to do in connection with judicial review of decisions of the Tribunal. It ensures that a person who is dissatisfied with the result at which the Tribunal has arrived can identify the Tribunal’s reasons and the findings it made in reaching that conclusion. The provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material. This may reveal some basis for judicial review by the Federal Court under Pt 8 of the Act, or by this Court in proceedings brought under s 75(v) of the Constitution. For example, it may reveal that the Tribunal made some error of law of the kind mentioned in s 476(1)(e) of the Act, such as incorrectly applying the law to the facts found by the Tribunal. It may reveal jurisdictional error. The Tribunal’s identification of what it considered to be the material questions of fact may demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration.

[430.100]

In some circumstances, the absence of a finding on a question of fact in the Tribunal’s written reasons may lead to an inference that the Tribunal did not consider that question of fact to be material distinction between “questions of fact” and “matters generally” In some circumstances, an inference may be drawn that, where a Tribunal’s written reasons do not contain a finding on a question of fact, the Tribunal did not consider that question of fact to be material: see, for example, Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; 180 ALR 1; [2001] HCA 30 (Yusuf) at [69] per McHugh, Gummow and Hayne JJ (with whom Gleeson CJ agreed). However, some precision needs to be taken in drawing inferences that “matters”, as opposed to questions of fact, have not been considered by reason of an absence of a reference to such matters in a Tribunal’s written statement of reasons. In Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; 273 ALR 223; [2011] HCA 1 (SZGUR) at [31]–[32], French CJ and Kiefel J observed, in respect of s 430: © 2016 THOMSON REUTERS

909

s 430

Migration Act 1958

[430.100]

Rares J relied upon a passage from the judgment of McHugh, Gummow and Hayne JJ in Minister for Immigration and Multicultural Affairs v Yusuf in which their Honours said that s 430 “entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material”. That, of course, does not mean that a matter not mentioned in the s 430 statement was not considered. Section 430 presupposes a logical structure to the Tribunal’s reasoning which involves the following steps: 1. Identification of the relevant evidence or material upon which findings of fact can be based. 2. Making findings of fact based on the relevant evidence or material. 3. Reasoning to the decision by application of the relevant legal principles to findings of fact, both primary and inferential. Section 430 therefore does not require that the Tribunal make reference, in its reasons, to the disposition of a request from an applicant for a medical examination or for any other investigation. The Tribunal’s consideration of whether or not to exercise its power under s 427(1)(d) in aid of its discretion under s 424(1), whether requested or not, to “get any information that it considers relevant”, is neither evidence nor material nor a fact upon which the Tribunal could base any findings or its ultimate decision. The nature of the Tribunal’s treatment of the agent’s letter of 20 June 2008 in its reasons was consistent with that view of what s 430 requires and the logical structure it presupposes.

Gummow J similarly remarked at [69]–[70] (citations omitted): The question of whether the inference should have been drawn in the present case can only be addressed in the setting provided by the Migration Act, and in particular by reference to the requirement in para (b) of s 430(1) that the Tribunal provide a written statement which sets out the reasons for the decision. Contrary to the reasoning in the Federal Court, para (b) of s 430(1) does not create any requirement that the Tribunal record generally “what it did” in conducting its review, and does not require the Tribunal, in every case, to describe or state the procedural steps taken by it in reviewing the relevant decision. The obligation under s 430(1) focuses upon the thought processes of the Tribunal in reaching its decision on what it considers to be the material questions of fact. The absence of reference in the Tribunal’s reasons to its consideration of the request for a medical examination of the first respondent is to be contrasted with an absence of reference to findings of fact or to evidence and material upon which such findings are based. Section 430(1) deals with the latter in paras (c) and (d); it does not deal with the former. The statute does not require the Tribunal to disclose procedural decisions taken in the course of making its “decision on a review”. There may be situations where a procedural decision forms part of the Tribunal’s “reasons for the decision” under para (b), but that is not so here. An inference that the Tribunal did or omitted to do some act in the course of its review, not being a matter which s 430(1) requires the Tribunal to set out, should not be drawn lightly. Nothing found in the authorities relied upon by Rares J assists in the present case. The statement by McHugh, Gummow and Hayne JJ in Yusuf, given the surrounding context and the authorities collected in the footnote at its conclusion, demonstrates that the reference there was to “matters of fact” or “findings of fact” and not to matters generally, such as the procedures the Tribunal chose to adopt in fulfilling its duty to review the delegate’s decision.

In Minister for Immigration and Citizenship v MZYZA [2013] FCA 572 at [31]–[32], Tracey J synthesised the above principles as thus: The Tribunal was required, by s 430 of the Act, to provide reasons for its decision … In [Yusuf] … McHugh, Gummow and Hayne JJ held that s 430(1) required the Tribunal to “set out its findings on those questions of fact which it considered to be material to the decision which is made and to the reasons it had for reaching that decision.” (Emphasis in original). Their Honours held that if, in its reasons, the Tribunal fails to refer to particular material, a reviewing Court may infer that that “matter … was not considered by the Tribunal to be material.” That does not mean, as French CJ and Kiefel J pointed out in [SZGUR] … that, simply because a matter is not mentioned in the reasons, it was not considered. The “matters” referred to by McHugh, Gummow and Hayne JJ in Yusuf were “matters of fact” or “findings of fact” made or not made by the Tribunal and not “matters generally”. 910

Migration Law

[430.160]

Part 7 - Review of Part 7-reviewable decisions (ss 408-441G) Division 5 - Part 7-reviewable decisions: Tribunal decisions (ss 430-431)

s 430

[430.120] No requirement to refer to all the evidence In Kocakaya v Minister for Immigration and Citizenship [2013] FCA 55, the appellant reiterated his contention, made at first instance, that s 368 of the Act (the equivalent section to s 430) requires the Tribunal to set out in its written statement all of the evidence that was before the Tribunal. In the appellant’s contention, this required, for instance, the Tribunal to recite verbatim the contents of every piece of evidence that was before the Tribunal. Dodds-Streeton J agreed with the judgment of the Federal Magistrate, and rejected the appellant’s argument. Her Honour held at [31] that the Tribunal was only required to record its findings on material questions of fact. It was not required to provide a line-by-line refutation of the appellant’s claims. [430.140] Findings on evidence and other material under s 430(1)(d) According to s 430(1)(d), the Tribunal is required to refer to the evidence or any other material on which the findings of fact were based, although a breach of s 430(1)(d) of itself will not amount to a jurisdictional error: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; 74 ALJR 405; [2000] HCA 1 at [70] per McHugh J. This section has been given a similar construction as s 430(1)(c). In Minister for Immigration and Multicultural Affairs v Li Yue (2000) 176 ALR 66; [2000] FCA 856, the Full Court of the Federal Court considered s 430(1)(d). Hill, Matthews and Lindgren JJ noted at [44]: With respect, we think that the learned primary judge erred in thinking that s 430(1)(d) required that the evidence or other material on which a finding of fact is based be capable of supporting it. In our view, all that is required by s 430(1)(d) is that the RRT identify the evidence or other material on which it, the RRT, in fact based its findings on any material questions of fact.

[430.160]

No requirement to give line-by-line refutation or explain why certain pieces of evidence are implausible Insofar as s 430(1) requires a Tribunal to record its reasons for the decision, that obligation does not extend to explaining why it considered certain pieces of evidence to be implausible, or to give a line-by-line refutation of the evidence. In Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; 74 ALJR 405; [2000] HCA 1, McHugh J considered s 430(1). The review applicant claimed that the former Refugee Review Tribunal erred by failing to set out findings on material questions of fact, as required by s 430(1)(c). McHugh J stated at [64]–[65]: In Addo, the court said: Section 430(1) does not impose an obligation to do anything more than to refer to the evidence on which the findings of fact are based. Section 430 does not require a decision-maker to give reasons for rejecting evidence inconsistent with the findings made. Accordingly, there was no failure to comply with s 430(1) of the Act. … It is not necessary, in order to comply with section 430(1), for the Tribunal to give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine any finding which it made. In my opinion, this passage correctly sets out the effect of s 430(1)(c) and (d). However, the obligation to set out “the reasons for the decision” (s 430(1)(b)) will often require the Tribunal to state whether it has rejected or failed to accept evidence going to a material issue in the proceedings. Whenever rejection of evidence is one of the reasons for the decision, the Tribunal must set that out as one of its reasons. But that said, it is not necessary for the Tribunal to give a line-by-line refutation of the evidence for the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the Tribunal. Indeed, to do so would be contrary to the direction in s 420 of the Act. © 2016 THOMSON REUTERS

911

s 430A

Migration Act 1958

[430.180]

His Honour went on at [67]: The Tribunal must give reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reasons for the disbelief is apparent in this case from the use of the word “implausible”. The disbelief arose from the Tribunal’s view that it was inherently unlikely that the events had occurred as alleged.

[430.180]

No requirement to record particular findings, in “findings and reasons” section of a decision In MZYZA v Minister for Immigration and Citizenship [2013] FMCA 15, the Federal Magistrates Court considered a decision of the former Refugee Review Tribunal where the Tribunal had referred to, and discussed, a piece of evidence in its written record, albeit not under the heading “findings and reasons”. Although the applicant (who was self-represented at first instance) did not raise it as an issue before the court, Riley FM discerned error in the Tribunal’s decision on the basis that the Tribunal did not refer to the piece of evidence under the heading, “findings and reasons”. Her Honour found at [19]: In the circumstances of this case, and in the absence of any mention of the letter in the “Findings and Reasons” section of the Tribunal’s reasons, I am not persuaded that the Tribunal did consider the letter while actually weighing up the evidence and making its decision.

On appeal, Tracey J in Minister for Immigration and Citizenship v MZYZA [2013] FCA 572 overturned the judgment of Riley FM, stating at [47]: In my view the first respondent, in the present matter, has failed to establish that it would be appropriate to draw the inference that the Tribunal did not consider the letter. On the contrary, the Tribunal’s reasons make it tolerably clear that it did so. The Tribunal referred to the fact that the letter had been sent and received. The Tribunal member must have read it because he questioned the first respondent about its contents. There could be a number of reasons why the member did not thereafter again refer to the letter. One of these may have been that he did not consider it necessary to do so having regard to authorities such as Addo, Iyer and SZDXZ. Whatever the reason, it cannot be inferred that the contents of the letter had not been considered.

[430.200] Functus officio - when the Tribunal’s review function is complete The Migration Amendment Act (No. 30) 2014 (Cth) amended s 430(2) of the Act and inserted s 430(2A). As a result of this amendment, a decision is taken to have been made “by the making of the written statement” and “on the day, and at the time, the written statement is made”. Therefore, this is the point at which the Tribunal is functus officio and not able either to continue reviewing the decision or make any changes to the decision already made. However, if there is a jurisdictional error with the Tribunal’s decision, then it is no decision at all and it will not be functus officio at the time specified in s 430(2): Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; 187 ALR 117; [2002] HCA 11. 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.

912

Migration Law

[430A.40]

Part 7 - Review of Part 7-reviewable decisions (ss 408-441G) Division 5 - Part 7-reviewable decisions: Tribunal decisions (ss 430-431)

s 430A

(3) A failure to comply with this section in relation to a decision on a review does not affect the validity of the decision. [S 430A subst Act 85 of 2008, s 3 and Sch 1 item 20; am Act 58 of 2001; insrt Act 113 of 1998, s 3 and Sch 3 item 9, with effect from 1 Mar 1999]

SECTION 430A COMMENTARY Scope ................................................................................................................................................. [430A.20] KEY CASES

Functus officio - when the Tribunal’s review function is complete ............................................... [430A.40]

[430A.20] Scope The Migration Legislation Amendment Act (No 1) 2008 (Cth) removed the previous requirement in the Act for the Tribunal to “hand down” decisions and inserted in its place a simplified procedure for notifying parties of a decision: Sch 1 cl 20; see also Explanatory Memorandum to the Migration Legislation Amendment Bill (No 1) 2008 (Cth) item 20.

KEY CASES [430A.40] Functus officio - when the Tribunal’s review function is complete In Minister for Immigration, Multicultural Affairs and Citizenship v SZRNY (2013) 214 FCR 374; [2013] FCAFC 104 (SZRNY), the Full Court of the Federal Court held that the decision of the former Refugee Review Tribunal was not final until both the review applicant and the Secretary of the Department were notified of the decision. Although this case focused on the words “finally determined”, rather than the issue of when a Tribunal has spent its power, the ratio of the decision is equally applicable with respect to both scenarios. If the Full Federal Court’s reasoning in SZRNY were to be applied to s 430A, in circumstances where there is an error by the Tribunal in a first notification, it could have the effect of preventing the Tribunal from validly renotifying the review applicant, or of obliging the Tribunal to recall its review decision and remake it at a later date: see Explanatory Memorandum to the Migration Amendment Bill 2013 (Cth) p 3. To cure this unintended consequence, the Migration Amendment Act (No. 30) 2014 (Cth) amended s 430(2) of the Act and inserted s 430(2A) (no amendment was made to s 430A, as this was not necessary). As a result of this amendment, a decision is taken to have been made “by the making of the written statement” and “on the day, and at the time, the written statement is made”. Therefore, this is the point at which the Tribunal is functus officio and is not able to continue reviewing the decision or make any changes to the decision already made. However, if there is a jurisdictional error with the Tribunal’s decision, then it is no decision at all and it will not be functus officio at the time specified in s 368(2): Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; 187 ALR 117; [2002] HCA 11. [Editor’s note: Sections 430B–430C were repealed by Act 85 of 2008, s 3 and Sch 1 item 20, and have not been reproduced.]

© 2016 THOMSON REUTERS

913

s 430D

Migration Act 1958

[430A.40]

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

914

Migration Law

[430D.20]

Part 7 - Review of Part 7-reviewable decisions (ss 408-441G) Division 5 - Part 7-reviewable decisions: Tribunal decisions (ss 430-431)

s 430D

(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. [S 430D am Act 60 of 2015, s 3 and Sch 2 item 142, with effect from 1 Jul 2015; subst Act 35 of 2015, s 3 and Sch 4 item 32, with effect from 18 Apr 2015; Act 30 of 2014, s 3 and Sch 1 item 29; am Act 85 of 2008, s 3 and Sch 1 item 21; insrt Act 113 of 1998, s 3 and Sch 3 item 9, with effect from 1 Mar 1999]

SECTION 430D COMMENTARY Scope ................................................................................................................................................. [430D.20] CONCEPTS

Taken to have been made ................................................................................................................ [430D.40] KEY CASES

Functus officio - when the Tribunal’s review function is complete ............................................... [430D.60] Practice point .................................................................................................................................... [430D.80]

[430D.20] Scope The Migration Amendment (Protection and Other Measures) Act 2015 (Cth) repealed the previous s 430D and inserted this provision, which commenced on 18 April 2015. However, s 430D(1) has not been amended by this Act and was inserted by the Migration Amendment Act (No. 30) 2014 (Cth) repealed and substituted this version of the section. According to the Explanatory Memorandum to the Migration Amendment Bill 2013 (Cth) p 1, the purpose of the amendment is to put: beyond doubt that an oral decision by the former Refugee Review Tribunal or the Migration Review Tribunal is taken to be made and becomes final on the day and at the time it is given. The Refugee Review Tribunal and the former Migration Review Tribunal is taken to be functus offıcio at that relevant time.

The amendment was a result of: • the Full Court of the Federal Court’s decision in Minister for Immigration and Citizenship v SZQOY (2012) 206 FCR 25; 294 ALR 84; [2012] FCAFC 131, which held that a decision of the former Refugee Review Tribunal was not final until the decision was notified externally; and • the Full Court of the Federal Court’s decision in Minister for Immigration, Multicultural Affairs and Citizenship v SZRNY (2013) 214 FCR 374; [2013] FCAFC 104, which held that the decision of the former Refugee Review Tribunal was not final until both the review applicant and the Secretary of the Department were notified of the decision: Explanatory Memorandum to the Migration Amendment Bill 2013 (Cth) pp 1 – 2. Although this case focused on the words “finally determined”, rather than the issue of when a Tribunal has spent its power, the ratio of the decision is equally applicable with respect to both scenarios. © 2016 THOMSON REUTERS

915

s 430D

Migration Act 1958

[430D.40]

The amendments made by the Migration Amendment (Protection and Other Measures) Act 2015 (Cth) now give the tribunal the option to “make an oral statement, which includes the reasons for the decision, instead of a written statement”: Explanatory Memorandum to the Migration Amendment (Protection and Other Measures) Act 2015 (Cth) at [413]. That is, under s 430D(2) the Tribunal has the option to either: • make an oral statement of its decision: s 430D(2)(a); or • make a written statement of its decision: s 430D(2)(b). The written statement is to be provided to the applicant in accordance with s 441A (see further commentary under that section). Where the tribunal makes an oral statement under s 430D(2)(a), then: • an applicant may request, in writing, that a statement of the decision be provided in writing. Section 430D(4) sets out the procedure for making such a request. Under this section the applicant must make the request “within the period prescribed by the regulations”. As of 20 April 2015, no period has been prescribed; • the Minister may request, in writing, that a statement of the decision be provided in writing. Section 430D(5) sets out the procedure for making such a request. There is no prescribed period by which the Minister is to make such a request. Where a request has been made under either s 430D(4) or (5), then the tribunal is to provide the written statement to the applicant in accordance with s 441A (see that section for further commentary) and to the Secretary in accordance with s 441B (see that section for further commentary). According to the Explanatory Memorandum to the Migration Amendment (Protection and Other Measures) Act 2015 (Cth) at [418], the amendment to s 430D: … does not preclude the RRT, at its discretion and where it considers it appropriate, from providing a written statement in other circumstances. The amendment also does not prevent a court ordering such a written statement to be provided. However, the RRT is obliged to provide a written statement to an applicant only where the applicant has made a request in accordance with new subsection 430D(4).

CONCEPTS [430D.40] Taken to have been made Pursuant to s 430D, a decision is taken to have been made on the day and at the time the decision is given orally. There has not been any judicial consideration of this amendment.

KEY CASES [430D.60] Functus officio - when the Tribunal’s review function is complete The Migration Amendment Act (No. 30) 2014 (Cth) repealed s 430(2). As a result, a decision is taken to have been made and notified to the applicant “on the day and at the time the decision is given orally”. Therefore, this is the point at which the Tribunal is functus officio and not able to continue reviewing the decision or to make any changes to the decision already made. However, if there is a jurisdictional error with the Tribunal’s decision, then it is no decision at all and it will not be functus officio at the time specified in s 430(2): Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; 187 ALR 117; [2002] HCA 11. [430D.80] Practice point If an applicant intends to seek judicial review of the tribunal’s decision in the Federal Circuit Court, then he or she should ensure that they request a copy of the written reasons in accordance with s 430D(4). This is because, pursuant to r 44.05(2) of the Federal Circuit Court Rules 2001 916

Migration Law

[430D.80]

Part 7 - Review of Part 7-reviewable decisions (ss 408-441G) Division 6 – Part 7-reviewable decisions: offences (ss 432–433)

s 433

(Cth), an application for an order to show cause made under s 476 of the Act, is to be made in the approved form and supported by an affidavit which includes a copy of the decision in relation to which the remedy is sought. For the purposes of filing an application for judicial review in the courts, time for filing the application will begin from the date the oral decision is given: Raj v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 346; [2000] FCA 74 at [27] per Lehane J. 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. [S 431 subst Act 60 of 2015, s 3 and Sch 2 item 100, with effect from 1 Jul 2015; am Act 144 of 2008; Act 113 of 1998, s 3 and Sch 3 item 10, with effect from 1 Mar 1999; former s 166EA renum Act 60 of 1994, s 83, with effect from 1 Sep 1994; insrt Act 184 of 1992, s 32, with effect from 1 Jul 1993]

DIVISION 6 – PART 7-REVIEWABLE DECISIONS: OFFENCES (SS 432–433) [Div 6 subst Act 60 of 2015, s 3 and Sch 2 item 101, with effect from 1 Jul 2015]

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). [S 432 subst Act 60 of 2015, s 3 and Sch 2 item 101, with effect from 1 Jul 2015; am Act 97 of 2001; Act 113 of 1998; former s 166F renum Act 60 of 1994, s 83, with effect from 1 Sep 1994; insrt Act 184 of 1992, s 32, with effect from 1 Jul 1993]

433 Refusal to be sworn or to answer questions Oath or affırmation (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

© 2016 THOMSON REUTERS

917

s 433

Migration Act 1958

[435.20]

(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). [S 433 subst Act 60 of 2015, s 3 and Sch 2 item 101, with effect from 1 Jul 2015; am Act 97 of 2001; former s 166FA renum Act 60 of 1994, s 83, with effect from 1 Sep 1994; insrt Act 184 of 1992, s 32, with effect from 1 Jul 1993]

434 Contempt of Tribunal [Repealed] [S 434 rep Act 60 of 2015, s 3 and Sch 2 item 101, with effect from 1 Jul 2015; former s 166FB renum Act 60 of 1994, s 83, with effect from 1 Sep 1994; insrt Act 184 of 1992, s 32, with effect from 1 Jul 1993]

DIVISION 7 – PART 7-REVIEWABLE DECISIONS: MISCELLANEOUS (SS 437–440) [Div 7 heading subst Act 60 of 2015, s 3 and Sch 2 item 102, with effect from 1 Jul 2015]

435 Protection of members and persons giving evidence [Repealed] [S 435 rep Act 60 of 2015, s 3 and Sch 2 item 103, with effect from 1 Jul 2015; former s 166G renum Act 60 of 1994, s 83, with effect from 1 Sep 1994; insrt Act 184 of 1992, s 32, with effect from 1 Jul 1993]

SECTION 435 COMMENTARY Scope ................................................................................................................................................... [435.20] CONCEPTS

Immunity ............................................................................................................................................. [435.40]

[435.20] Scope Section 425 was repealed on 1 July 2015 by item 103 of Sch 2 to the Tribunals Amalgamation Act 2015 (Cth). The section is not “required because equivalent protections in relations to reviews by the amalgamated Tribunal” are provided by s 60 of the Administrative Appeals Tribunal Act 1975 (Cth): Revised Explanatory Memorandum to the Tribunals Amalgamation Bill 2014 (Cth) at [913]. Prior to 1 July 2015, this section provided that Tribunal members, in the performance of their duties, had the same immunity as members of the Administrative Appeals Tribunal.

CONCEPTS [435.40] Immunity This section gave Tribunal members, in the performance of their duties, the same immunity as members of the Administrative Appeals Tribunal, which is the same immunity as that of a justice of the High Court: Susaki v Minister for Immigration and Multicultural Affairs [2002] FCA 1229 at [31] per Stone J. The immunity of the Administrative Appeals Tribunal is found in s 60(1) of the Administrative Appeals Tribunal Act 1975 (Cth), which provides that a member of the Administrative Appeals Tribunal has, in the performance of his or her duties, “the same protection and immunity as a justice of the High Court”. In Herijanto v Refugee Review Tribunal (2000) 174 ALR 681; 74 ALJR 1398; [2000] HCA 16 at [380], Gaudron J considered that a justice of the High Court has the same protection and immunity as is conferred by the common law. 918

Migration Law

[436.20]

Part 7 - Review of Part 7-reviewable decisions (ss 408-441G) Division 7 – Part 7-reviewable decisions: miscellaneous (ss 437–440)

s 437

The immunity in s 60(1) of the Administrative Appeals Tribunal Act 1975 (Cth) has been found to extend to being able to refuse to give evidence: SZQFD v Minister for Immigration [2011] FMCA 598 at [22] per Raphael FM; Chiorny v Minister for Immigration and Multicultural Affairs (1997) 73 FCR 237; 154 ALR 191; Muin v Refugee Review Tribunal (S36 of 1999) (2002) 190 ALR 601; 76 ALJR 966; [2002] HCA 30 (Muin). The basis for the immunity was noted by Kirby J in Muin at [197]–[199]: Further, it would be demeaning to the office of the tribunal member and potentially damaging to the independence of the tribunal, if members were effectively obliged to offer testimony in proceedings such as the present for fear that, if they did not, they would be subject to criticism and to inferences adverse to their probity and compliance with the law. I would refrain from expressing any more general principle on this issue than the foregoing. Each case depends upon its own facts and the legislation under which the decision-maker in question operates … … Because there are sound reasons of legal principle to justify the absence of evidence from Tribunal members, it would be erroneous for this court to draw any adverse inference from their omission to proffer such evidence in these cases.

The immunity, which includes immunity from suit and compulsion to give evidence, will prevent any adverse inferences being drawn (including adverse inferences in the Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 sense) due to a member not giving evidence: Muin at [25], [118] and [196]–[199]; Applicant M1014 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1190 (Applicant M1014) at [14]. The rule also extends to a failure by the member to give evidence in relation to any aspect of the decision-making process, such as whether or not the member “read, obtained, considered or taken into account particular documents”: Applicant M1014 at [14]; Herijanto v Refugee Review Tribunal (2000) 174 ALR 681; 74 ALJR 1398; [2000] HCA 16. 436 Fees for persons giving evidence [Repealed] [S 436 rep Act 60 of 2015, s 3 and Sch 2 item 103, with effect from 1 Jul 2015; former s 166GA renum Act 60 of 1994, s 83, with effect from 1 Sep 1994; insrt Act 184 of 1992, s 32, with effect from 1 Jul 1993]

SECTION 436 COMMENTARY [436.20] Scope Section 436 was repealed on 1 July 2015 by item 103 of Sch 2 to the Tribunals Amalgamation Act 2015 (Cth). The section is “not required because such payments in relation to reviews by the amalgamated Tribunal” are provided by s 67 of the Administrative Appeals Tribunal Act 1975 (Cth): Revised Explanatory Memorandum to the Tribunals Amalgamation Bill 2014 (Cth) at [914]. 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

© 2016 THOMSON REUTERS

919

s 437

Migration Act 1958

[437.20]

(b) because it would involve the disclosure of deliberations or decisions of the Cabinet or of a committee of the Cabinet. [Former s 166GB renum Act 60 of 1994, s 83, with effect from 1 Sep 1994; insrt Act 184 of 1992, s 32, with effect from 1 Jul 1993]

SECTION 437 COMMENTARY [437.20] Scope Pursuant to s 437, the Secretary of the Department must give the Tribunal a document, or information, if the Minister has certified in writing that the disclosure of any matter in the document or the information would be contrary to the public interest. This section is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters that the section deals with: see s 422B(2). 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. [S 438 am Act 60 of 2015, s 3 and Sch 2 item 104, with effect from 1 Jul 2015; former s 166GC renum Act 60 of 1994, s 83, with effect from 1 Sep 1994; insrt Act 184 of 1992, s 32, with effect from 1 Jul 1993]

SECTION 438 COMMENTARY Scope ................................................................................................................................................... [438.20]

920

Migration Law

[438.80]

Part 7 - Review of Part 7-reviewable decisions (ss 408-441G) Division 7 – Part 7-reviewable decisions: miscellaneous (ss 437–440)

s 438

KEY CASES

No jurisdictional error if non-compliance by Secretary .................................................................... [438.40] Tribunal may have regard to document or information and disclosure ............................................ [438.60] Practice point ....................................................................................................................................... [438.80]

[438.20] Scope According to s 438, the Tribunal may be given a document or information the disclosure of which the Minister has certified, in writing, would be contrary to the public interest (but not for the reasons in s 437), but which could form the basis for a claim of non-disclosure in a judicial proceeding, or was given in confidence: s 438(1). This section is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters dealt with in the section: see s 422B(2).

KEY CASES [438.40] No jurisdictional error if non-compliance by Secretary Under s 438(2), the Secretary of the Department is required to give the Tribunal the document or information. Any error by the Secretary to comply with s 438(2) will not result in a Tribunal’s decision being tainted with jurisdictional error: WZANC v Minister for Immigration (No 2) (2012) 210 FCR 585; 135 ALD 247; [2012] FCA 1461 at [53] per Gilmour J; WZANC v Minister for Immigration (No 2) (2012) 266 FLR 121; [2012] FMCA 504 at [92] per Lucev FM; SZOIN v Minister for Immigration and Citizenship (2011) 191 FCR 123; 276 ALR 247; [2011] FCAFC 38 at [65]–[66] per Bennett and McKerracher JJ. [438.60] Tribunal may have regard to document or information and disclosure Under s 438(3), the Tribunal may have regard to the document or information provided under this section and/or, if it considers appropriate, may disclose any matter contained in the document or information to an applicant or a person who has given oral or written evidence. If the Secretary of the Department has failed to give the appropriate notice under s 438(2)(a), this does not prevent a Tribunal from still having regard to the document or information: WZANC v Minister for Immigration (No 2) (2012) 210 FCR 585; 135 ALD 247; [2012] FCA 1461 at [58] per Gilmour J. The provision of a notice under s 438(2)(a) is not a jurisdictional fact and not an essential precondition to the Tribunal exercising its powers to conduct a review: at [60] per Gilmour J. The Tribunal has a discretion whether or not to disclose the material; however the Tribunal “should effect a satisfactory compromise between the demands of disclosure and confidentiality by disclosing as much as possible of the substance, but not the detail, of the material”: NAVK v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 135 FCR 567; [2004] FCAFC 160 at [86] per Beaumont, Conti and Crennan JJ; S103 v Minister for Immigration [2005] FMCA 1148 at [34] per Smith J. However, if the Tribunal does disclose any matter under s 438(3), it must make a Direction under s 440, restricting its publication or further disclosure: s 438(4). [438.80] Practice point Where the information or document provided under this section falls under the definition of “non-disclosable information” under s 5(1), then pursuant to s 424(3)(c) it will not need to be put to an applicant for comment pursuant to s 424A.

© 2016 THOMSON REUTERS

921

s 439

Migration Act 1958

[438.80]

439 Disclosure of confidential information [Repealed] [S 439 rep Act 60 of 2015, s 3 and Sch 2 item 105, with effect from 1 Jul 2015; former s 166GD renum Act 60 of 1994, s 83, with effect from 1 Sep 1994; insrt Act 184 of 1992, s 32, with effect from 1 Jul 1993]

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. [S 440 am Act 60 of 2015, s 3 and Sch 2 item 106, with effect from 1 Jul 2015; former s 166GE renum Act 60 of 1994, s 83, with effect from 1 Sep 1994; insrt Act 184 of 1992, s 32, with effect from 1 Jul 1993]

440A

Principal Member’s obligation to report to Minister [Repealed]

[S 440A rep Act 135 of 2014, s 3 and Sch 7 item 15, with effect from 16 Dec 2014; insrt Act 141 of 2005, s 3 and Sch 1 item 4]

441 Sittings of the Refugee Review Tribunal [Repealed] [S 441 rep Act 60 of 2015, s 3 and Sch 2 item 107, with effect from 1 Jul 2015; former s 166GF renum Act 60 of 1994, s 83, with effect from 1 Sep 1994; insrt Act 184 of 1992, s 32, with effect from 1 Jul 1993]

DIVISION 7A – REVIEW OF PART 7-REVIEWABLE DECISIONS: GIVING AND RECEIVING DOCUMENTS (SS 441AA–441G) [Div 7A heading subst Act 60 of 2015, s 3 and Sch 2 item 108, with effect from 1 Jul 2015; Act 85 of 2008, s 3 and Sch 1 item 23] [Div 7A insrt Act 58 of 2001, s 3 and Sch 3 item 19]

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).

922

Migration Law

[441AA.40]

Part 7 - Review of Part 7-reviewable decisions (ss 408-441G) Division 7A - Review of Part 7-reviewable decisions:(ss 441AA-441G)

s 441AA

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. [Subs (1) am Act 112 of 2008, s 3 and Sch 1 item 11]

(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. [Subs (2) am Act 60 of 2015, s 3 and Sch 2 item 134, with effect from 1 Jul 2015; insrt Act 112 of 2008, s 3 and Sch 1 item 12]

(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. [Subs (2A) insrt Act 112 of 2008, s 3 and Sch 1 item 13]

(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. [Subs (3) insrt Act 112 of 2008, s 3 and Sch 1 item 12] [S 441AA am Act 60 of 2015; Act 112 of 2008; Act 85 of 2008, s 3 and Sch 1 items 24 and 25; insrt Act 58 of 2001, s 3 and Sch 3 item 19]

SECTION 441AA COMMENTARY Scope .............................................................................................................................................. [441AA.20] CONCEPTS

Is taken ........................................................................................................................................... [441AA.40]

[441AA.20] Scope While only certain documents are required to be given by one of the methods specified in s 441A or 441B, other documents might be given in these ways and, if they are, the provisions of ss 441C and 441D may be invoked to determine the time when the document is taken to have been received: see, Explanatory Memorandum to the Migration Legislation Amendment (Electronic Transactions and Methods of Notification) Bill 2001 (Cth) at [131].

CONCEPTS [441AA.40] Is taken Section 441AA(3) provides that if a document is given to a minor in accordance with s 441AA(2), the Tribunal “is taken to have given” the document to the minor. Section 5(23) relevantly provides that the words “is taken”, when followed by the infinitive form of a verb, have the same force and effect as the words “is deemed”, when followed by the infinitive form of that verb.

© 2016 THOMSON REUTERS

923

s 441A

Migration Act 1958

[441AA.40]

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. [Subs (1A) am Act 60 of 2015, s 3 and Sch 2 item 134, with effect from 1 Jul 2015; insrt Act 112 of 2008, s 3 and Sch 1 item 14]

(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. [Subs (1B) insrt Act 112 of 2008, s 3 and Sch 1 item 15]

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. [Subs (2) am Act 60 of 2015, s 3 and Sch 2 item 134, with effect from 1 Jul 2015]

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. [Subs (3) am Act 60 of 2015, s 3 and Sch 2 item 134, with effect from 1 Jul 2015]

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

924

Migration Law

Part 7 - Review of Part 7-reviewable decisions (ss 408-441G) Division 7A - Review of Part 7-reviewable decisions:(ss 441AA-441G)

[441AA.40]

(iii)

s 441A

if the recipient is a minor—the last address for a carer of the minor that is known by the member or officer.

[Subs (4) am Act 60 of 2015, s 3 and Sch 2 item 134, with effect from 1 Jul 2015; Act 112 of 2008, s 3 and Sch 1 item 16]

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. [Subs (5) am Act 60 of 2015, s 3 and Sch 2 item 134, with effect from 1 Jul 2015; Act 31 of 2014, s 3 and Sch 4 items 36 and 37, with effect from 24 Jun 2014; Act 112 of 2008, s 3 and Sch 1 item 17]

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. [Subs (6) insrt Act 112 of 2008, s 3 and Sch 1 item 18] [S 441A am Act 60 of 2015; Act 31 of 2014; Act 112 of 2008; subst Act 58 of 2001, s 3 and Sch 3 items 18 and 19; insrt Act 113 of 1998, s 3 and Sch 3 item 12, with effect from 1 Mar 1999 (am Act 58 of 2001)]

SECTION 441A COMMENTARY Scope ................................................................................................................................................. [441A.20] CONCEPTS

Dispatching ....................................................................................................................................... [441A.40] Address ............................................................................................................................................. [441A.60] Address provided to the Tribunal in connection with the review .................................................. [441A.80] Last address (including last residential or business address) ....................................................... [441A.100] Prepaid post includes ordinary post ............................................................................................... [441A.120] Transmitting the document ............................................................................................................ [441A.140] Giving or give ................................................................................................................................ [441A.160] Is taken ........................................................................................................................................... [441A.180] KEY CASES

Last residential address .................................................................................................................. [441A.200] Incorrect address provided by applicant ........................................................................................ [441A.220] Transmitting the document by email ............................................................................................. [441A.240] No suburb provided in the address for correspondence ............................................................... [441A.260] Postcode is not an essential part of the address ........................................................................... [441A.280] Failure to include the word street in the address contained on the document ............................ [441A.300] No error in providing return to sender instructions ...................................................................... [441A.320] PRACTICE POINT

Tribunal must give authorised recipient the document ................................................................. [441A.340] © 2016 THOMSON REUTERS

925

s 441A

Migration Act 1958

[441A.20]

[441A.20] Scope Section 441A specifies alternative methods that control the ways in which the Tribunal is authorised to give documents to a person (other than the Secretary of the Department). One of these methods must be used whenever a provision of the Act or the Regulations requires the document to be given in conformity with this section: see Explanatory Memorandum to the Migration Legislation Amendment (Electronic Transactions and Methods of Notification) Bill 2001 (Cth) at [132]. However, the Tribunal is free to determine which method to use in any given case: Minister for Immigration and Border Protection v Kim (2014) 220 FCR 494; [2014] FCA 390; Haque v Minister for Immigration and Citizenship (2010) 115 CLR 371; 185 FCR 86; [2010] FCA 461 at [13] and [62] per Jacobson J. Relevantly, this provision mirrors ss 379A and 494B, which deal with the methods by which the Tribunal, under Part 5, and the Minister give documents: see Explanatory Memorandum to the Migration Legislation Amendment (Electronic Transactions and Methods of Notification) Bill 2001 (Cth) at [155].

CONCEPTS [441A.40] Dispatching Under s 441A(4), one of the methods by which the Tribunal can give a person a document is by dating the document and “dispatching” it by prepaid post or other prepaid means. To “dispatch” a document means to send the document: SZOBI v Minister for Immigration and Citizenship (No 2) (2010) 119 ALD 233; [2010] FCAFC 151 at [29] per Bromberg J (Stone and Jagot JJ agreeing) (special leave was refused in SZOBI v Minister for Immigration and Citizenship [2011] HCATrans 347). Accordingly, s 441A(4) concerns the sending of a document, and not the receiving of a document: at [18] per Stone and Jagot JJ (Bromberg J agreeing). [441A.60] Address The term “address” in relation to a person’s residential or business address in s 441A(3) and (4) is “properly identified by the street name and number, where relevant, and suburb. The postcode is not an essential part of the identification”: SZLBR v Minister for Immigration and Citizenship (2008) 216 FLR 141; [2008] FMCA 154 at [40] per Emmett FM. Further, the address for dispatch is the address on the envelope. Therefore s 441A(4) will be satisfied if the document is posted to the address provided by the applicant (or their authorised recipient), regardless of the address contained on the document inside the envelope: Minister for Immigration and Citizenship v SZKPQ (2008) 166 FCR 84; 101 ALD 5; [2008] FCAFC 21 at [22] per Branson, Emmett and Bennett JJ. Section 441A(4) does not specifically require that the name of the applicant be included on the envelope. However, Moore, Rares and Flick JJ stated in Minister for Immigration and Citizenship v SZMTR (2009) 180 FCR 586; [2009] FCAFC 186 at [36] (in relation to s 494B(4), which is in similar terms to s 441A(4)) that “common sense suggests that the name of that recipient be included on the envelope” or, at least, that an addressee is identified on the envelope. [441A.80] Address provided to the Tribunal in connection with the review The address at which the Tribunal is to give documents is the address that a person provided to the Tribunal “in connection with the review”. According to Jagot J in Maroun v Minister for Immigration and Citizenship (2009) 112 ALD 424; [2009] FCA 1284, the words “in connection with the review” are more general than the words “for the purposes of receiving documents”, which appear in s 494B: at [32]. 926

Migration Law

[441A.220]

Part 7 - Review of Part 7-reviewable decisions (ss 408-441G) Division 7A - Review of Part 7-reviewable decisions:(ss 441AA-441G)

s 441A

[441A.100] “Last” address (including last residential or business address) The ordinary meaning of the word “last” does not mean “single” or “only”. Rather, it means the “most recent at the time in question”: Maroun v Minister for Immigration and Citizenship (2009) 112 ALD 424; [2009] FCA 1284 at [36]. [441A.120] Prepaid post includes ordinary post Prepaid post includes ordinary post, “in respect of which the applicable charge has been paid by way of a fixing of a stamp or other proper means”: Minister for Immigration and Citizenship v SZKPQ (2008) 166 FCR 84; 101 ALD 5; [2008] FCAFC 21 at [13] per Emmett J (Branson and Bennett JJ agreeing). [441A.140] Transmitting the document According to s 441A(5), the words “transmitting the document”, in relation to the giving of a document by fax, email or other electronic means, relate to the “sending” of the document and do not imply that actual communication must have occurred: Sainju v Minister for Immigration and Citizenship (2010) 185 FCR 86; 115 ALD 371; [2010] FCA 461 at [41], [57] and [71]. [441A.160] Giving or give The words “give” or “giving” in relation to a document are frequently used in s 441A. In VEAN v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 280 at [31], Weinberg J noted that the word “give” is a word of “wide amplitude” and does not equate with “physically handing over an object”. Further, his Honour noted at [32], in relation to the meaning of the word “give”: “The Concise Oxford Dictionary defines ‘give’, inter alia, as ‘making another the recipient of something in the subject’s possession’. To cause something to be put in the possession of another, relevantly, to give the object to that other.” [441A.180] Is taken Section 441A(6) provides that, if a document is given to a minor in accordance with s 441A(2), the Tribunal “is taken to have given” the document to the minor. Section 5(23) relevantly provides that the words “is taken”, when followed by the infinitive form of a verb, have the same force and effect as the words “is deemed” when followed by the infinitive form of that verb.

KEY CASES [441A.200] Last residential address In Minister for Immigration and Border Protection v Kim (2014) 220 FCR 494; [2014] FCA 390, Ms Kim provided both her Australian and South Korean residential addresses on her student visa application form. Buchanan J held that the last residential address provided for receiving documents was Ms Kim’s Australian address, as Ms Kim was in Australia at the time she made her application: at [18]. [441A.220] Incorrect address provided by applicant In Cheng v Minister for Immigration and Citizenship (2011) 198 FCR 559; [2011] FCA 1290, the applicant provided the incorrect address in his visa application. The delegate of the Minister sent the letter refusing the visa to the incorrect address provided in the visa application. The result was that the applicant filed his application for review to the Migration Review Tribunal (as it was then known) outside the time limit specified in s 347. The Migration Review Tribunal (as it was then known) therefore found that it did not have jurisdiction to consider his application. Flick J held that there was no error in the Migration Review Tribunal’s (as it was then known) finding because the notification letter was correctly sent, under s 494B, to the last © 2016 THOMSON REUTERS

927

s 441A

Migration Act 1958

[441A.240]

address provided to the Minister. It did not matter that the address provided to the Minister was actually the wrong address, as this was the address provided by the applicant: at [46]–[47]. Although this case concerned s 494B, the Federal Court’s comments are likely to be applicable to s 441A. [441A.240] Transmitting the document by email In Sainju v Minister for Immigration and Citizenship (2010) 185 FCR 86; 115 ALD 371; [2010] FCA 461, Jacobson J considered the words “transmitting the document by … email” in reg 2.55(3)(d). The words in this regulation are identical to those contained in ss 494B(5) and 441A(5). The applicant in this matter provided an email address in her application form for revocation of the cancellation of her student visa. A delegate of the Minister sent the applicant the decision not to revoke the cancellation to the email address the applicant had provided in the application form. The applicant claimed that she did not receive this email and therefore was out of time to file an application for review in the Tribunal. Jacobson J held that the word “transmitting” means “sending”, and a person is taken to have received the document at the end of the day on which it was sent: at [57]. His Honour stated that “the relevant question is when the email was sent, not when it came to the attention of the addressee”: at [77]. [441A.260] No suburb provided in the address for correspondence In SZRVF v Minister for Immigration and Citizenship [2013] FCCA 764, the applicant applied for a protection visa and provided the Department with the following address for correspondence: “PO Box NSW 1835.” No suburb was provided. A delegate of the Minister notified the applicant, under s 66, that her application for a protection visa had been refused. Pursuant to s 494B(4), the notification letter was sent to the address provided by the applicant, but included the suburb “Auburn” (which the applicant had not specified in the address for correspondence). As a result, the applicant failed to make an application for review to the former Refugee Review Tribunal within the time period specified in s 412 and therefore the former Refugee Review Tribunal found that it did not have jurisdiction. The applicant claimed that the Minister failed to comply with s 494B(4) because the notification letter was not sent to the address that she had provided since it contained the suburb “Auburn”. Burn J held that the inclusion of the suburb name on the notification letter did not render the address incorrect, and therefore there had been compliance with s 494B(4): at [31]. Although this case concerned s 494B of the Act, the Federal Circuit Court’s comments are likely to be applicable to s 441A. [441A.280] Postcode is not an essential part of the address There is authority to the effect that a postcode is not an essential part of an address and, therefore, failure to include a postcode or failure to correctly record a postcode on a notification letter will not result in non-compliance with the notification provisions under the Act. For example, in SZKGF v Minister for Immigration and Citizenship [2008] FCAFC 84, pursuant to s 424A, the former Refugee Review Tribunal sent a letter to the applicant inviting the applicant to comment on certain information. The invitation letter was purportedly sent pursuant to s 441A(4) by prepaid post to the last address for correspondence provided to the former Refugee Review Tribunal. However, the invitation letter contained the incorrect postcode. Stone, Jacobson and Edmonds JJ held, at [11], that the postcode was not a part of the address and therefore did not result in non-compliance with the notification provisions. In reaching this conclusion, Stone, Jacobson and Edmonds JJ relied upon the decision in SZLBR v Minister for Immigration and Citizenship (2008) 216 FLR 141; [2008] FMCA 154. In that case, the applicant had provided the former Refugee Review Tribunal with the following address for correspondence in his review application: “288/226 Elizabeth Street Surry Hills NSW 2010”. 928

Migration Law

[441A.320]

Part 7 - Review of Part 7-reviewable decisions (ss 408-441G) Division 7A - Review of Part 7-reviewable decisions:(ss 441AA-441G)

s 441A

The former Refugee Review Tribunal sent a letter, pursuant to s 425 of the Act, inviting the applicant to a hearing. Pursuant to s 441A(4), the invitation letter was purportedly sent by prepaid post to the last address for correspondence provided to the former Refugee Review Tribunal (this provision is in similar terms to s 379A(4)). However, the invitation letter contained the incorrect postcode. Emmett FM held at [38]–[41]: The compliance with s 441A of the Act requires dispatch, relevantly, by prepaid post to the last address for service. In considering the meaning of address, I have regard to the definition of “address” in the New Shorter Oxford Dictionary as, inter alia, “the name of the place to which anyone’s letters etc are directed; ones place of residence”. The use of the word “place” in that definition, to my mind, signifies a physical location. The Macquarie Dictionary defines “place” as, inter alia, “an open space, or square, in a city or town; an area, especially one regarded as an entity and identifiable by name, used or habitation, as a city, town, or village”. In light of those definitions, the address of “one’s place of residence” is properly identified by the street name and number, where relevant, and suburb. The postcode is not an essential part of the identification of that physical location. In the matter before the Court, the letter was sent by prepaid post to “288/226 Elizabeth Street Surry Hills”, being the physical location of the place of residence provided by the applicant and identified by the street name and number and suburb. Accordingly, I am satisfied that, in the circumstances, the Tribunal has complied with the requirements of the statutory regime as imposed by ss 425, 425A and 441A of the Act.

[441A.300] Failure to include the word “street” in the address contained on the document In SZOQY v Minister for Immigration and Citizenship [2011] FMCA 120, in his application for review the applicant provided the former Refugee Review Tribunal with the following address for correspondence: “28 The Boulevard Street, Lidcombe.” Pursuant to s 425, the former Refugee Review Tribunal sent a letter inviting the applicant to a hearing. Pursuant to s 441A(4), the invitation letter was sent by prepaid post to the address “28 The Boulevard, Lidcombe”, the last address for correspondence provided to the former Refugee Review Tribunal. However, the invitation letter failed to contain the word “street” in the address. The letter was returned “unclaimed” and the applicant failed to appear at the hearing. The Minister tendered evidence that the address “28 The Boulevard Street, Lidcombe” did not exist and that the address “28 The Boulevard, Lidcombe” was the applicant’s actual address. The Minister also tendered evidence that an officer from Australia Post had actually attended the correct address; however, since there was no-one at the address at that time, the officer left a card advising that an item of mail was available for collection from Lidcome Post Office. The item was not collected and subsequently was returned to the former Refugee Review Tribunal. Cameron FM held that there was no jurisdictional error and that the former Refugee Review Tribunal had complied with s 441A(4) because it had sent the invitation to the applicant’s actual (and correct) address: at [23]. His Honour further stated at [23]: In this connection, it must be recalled that the address notified by the applicant was incorrect because it contained the redundant word – “Street”. I accept the Minister’s submission that his error has no greater significance than if the applicant had misspelt “Boulevard”. As the address “28 Boulevard Street, Lidcombe” did not exist but “28 The Boulevard, Lidcombe” did and was the applicant’s actual address, it would be absurd to conclude that making a minor alteration to the advised address when addressing the hearing invitation, which had the effect that the address was correctly cited, led to the outcome that the Tribunal had not complied with s 441A(4).

[441A.320] No error in providing return to sender instructions The inclusion on the envelope of words such as “if not delivered within 7 days, return to GPO Box #### Sydney NSW 2001” will not mean that the Tribunal has failed to dispatch a document © 2016 THOMSON REUTERS

929

s 441B

Migration Act 1958

[441A.340]

within the meaning of s 441A(4) or caused any miscarriage in the method for the giving of documents under this section: SZOBI v Minister for Immigration and Citizenship (No 2) (2010) 119 ALD 233; [2010] FCAFC 151 at [22] per Stone and Jagot JJ (special leave was refused in SZOBI v Minister for Immigration and Citizenship [2011] HCATrans 347).

PRACTICE POINT [441A.340] Tribunal must give authorised recipient the document Pursuant to s 441G(1), if a person gives the Tribunal written notice of an authorised recipient, for the purposes of s 441A the Tribunal must give the authorised recipient 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. [Subs (2) am Act 60 of 2015, s 3 and Sch 2 item 134, with effect from 1 Jul 2015]

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. [Subs (3) am Act 60 of 2015, s 3 and Sch 2 item 134, with effect from 1 Jul 2015]

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. [Subs (4) am Act 60 of 2015, s 3 and Sch 2 item 134, with effect from 1 Jul 2015; Act 31 of 2014, s 3 and Sch 4 items 38 and 39, with effect from 24 Jun 2014] [S 441B am Act 60 of 2015; Act 31 of 2014; insrt Act 58 of 2001, s 3 and Sch 3 item 19]

SECTION 441B COMMENTARY Scope ................................................................................................................................................. [441B.20] CONCEPTS

Dispatching ....................................................................................................................................... [441B.40] Transmitting the document ............................................................................................................... [441B.60] 930

Migration Law

[441B.80]

Part 7 - Review of Part 7-reviewable decisions (ss 408-441G) Division 7A - Review of Part 7-reviewable decisions:(ss 441AA-441G)

s 441C

Giving or give ................................................................................................................................... [441B.80]

[441B.20] Scope Section 441B specifies alternative methods by which the Tribunal is authorised to give documents to the Secretary of the Department. One of these methods must be used where a provision in the Act or the Regulations requires the document to be given in conformity with this section. However, the Tribunal is free to determine which method to use. The methods are the same as those contained in s 379A, except that there is no need for a separate provision dealing with giving documents to a person at the Secretary’s notified address: see Explanatory Memorandum to the Migration Legislation Amendment (Electronic Transactions and Methods of Notification) Bill 2001 (Cth) at [136].

CONCEPTS [441B.40] Dispatching According to s 441B(3), one of the methods by which the Tribunal can give the Secretary of the Department a document is by dating the document and “dispatching” it by post or other means. To “dispatch” a document means to send the document: SZOBI v Minister for Immigration and Citizenship (No 2) (2010) 119 ALD 233; [2010] FCAFC 151 at [29] per Bromberg J (Stone and Jagot JJ agreeing) (special leave was refused in SZOBI v Minister for Immigration and Citizenship [2011] HCATrans 347). Accordingly, s 441B(3) concerns the sending of a document, not the receiving of a document: at [18] per Stone and Jagot JJ (Bromberg J agreeing). [441B.60] Transmitting the document Section 441A(4) provides that the words “transmitting the document” in relation to the giving of a document by fax, email or other electronic means, relate to the “sending” of the document and do not imply that actual communication must have occurred: Sainju v Minister for Immigration and Citizenship (2010) 185 FCR 86; 115 ALD 371; [2010] FCA 461 at [41], [57] and [71]. [441B.80] Giving or give The words “give” or “giving” in relation to a document are frequently used in s 441A. In VEAN v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 280 at [31], Weinberg J noted that the word “give” is a word of “wide amplitude” and does not equate with “physically handing over an object”. Further, his Honour noted at [32], in relation to the meaning of the word “give”: “The Concise Oxford Dictionary defines ‘give’, inter alia, as ‘making another the recipient of something in the subject’s possession’. To cause something to be put in the possession of another, relevantly, to give the object to that other.” 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.

© 2016 THOMSON REUTERS

931

s 441C

Migration Act 1958

[441B.80]

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. [Subs (5) am Act 31 of 2014, s 3 and Sch 4 items 40 and 41, with effect from 24 Jun 2014]

(6) [Repealed] [Subs (6) rep Act 106 of 2014, s 3 and Sch 6 item 4, with effect from 25 Sep 2014]

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. [Subs (7) insrt Act 112 of 2008, s 3 and Sch 1 item 19] [S 441C am Act 106 of 2014; Act 31 of 2014; Act 112 of 2008; insrt Act 58 of 2001, s 3 and Sch 3 item 19]

SECTION 441C COMMENTARY Scope ................................................................................................................................................. [441C.20] CONCEPTS

Taken to have received the document ............................................................................................. [441C.40] KEY CASES

Section 441C does not create a rebuttable presumption ................................................................. [441C.60] Time periods and natural justice ...................................................................................................... [441C.80] PRACTICE POINT

Applicant deemed to have received the document ....................................................................... [441C.100]

932

Migration Law

[441C.60]

Part 7 - Review of Part 7-reviewable decisions (ss 408-441G) Division 7A - Review of Part 7-reviewable decisions:(ss 441AA-441G)

s 441C

[441C.20] Scope Where any of the subsections of s 441C have effect, a person will be deemed to have received a document regardless of what events transpired in actual fact. Accordingly, s 441C is a “statutory deeming provision” that “does not create a rebuttable presumption that notification has occurred”: Minister for Immigration and Citizenship v Manaf (2009) 111 ALD 437; [2009] FCA 963 at [21] per Sundberg J (in relation to s 494C, which is in similar terms). Rather, the section “provides that in certain circumstances, a person is taken to have received a document”: Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172 at [13] per Spender, Kiefel and Dowsett JJ (in relation to s 494C, which is in similar terms). Accordingly, a court on review cannot inquire into whether or not in fact a document has, or has not, been received. “The Act conclusively provides for this effect”: Kim v Minister for Immigration and Multicultural Affairs (2014) 220 FCR 494; [2006] FCAFC 64 at [8]. Relevantly, this provision mirrors ss 379AA and 494B, which deal with the circumstances in which a person is taken to have received a document from the Tribunal under Part 5, and the Minister.

CONCEPTS [441C.40] Taken to have received the document Section 5(23) of the Act clarifies the meaning of the phrase “is taken” by providing: “To avoid doubt, in this Act ‘is taken’, when followed by the infinitive form if a verb, has the same force and effect as ‘is deemed’ when followed by the infinitive form of that verb.” The expression “taken to have received the document” appears in s 441C(2), (3), (4), (5) and (7). In considering the meaning of this phrase, Spender J observed in Murphy v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 135 FCR 550; [2004] FCA 657 at [69], in relation to s 494C(4): The person is “taken to have received the document”, in the circumstances of this case, seven working days after the date of the document. In my view this provision manifests an intention that a person is taken to have received the document seven working days after the date of the document, without qualification. There is nothing to indicate that the effect of the subsection is to be read as if there was a proviso that a person was not taken to have received the document where the documents had been returned undelivered to the sender within seven working days after the date of the document, or that the subsection operates in its terms only “until the contrary is proved”.

By sending a document by one of the methods in s 441A, a person is “taken to have received the document” at the time specified in s 441C, regardless of whether the document was actually received: SZNZL v Minister for Immigration and Citizenship (2010) 186 FCR 271; [2010] FCA 621 at [36] per Barker J (in relation to s 494C, which is in similar terms).

KEY CASES [441C.60] Section 441C does not create a rebuttable presumption The deeming provisions in s 441C are mandatory and it is not possible for an applicant to tender evidence to rebut the time when the applicant is deemed to have received the document (other than in s 441C(7) in relation to circumstances where the document has not been given in accordance with s 441A). In Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172 (Xie), the Full Federal Court of Australia considered whether s 494C(4) (which is in similar terms to s 441C(4)), which applies to documents dispatched by prepaid post or other prepaid means, created an irrebuttable presumption as to the time of receipt of the documents or whether evidence could be brought to establish the actual time of receipt. © 2016 THOMSON REUTERS

933

s 441C

Migration Act 1958

[441C.80]

The applicant in that matter applied for a student visa and provided the Department with a postal address for receiving documents. The delegate of the Minister refused to grant the visa and, according to the terms of s 494B(4), notified the applicant by letter sent by registered post to the address provided by the applicant. The applicant did not collect the letter from Australia Post and therefore was out of time to file an application for review with the Migration Review Tribunal (as it was then known). The applicant claimed that since he did not receive the notification letter within the 21-day period provided for under s 494C(4), the deeming provisions in that section did not apply. Spender, Kiefel and Dowsett JJ held at [13] that: Subsection 494C(4) does not purport to create a rebuttable presumption of fact. It provides that in certain circumstances, a person is to be “taken to have received the document …”. Nothing in the section suggests that this is merely a rebuttable presumption.

Their Honours quoted with approval Spender J’s comment in Murphy v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 135 FCR 550; [2004] FCA 657 at [69], in relation to s 494C(4), that: In my view this provision manifests an intention that a person is taken to have received the document seven working days after the date of the document, without qualification. There is nothing to indicate … that the subsection operates in its terms only “until the contrary is proved”.

In Tay v Minister for Immigration and Citizenship (2010) 183 FCR 163; [2010] FCAFC 23, the Full Federal Court of Australia considered whether s 494C(5) (which is in similar terms to s 441C(5)), which applies to documents transmitted by fax, email or other electronic means, created a rebuttable presumption of fact and whether the applicant could lead evidence to show that she did not receive the document on the day it was deemed to be received in accordance with s 494C(5). Dowsett, Stone and Bennett JJ, accepting the reasoning in Xie, held that s 494C(4) and (5) were identical and therefore the reasoning in Xie was equally applicable to s 494C(5): at [19]. Dowsett, Stone and Bennett JJ further stated at [24]–[25]: Section 494C makes very detailed provision for determining when a document is taken (deemed) to have been received from the Minister. Those provisions must be construed in a statutory context of similarly detailed provisions concerning the methods by which the Minister may give documents to a person when this is a requirement (s 494B) and when it is not required (s 494A) and the identification of the authorised recipient of documents (s 494D). These provisions all evidence concern that there should be certainty in the transfer of documents from the Minister both as to the method and as to the time of delivery. This was recognised by the Full Court in Xie leading it to conclude that s 494C(4) did not create a rebuttable presumption … That s 494C(5) does not create a rebuttable presumption of fact is supported not only by our construction of the relevant statutory and regulatory provisions, but also by extrinsic material relevant to the introduction of these provisions. Sections 494A, 494B, 494C and 494D were introduced into the Migration Act by the Migration Legislation Amendment (Electronic Transactions and Methods of Notification) Act 2001 (Cth). On 5 April 2001, in his second reading speech concerning the bill that preceded this Act, the Minister for Immigration and Multicultural Affairs said: These amendments essentially consolidate into the Migration Act existing provisions found in either the Migration Act or the migration regulations. They clarify when notification of a decision occurs and on what date. This is critical for review mechanisms, as an application for review must be made within a specified period, or the case is out of time.

[441C.80] Time periods and natural justice The periods of time prescribed in s 441C(2) – (5) for when a document is deemed to have been received are not capable of being extended. In Cheng v Minister for Immigration and Citizenship (2011) 198 FCR 559; [2011] FCA 1290, the applicant wrote the incorrect address in his visa application. The delegate of the Minister 934

Migration Law

[441C.100]

Part 7 - Review of Part 7-reviewable decisions (ss 408-441G) Division 7A - Review of Part 7-reviewable decisions:(ss 441AA-441G)

s 441D

sent the letter refusing the visa to the incorrect address provided in the visa application. As a result, the applicant filed his application for review to the Migration Review Tribunal (as it was then known) outside the time limit specified in s 347. The Migration Review Tribunal (as it was then known) therefore found that it did not have jurisdiction to consider his application. Flick J held that there was no error in the Migration Review Tribunal’s (as it was then known) finding because the notification letter was correctly sent under s 494B (which is in similar terms to s 441A) to the last address provided to the Minister. It did not matter that the address provided to the Minister was actually the wrong address as this was the address provided by the applicant: at [46]–[47]. In addition, the applicant claimed that he was denied natural justice because he was not given an opportunity to be heard in relation to the incorrect address and the application of s 494C (which is in similar terms to s 441C). Flick J was of the view that this argument was without substance: at [23]. However, even if the applicant was entitled to be heard on these issues, there is nothing meaningful that the applicant could have said: at [27]. His Honour stated at [29]: Given the absence of any power to extend the time within which an application for review may be made, and an apparent acceptance of the underlying factual basis upon which the Tribunal declined jurisdiction, the utility of extending any opportunity to be heard in respect to the return of the letter and the circumstances in which the erroneous address was provided remains elusive. It may well have been a “a hollow opportunity”: SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940 at [39] per Bennett J. “Whether one talks in terms of procedural fairness or natural justice”, it will be recalled that “the concern of the law is to avoid practical injustice”: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6 at [37], 214 CLR 1 at 14 per Gleeson J. See also: Button v [The Queen] [2010] NSWCCA 264 at [15] per Latham J (Simpson and Kirby JJ agreeing); Medan v [The Queen] [2011] WASCA 142 at [59] per Buss JA (Pullin JA and Hall J agreeing); Re Roth; Ex parte Cazaly Iron Pty Ltd [2011] WASC 226 at [30] per Beech J. In SZNZL [2010] FCA 621 at [46], 186 FCR 271 at 279 a question was similarly raised as to whether “issues of procedural fairness arise in connection with the Tribunal’s consideration of whether it has jurisdiction”.

PRACTICE POINT [441C.100] Applicant deemed to have received the document If an applicant has notified the Tribunal of an authorised recipient under s 441G, the Tribunal must send the document to the authorised recipient. In those circumstances, the applicant is deemed to have received the document in the time specified in s 441C. 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:

© 2016 THOMSON REUTERS

935

s 441D

Migration Act 1958

[441D.20]

(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. [Subs (4) am Act 31 of 2014, s 3 and Sch 4 items 42 and 43, with effect from 24 Jun 2014]

(5) [Repealed] [Subs (5) rep Act 106 of 2014, s 3 and Sch 6 item 4, with effect from 25 Sep 2014] [S 441D am Act 106 of 2014; Act 31 of 2014; insrt Act 58 of 2001, s 3 and Sch 3 item 19]

SECTION 441D COMMENTARY Scope ................................................................................................................................................. [441D.20] CONCEPTS

Taken to have received the document ............................................................................................. [441D.40] KEY CASES

Section 441D does not create a rebuttable presumption ................................................................ [441D.60]

[441D.20] Scope Where any of the subsections of s 441D have effect, the Secretary of the Department will be deemed to have received a document regardless of what events actually transpired. Accordingly, s 441D is a “statutory deeming provision” that “does not create a rebuttable presumption that notification has occurred”: Minister for Immigration and Citizenship v Manaf (2009) 111 ALD 437; [2009] FCA 963 at [21] per Sundberg J (in relation to s 494C, which is in similar terms). The section “provides that in certain circumstances, a person is taken to have received a document”: Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172 at [13] per Spender, Kiefel and Dowsett JJ (in relation to s 494C, which is in similar terms). Consequently, a court on review cannot inquire into whether or not in fact a document has, or has not, been received. “The Act conclusively provides for this effect”: Kim v Minister for Immigration and Multicultural Affairs (2014) 220 FCR 494; [2006] FCAFC 64 at [8].

CONCEPTS [441D.40] Taken to have received the document Section 5(23) of the Act clarifies the meaning of the phrase “is taken” by providing: “To avoid doubt, in this Act ‘is taken’, when followed by the infinitive form if a verb, has the same force and effect as ‘is deemed’ when followed by the infinitive form of that verb.” The expression “taken to have received the document” appears in s 441C(2), (3), (4), (5) and (7). In considering the meaning of this phrase, Spender J observed in Murphy v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 135 FCR 550; [2004] FCA 657 at [69], in relation to s 494C(4): The person is “taken to have received the document”, in the circumstances of this case, seven working days after the date of the document. In my view this provision manifests an intention that a person is 936

Migration Law

[441D.60]

Part 7 - Review of Part 7-reviewable decisions (ss 408-441G) Division 7A - Review of Part 7-reviewable decisions:(ss 441AA-441G)

s 441D

taken to have received the document seven working days after the date of the document, without qualification. There is nothing to indicate that the effect of the subsection is to be read as if there was a proviso that a person was not taken to have received the document where the documents had been returned undelivered to the sender within seven working days after the date of the document, or that the subsection operates in its terms only “until the contrary is proved”.

By sending a document by one of the methods in s 441AA, the Secretary of the Department is “taken to have received the document” at the time specified in s 441D regardless of whether the document was actually received: SZNZL v Minister for Immigration and Citizenship (2010) 186 FCR 271; [2010] FCA 621 at [36] per Barker J (in relation to s 494C, which is in similar terms).

KEY CASES [441D.60] Section 441D does not create a rebuttable presumption The deeming provisions in s 441D are mandatory and it is not possible for a person to tender evidence to rebut the time when the Secretary is deemed to have received the document. In Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172 (Xie), the Full Federal Court of Australia considered whether s 494C(4) (which is in similar terms to s 441D(3), which applies to documents dispatched by prepaid post or other prepaid means) created an irrebuttable presumption as to the time of receipt of the documents or whether evidence could be brought to establish the actual time of receipt. The applicant in that case applied for a student visa and provided the Department with a postal address for receiving documents. The delegate of the Minister refused to grant the visa and notified the applicant by letter sent under s 494B(4) by registered post to the address provided by the applicant. The applicant did not collect the letter from Australia Post and therefore was out of time to file an application for review with the Migration Review Tribunal (as it was then known). The applicant claimed that since he did not receive the notification letter within the 21-day period provided for under s 494C(4), the deeming provisions in that section did not apply. Spender, Kiefel and Dowsett JJ held at [13] that: Subsection 494C(4) does not purport to create a rebuttable presumption of fact. It provides that in certain circumstances, a person is to be “taken to have received the document …”. Nothing in the section suggests that this is merely a rebuttable presumption.

Their Honours quoted with approval Spender J’s comment in Murphy v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 135 FCR 550; [2004] FCA 657 at [69], in relation to s 494C(4), that: In my view this provision manifests an intention that a person is taken to have received the document seven working days after the date of the document, without qualification. There is nothing to indicate … that the subsection operates in its terms only “until the contrary is proved”.

In Tay v Minister for Immigration and Citizenship (2010) 183 FCR 163; [2010] FCAFC 23, the Full Federal Court of Australia considered whether s 494C(5) (which is in similar terms to s 441D(4)), which applies to documents transmitted by fax, email or other electronic means, created a rebuttable presumption of fact and whether the applicant could lead evidence to show that she did not receive the document on the day it was deemed to be received in accordance with s 494C(5). Dowsett, Stone and Bennett JJ, accepting the reasoning in Xie, held that s 494C(4) and (5) were identical and therefore the reasoning in Xie was equally applicable to s 494C(5): at [19]. Their Honours stated at [24]–[25]: Section 494C makes very detailed provision for determining when a document is taken (deemed) to have been received from the Minister. Those provisions must be construed in a statutory context of © 2016 THOMSON REUTERS

937

s 441E

Migration Act 1958

[441D.60]

similarly detailed provisions concerning the methods by which the Minister may give documents to a person when this is a requirement (s 494B) and when it is not required (s 494A) and the identification of the authorised recipient of documents (s 494D). These provisions all evidence concern that there should be certainty in the transfer of documents from the Minister both as to the method and as to the time of delivery. This was recognised by the Full Court in Xie leading it to conclude that s 494C(4) did not create a rebuttable presumption … That s 494C(5) does not create a rebuttable presumption of fact is supported not only by our construction of the relevant statutory and regulatory provisions, but also by extrinsic material relevant to the introduction of these provisions. Sections 494A, 494B, 494C and 494D were introduced into the Migration Act by the Migration Legislation Amendment (Electronic Transactions and Methods of Notification) Act 2001 (Cth). On 5 April 2001, in his second reading speech concerning the bill that preceded this Act, the Minister for Immigration and Multicultural Affairs said: These amendments essentially consolidate into the Migration Act existing provisions found in either the Migration Act or the migration regulations. They clarify when notification of a decision occurs and on what date. This is critical for review mechanisms, as an application for review must be made within a specified period, or the case is out of time.

441E

Tribunal may give copies of documents [Repealed]

[S 441E rep Act 60 of 2015, s 3 and Sch 2 item 109, with effect from 1 Jul 2015; insrt Act 58 of 2001, s 3 and Sch 3 item 19]

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. [S 441E insrt Act 85 of 2008, s 3 and Sch 1 item 26]

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 [Para (a) am Act 60 of 2015, s 3 and Sch 2 item 134, with effect from 1 Jul 2015]

(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. (2) [Repealed] [Subs (2) rep Act 60 of 2015, s 3 and Sch 2 item 112, with effect from 1 Jul 2015] [S 441F am Act 60 of 2015, s 3 and Sch 2 items 110, 111 and 135, with effect from 1 Jul 2015; insrt Act 58 of 2001, s 3 and Sch 3 item 19]

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.

938

Migration Law

[441D.60]

Part 7 - Review of Part 7-reviewable decisions (ss 408-441G) Division 7A - Review of Part 7-reviewable decisions:(ss 441AA-441G)

s 441G

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. [Subs (1) am Act 60 of 2015, s 3 and Sch 2 item 135, with effect from 1 Jul 2015; Act 106 of 2014, s 3 and Sch 4 item 6, with effect from 25 Sep 2014]

(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). [Subs (1A) am Act 60 of 2015, s 3 and Sch 2 item 135, with effect from 1 Jul 2015; insrt Act 106 of 2014, s 3 and Sch 4 item 7, with effect from 25 Sep 2014]

(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. [Subs (3) am Act 106 of 2014, s 3 and Sch 4 item 8, with effect from 25 Sep 2014]

(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. [Subs (3A) insrt Act 106 of 2014, s 3 and Sch 4 item 9, with effect from 25 Sep 2014]

(4) [Repealed] [Subs (4) rep Act 106 of 2014, s 3 and Sch 4 item 10, with effect from 25 Sep 2014]

(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. [S 441G am Act 60 of 2015; Act 106 of 2014; insrt Act 58 of 2001, s 3 and Sch 3 item 19]

SECTION 441G COMMENTARY Scope ................................................................................................................................................. [441G.20] CONCEPTS

Notice ................................................................................................................................................ [441G.40] Address ............................................................................................................................................. [441G.60] Give the authorised recipient ........................................................................................................... [441G.80] Giving or give ................................................................................................................................ [441G.100] Vary or withdraw the notice .......................................................................................................... [441G.120] KEY CASES

Letter addressed to applicant, care of the authorised recipient .................................................... [441G.140] Section 441G(3) and varying the notice under s 441G(1) ........................................................... [441G.160] Fraud practised by an authorised recipient may render a decision of the Tribunal invalid ........ [441G.180] The Tribunal must give the authorised recipient, instead of the applicant, relevant documents .... [441G.200]

© 2016 THOMSON REUTERS

939

s 441G

Migration Act 1958

[441G.20]

PRACTICE POINT

Applicant deemed to have received the document ....................................................................... [441G.220]

[441G.20] Scope If an applicant gives the Tribunal written notice of the name and address of another person being authorised to receive documents, the Tribunal, instead of giving the documents to the applicant, must give that other person any documents that the Tribunal would otherwise have given the applicant: s 441G(1). If the Tribunal gives the authorised recipient a document, the Tribunal is taken to have given that document to the applicant: s 441G(2). The applicant may vary or withdraw the notice given under s 441G(1): s 441G(3). The primary object of s 441G is “to eliminate uncertainty as to whether a document has been given to an applicant”: Le v Minister for Immigration and Citizenship (2007) 157 FCR 321; [2007] FCAFC 20 at [25] per Emmett, Allsop and Middleton JJ (in relation to s 494D, which is in similar terms).

CONCEPTS [441G.40] Notice According to s 441G(1), the applicant is to give the Tribunal written notice of the name and address of the authorised recipient. This section does not require that the notice be in any particular form. Section 495 provides the Minister with a discretion to approve forms, but that power is expressly limited to other provisions of the Act where the term “approved form” is used. Section 441G(1) is not such a provision: MZZDJ v Minister for Immigration and Border Protection (2013) 216 FCR 153; 137 ALD 466; [2013] FCAFC 156 at [24] per Jagot, Bromberg and Mortimer JJ (in relation to s 494D, which is in similar terms). In addition, there is no requirement that the notice under s 441G(1) be signed: Jalagam v Minister for Immigration and Citizenship [2009] FCA 197 at [36] per Edmonds J. [441G.60] Address Section 441G(1) states that the applicant is to give the Minister written notice of the name and address of the authorised recipient. The term “address” is not defined in the Act and in this section is not to be read as “limited to a postal address or street address”: MZZDJ v Minister for Immigration and Border Protection (2013) 216 FCR 153; 137 ALD 466; [2013] FCAFC 156 at [29] per Jagot, Bromberg and Mortimer JJ (in relation to s 494D, which is in similar terms). Rather, the term “address” is to be read consistently with the way that term is used in s 379A; therefore, “address” can be an electronic address, including email: at [30] per Jagot, Bromberg and Mortimer JJ. [441G.80] Give the authorised recipient The expression “give the authorised recipient, instead of the applicant” is not to be construed narrowly. Therefore, sending a letter to a person care of that person’s authorised recipient will not constitute “giving” that letter to the authorised recipient: VEAN v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 280 at [31] per Weinberg J (in relation to s 494D, which is in similar terms). [441G.100] Giving or give The word “give” is a word of “wide amplitude” and does not equate with “physically handing over an object”: VEAN v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 280 at [31] per Weinberg J (in relation to s 494D, which is in similar terms). [441G.120] Vary or withdraw the notice Section 441G(3) provides that an applicant can vary or withdraw the notice under s 441G(1) appointing an authorised recipient. Whereas a withdrawal is “an absolute act and operates on the 940

Migration Law

[441G.160]

Part 7 - Review of Part 7-reviewable decisions (ss 408-441G) Division 7A - Review of Part 7-reviewable decisions:(ss 441AA-441G)

s 441G

entire written notice” (MZZDJ v Minister for Immigration and Border Protection (2013) 216 FCR 153; 137 ALD 466; [2013] FCAFC 156 at [31] per Jagot, Bromberg and Mortimer JJ (in relation to s 494D, which is in similar terms)), to “vary” means to alter the notice: at [32] per Jagot, Bromberg and Mortimer JJ.

KEY CASES [441G.140] Letter addressed to applicant, care of the authorised recipient If an applicant has an authorised recipient according to the terms of s 441G, there will be compliance with s 441A(4) if the envelope is addressed to the authorised recipient. The letter inside the envelope may refer to the applicant. In Minister for Immigration and Citizenship v SZKPQ (2008) 166 FCR 84; 101 ALD 5; [2008] FCAFC 21, the applicant who applied for a protection visa had an authorised recipient pursuant to s 494D (which is in similar terms to s 441G). A delegate of the Minister refused the visa. The notification letter was addressed to the applicant, care of his authorised recipient. The letter was sent by prepaid post in an envelope addressed only to the authorised recipient. Bennett, Emmett and Branson JJ held that there had been compliance with s 494B(4) even though the notification letter was addressed to the applicant and not his authorised recipient. Emmett J stated at [25]: Section 494D(1) clearly contemplates that a document addressed to an applicant for a visa, which would otherwise have been given to that person, must be given to the authorised recipient. That provision tends to indicate that a letter such as the delegate’s letter in the present case ought to be addressed to a visa applicant rather than to the authorised recipient. The scheme of the legislation is that the authorised recipient is to be given the document that would otherwise have been given to the visa applicant. It is inconsistent with that notion that the document should itself be addressed to the authorised recipient rather than the applicant for a visa.

Emmett, Bennett and Branson JJ considered the cases of VEAN of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 570; 204 ALR 80; [2003] FCAFC 311 (VEAN) and SZFOH v Minister for Immigration and Citizenship (2007) 159 FCR 199; 241 ALR 653; [2007] FCAFC 63 (SZFOH). Emmett J (with whom Bennett and Branson JJ agreed) held at [26] that the matter before the court was distinguishable from VEAN because in that case the notification document was sent to the authorised recipient in an envelope addressed to the visa applicant care of that visa applicant’s authorised recipient. Emmett J (with whom Bennett and Branson agreed) also stated at [26] that to the extent that the decision in VEAN: suggests either that notification documents must contain within them the address of the authorised recipient or may not contain the address of an applicant for a visa, the decision should not be followed. In so far as the second case [SZFOH] construed the first case [VEAN] in that way, that construction was erroneous.

[441G.160] Section 441G(3) and varying the notice under s 441G(1) In MZZDJ v Minister for Immigration and Border Protection (2013) 216 FCR 153; 137 ALD 466; [2013] FCAFC 156, the applicant applied for a protection visa and had given notice under s 494D(1) (which is in similar terms to s 441G) of his authorised recipient. The applicant and his authorised recipient attended an interview with a delegate of the Minister. At that interview, the authorised recipient informed the delegate that she would be overseas and requested that the delegate notify her of the decision by email. The delegate forgot about this and sent the notification letter, refusing to grant the visa, to the authorised recipient by prepaid post. When this was brought to the delegate’s attention, the delegate attempted to re-notify the applicant of the decision by sending the letter by email to the applicant’s authorised recipient. When the applicant attempted to file an application with the former Refugee Review Tribunal for review, © 2016 THOMSON REUTERS

941

s 441G

Migration Act 1958

[441G.180]

the Tribunal found that it did not have jurisdiction to consider the application because it was lodged out of time. The basis for this decision was that the applicant had been validly notified by the first notification letter sent to the authorised recipient by prepaid post. Jagot, Bromberg and Mortimer JJ considered the word “notice” in s 494D and found that the section did not require notices to be in any particular form: at [24]. Their Honours further stated at [26]: The level of formality required (or not required) by s 494D is not without significance. The absence of strict prescriptions about form underlines the facultative nature of this provision: it is intended to give applicants a readily accessible means of ensuring communication in relation to their visa applications is undertaken in the most effective manner if they do not wish, for whatever reason, to be entirely responsible for receiving communications and taking necessary action.

In addition, Jagot, Bromberg and Mortimer JJ were of the view that the term “address” in s 494D should be consistent with s 494B; therefore an address can be in an electronic form, such as an email: at [29]–[30]. In relation to s 494D(3), this provision permits an applicant to either withdraw the notice under s 494D(1) or to vary it. In relation to varying the notice, the term “vary” should not be read narrowly: at [32] per Jagot, Bromberg and Mortimer JJ. Therefore, in relation to a variation of a notice under s 494D(1), their Honours were of the view that: • the variation of the notice can be permanent or temporary: at [33]; • the variation can be oral: at [34]; and • the variation can be made by the authorised person under s 494D(1): at [35]. Given the above, Jagot, Bromberg and Mortimer JJ held that the applicant’s authorised recipient had made an oral variation to the notice under s 494D at the interview with the delegate. Therefore, the first notification letter sent by the delegate to the authorised recipient by prepaid post was not “given” to the applicant and the Tribunal erred by relying on this notification to find that it did not have jurisdiction. [441G.180]

Fraud practised by an authorised recipient may render a decision of the Tribunal invalid Where, pursuant to s 441G(1), a document is given to an authorised recipient but the authorised recipient has practised fraud on the Tribunal with the consequence, for example, that an applicant does not in fact receive the document (due to the fraud, and not for mere negligence etc), any decision of the Tribunal may be rendered invalid (notwithstanding that the Tribunal is taken to have given the document to the applicant for the purposes of s 441G(2)). The High Court’s decision in SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; 81 ALJR 1404; [2007] HCA 35 (SZFDE) is the key authority on the effect of fraudulent and negligent conduct by a migration agent or third party. In this case pursuant to s 441G(1), the former Refugee Review Tribunal sent a document to the applicant’s authorised recipient inviting the applicant to attend a hearing. Relevantly, the authorised recipient had falsely posed as a solicitor and migration agent and had advised the applicant for review not to attend the hearing in the former Refugee Review Tribunal. As the third party’s fraud resulted in the stultification of the operation of the natural justice provisions made by Pt 7 Div 4 of the Act, the Tribunal was “disabled from the due discharge of its imperative statutory functions with respect to the conduct of the review”: SZFDE at [51] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ. Their Honours described this as “fraud on the Tribunal” (at [51]) and that therefore the Tribunal’s decision was “no decision at all”: at [52] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ. 942

Migration Law

[457.20]

Part 7 - Review of Part 7-reviewable decisions (ss 408-441G) Div 9 - Establishment and membership of the Refugee Review Tribunal (ss 457-470)

s 457

Importantly, their Honours stated at [53] that: The significance of the outcome in this appeal should not be misunderstood. The appeal has turned upon the particular importance of the provisions of Div 4 of Pt 7 of the Act for the conduct by the Tribunal of review and the place therein of the ss 425 and 426A. In the Full Court French J correctly emphasised that there are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made. The outcome in the present appeal stands apart from the above such considerations.

[441G.200]

The Tribunal “must” give the authorised recipient, instead of the applicant, relevant documents In Lee v Minister for Immigration and Citizenship (2007) 159 FCR 181; 241 ALR 363; [2007] FCAFC 62, the appellant had applied to the Migration Review Tribunal (as it was then known) for review of a decision. The appellant relevantly appointed an authorised recipient for the purposes of s 379G(1) (which is in similar terms to s 441G(1)). The Tribunal subsequently sent a letter to the appellant directly, but failed to send it to the authorised recipient. The Minister led evidence of actual delivery of the document to the appellant himself and argued, therefore, that there was no failure to comply with s 379G(1). The Full Court of the Federal Court held that s 379G(1) “is expressed in mandatory terms, and the tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant”. Further, the qualification in s 379G(2) that the Tribunal can give a copy of the document to the applicant does not supplant the Tribunal’s obligation to give a copy of the document to the authorised recipient: at [34] per Besanko J (Moore and Buchanan JJ agreeing). In addition, Besanko J rejected the Minister’s suggestion that proof of actual service of a document on the applicant will overcome the failure of the Tribunal to comply with s 379G(1): at [38] (Moore and Buchanan JJ agreeing).

PRACTICE POINT [441G.220] Applicant deemed to have received the document Where a document is sent to an authorised recipient, an applicant is deemed to have received the document in the time period specified in s 441C.

DIVISION 8 – REFERRAL OF DECISIONS TO ADMINISTRATIVE APPEALS TRIBUNAL [REPEALED] (SS 442–456) [Div 8, ss 442–456, rep Act 60 of 2015, s 3 and Sch 2 item 113, with effect from 1 Jul 2015]

DIVISION 9 – ESTABLISHMENT AND MEMBERSHIP OF THE REFUGEE REVIEW TRIBUNAL [REPEALED] (SS 457–470) [Div 9, ss 457–470, rep Act 60 of 2015, s 3 and Sch 2 item 113, with effect from 1 Jul 2015]

457 Establishment of the Refugee Review Tribunal [Repealed] [S 457 rep Act 60 of 2015, s 3 and Sch 2 item 113, with effect from 1 Jul 2015; former s 166J renum Act 60 of 1994, s 83, with effect from 1 Sep 1994; insrt Act 184 of 1992, s 31, with effect from 1 Jul 1993]

SECTION 457 COMMENTARY [457.20] Scope Section 457 and Div 9 of Pt 7 was repealed on 1 July 2015 by item 113 of the Tribunals Amalgamation Act 2015 (Cth). At this time, the Refugee Review Tribunal was amalgamated into © 2016 THOMSON REUTERS

943

s 458

Migration Act 1958

[458.20]

the Administrative Appeals Tribunal by the Tribunals Amalgamation Act 2015 (Cth). Parts II and III and s 64 of the Administrative Appeals Tribunal Act 1975 (Cth) deal with the establishment of the Administrative Appeals Tribunal, registries and provision for officers. 458 Membership of Refugee Review Tribunal [Repealed] [S 458 rep Act 60 of 2015, s 3 and Sch 2 item 113, with effect from 1 Jul 2015; am Act 85 of 2008; Act 110 of 1995; former s 166JA renum Act 60 of 1994, s 83, with effect from 1 Sep 1994; insrt Act 184 of 1992, s 31, with effect from 17 Dec 1992]

SECTION 458 COMMENTARY [458.20]

Scope

Section 458 and Div 9 of Pt 7 was repealed on 1 July 2015 by item 113 of the Tribunals Amalgamation Act 2015 (Cth). At this time, the Refugee Review Tribunal was amalgamated into the Administrative Appeals Tribunal by the Tribunals Amalgamation Act 2015 (Cth). Parts II and III and s 64 of the Administrative Appeals Tribunal Act 1975 (Cth) deal with the establishment of the Administrative Appeals Tribunal, registries and provision for officers. 459 Appointment of members [Repealed] [S 459 rep Act 60 of 2015, s 3 and Sch 2 item 113, with effect from 1 Jul 2015; am Act 85 of 2008; former s 166JB renum Act 60 of 1994, s 83, with effect from 1 Sep 1994; insrt Act 184 of 1992, s 31, with effect from 17 Dec 1992]

460 Principal Member [Repealed] [S 460 rep Act 60 of 2015, s 3 and Sch 2 item 113, with effect from 1 Jul 2015; am Act 135 of 2014; former s 166JC renum Act 60 of 1994, s 83, with effect from 1 Sep 1994; am Act 60 of 1994; insrt Act 184 of 1992, s 31, with effect from 17 Dec 1992]

SECTION 460 COMMENTARY [460.20]

Scope

Section 460 and Div 9 of Pt 7 was repealed on 1 July 2015 by item 113 of the Tribunals Amalgamation Act 2015 (Cth). At this time, the Refugee Review Tribunal was amalgamated into the Administrative Appeals Tribunal by the Tribunals Amalgamation Act 2015 (Cth). Parts II and III and s 64 of the Administrative Appeals Tribunal Act 1975 (Cth) deal with the establishment of the Administrative Appeals Tribunal, registries and provision for officers. [Editor’s note: Sections 461–470 were repealed by Act 60 of 2015, s 3 and Sch 2 item 113, with effect from 1 Jul 2015, and have not been reproduced]

DIVISION 10 – REGISTRY AND OFFICERS [REPEALED] (SS 471–473) [Div 10, ss 471–473, rep Act 60 of 2015, s 3 and Sch 2 item 113, with effect from 1 Jul 2015]

944

Migration Law

PART 7A – STATUTORY AGENCY FOR PURPOSES OF PUBLIC SERVICE ACT [REPEALED] (S 473A) [Pt 7A, s 473A rep Act 60 of 2015, s 3 and Sch 2 item 114, with effect from 1 Jul 2015; insrt Act 87 of 2007, s 3 and Sch 1 item 1, with effect from 22 Jun 2007]

© 2016 THOMSON REUTERS

945

PART 7AA – FAST TRACK REVIEW PROCESS IN RELATION TO CERTAIN PROTECTION VISA DECISIONS (SS 473BA–473JF) [Pt 7AA insrt Act 135 of 2014, s 3 and Sch 4 item 21, with effect from 18 Apr 2015]

PART 7AA COMMENTARY [7AA.10] Scope Part 7AA of the Act was introduced by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) (the MMP Act). The MMP Act received Royal Assent on 15 December 2014 and was proclaimed on 18 April 2015. The Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth) gives an outline of the fast track review process at 8: The fast track assessment process will be conducted under existing provisions of the Migration Act. It is intended that the process will be supported by a code of procedure with shorter time frames which will be prescribed in the Migration Regulations. All fast track applicants will receive a full and comprehensive assessment of their claims for protection. A key component of the fast track assessment process is that fast track applicants will not be permitted to seek review from the Tribunal under Pt 7 of their protection visa decisions. The Bill will instead, require the Minister to refer, as soon as reasonably practicable, certain decisions made in respect of fast track review applicants to the Immigration Assessment Authority (the IAA). The IAA will conduct a limited review of these decisions.

Part 7AA provides that “fast track reviewable decisions” must be referred by the Minister to the Immigration and Assessment Authority as soon as reasonably practicable for an expedited and limited merits review. DIVISION 1 – INTRODUCTION (SS 473BA–473BD) 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. © 2016 THOMSON REUTERS

947

s 473BA

Migration Act 1958

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. [S 473BA am Act 60 of 2015, s 3 and Sch 2 items 172 and 173, with effect from 1 Jul 2015; insrt Act 135 of 2014, s 3 and Sch 4 item 21, with effect from 18 Apr 2015]

473BB Definitions In this Part: Division head means the head of the Migration and Refugee Division of the Tribunal. [Def insrt Act 60 of 2015, s 3 and Sch 2 item 174, with effect from 1 Jul 2015]

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. [Def insrt Act 60 of 2015, s 3 and Sch 2 item 174, with effect from 1 Jul 2015]

948

Migration Law

Part 7AA – Fast track review process in relation to certain protection visa decisions (ss 473BA–473JF) [473BC.20] Division 1 – Introduction (ss 473BA–473BD) s 473BD

Principal Member [Repealed] [Def rep Act 60 of 2015, s 3 and Sch 2 item 176, with effect from 1 Jul 2015]

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). [S 473BB am Act 60 of 2015, s 3 and Sch 2 item 175, with effect from 1 Jul 2015; insrt Act 135 of 2014, s 3 and Sch 4 item 21, with effect from 18 Apr 2015]

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). [S 473BC insrt Act 135 of 2014, s 3 and Sch 4 item 21, with effect from 18 Apr 2015]

SECTION 473BC COMMENTARY [473BC.20] Scope Part 7AA was originally intended to provide a limited form of review to unauthorised maritime arrivals (as defined under s 5AA) who entered Australia on or after 13 August 2012, but before 1 January 2014, and who had not been taken to a regional processing country and whose application for a protection visa had been refused by the Minister: see s 5(1) for a definition of “fast track applicants”, “fast track decisions”, “fast track review applicants” and “excluded fast track review applicants”, s 473BB for a definition of ’fast track reviewable decisions’, and ss 5(1) and 198AB for the meaning of “regional processing country”. Section 473BC empowers the Minister to specify, by legislative instrument, other types of applicants who are to be subject to the fast track assessment process provided for by Part 7AA. The Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth), cites unauthorised air arrivals as a possible example of persons who could be specified by the Minister in an instrument made under this section: at [754]. 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.

© 2016 THOMSON REUTERS

949

s 473BD

Migration Act 1958

[473BD.20]

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). [S 473BD insrt Act 135 of 2014, s 3 and Sch 4 item 21, with effect from 18 Apr 2015]

SECTION 473BD COMMENTARY CONCEPTS

Use of the word “may” in s 473BD means the power is discretionary ...................................... [473BD.20] The issue of a certificate under s 473BD may be subject to judicial review ............................. [473BD.30]

CONCEPTS [473BD.20]

Use of the word “may” in s 473BD means the power is discretionary Section 33(2A) of the Acts Interpretation Act 1901 (Cth) provides that where a person, court or body may do a particular act or thing, and the word “may” is used, the act or thing may be done at the discretion of the person, court or body. In Nguyen Thanh Trong v Minister of Immigration Local Government and Ethnic Affairs (1996) 66 FCR 239; 42 ALD 255; [1996] FCA 1674, Merkel J applied s 33(2A) of the Acts Interpretation Act 1901 (Cth) to s 166B (which, at the time, was similar to the wording employed in s 473BD) but held that, if that section did not apply, his Honour would in any event have arrived at the same conclusion in relation to the discretion conferred: at [37]. [473BD.30]

The issue of a certificate under s 473BD may be subject to judicial review In Nguyen Thanh Trong v Minister of Immigration Local Government and Ethnic Affairs (1996) 66 FCR 239; 42 ALD 255; [1996] FCA 1674, 17 persons had applied for protection visas. The applications were determined by delegates of the Minister, with the result that three persons were determined to be refugees and the remaining 14 were determined not to be refugees. Subsequently, and without prior notice, the Minister issued conclusive certificates under s 166B (which was similar in terms to s 473BD) in relation to each of the claimants whose claim for protection had been refused. The effect of the certificates was to make the delegates’ decisions non “Part 7-reviewable decisions”, which meant the decisions were no longer subject to review by the former Refugee Review Tribunal. The applicant sought judicial review of the Minister’s decision to issue a certificate. In considering the scope to which a court may review a decision by the Minister to issue a certificate, Merkel J held at [46] that: • the Minister has a discretion whether to issue a conclusive certificate upon forming the requisite belief; • the discretion is a broad one and is confined only by the requirement that its exercise be consistent with the scope, subject matter and purpose of the power conferred; • in forming the requisite belief the Minister is only required to have regard to the matters set out in the provision (that is, the “national interest”); • a decision made under the section is not immune from review. However, the width of the discretion and the subjective nature of any decision, insofar as it is conditional on the formation of a belief, necessarily result in very limited grounds for administrative review. In light of the limited grounds of administrative review available in respect of a decision to issue a certificate, the court readily dismissed the applicant’s challenge on the basis of an alleged error 950

Migration Law

Part 7AA – Fast track review process in relation to certain protection visa decisions (ss 473BA–473JF) Division 2 – Referral of fast track reviewable decisions to Immigration Assessment Authority (ss [473CA.20] 473CA–473CC) s 473CB

of law, failure to have regard to Australia’s treaty obligations and failure to exercise a fair, impartial and independent discretion. However, Merkel J stated at [59] that the applicant’s ground that the Minister failed to afford natural justice or procedural fairness was “the only substantial ground of challenge”. His Honour cited with approval at [61] the comments of Mason CJ, Dawson, Toohey and Gaudron JJ in Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; 66 ALJR 271; [1992] HCA 10 at 576 (CLR), where their Honours held that the duty to afford procedural fairness arises, if at all, because the impugned power involved is one which may “destroy, defeat or prejudice a person’s rights, interests or legitimate expectations”. Merkel J found, at [62] – [68], that s 166B met this description and that, therefore, the applicant was entitled to procedural fairness. The court found that the failure of the Minister to give the applicant prior notice of his intention to issue a conclusive certificate, and not give the applicant an opportunity to be heard, breached the rules of natural justice. The court held that the decision was therefore invalid.

DIVISION 2 – REFERRAL OF FAST TRACK REVIEWABLE DECISIONS TO IMMIGRATION ASSESSMENT AUTHORITY (SS 473CA–473CC) 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. [S 473CA insrt Act 135 of 2014, s 3 and Sch 4 item 21, with effect from 18 Apr 2015]

SECTION 473CA COMMENTARY [473CA.20] Scope As a fast track review applicant is not able to apply for review themselves, s 473CA requires the Minister to refer the decision to the Immigration Assessment Authority (IAA) as soon as reasonably practicable after a decision under s 65 has been made: see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth) at [873]. The IAA is a separate office within the Administrative Appeals Tribunal: s 473J of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth). 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:

© 2016 THOMSON REUTERS

951

s 473CB

Migration Act 1958

[473CB.20]

(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. [S 473CB insrt Act 135 of 2014, s 3 and Sch 4 item 21, with effect from 18 Apr 2015]

SECTION 473CB COMMENTARY [473CB.20] Scope A fast track review is conducted on the papers and, subject to what is said in subdiv C of Div 2 of Pt 7AA, does not permit additional information to be put before the Immigration Assessment Authority (IAA) except in limited circumstances: s 473DB. The purpose of s 473CB is to confine the information that is put before the IAA and to ensure the information is sufficient for the IAA to make a decision. 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. [S 473CC insrt Act 135 of 2014, s 3 and Sch 4 item 21, with effect from 18 Apr 2015]

SECTION 473CC COMMENTARY Scope .............................................................................................................................................. [473CC.20] CONCEPTS

Directions ....................................................................................................................................... [473CC.30]

952

Migration Law

Part 7AA – Fast track review process in relation to certain protection visa decisions (ss 473BA–473JF) [473DA.20] Division 3 – Conduct of review (ss 473DA–473DF) s 473DA

[473CC.20] Scope The powers of the Immigration Assessment Authority (IAA) are more confined than the ambit of powers conferred upon the Tribunal under Part 5 and Part 7. Unlike the Tribunal, there is no scope for the IAA to vary the decision or to substitute its own decision. Rather, it may only affirm the decision, or remit the decision for reconsideration with any directions that are permitted by the Regulations.

CONCEPTS [473CC.30] Directions Section 473CC(2)(b) provides that the IAA may remit certain matters in accordance with such “directions” (or recommendations) of the IAA as are permitted by the Regulations. However, the permissible directions that may be made by the IAA are confined to: • the prescribed criteria for the relevant class of the visa: Minister for Immigration and Citizenship v Dhanoa (2009) 180 FCR 510; [2009] FCAFC 153 at [70] per Jagot and Foster JJ (special leave refused – see Dhanoa v Minister for Immigration and Citizenship [2010] HCATrans 200); and • those permitted by the Regulations: Poudyal v Minister for Immigration [2005] FMCA 265 at [19] per Smith FM.

DIVISION 3 – CONDUCT OF REVIEW (SS 473DA–473DF) SUBDIVISION A – NATURAL JUSTICE REQUIREMENTS (S 473DA) 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. [S 473DA insrt Act 135 of 2014, s 3 and Sch 4 item 21, with effect from 18 Apr 2015]

SECTION 473DA COMMENTARY [473DA.20] Scope While not in identical terms, s 473DA closely follows the language used in s 357A and s 422B, being the provisions which similarly seek to codify the requirements of natural justice in respect of decisions made by the Tribunal under Part 5 and Part 7 (similar expressions are used elsewhere in the Act, such as in ss 51A, 97A, 118A, 127A and 357A). Sections 357A and 422B were inserted as a result of the High Court’s decision in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; 179 ALR 238; [2001] HCA 22 (Miah), in which the High Court held that the exclusion of common law natural justice requirements required clear legislative intention: at [53] – [54] per Gleeson CJ and Hayne J, at [90] per Gaudron J, at [126] – [127] per McHugh J and at [183] per Kirby J. In Miah, the High Court considered whether a delegate had denied the applicants procedural fairness by failing to put to them for comment certain country information. At the relevant time, Pt 2 Div 3 subdiv AB of the Act laid down what Gleeson CJ and Hayne J described as a “code of procedure © 2016 THOMSON REUTERS

953

s 473DA

Migration Act 1958

[473DA.20]

for dealing fairly, efficiently and quickly with visa applications”: at [28]. It did not contain any other statement other than the one contained in this section – that the Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule. Gleeson CJ and Hayne J commented at [43] that “there is a difference between a code of procedure for dealing with visa applications and a comprehensive statement of the requirements of natural justice”. The majority were of the view that it is possible to exclude the rule of natural justice; however, in order to do so, the legislation must be clear that the intention is for it to be excluded: at [53] – [54] per Gleeson CJ and Hayne J, at [90] per Gaudron J, at [126] – [127] per McHugh J and at [183] per Kirby J. Accordingly, like the wording of ss 357A and 422B, the wording in s 473DA seeks to ensure that the natural justice hearing rule is limited to what is permitted by Pt 7AA, Div 3, subdiv A. Nevertheless, and despite the clear intentions of Parliament to seek to narrow the application of procedural fairness in relation to the conduct of fast track reviews, the courts have been cautious to adopt such a strict approach in dealing with the codified procedure of the Tribunal under Part 5 and Part 7. As Hayne J observed in Minister for Immigration, Multicultural and Indigenous Affairs v WACO [2004] HCATrans 430, in relation to the Tribunal’s codified procedure, “there are hours of innocent amusement yet to be had about the effect of section 422B”. Section 473DA does not itself provide a review applicant with substantive rights. That is, s 473DA is not capable of being “breached” in the strict sense. Rather, together with s 473FA, s 473DA conditions the exercise of the operative parts of the Division: see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; 297 ALR 225; 87 ALJR 618; [2013] HCA 18 at [58] per Hayne, Kiefel and Bell JJ (in relation to ss 353 and 357A). However, the exhaustive nature of Div 3 is likely to mean that, to the extent necessary, some additional requirements of “fairness” are otherwise to be implied by recourse to s 473FA or s 473DA: see, for example, Minister for Immigration and Citizenship v SZMOK (2009) 110 ALD 15; 257 ALR 427; [2009] FCAFC 83 at [17], in relation to the conduct of reviews by the Tribunal. As the Full Court of the Federal Court observed in that case at [14], “[p]rovisions such as those found in s 420(1) are intended to be facultative, not restrictive. Their purpose is to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law and regarded as inappropriate to Tribunals”. Notably, in a departure from the language used in ss 357A and 422B, s 473DA is said to be an exhaustive statement “in relation to reviews conducted by the Immigration Assessment Authority”. On the other hand, the exhaustive statements of natural justice contained in ss 357A and 422B are “in relation to the matters [the respective Division] deals with”. Given the language used in ss 357A and 422B, the courts have taken the view that, insofar as the codified procedures of the Tribunal under Part 5 and Part 7 do not “deal with” certain subject “matter”, common law rules of procedural fairness would continue to apply: see, for example, Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; 267 ALR 204; 84 ALJR 507; [2010] HCA 23 at [35] per French CJ, Gummow, Hayne, Crennan and Kiefel JJ. While Pt 7AA, Div 3 may, nevertheless, be divided into matters it deals with and matters it does not deal with, whether the use of the words “in relation to reviews” excludes the common law from matters that the Division does not specifically deal with, is unclear. In the Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth) the more conventional language is used, where it is said at [886] that: The purpose of this amendment [s 473DA] is to make clear that sections 473GA, 473GB and Division 3 of Part 7AA… are an exhaustive statement of the natural justice hearing rule in relation to the matters they deal with… [emphasis added]. 954

Migration Law

Part 7AA – Fast track review process in relation to certain protection visa decisions (ss 473BA–473JF) [473DB.20] Division 3 – Conduct of review (ss 473DA–473DF) s 473DB

To reinforce the extent to which the fast track review process is intended to expedite reviews and to limit the common law rules of natural justice, the Explanatory Memorandum provides at [888], in reference to s 473DA, “The purpose of this provision is to put beyond doubt that the IAA is not required to give a referred applicant any material that was not before the Minister for comment…”. The significance of avoiding the use of the words “in relation to the matters it deals with” in s 473DA is likely to be the subject of judicial scrutiny.

SUBDIVISION B – REVIEW ON THE PAPERS (S 473DB) 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)). [S 473DB insrt Act 135 of 2014, s 3 and Sch 4 item 21, with effect from 18 Apr 2015]

SECTION 473DB COMMENTARY [473DB.20] Scope Section 473DB was introduced by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth). This section embodies the intention that fast track reviewable decisions are to be subject to an expedited review by the Immigration Assessment Authority, by curtailing the ability of a fast track review applicant to provide further information, or to be heard, in respect of an application for a protection visa. The Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth) notes at [893]: The complete package of reforms proposed in this Bill intend to place an emphasis on all fast track applicants to articulate their protection claims in a legitimate and authentic way at the earliest possible opportunity. As such, the IAA’s primary function of limited review is underpinned by a presumption that there should be no further requirement to consider new information in a case involving a fast track review applicant. A fast track review applicant has had ample opportunities to present their claims and supporting evidence to justify their request to international protection throughout the decision-making process and before a primary decision is made on their application.

Further, the Explanatory Memorandum states at [886], in relation to s 473DA, that “[t]he purpose of this provision [s 473DA] is to put beyond doubt that the IAA is not required to give a referred applicant any material that was not before the Minister for comment…”.

© 2016 THOMSON REUTERS

955

s 473DC

Migration Act 1958

[473DC.20]

SUBDIVISION C – ADDITIONAL INFORMATION (SS 473DC–473DF) 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. [S 473DC insrt Act 135 of 2014, s 3 and Sch 4 item 21, with effect from 18 Apr 2015]

SECTION 473DC COMMENTARY [473DC.20] Scope As explained in the Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth) at [914], s 473DC prevents the Immigration Assessment Authority (IAA) from considering new information unless the IAA is satisfied that there are exceptional circumstances to justify considering the new information: see s 473DD(a). Examples of exceptional circumstances that may justify the consideration of new information, are provided at [915] of the Explanatory Memorandum: • a material change in the referred applicant’s circumstances which occurred after the Minister made a decision under s 65. This may include a factual event, such as significant and rapidly deteriorating conditions emerging in the referred applicant’s country of claimed protection, such as a change in the political or security landscape; or • credible personal information that was not previously known which has subsequently emerged and suggests a fast track review applicant will face a significant threat to their personal security, human rights or human dignity if returned to the country of claimed persecution. 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

956

Migration Law

Part 7AA – Fast track review process in relation to certain protection visa decisions (ss 473BA–473JF) [473DD.30] Division 3 – Conduct of review (ss 473DA–473DF) s 473DD

(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.

[S 473DD insrt Act 135 of 2014, s 3 and Sch 4 item 21, with effect from 18 Apr 2015]

SECTION 473DD COMMENTARY Scope .............................................................................................................................................. [473DD.20] Concepts ......................................................................................................................................... [473DD.30]

[473DD.20] Scope Where the IAA has obtained new information under s 473DC, it first must be satisfied that there are exceptional circumstances before it can take that new information into consideration: s 473DD(a). Where an applicant has provided the IAA with new information, or proposes to give new information, then the IAA must be satisfied of the following before taking it into consideration: • there are exceptional circumstances to justify considering the new information: s 473DD(a); and • the new information: – was not, and could not have been, provided to the Minister before the Minister made the decision under s 65: s 473DD(b)(i); or – is credible personal information which was not previously known and, had it been known, may have affected the consideration of the applicant’s claims: s 473DD(b)(ii). As explained in the Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth) at [919], applicants seeking to provide new information to the IAA must satisfy the IAA that there are more than just exceptional circumstances. This is to “reinforce the policy position that fast track applicants must be forthcoming with all of their claims and provide all available information to the Minister before a fast track decision is made”: at [919]. [473DD.30] Concepts Exceptional circumstances: The expression “exceptional circumstances” is not defined in the Act or Regulations. In Maan v Minister for Immigration and Citizenship (2009) 179 FCR 581; 112 ALD 25; [2009] FCAFC 150, Dowsett, Greenwood and Collier JJ considered this expression in the context of a cancellation under s 116. Dowsett, Greenwood and Collier JJ acknowledged at [51] that the expression was not defined, but found assistance in the following comments of Lord Bingham of Cornhill in R v Kelly (Attorney-General’s Reference No 53 of 1998) [2000] 1 QB 198; [1999] 2 All ER 13 at 208 (QB), at 20 (All ER): We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or usual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.

Compare Baker v The Queen (2004) 223 CLR 513; 210 ALR 1; [2004] HCA 45 at [173]; and Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]–[25]. Examples of exceptional circumstances that may justify the consideration of new information, are provided at [915] of the Explanatory Memorandum: © 2016 THOMSON REUTERS

957

s 473DE

Migration Act 1958

[473DD.30]

• a material change in the referred applicant’s circumstances which occurred after the Minister made a decision under s 65. This may include a factual event, such as significant and rapidly deteriorating conditions emerging in the referred applicant’s country of claimed protection, such as a change in the political or security landscape; or • credible personal information that was not previously known which has subsequently emerged and suggests a fast track review applicant will face a significant threat to their personal security, human rights or human dignity if returned to the country of claimed persecution. Examples of circumstances that would not justify the consideration of new information, are provided at [916] of the Explanatory Memorandum: • information which was available to the applicant at the primary stage and was not presented for unsatisfactory reasons; • general misunderstanding or lack of awareness of Australia’s processes and procedures; or • a change in personal circumstances within the control of the applicant. 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. [S 473DE insrt Act 135 of 2014, s 3 and Sch 4 item 21, with effect from 18 Apr 2015]

SECTION 473DE COMMENTARY Scope .............................................................................................................................................. [473DE.20] CONCEPTS

New information ............................................................................................................................ [473DE.30] 958

Migration Law

Part 7AA – Fast track review process in relation to certain protection visa decisions (ss 473BA–473JF) [473DE.50] Division 3 – Conduct of review (ss 473DA–473DF) s 473DE

Particulars ....................................................................................................................................... [473DE.40] Would be the reason, or part of the reason .................................................................................. [473DE.50] Could, would or will be the reason .............................................................................................. [473DE.60] Information that “is just about a class of persons of which the applicant is a member” ........... [473DE.70] KEY CASES

Country information ....................................................................................................................... [473DE.80]

[473DE.20] Scope Under this section, the IAA must put to an applicant for comment any new information which would be the reason, or part of the reason for affirming the decision. This includes new information provided by the applicant for the purpose of the review. As explained in the Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth) at [925], the purpose of this section is to: set out the obligation for the IAA to put new information to the a referred applicant that is adverse to them, and to provide the referred applicant with an opportunity to comment on any such new information. This obligation applies to new information considered under section 473DD that would be the reason, or part if the reason, for affirming the fast track reviewable decision. It codifies the procedural fairness (natural justice) requirements in relation to adverse new information.

CONCEPTS [473DE.30] New information Section 473DC(1) defines the meaning of “new information”, which includes documents and information. In SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; 81 ALJR 1190; [2007] HCA 26 (SZBYR) at [18], the High Court considered the meaning of the word “information” in the context of s 424A, which is similar to s 473DC. Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ stated that the meaning of “information” refers to the “existence of evidentiary material or documentation, not to the existence of doubts, inconsistencies or the absence of evidence” or the Tribunal’s disbelief. The “new information” which is required to be put to an applicant under this section is new information which would be the reason, or part of the reason, for affirming the decision under review. [473DE.40] Particulars Under this section, the IAA must give an applicant “particulars” of the new information. This requirement differs to the similar requirements contained in s 359A (regarding the review of migration matters in the Tribunal) and s 424A (regarding the review of protection visa matters in the Tribunal). In those sections the Tribunal is required to give the applicant “clear particulars”. The provision of “clear particulars” requires that the information must be provided with “sufficient specificity”: MZXKH v Minister for Immigration and Citizenship [2007] FCA 663 at [20] and [27]; MZYHF v Minister for Immigration and Citizenship (2010) 118 ALD 534; [2010] FCA 1250; SZMTJ v Minister for Immigration and Citizenship (2009) 232 FCR 282; [2009] FCA 486. The term in this section, being “particulars”, has not yet been judicially considered and therefore it is not known whether the particulars required to be put under this section are the same as under ss 359A and 424A. [473DE.50] Would be the reason, or part of the reason Under this section the IAA must put to an applicant new information that “would be the reason, or part of the reason, for affirming” the decision. This phrase is identical to that contained in s 359A (regarding the review of migration matters in the Tribunal) and s 424A (regarding the © 2016 THOMSON REUTERS

959

s 473DE

Migration Act 1958

[473DE.60]

review of protection visa matters in the Tribunal), which has received significant judicial consideration. In this context, and taking into account the common law concept of procedural fairness, the “information” will usually be adverse information to the applicant. However, not all adverse information will need to be put to an applicant. Adverse information (or any other type of information) which would not be the reason, or part of the reason, for affirming the decision, does not need to be put to an applicant in accordance with this section (or ss 359A and 424A). This is because, even though the information may be adverse, it has not been relied upon in any way by the IAA to affirm the decision under review. Therefore, it does not need to be put to an applicant for comment. In SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; 81 ALJR 1190; [2007] HCA 26, the High Court considered the term “would be the reason, or part of the reasons, for affirming the decision that is under review” in the context of s 424A (which is the corresponding provision in Pt 7 to s 359A and similar s 473DE) and noted at [17]: The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place. The tribunal does not operate in a statutory vacuum, and its role is dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act. The use of the future conditional tense (“would be”) rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance – and independently – of the tribunal’s particular reasoning on the facts of the case. Here, the appropriate criterion was to be found in s 36(1) of the Act, being the provision under which the appellants sought their protection visa. The “reason, or part of the reason, for affirming the decision that is under review” was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention. When viewed in that light, it is difficult to see why the relevant passages in the appellants’ statutory declaration would itself be “information that the tribunal considers would be the reasons, or part of the reason, for affirming the decision that is under review”. Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants’ claims to be persons to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review.

[473DE.60] Could, would or will be the reason In Minister for Immigration and Citizenship v SZLFX (2009) 238 CLR 507; 258 ALR 448; [2009] HCA 31 at [25], French CJ, Heydon, Crennan, Kiefel and Bell JJ endorsed the comments of Heerey J in MZXBQ v Minister for Immigration and Citizenship (2008) 166 FCR 483; [2008] FCA 319 that s 424A (equivalent in its terms to s 359A and similar to s 473DE) speaks of information which “would”, not which “could” or “might”, be the reason or part of the reason for affirming the decision under review (these comments are equally applicable to the same words which appear in s 473DE). In MZYFH v Minister for Immigration and Citizenship (2010) 188 FCR 151; 115 ALD 409; [2010] FCA 559 (MZYFH) at [66]–[68], Bromberg J held that the tribunal had breached its obligations pursuant to s 424AA (the equivalent provision to s 359AA) because, among other things: By telling the applicant that the information “could” form the reason or part of the reason, the tribunal failed to ensure that the applicant understood the view that the tribunal had arrived at, and the full gravity of the consequence of that view upon his claim. In the absence of a proper understanding, the appellant was not put in a position to understand how critical it was for him to respond and to do so convincingly. In the circumstances of this case, the appellant may well have taken the view that the tribunal would regard the evidence of Father Thomas to be of little consequence. As I have said already, it is unclear from the evidence that Father Thomas gave that he even knew of the appellant. Similarly, in relation to evidence of Father Peter, the appellant may well have thought that the tribunal would not give that evidence very much weight. The evidence was unspecific, the basis for the assertions made was not 960

Migration Law

Part 7AA – Fast track review process in relation to certain protection visa decisions (ss 473BA–473JF) [473DE.80] Division 3 – Conduct of review (ss 473DA–473DF) s 473DE

given and the evidence was obviously tainted by Father Peter’s misconception that the appellant was one of the oath breakers who had not returned to India. In those circumstances, and because he was told that the evidence of the Fathers could, rather than would, be the reason or part of the reason for affirming the decision under review, the appellant may well have elected to respond immediately rather than take the benefit of the opportunity provided by s 424AA to seek additional time to provide his response. A full understanding of the gravity of what he was facing may well have impacted upon both the timing and the content of any response that the appellant chose to make.

However, the use of words such as “will” does not necessarily result in a breach of s 359AA. In Singh v Minister for Immigration [2012] FMCA 1005, the tribunal used the word “will” when putting information to an applicant pursuant to s 359AA. Whelan FM accepted the Minister’s submission that the word “will” was “stronger than the words ‘would’, ‘could’, ‘might’ or ‘may’”, and therefore the matter was distinguishable from MZYFH: at [18]. Her Honour further noted at [19] that the word “will” refers to a “definite future action and a likely prediction” and, by “using the word ‘will’, the tribunal [does] not fail to ensure that the Applicant [understands] the relevance and consequence of the information, and [is] fully aware of the full gravity of the consequences of that view upon [the] claim”. [473DE.70]

Information that “is just about a class of persons of which the applicant is a member” In VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 at [14], Gyles and Conti JJ said that the reference to the class of persons in s 424A(3)(a) (which is equivalent, in its terms, to s 473DE(3)(a)) is designed to underline the specificity required by precluding any argument that reference to a class would be taken as a reference to all individuals falling within that class.

KEY CASES [473DE.80] Country information Independent information, commonly referred to as “country information”, will fall within the exclusion provided in s 473DE(3)(a), provided it is not specifically about the applicant or another person. In VHAJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 80; 75 ALD 609; [2003] FCAFC 186 at [50], Kenny J summarised the concept of “country information” and why it ordinarily falls within the exclusion contained in s 424A(3)(a) (the equivalent provision to s 473DE(3)(a)): It is usual for the tribunal to have regard to information about the social, political, religious and other conditions prevailing in a country relevant to an applicant’s claim for refugee status, with a view to assessing whether other individuals who share his or her racial, religious, political, social or other attributes suffer treatment of a kind amounting to persecution on Convention grounds in that country. Sometimes information of this kind concerns religious practice, government elections, educational opportunities or other matters. This kind of country information is relevant to the tribunal’s decision-making task only because the applicant falls within the class of persons who share an attribute, which, according to his or her claim, gives rise to a well-founded fear of persecution in the country concerned. In this circumstance, the information does not cease to be information “just about” a class of persons simply because it can also be characterised as information about religious practice, government elections or educational opportunities. It has been repeatedly held that information of this kind falls within s 424A(3)(a) of the Act.

© 2016 THOMSON REUTERS

961

s 473DF

Migration Act 1958

[473DE.80]

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. [S 473DF insrt Act 135 of 2014, s 3 and Sch 4 item 21, with effect from 18 Apr 2015]

DIVISION 4 – DECISIONS OF IMMIGRATION ASSESSMENT AUTHORITY (SS 473EA–473EC) 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:

962

Migration Law

Part 7AA – Fast track review process in relation to certain protection visa decisions (ss 473BA–473JF) [473EA.40] Division 4 – Decisions of Immigration Assessment Authority (ss 473EA–473EC) s 473EB

(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). [S 473EA insrt Act 135 of 2014, s 3 and Sch 4 item 21, with effect from 18 Apr 2015]

SECTION 473EA COMMENTARY A failure to refer to information in the decision will support an inference that the Immigration Assessment Authority did not have regard to that information .......................................... [473EA.20] Practice point ................................................................................................................................. [473EA.40]

[473EA.20]

A failure to refer to information in the decision will support an inference that the Immigration Assessment Authority did not have regard to that information A failure to refer to information in a written statement of decision will support an inference that the tribunal did not have regard to that information: NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51; [2005] FCAFC 134 at [212]. However, a failure by the Immigration Assessment Authority to refer to information will not, necessarily, mean that it has not been considered. In Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; 273 ALR 223; [2011] HCA 1 at [31], French CJ and Kiefel J observed (in relation to s 430) that, while a court may infer that a matter not mentioned by a Tribunal in its written reasons entitles the court to infer that the matter was not considered material, “[t]hat, of course, does not mean that a matter not mentioned in the s 430 statement was not considered”. [473EA.40] Practice point A decision made by the IAA is a primary decision within the meaning of s 476(4) and therefore the Federal Circuit Court does not have jurisdiction to consider these decisions: s 22 of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) and s 476 of the Act. However, pursuant to s 75(v) of the Constitution , the High Court has original jurisdiction in relation to all matters in which a writ of mandamus or prohibition, or an injunction, is sought against an officer of the Commonwealth. Relevantly, r 25.07.2 of the High Court Rules 2004 (Cth) requires an application filed in the High Court’s original jurisdiction for a writ of mandamus, to be made within two months of the date of a decision. Where a writ of certiorari is sought under r 25.06.1, application is to be made not later than six months after the decision. There are no time limits in relation to a writ of prohibition or an injunction. Where an application for an order to show cause has not been filed in the High Court’s original jurisdiction within the prescribed time limits, r 4.02 allows the High Court to enlarge any time limit specified under the rules. 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:

© 2016 THOMSON REUTERS

963

s 473EB

Migration Act 1958

[473EB.20]

(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. [S 473EB insrt Act 135 of 2014, s 3 and Sch 4 item 21, with effect from 18 Apr 2015]

SECTION 473EB COMMENTARY KEY CASES

Functus officio – when the Immigration Assessment Authority’s review function is complete .... [473EB.20]

KEY CASES [473EB.20]

Functus officio – when the Immigration Assessment Authority’s review function is complete In Minister for Immigration, Multicultural Affairs and Citizenship v SZRNY (2013) 214 FCR 374; [2013] FCAFC 104 (SZRNY), the Full Court of the Federal Court held that, in light of s 430A as it then existed, a decision of the former Refugee Review Tribunal was not final until both the review applicant and the Secretary of the Department were notified of the decision. Although this case focused on the words “finally determined”, rather than the issue of when a Tribunal has spent its power, the ratio of the decision is equally applicable with respect to both scenarios. To cure this unintended consequence, the Migration Amendment Act (No. 30) 2014 (Cth) amended s 430(2) of the Act and inserted s 430(2A) (no amendment was made to s 430A, as this was not necessary). As a result of this amendment, a decision is taken to have been made “by the making of the written statement” and “on the day, and at the time, the written statement is made”. Therefore, this is the point at which the Tribunal is functus officio and is not able to continue reviewing the decision or make any changes to the decision already made. A similar provision to s 430(2A) has been introduced to the fast track review process, in s 473EA(3), which provides that the Immigration Assessment Authority (IAA) has no power to vary or revoke a decision to which s 473EA(2) applies after the day and time the written statement is made. However, if there is a jurisdictional error with the IAA’s decision, then it is no decision at all and it will not be functus officio at the time specified in s 473EA(2): see, for example, Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; 76 ALJR 598; 187 ALR 117; [2002] HCA 11. 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. [Subs (1) am Act 60 of 2015, s 3 and Sch 2 item 186, with effect from 1 Jul 2015]

(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.

964

Migration Law

Part 7AA – Fast track review process in relation to certain protection visa decisions (ss 473BA–473JF) [473FA.20] Div 5 - Exercise of powers & functions by Assessment Authority (ss 473FA-473FC) s 473FA

Note: Section 5G may be relevant for determining relationships for the purposes of subsection (2). [S 473EC am Act 60 of 2015; insrt Act 135 of 2014, s 3 and Sch 4 item 21, with effect from 18 Apr 2015]

DIVISION 5 – EXERCISE OF POWERS AND FUNCTIONS BY IMMIGRATION ASSESSMENT AUTHORITY (SS 473FA–473FC) 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. [S 473FA insrt Act 135 of 2014, s 3 and Sch 4 item 21, with effect from 18 Apr 2015]

SECTION 473FA COMMENTARY Scope ............................................................................................................................................... [473FA.20] CONCEPTS

Not bound by legal technicalities, legal forms or rules of evidence ........................................... [473FA.30]

[473FA.20] Scope Section 473FA serves a facultative, rather than a restrictive, purpose. In Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; 73 ALJR 746; 162 ALR 577; [1999] HCA 21, Gleeson CJ and McHugh J observed at [49], in relation to s 420 (pertaining to the former Refugee Review Tribunal, which is in similar terms): [L]egislative provisions similar to s 420 … are intended to be facultative, not restrictive. Their purpose is to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law, and regarded as inappropriate to tribunals. The extent to which they free tribunals from obligations applicable to the courts of law may give rise to dispute in particular cases, but that is another question.

In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; 297 ALR 225; 87 ALJR 618; [2013] HCA 18, French CJ considered the legislative history and context of s 353 (the equivalent provision to s 473FA) at [13]–[15] (citations omitted): The requirements of s 353(2) are in the same terms as those applied to the RRT by s 420(2) of the Act. The language is familiar. Its ancestry dates back to statutory directions to Courts of Requests in the 17th century to make such orders “as they shall find to stand with equity and good conscience”. That statutory formula evolved and was applied to tribunals in Australia both before and after Federation. An early example was the statute re-establishing the Court of Requests in the Colony of New South Wales in 1842, which became the Small Debts Court, and was required to decide matters “in a summary way, and according to equity and good conscience”. The rolled-up direction to act “according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms” was considered by the Court of Appeal of New South Wales in Qantas Airways Ltd v Gubbins. As pointed out by Gleeson CJ and Handley JA in that case, the collocation has no fixed legal meaning independent of the statutory context in which it is found. So too, s 353(2) is to be understood in its statutory context. That context makes clear that it cannot operate to allow the MRT to act other than according to the law set out in the Act in the exercise of its function of review, including the exercise of the powers and discretions conferred upon it in aid of that function. The MRT is not excused from compliance with the criteria of lawfulness, fairness and © 2016 THOMSON REUTERS

965

s 473FB

Migration Act 1958

[473FA.30]

rationality that lie at the heart of administrative justice albeit their content is found in the provisions of the Act and the corresponding regulations and, subject to the Act and those regulations, the common law. Section 353(2) shares with s 353(1) a facultative rather than restrictive purpose. The two paragraphs of s 353(2) “describe the general nature of review proceedings and require the Tribunal to operate as an administrative body with flexible procedures and not as a body with technical rules of the kind that have sometimes been adopted by quasi-judicial tribunals”. Its facultative character was illustrated in Minister for Immigration and Multicultural Affairs v Bhardwaj. Gleeson CJ observed that s 353 allowed a precursor tribunal, the Immigration Review Tribunal, to reopen its own decision when it learned that the decision was based upon an administrative error.

Further, as French CJ observed at [16], s 353 (and, therefore, s 473FA) does not import substantive common law requirements of procedural fairness and, therefore, cannot give rise, on its own, to grounds for judicial review. Notably, s 473FA departs from the wording used in s 353 (the equivalent provision under Part 5) and s 420 (the equivalent provision pertaining to the former Refugee Review Tribunal), in the use of the words “efficient, quick, free of bias and consistent with Division 3 (conduct of review)”. On the other hand, ss 353 and 420 use the words “fair, just, economical, informal and quick”. The significance of the change in wording is unclear and is likely to be the subject of judicial scrutiny.

CONCEPTS [473FA.30] Not bound by legal technicalities, legal forms or rules of evidence In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; 297 ALR 225; 87 ALJR 618; [2013] HCA 18 at [14], French CJ noted (in relation to s 353, being the equivalent provision to s 473FA) that the “rolled-up direction” to “act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms” was considered by the Court of Appeal of New South Wales in Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26; 28 ALD 538; 45 IR 292. In that case, Gleeson CJ and Handley JA observed that these words have no fixed legal meaning independent of the statutory context in which they are found. Accordingly, French CJ noted that the Tribunal is “not excused from compliance with the criteria of lawfulness, fairness and rationality that lie at the heart of administrative justice”. 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. [Subs (1) am Act 60 of 2015, s 3 and Sch 2 item 186, with effect from 1 Jul 2015]

(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.

966

Migration Law

Part 7AA – Fast track review process in relation to certain protection visa decisions (ss 473BA–473JF) Division 6 – Disclosure of information (ss 473GA–473GD) s 473GB

(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. [S 473FB am Act 60 of 2015; insrt Act 135 of 2014, s 3 and Sch 4 item 21, with effect from 18 Apr 2015]

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. [Subs (1) am Act 60 of 2015, s 3 and Sch 2 item 177, with effect from 1 Jul 2015]

(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. [S 473FC am Act 60 of 2015; insrt Act 135 of 2014, s 3 and Sch 4 item 21, with effect from 18 Apr 2015]

DIVISION 6 – DISCLOSURE OF INFORMATION (SS 473GA–473GD) 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). [S 473GA insrt Act 135 of 2014, s 3 and Sch 4 item 21, with effect from 18 Apr 2015]

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:

© 2016 THOMSON REUTERS

967

s 473GB

Migration Act 1958

[473GB.20]

(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). [S 473GB insrt Act 135 of 2014, s 3 and Sch 4 item 21, with effect from 18 Apr 2015]

SECTION 473GB COMMENTARY Scope .............................................................................................................................................. [473GB.20] KEY CASES

No jurisdictional error if non-compliance by Secretary ............................................................... [473GB.30] Immigration Assessment Authority may have regard to document or information upon disclosure ............................................................................................................................... [473GB.40]

[473GB.20] Scope According to s 473GB, the Immigration Assessment Authority may be given a document or information the disclosure of which the Minister has certified, in writing, would be contrary to the public interest (but not for the reasons in ss 473GA(1)(a) or 473GA(1)(b)), but which could form the basis for a claim of non-disclosure in a judicial proceeding, or was given in confidence: s 473GB(1). This section is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters dealt with in the section: see s 473DA(2)ss 473GA(1)(a) or 473GA(1)(b)), but which could form the basis for a claim of non-disclosure in a judicial proceeding, or was given in confid.

KEY CASES [473GB.30] No jurisdictional error if non-compliance by Secretary Under s 473GB(2), the Secretary of the Department is required to give the Immigration Assessment Authority (IAA) notice in writing when the provision applies, together with any written advice. Any error by the Secretary to comply with s 473GB(2) will not result in a decision of the IAA being tainted with jurisdictional error: see, for example, in relation to s 438 (the equivalent provision pertaining to the former Refugee Review Tribunal), WZANC v Minister for Immigration (No 2) (2012) 210 FCR 585; 135 ALD 247; [2012] FCA 1461 at [53] per Gilmour J; WZANC v Minister for Immigration (No 2) (2012) 266 FLR 121; [2012] FMCA 504 at [92] per Lucev FM; SZOIN v Minister for Immigration and Citizenship (2011) 191 FCR 123; 276 ALR 247; [2011] FCAFC 38 at [65]–[66] per Bennett and McKerracher JJ. 968

Migration Law

Part 7AA – Fast track review process in relation to certain protection visa decisions (ss 473BA–473JF) [473GB.40] Division 6 – Disclosure of information (ss 473GA–473GD) s 473GC

[473GB.40] Immigration Assessment Authority may have regard to document or information upon disclosure Under s 473GB(3), the Immigration Assessment Authority (IAA) may have regard to the document or information provided under this section and/or, if it considers appropriate, may disclose any matter contained in the document or information to a referred applicant. If the Secretary of the Department has failed to give the appropriate notice under s 473GB(2)(a), this does not prevent the IAA from still having regard to the document or information: WZANC v Minister for Immigration (No 2) (2012) 210 FCR 585; 135 ALD 247; [2012] FCA 1461 at [58] per Gilmour J. The provision of a notice under s 473GB(2)(a) is not a jurisdictional fact and not an essential precondition to the IAA exercising its powers to conduct a review: at [60] per Gilmour J (in relation to the former Refugee Review Tribunal). The IAA has a discretion whether or not to disclose the material; however the IAA “should effect a satisfactory compromise between the demands of disclosure and confidentiality by disclosing as much as possible of the substance, but not the detail, of the material”: NAVK v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 135 FCR 567; [2004] FCAFC 160 at [86] per Beaumont, Conti and Crennan JJ; S103 v Minister for Immigration [2005] FMCA 1148 at [34] per Smith J. However, if the Tribunal does disclose any matter under s 438(3), it must make a Direction under s 440, restricting its publication or further disclosure: s 438(4). 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

© 2016 THOMSON REUTERS

969

s 473GC

Migration Act 1958

(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. [S 473GC insrt Act 135 of 2014, s 3 and Sch 4 item 21, with effect from 18 Apr 2015]

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. [Subs (1) am Act 60 of 2015, s 3 and Sch 2 item 186, with effect from 1 Jul 2015]

(2) A direction under subsection (1): (a) must be in writing; and (b) must be notified in a way that the President considers appropriate. [Subs (2) am Act 60 of 2015, s 3 and Sch 2 item 186, with effect from 1 Jul 2015]

(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. [Subs (3) am Act 60 of 2015, s 3 and Sch 2 item 186, with effect from 1 Jul 2015]

(4) A person must not contravene a direction given under subsection (1) that is applicable to the person Penalty: Imprisonment for 2 years. [Subs (4) am Act 60 of 2015, s 3 and Sch 2 item 186, with effect from 1 Jul 2015] [S 473GD am Act 60 of 2015; insrt Act 135 of 2014, s 3 and Sch 4 item 21, with effect from 18 Apr 2015]

970

Migration Law

Part 7AA – Fast track review process in relation to certain protection visa decisions (ss 473BA–473JF) [473HA.30] Division 7 – Giving and receiving review documents etc. (ss 473HA – 473HG) s 473HA

DIVISION 7 – GIVING AND RECEIVING REVIEW DOCUMENTS ETC. (SS 473HA – 473HG) 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. [S 473HA insrt Act 135 of 2014, s 3 and Sch 4 item 21, with effect from 18 Apr 2015]

SECTION 473HA COMMENTARY Scope .............................................................................................................................................. [473HA.20] CONCEPTS

Is taken ........................................................................................................................................... [473HA.30]

[473HA.20] Scope While only certain documents are required to be given by one of the methods specified in ss 473HB or 473HC, other documents might be given in these ways and, if they are, the provisions of ss 473HD and 473HE may be invoked to determine the time when the document is taken to have been received.

CONCEPTS [473HA.30] Is taken Section 473HA(3) provides that if a document is given to a minor in accordance with s 473HA(2), the Immigration Assessment Authority “is taken to have given” the document to the minor. Section 5(23) relevantly provides that the words “is taken”, when followed by the infinitive form of a verb, have the same force and effect as the words “is deemed”, when followed by the infinitive form of that verb.

© 2016 THOMSON REUTERS

971

s 473HB

Migration Act 1958

[473HA.30]

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.

972

Migration Law

Part 7AA – Fast track review process in relation to certain protection visa decisions (ss 473BA–473JF) [473HB.20] Division 7 – Giving and receiving review documents etc. (ss 473HA – 473HG) s 473HB

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. [S 473HB insrt Act 135 of 2014, s 3 and Sch 4 item 21, with effect from 18 Apr 2015]

SECTION 473HB COMMENTARY Scope .............................................................................................................................................. [473HB.20] CONCEPTS

Dispatching .................................................................................................................................... [473HB.30] Address ........................................................................................................................................... [473HB.40] Address provided to the Immigration Assessment Authority in connection with the review .... [473HB.50] ″Last″ address (including last residential or business address) ................................................... [473HB.60] Prepaid post includes ordinary post .............................................................................................. [473HB.70] Transmitting the document ............................................................................................................ [473HB.80] Giving or give ................................................................................................................................ [473HB.90] Is taken ......................................................................................................................................... [473HB.100] KEY CASES

Last residential address ................................................................................................................ [473HB.110] Incorrect address provided by applicant ..................................................................................... [473HB.120] Transmitting the document by email .......................................................................................... [473HB.130] No suburb provided in the address for correspondence ............................................................. [473HB.140] Postcode is not an essential part of the address ......................................................................... [473HB.150] Failure to include the word street in the address contained on the document ......................... [473HB.160] No error in providing return to sender instructions ................................................................... [473HB.170] PRACTICE POINT

Practice point ............................................................................................................................... [473HB.180]

[473HB.20] Scope Section 473HB specifies alternative methods that control the ways in which the Immigration Assessment Authority (IAA) is authorised to give documents to a person (other than the Secretary of the Department). One of these methods must be used whenever a provision of the Act or the Regulations requires the document to be given in conformity with this section. However, the IAA is free to determine which method to use in any given case: see, for example, in relation to s 379A (the equivalent provision under Part 5), Minister for Immigration and © 2016 THOMSON REUTERS

973

s 473HB

Migration Act 1958

[473HB.30]

Border Protection v Kim (2014) 220 FCR 494; [2014] FCA 390; Haque v Minister for Immigration and Citizenship (2010) 115 CLR 371; 185 FCR 86; [2010] FCA 461 at [13] and [62] per Jacobson J. Relevantly, this provision is similar in terms to ss 379A, 441A and 494B, which deal with the methods by which the Tribunal and the Minister, respectively, give documents.

CONCEPTS [473HB.30] Dispatching Under s 473HB(5), one of the methods by which the Immigration Assessment Authority (IAA) can give a person a document is by dating the document and “dispatching” it by prepaid post or other prepaid means. To “dispatch” a document means to send the document: SZOBI v Minister for Immigration and Citizenship (No 2) (2010) 119 ALD 233; [2010] FCAFC 151 at [29] per Bromberg J (Stone and Jagot JJ agreeing) (special leave was refused in SZOBI v Minister for Immigration and Citizenship [2011] HCATrans 347). Accordingly, s 473HB(5) concerns the sending of a document, and not the receiving of a document: at [18] per Stone and Jagot JJ (Bromberg J agreeing). [473HB.40] Address The term “address” in relation to a person’s residential or business address in ss 473HB(4) and 473HB(5) is “properly identified by the street name and number, where relevant, and suburb. The postcode is not an essential part of the identification”: SZLBR v Minister for Immigration and Citizenship (2008) 216 FLR 141; [2008] FMCA 154 at [40] per Emmett FM. Further, the address for dispatch is the address on the envelope. Therefore s 473HB(5) will be satisfied if the document is posted to the address provided by the referred applicant (or their authorised recipient), regardless of the address contained on the document inside the envelope: Minister for Immigration and Citizenship v SZKPQ (2008) 166 FCR 84; 101 ALD 5; [2008] FCAFC 21 at [22] per Branson, Emmett and Bennett JJ. Section 473HB(5) does not specifically require that the name of the referred applicant be included on the envelope. However, Moore, Rares and Flick JJ stated in Minister for Immigration and Citizenship v SZMTR (2009) 180 FCR 586; [2009] FCAFC 186 at [36] (in relation to s 494B(4), which is in similar terms to s 473HB(5)) that “common sense suggests that the name of that recipient be included on the envelope” or, at least, that an addressee is identified on the envelope. [473HB.50]

Address provided to the Immigration Assessment Authority in connection with the review The address at which the IAA is to give documents is the address that a person provided to the IAA “in connection with the review”. According to Jagot J in Maroun v Minister for Immigration and Citizenship (2009) 112 ALD 424; [2009] FCA 1284, the words “in connection with the review” are more general than the words “for the purposes of receiving documents”, which appear in s 494B: at [32]. [473HB.60] ″Last″ address (including last residential or business address) The ordinary meaning of the word “last” does not mean “single” or “only”. Rather, it means the “most recent at the time in question”: Maroun v Minister for Immigration and Citizenship (2009) 112 ALD 424; [2009] FCA 1284 at [36]. 974

Migration Law

Part 7AA – Fast track review process in relation to certain protection visa decisions (ss 473BA–473JF) [473HB.120] Division 7 – Giving and receiving review documents etc. (ss 473HA – 473HG) s 473HB

[473HB.70] Prepaid post includes ordinary post Prepaid post includes ordinary post, “in respect of which the applicable charge has been paid by way of a fixing of a stamp or other proper means”: Minister for Immigration and Citizenship v SZKPQ (2008) 166 FCR 84; 101 ALD 5; [2008] FCAFC 21 at [13] per Emmett J (Branson and Bennett JJ agreeing). [473HB.80] Transmitting the document The words “transmitting the document”, when used in s 473HB(6) in relation to the giving of a document by fax, email or other electronic means, relate to the “sending” of the document and do not imply that actual communication must have occurred: Sainju v Minister for Immigration and Citizenship (2010) 185 FCR 86; 115 ALD 371; [2010] FCA 461 at [41], [57] and [71] (in relation to s 379A). [473HB.90] Giving or give The words “give” or “giving” in relation to a document are frequently used in s 473HB. In VEAN v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 280 at [31], Weinberg J noted that the word “give” is a word of “wide amplitude” and does not equate with “physically handing over an object”. Further, his Honour noted at [32], in relation to the meaning of the word “give”: “The Concise Oxford Dictionary defines ‘give’, inter alia, as ‘making another the recipient of something in the subject’s possession’. To cause something to be put in the possession of another, relevantly, to give the object to that other”. [473HB.100] Is taken Section 473HB(7) provides that, if a document is given to a carer of a minor, the IAA “is taken to have given” the document to the minor. Section 5(23) relevantly provides that the words “is taken”, when followed by the infinitive form of a verb, have the same force and effect as the words “is deemed” when followed by the infinitive form of that verb.

KEY CASES [473HB.110] Last residential address In Minister for Immigration and Border Protection v Kim (2014) 220 FCR 494; [2014] FCA 390, Ms Kim provided both her Australian and South Korean residential addresses on her student visa application form. Buchanan J held that the last residential address provided for receiving documents was Ms Kim’s Australian address, as Ms Kim was in Australia at the time she made her application: at [18]. [473HB.120] Incorrect address provided by applicant In Cheng v Minister for Immigration and Citizenship (2011) 198 FCR 559; [2011] FCA 1290, the applicant provided the incorrect address in his visa application. The delegate of the Minister sent the letter refusing the visa to the incorrect address provided in the visa application. The result was that the applicant filed his application for review to the Migration Review Tribunal (as it was then known) outside the time limit specified in s 347. The Migration Review Tribunal (as it was then known) therefore found that it did not have jurisdiction to consider his application. Flick J held that there was no error in the Migration Review Tribunal’s (as it was then known) finding because the notification letter was correctly sent, under s 494B, to the last address provided to the Minister. It did not matter that the address provided to the Minister was actually the wrong address, as this was the address provided by the applicant: at [46] – [47]. Although this case concerned s 494B, the Federal Court’s comments are likely to be applicable to s 473HB. © 2016 THOMSON REUTERS

975

s 473HB

Migration Act 1958

[473HB.130]

[473HB.130] Transmitting the document by email In Sainju v Minister for Immigration and Citizenship (2010) 185 FCR 86; 115 ALD 371; [2010] FCA 461, Jacobson J considered the words “transmitting the document by … email” in reg 2.55(3)(d). The words in this regulation are similar to those contained in s 473HB(6). The applicant in this matter provided an email address in her application form for revocation of the cancellation of her student visa. A delegate of the Minister sent the applicant the decision not to revoke the cancellation to the email address the applicant had provided in the application form. The applicant claimed that she did not receive this email and therefore was out of time to file an application for review in the Tribunal. Jacobson J held that the word “transmitting” means “sending”, and a person is taken to have received the document at the end of the day on which it was sent: at [57]. His Honour “stated that the relevant question is when the email was sent, not when it came to the attention of the addressee”: at [77]. [473HB.140] No suburb provided in the address for correspondence In SZRVF v Minister for Immigration and Citizenship [2013] FCCA 764, the applicant applied for a protection visa and provided the Department with the following address for correspondence: “PO Box NSW 1835”. No suburb was provided. A delegate of the Minister notified the applicant, under s 66, that her application for a protection visa had been refused. Pursuant to s 494B(4), the notification letter was sent to the address provided by the applicant, but included the suburb “Auburn” (which the applicant had not specified in the address for correspondence). As a result, the applicant failed to make an application for review to the former Refugee Review Tribunal within the time period specified in s 412 and therefore the former Refugee Review Tribunal found that it did not have jurisdiction. The applicant claimed that the Minister failed to comply with s 494B(4) because the notification letter was not sent to the address that she had provided since it contained the suburb “Auburn”. Burn J held that the inclusion of the suburb name on the notification letter did not render the address incorrect, and therefore there had been compliance with s 494B(4): at [31]. Although this case concerned s 494B of the Act, the Federal Circuit Court’s comments are likely to be applicable to s 473HB. [473HB.150] Postcode is not an essential part of the address There is authority to the effect that a postcode is not an essential part of an address and, therefore, failure to include a postcode or failure to correctly record a postcode on a notification letter will not result in non-compliance with the notification provisions under the Act. For example, in SZKGF v Minister for Immigration and Citizenship [2008] FCAFC 84, pursuant to s 424A, the former Refugee Review Tribunal sent a letter to the applicant inviting the applicant to comment on certain information. The invitation letter was purportedly sent pursuant to s 441A(4) by prepaid post to the last address for correspondence provided to the former Refugee Review Tribunal. However, the invitation letter contained the incorrect postcode. Stone, Jacobson and Edmonds JJ held, at [11], that the postcode was not a part of the address and therefore did not result in non-compliance with the notification provisions. In reaching this conclusion, Stone, Jacobson and Edmonds JJ relied upon the decision in SZLBR v Minister for Immigration and Citizenship (2008) 216 FLR 141; [2008] FMCA 154. In that case, the applicant had provided the former Refugee Review Tribunal with the following address for correspondence in his review application: “288/226 Elizabeth Street Surry Hills NSW 2010”. The former Refugee Review Tribunal sent a letter, pursuant to s 425 of the Act, inviting the applicant to a hearing. Pursuant to s 441A(4), the invitation letter was purportedly sent by prepaid post to the last address for correspondence provided to the former Refugee Review Tribunal (this provision is in similar terms to s 379A(4)). However, the invitation letter contained the incorrect postcode. Emmett FM held at [38]–[41]: 976

Migration Law

Part 7AA – Fast track review process in relation to certain protection visa decisions (ss 473BA–473JF) [473HB.170] Division 7 – Giving and receiving review documents etc. (ss 473HA – 473HG) s 473HB

The compliance with s 441A of the Act requires dispatch, relevantly, by prepaid post to the last address for service. In considering the meaning of address, I have regard to the definition of “address” in the New Shorter Oxford Dictionary as, inter alia, “the name of the place to which anyone’s letters etc are directed; ones place of residence”. The use of the word “place” in that definition, to my mind, signifies a physical location. The Macquarie Dictionary defines “place” as, inter alia, “an open space, or square, in a city or town; an area, especially one regarded as an entity and identifiable by name, used or habitation, as a city, town, or village″”. In light of those definitions, the address of “one’s place of residence” is properly identified by the street name and number, where relevant, and suburb. The postcode is not an essential part of the identification of that physical location. In the matter before the Court, the letter was sent by prepaid post to “288/226 Elizabeth Street Surry Hills”, being the physical location of the place of residence provided by the applicant and identified by the street name and number and suburb. Accordingly, I am satisfied that, in the circumstances, the Tribunal has complied with the requirements of the statutory regime as imposed by ss 425, 425A and 441A of the Act.

[473HB.160]

Failure to include the word street in the address contained on the document In SZOQY v Minister for Immigration and Citizenship [2011] FMCA 120, in his application for review the applicant provided the former Refugee Review Tribunal with the following address for correspondence: “28 The Boulevard Street, Lidcombe”. Pursuant to s 425, the former Refugee Review Tribunal sent a letter inviting the applicant to a hearing. Pursuant to s 441A(4), the invitation letter was sent by prepaid post to the address “28 The Boulevard, Lidcombe”, the last address for correspondence provided to the former Refugee Review Tribunal. However, the invitation letter failed to contain the word “street” in the address. The letter was returned “unclaimed” and the applicant failed to appear at the hearing. The Minister tendered evidence that the address “28 The Boulevard Street, Lidcombe” did not exist and that the address “28 The Boulevard, Lidcombe” was the applicant’s actual address. The Minister also tendered evidence that an officer from Australia Post had actually attended the correct address; however, since there was no-one at the address at that time, the officer left a card advising that an item of mail was available for collection from Lidcome Post Office. The item was not collected and subsequently was returned to the former Refugee Review Tribunal. Cameron FM held that there was no jurisdictional error and that the former Refugee Review Tribunal had complied with s 441A(4) because it had sent the invitation to the applicant’s actual (and correct) address: at [23]. His Honour further stated at [23]: In this connection, it must be recalled that the address notified by the applicant was incorrect because it contained the redundant word – “Street”. I accept the Minister’s submission that his error has no greater significance than if the applicant had misspelt “Boulevard”. As the address “28 Boulevard Street, Lidcombe” did not exist but “28 The Boulevard, Lidcombe” did and was the applicant’s actual address, it would be absurd to conclude that making a minor alteration to the advised address when addressing the hearing invitation, which had the effect that the address was correctly cited, led to the outcome that the Tribunal had not complied with s 441A(4).

[473HB.170] No error in providing return to sender instructions The inclusion on the envelope of words such as “if not delivered within 7 days, return to GPO Box #### Sydney NSW 2001” will not mean that the Tribunal has failed to dispatch a document within the meaning of s 473HB(5) or caused any miscarriage in the method for the giving of documents under this section: SZOBI v Minister for Immigration and Citizenship (No 2) (2010) 119 ALD 233; [2010] FCAFC 151 (in relation to s 441A) at [22] per Stone and Jagot JJ (special leave was refused in SZOBI v Minister for Immigration and Citizenship [2011] HCATrans 347). © 2016 THOMSON REUTERS

977

s 473HC

Migration Act 1958

[473HB.180]

[473HB.180] Practice point Pursuant to s 473HG(1), if a person gives the IAA written notice of an authorised recipient, for the purposes of s 473HB, the IAA must give the authorised recipient 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. [S 473HC insrt Act 135 of 2014, s 3 and Sch 4 item 21, with effect from 18 Apr 2015]

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.

978

Migration Law

Part 7AA – Fast track review process in relation to certain protection visa decisions (ss 473BA–473JF) [473HD.10] Division 7 – Giving and receiving review documents etc. (ss 473HA – 473HG) s 473HD

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. [S 473HD insrt Act 135 of 2014, s 3 and Sch 4 item 21, with effect from 18 Apr 2015]

SECTION 473HD COMMENTARY Scope .............................................................................................................................................. [473HD.10] CONCEPTS

Taken to have received the document .......................................................................................... [473HD.20] KEY CASES

Section 473HD does not create a rebuttable presumption ........................................................... [473HD.30] PRACTICE POINT

IAA must give document to authorised recipient ........................................................................ [473HD.40]

[473HD.10] Scope Where any of the subsections of s 473HD have effect, a person will be deemed to have received a document regardless of what events transpired in actual fact. Accordingly, s 473HD is a “statutory deeming provision” that “does not create a rebuttable presumption that notification has occurred”: see, for example, Minister for Immigration and Citizenship v Manaf (2009) 111 ALD 437; [2009] FCA 963 at [21] per Sundberg J (in relation to s 494C, which is in similar terms). Rather, the section “provides that in certain circumstances, a person is taken to have © 2016 THOMSON REUTERS

979

s 473HD

Migration Act 1958

[473HD.20]

received a document”: Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172 at [13] per Spender, Kiefel and Dowsett JJ (in relation to s 494C, which is in similar terms). Accordingly, a court on review cannot inquire into whether or not in fact a document has, or has not, been received. “The Act conclusively provides for this effect”: Kim v Minister for Immigration and Multicultural Affairs [2006] FCAFC 64 at [8]. Relevantly, this provision mirrors ss 379AA, 441C and 494B, which deal with the circumstances in which a person is taken to have received a document from the Tribunal and the Minister, respectively.

CONCEPTS [473HD.20] Taken to have received the document Section 5(23) of the Act clarifies the meaning of the phrase “is taken” by providing: “To avoid doubt, in this Act ‘is taken’, when followed by the infinitive form if a verb, has the same force and effect as ‘is deemed’ when followed by the infinitive form of that verb”. The expression “taken to have received the document” appears in ss 473HD(2), 473HD(3), 473HD(4), 473HD(5) and 473HD(7). In considering the meaning of this phrase, Spender J observed in Murphy v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 135 FCR 550; [2004] FCA 657 at [69], in relation to s 494C(4): The person is “taken to have received the document”, in the circumstances of this case, seven working days after the date of the document. In my view this provision manifests an intention that a person is taken to have received the document seven working days after the date of the document, without qualification. There is nothing to indicate that the effect of the subsection is to be read as if there was a proviso that a person was not taken to have received the document where the documents had been returned undelivered to the sender within seven working days after the date of the document, or that the subsection operates in its terms only “until the contrary is proved”.

By sending a document by one of the methods in s 473HB, a person is “taken to have received the document” at the time specified in s 473HD, regardless of whether the document was actually received: SZNZL v Minister for Immigration and Citizenship (2010) 186 FCR 271; [2010] FCA 621 at [36] per Barker J (in relation to s 494C, which is in similar terms).

KEY CASES [473HD.30] Section 473HD does not create a rebuttable presumption The deeming provisions in s 473HD are mandatory and it is not possible for a referred applicant to tender evidence to rebut the time when the referred applicant is deemed to have received the document (other than in s 473HD(7) in relation to circumstances where the document has not been given in accordance with s 473HB). In Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172 (Xie), the Full Federal Court of Australia considered whether s 494C(4) (which is in similar terms to s 473HD(4)), which applies to documents dispatched by prepaid post or other prepaid means, created an irrebuttable presumption as to the time of receipt of the documents or whether evidence could be brought to establish the actual time of receipt. The applicant in that matter applied for a student visa and provided the Department with a postal address for receiving documents. The delegate of the Minister refused to grant the visa and, according to the terms of s 494B(4), notified the applicant by letter sent by registered post to the address provided by the applicant. The applicant did not collect the letter from Australia Post and therefore was out of time to file an application for review with the Migration Review 980

Migration Law

Part 7AA – Fast track review process in relation to certain protection visa decisions (ss 473BA–473JF) [473HD.40] Division 7 – Giving and receiving review documents etc. (ss 473HA – 473HG) s 473HD

Tribunal (as it was then known). The applicant claimed that since he did not receive the notification letter within the 21-day period provided for under s 494C(4), the deeming provisions in that section did not apply. Spender, Kiefel and Dowsett JJ held at [13] that: Subsection 494C(4) does not purport to create a rebuttable presumption of fact. It provides that in certain circumstances, a person is to be “taken to have received the document …”. Nothing in the section suggests that this is merely a rebuttable presumption.

Their Honours quoted with approval Spender J’s comment in Murphy v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 135 FCR 550; [2004] FCA 657 at [69], in relation to s 494C(4), that: In my view this provision manifests an intention that a person is taken to have received the document seven working days after the date of the document, without qualification. There is nothing to indicate … that the subsection operates in its terms only “until the contrary is proved”.

In Swee Yen Tay v Minister for Immigration and Citizenship (2010) 183 FCR 163; [2010] FCAFC 23, the Full Federal Court of Australia considered whether s 494C(5) (which is in similar terms to s 473HD(5)), which applies to documents transmitted by fax, email or other electronic means, created a rebuttable presumption of fact and whether the applicant could lead evidence to show that she did not receive the document on the day it was deemed to be received in accordance with s 494C(5). Dowsett, Stone and Bennett JJ, accepting the reasoning in Xie, held that ss 494C(4) and 494C(5) were identical and therefore the reasoning in Xie was equally applicable to s 494C(5): at [19]. Dowsett, Stone and Bennett JJ further stated at [24]–[25]: Section 494C makes very detailed provision for determining when a document is taken (deemed) to have been received from the Minister. Those provisions must be construed in a statutory context of similarly detailed provisions concerning the methods by which the Minister may give documents to a person when this is a requirement (s 494B) and when it is not required (s 494A) and the identification of the authorised recipient of documents (s 494D). These provisions all evidence concern that there should be certainty in the transfer of documents from the Minister both as to the method and as to the time of delivery. This was recognised by the Full Court in Xie leading it to conclude that s 494C(4) did not create a rebuttable presumption … That s 494C(5) does not create a rebuttable presumption of fact is supported not only by our construction of the relevant statutory and regulatory provisions, but also by extrinsic material relevant to the introduction of these provisions. Sections 494A, 494B, 494C and 494D were introduced into the Migration Act by the Migration Legislation Amendment (Electronic Transactions and Methods of Notification) Act 2001 (Cth). On 5 April 2001, in his second reading speech concerning the bill that preceded this Act, the Minister for Immigration and Multicultural Affairs said: These amendments essentially consolidate into the Migration Act existing provisions found in either the Migration Act or the migration regulations. They clarify when notification of a decision occurs and on what date. This is critical for review mechanisms, as an application for review must be made within a specified period, or the case is out of time.

PRACTICE POINT [473HD.40] IAA must give document to authorised recipient Pursuant to s 473HG(1), if a person gives the IAA written notice of an authorised recipient, for the purposes of s 473HB, the IAA must give the authorised recipient the document. In those circumstances, the referred applicant is taken to have received the document in the time specified in s 473HD.

© 2016 THOMSON REUTERS

981

s 473HE

Migration Act 1958

[473HD.40]

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. [S 473HE insrt Act 135 of 2014, s 3 and Sch 4 item 21, with effect from 18 Apr 2015]

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. [S 473HF insrt Act 135 of 2014, s 3 and Sch 4 item 21, with effect from 18 Apr 2015]

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. 982

Migration Law

Part 7AA – Fast track review process in relation to certain protection visa decisions (ss 473BA–473JF) [473HG.20] Division 7 – Giving and receiving review documents etc. (ss 473HA – 473HG) s 473HG

(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. [S 473HG insrt Act 135 of 2014, s 3 and Sch 4 item 21, with effect from 18 Apr 2015]

SECTION 473HG COMMENTARY Scope .............................................................................................................................................. [473HG.10] CONCEPTS

Notice ............................................................................................................................................. Address .......................................................................................................................................... Give the authorised recipient ........................................................................................................ Giving or give ............................................................................................................................... Vary or withdraw the notice .........................................................................................................

[473HG.20] [473HG.30] [473HG.40] [473HG.50] [473HG.60]

KEY CASES

Letter addressed to referred applicant, care of the authorised recipient ..................................... [473HG.70] Section 473HG(3) and varying the notice under s 473HG(1) ..................................................... [473HG.80] The IAA ″must″ give the authorised recipient, instead of the referred applicant, relevant documents ............................................................................................................................. [473HG.90] PRACTICE POINT

Applicant deemed to have received the document .................................................................... [473HG.100]

[473HG.10] Scope If a referred applicant gives the Immigration Assessment Authority (IAA) written notice of the name and address of another person being authorised to receive documents, the IAA, instead of giving the documents to the referred applicant, must give that other person any documents that the Tribunal would otherwise have given the applicant: s 473HG(1). If the IAA gives the authorised recipient a document, the IAA is taken to have given that document to the referred applicant: s 473HG(2). The referred applicant may vary or withdraw the notice given under s 473HG(1): s 473HG(3). The primary object of s 473HG is “to eliminate uncertainty as to whether a document has been given to an applicant”: Le v Minister for Immigration and Citizenship (2007) 157 FCR 321; [2007] FCAFC 20 at [25] per Emmett, Allsop and Middleton JJ (in relation to s 494D, which is in similar terms).

CONCEPTS [473HG.20] Notice According to s 473HG(1), the referred applicant is to give the IAA written notice of the name and address of the authorised recipient. This section does not require that the notice be in any particular form. Section 495 provides the Minister with a discretion to approve forms, but that power is expressly limited to other provisions of the Act where the term “approved form” is © 2016 THOMSON REUTERS

983

s 473HG

Migration Act 1958

[473HG.30]

used. Section 473HG(1) is not such a provision: MZZDJ v Minister for Immigration and Border Protection (2013) 216 FCR 153; 137 ALD 466; [2013] FCAFC 156 at [24] per Jagot, Bromberg and Mortimer JJ (in relation to s 494D, which is in similar terms). In addition, there is no requirement that the notice under s 473HG(1) be signed: Jalagam v Minister for Immigration and Citizenship [2009] FCA 197 at [36] per Edmonds J. [473HG.30] Address The term “address” is not defined in the Act and in this section is not to be read as “limited to a postal address or street address”: MZZDJ v Minister for Immigration and Border Protection (2013) 216 FCR 153; 137 ALD 466; [2013] FCAFC 156 at [29] per Jagot, Bromberg and Mortimer JJ (in relation to s 494D, which is in similar terms). Rather, the term “address” is to be read consistently with the way that term is used in s 473HB; therefore, “address” can be an electronic address, including email: at [30] per Jagot, Bromberg and Mortimer JJ. [473HG.40] Give the authorised recipient The expression “give the authorised recipient, instead of the referred applicant” is not to be construed narrowly. Therefore, sending a letter to a person care of that person’s authorised recipient will not constitute “giving” that letter to the authorised recipient: VEAN v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 280 at [31] per Weinberg J (in relation to s 494D, which is in similar terms). [473HG.50] Giving or give The word “give” is a word of “wide amplitude” and does not equate with “physically handing over an object”: VEAN v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 280 at [31] per Weinberg J (in relation to s 494D, which is in similar terms). [473HG.60] Vary or withdraw the notice Section 441HG(3) provides that an applicant can vary or withdraw the notice under s 441HG(1) appointing an authorised recipient. Whereas a withdrawal is “an absolute act and operates on the entire written notice” (MZZDJ v Minister for Immigration and Border Protection (2013) 216 FCR 153; 137 ALD 466; [2013] FCAFC 156 at [31] per Jagot, Bromberg and Mortimer JJ (in relation to s 494D, which is in similar terms)), to “vary” means to alter the notice: at [32] per Jagot, Bromberg and Mortimer JJ.

KEY CASES [473HG.70] Letter addressed to referred applicant, care of the authorised recipient If a referred applicant has an authorised recipient according to the terms of s 473HG, there will be compliance with s 473HB(5) if the envelope is addressed to the authorised recipient. The letter inside the envelope may nevertheless refer to the referred applicant. In Minister for Immigration and Citizenship v SZKPQ (2008) 166 FCR 84; 101 ALD 5; [2008] FCAFC 21, the applicant who applied for a protection visa had an authorised recipient pursuant to s 494D (which is in similar terms to s 473HG). A delegate of the Minister refused the visa. The notification letter was addressed to the applicant, care of his authorised recipient. The letter was sent by prepaid post in an envelope addressed only to the authorised recipient. Bennett, Emmett and Branson JJ held that there had been compliance with s 494B(4) even though the notification letter was addressed to the applicant and not his authorised recipient. Emmett J stated at [25]: Section 494D(1) clearly contemplates that a document addressed to an applicant for a visa, which would otherwise have been given to that person, must be given to the authorised recipient. That 984

Migration Law

Part 7AA – Fast track review process in relation to certain protection visa decisions (ss 473BA–473JF) [473HG.80] Division 7 – Giving and receiving review documents etc. (ss 473HA – 473HG) s 473HG

provision tends to indicate that a letter such as the delegate’s letter in the present case ought to be addressed to a visa applicant rather than to the authorised recipient. The scheme of the legislation is that the authorised recipient is to be given the document that would otherwise have been given to the visa applicant. It is inconsistent with that notion that the document should itself be addressed to the authorised recipient rather than the applicant for a visa.

Emmett, Bennett and Branson JJ considered the cases of VEAN of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 570; 204 ALR 80; [2003] FCAFC 311 (VEAN) and SZFOH v Minister for Immigration and Citizenship (2007) 159 FCR 199; 241 ALR 653; [2007] FCAFC 63 (SZFOH). Emmett J (with whom Bennett and Branson JJ agreed) held at [26] that the matter before the court was distinguishable from VEAN because in that case the notification document was sent to the authorised recipient in an envelope addressed to the visa applicant care of that visa applicant’s authorised recipient. Emmett J (with whom Bennett and Branson agreed) also stated at [26] that to the extent that the decision in VEAN: suggests either that notification documents must contain within them the address of the authorised recipient or may not contain the address of an applicant for a visa, the decision should not be followed. In so far as the second case [SZFOH] construed the first case [VEAN] in that way, that construction was erroneous.

[473HG.80] Section 473HG(3) and varying the notice under s 473HG(1) In MZZDJ v Minister for Immigration and Border Protection (2013) 216 FCR 153; 137 ALD 466; [2013] FCAFC 156, the applicant applied for a protection visa and had given notice under s 494D(1) (which is in similar terms to s 473HG) of his authorised recipient. The applicant and his authorised recipient attended an interview with a delegate of the Minister. At that interview, the authorised recipient informed the delegate that she would be overseas and requested that the delegate notify her of the decision by email. The delegate forgot about this and sent the notification letter, refusing to grant the visa, to the authorised recipient by prepaid post. When this was brought to the delegate’s attention, the delegate attempted to re-notify the applicant of the decision by sending the letter by email to the applicant’s authorised recipient. When the applicant attempted to file an application with the former Refugee Review Tribunal for review, the Tribunal found that it did not have jurisdiction to consider the application because it was lodged out of time. The basis for this decision was that the applicant had been validly notified by the first notification letter sent to the authorised recipient by prepaid post. Jagot, Bromberg and Mortimer JJ considered the word “notice” in s 494D and found that the section did not require notices to be in any particular form: at [24]. Their Honours further stated at [26]: The level of formality required (or not required) by s 494D is not without significance. The absence of strict prescriptions about form underlines the facultative nature of this provision: it is intended to give applicants a readily accessible means of ensuring communication in relation to their visa applications is undertaken in the most effective manner if they do not wish, for whatever reason, to be entirely responsible for receiving communications and taking necessary action.

In addition, Jagot, Bromberg and Mortimer JJ were of the view that the term “address” in s 494D should be consistent with s 494B; therefore an address can be in an electronic form, such as an email: at [29] – [30]. In relation to s 494D(3), this provision permits an applicant to either withdraw the notice under s 494D(1) or to vary it. In relation to varying the notice, the term “vary” should not be read narrowly: at [32] per Jagot, Bromberg and Mortimer JJ. Therefore, in relation to a variation of a notice under s 494D(1), their Honours were of the view that: • the variation of the notice can be permanent or temporary: at [33]; • the variation can be oral: at [34]; and • the variation can be made by the authorised person under s 494D(1): at [35]. © 2016 THOMSON REUTERS

985

s 473JA

Migration Act 1958

[473HG.90]

Given the above, Jagot, Bromberg and Mortimer JJ held that the applicant’s authorised recipient had made an oral variation to the notice under s 494D at the interview with the delegate. Therefore, the first notification letter sent by the delegate to the authorised recipient by prepaid post was not “given” to the applicant and the Tribunal erred by relying on this notification to find that it did not have jurisdiction. [473HG.90] The IAA ″must″ give the authorised recipient, instead of the referred applicant, relevant documents In Lee v Minister for Immigration and Citizenship (2007) 159 FCR 181; 241 ALR 363; [2007] FCAFC 62, the appellant had applied to the Migration Review Tribunal (as it was then known) for review of a decision. The appellant relevantly appointed an authorised recipient for the purposes of s 379G(1) (which is in similar terms to s 473HG(1)). The Tribunal subsequently sent a letter to the appellant directly, but failed to send it to the authorised recipient. The Minister led evidence of actual delivery of the document to the appellant himself and argued, therefore, that there was no failure to comply with s 379G(1). The Full Court of the Federal Court held that s 379G(1) “is expressed in mandatory terms, and the tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant”. Further, the qualification in s 379G(2) that the Tribunal can give a copy of the document to the applicant does not supplant the Tribunal’s obligation to give a copy of the document to the authorised recipient: at [34] per Besanko J (Moore and Buchanan JJ agreeing). In addition, Besanko J rejected the Minister’s suggestion that proof of actual service of a document on the applicant will overcome the failure of the Tribunal to comply with s 379G(1): at [38] (Moore and Buchanan JJ agreeing).

PRACTICE POINT [473HG.100] Applicant deemed to have received the document Where a document is sent to an authorised recipient, an applicant is deemed to have received the document in the time period specified in s 473HD.

DIVISION 8 – THE IMMIGRATION ASSESSMENT AUTHORITY (SS 473JA – 473JF) 473JA The Immigration Assessment Authority (1) The Immigration Assessment Authority is established within the Migration and Refugee Division of the Tribunal. [Subs (1) am Act 60 of 2015, s 3 and Sch 2 item 178, with effect from 1 Jul 2015]

(2) The (a) (aa) (b)

Immigration Assessment Authority consists of the following persons: the President; the Division head; the Senior Reviewer and other Reviewers.

[Subs (2) am Act 60 of 2015, s 3 and Sch 2 item 179, with effect from 1 Jul 2015]

(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. [Subs (3) am Act 60 of 2015, s 3 and Sch 2 item 180, with effect from 1 Jul 2015] [S 473JA am Act 60 of 2015; insrt Act 135 of 2014, s 3 and Sch 4 item 21, with effect from 18 Apr 2015]

986

Migration Law

Part 7AA – Fast track review process in relation to certain protection visa decisions (ss 473BA–473JF) Division 8 – The Immigration Assessment Authority (ss 473JA – 473JF) s 473JF

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. [Subs (1) subst Act 60 of 2015, s 3 and Sch 2 items 182 and 186, with effect from 1 Jul 2015]

(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). [Subs (1A) insrt Act 60 of 2015, s 3 and Sch 2 item 181, with effect from 1 Jul 2015]

(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. [Subs (2) am Act 60 of 2015, s 3 and Sch 2 items 182 and 186, with effect from 1 Jul 2015] [S 473JB am Act 60 of 2015; insrt Act 135 of 2014, s 3 and Sch 4 item 21, with effect from 18 Apr 2015]

473JC Appointment of Senior Reviewer (1) The President must, by written instrument, appoint an SES employee to be the Senior Reviewer. [Subs (1) am Act 60 of 2015, s 3 and Sch 2 item 186, with effect from 1 Jul 2015]

(2) Before appointing a person as the Senior Reviewer, the President must consult the Minister. [Subs (2) am Act 60 of 2015, s 3 and Sch 2 item 186, with effect from 1 Jul 2015] [S 473JC am Act 60 of 2015; insrt Act 135 of 2014, s 3 and Sch 4 item 21, with effect from 18 Apr 2015]

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. [S 473JD am Act 60 of 2015, s 3 and Sch 2 item 186, with effect from 1 Jul 2015; insrt Act 135 of 2014, s 3 and Sch 4 item 21, with effect from 18 Apr 2015]

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. [Subs (2) am Act 60 of 2015, s 3 and Sch 2 item 183, with effect from 1 Jul 2015] [S 473JE am Act 60 of 2015; insrt Act 135 of 2014, s 3 and Sch 4 item 21, with effect from 18 Apr 2015]

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. [Subs (1) am Act 60 of 2015, s 3 and Sch 2 item 186, with effect from 1 Jul 2015]

© 2016 THOMSON REUTERS

987

s 473JF

Migration Act 1958

(2) In exercising a power under a delegation, the Senior Reviewer must comply with any written directions of the President. [Subs (2) am Act 60 of 2015, s 3 and Sch 2 item 186, with effect from 1 Jul 2015] [S 473JF am Act 60 of 2015, s 3 and Sch 2 item 184, with effect from 1 Jul 2015; insrt Act 135 of 2014, s 3 and Sch 4 item 21, with effect from 18 Apr 2015]

988

Migration Law

PART 8 – JUDICIAL REVIEW (SS 474–484) [Pt 8 heading subst Act 157 of 2001, s 3 and Sch 1 item 5, with effect from 1 Oct 2001] [Pt 8 subst Act 134 of 2001, s 3 and Sch 1 item 7, with effect from 2 Oct 2001; former Pt 4B renum Act 60 of 1994, s 83, with effect from 1 Sep 1994; insrt Act 184 of 1992, s 33, with effect from 1 Sep 1994]

DIVISION 1 – PRIVATIVE CLAUSE (S 474) 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.

© 2016 THOMSON REUTERS

989

s 474

Migration Act 1958

(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 Item 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 23 28 31

that are not privative clause decisions Provision Subject matter of provision section 213 Liability for the costs of removal or deportation section 217 Conveyance of removees section 218 Conveyance of deportees etc. section 222 Orders restraining non-citizens from disposing of property section 223 Valuables of detained non-citizens section 224 Dealing with seized valuables section 252 Searches of persons section 259 Detention of vessels for search section 260 Detention of vessels/dealing with detained vessels section 261 Disposal of certain vessels Division 14 of Part 2 Recovery of costs section 269 Taking of securities section 272 Migrant centres section 273 Detention centres Part 3 Migration agents registration scheme Part 4 Court orders about reparation Division 7 of Part 5 Part-5 reviewable decisions: offences Division 6 of Part 7 Part-7 reviewable decisions: offences regulation 5.35 Medical treatment of persons in detention

[Subs (4) am Act 60 of 2015, s 3 and Sch 2 items 115–119, with effect from 1 Jul 2015; Act 85 of 2009, s 3 and Sch 1 item 24, with effect from 9 Nov 2009]

(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. [Subs (6) insrt Act 137 of 2005, Sch 1[15], with effect from 1 Dec 2005]

(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); (b) [Repealed] (c) [Repealed]

990

Migration Law

[474.40]

Part 8 - Judicial Review (ss 474-484) Division 1 – Privative clause (s 474)

s 474

(d) a decision of the Minister under Division 13A of Part 2 to order that a thing is not to be condemned as forfeited. [Subs (7) am Act 60 of 2015, s 3 and Sch 2 items 120 and 121, with effect from 1 Jul 2015; Act 113 of 2012, s 3 and Sch 1 item 30, with effect from 18 Aug 2012; insrt Act 137 of 2005, Sch 1[15], with effect from 1 Dec 2005; am Act 79 of 2005, Sch 1[17], with effect from 1 Dec 2005] [S 474 am Act 60 of 2015; Act 113 of 2012; Act 85 of 2009; Act 137 of 2005; Act 79 of 2005; subst Act 134 of 2001, s 3 and Sch 1 item 7, with effect from 2 Oct 2001; former s 166L renum Act 60 of 1994, s 83, with effect from 1 Sep 1994; insrt Act 184 of 1992, s 33, with effect from 1 Sep 1994]

SECTION 474 COMMENTARY Scope ................................................................................................................................................... [474.20] KEY CASES

Plaintiff S157/2002 v Commonwealth of Australia ........................................................................... [474.40] PRACTICE POINT

Decision affected by jurisdictional error ............................................................................................ [474.60]

[474.20] Scope Section 474 was inserted into the Act by Sch 1 of the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), which came into operation on 2 October 2001. This section sets out the meaning of a “privative clause decision” (s 474(1) and (2)) and a “non-privative clause decision”: s 474(4) and (6). In relation to the meaning of a “privative clause”, the Explanatory Memorandum to the Migration Legislation Amendment (Judicial Review) Bill 1998 (Cth) states at [15]: A privative clause is a provision which, although on its face purports to oust all judicial review, in operation, by altering the substantive law, limits review by the courts to certain grounds. Such a clause has been interpreted by the High Court, in a line of authority stemming from the judgment of Dixon J in R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598, to mean that a court can still review matters but the available grounds are confined to exceeding constitutional limits, narrow jurisdictional error or mala fides.

In the Second Reading speech for the Bill to the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), the Minister stated (Australia, House of Representatives, Parliamentary Debates (26 September 2001), p 31559): The privative clause does not mean that access to the courts is denied, nor that only the High Court can hear migration matters. Both the Federal Court and the High Court can hear migration matters, but the grounds of judicial review before either court have been limited.

In relation to the intention of s 474, the Explanatory Memorandum to the Migration Legislation Amendment (Judicial Review) Bill 1998 (Cth) states at [16]: The intention of the provision is to provide decision-makers with wider lawful operation for their decisions such that, provided the decision-maker is acting in good faith, has been given authority to make the decision concerned (for example, by delegation of the power from the Minister or by virtue of holding a particular office) and does not exceed constitutional limits, the decision will be lawful.

This section does not protect decisions made under the Act which involve a jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; 195 ALR 24; [2003] HCA 2 at [83] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ.

KEY CASES [474.40] Plaintiff S157/2002 v Commonwealth of Australia In Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; 195 ALR 24; [2003] HCA 2, the plaintiff argued that s 474 was not constitutionally valid because the words of the © 2016 THOMSON REUTERS

991

s 474A

Migration Act 1958

[474.60]

section purported to prevent any applicant from seeking, and any court, including the High Court, from granting any relief with respect to any application for review of a decision of an administrative character under the Act. Therefore, it was claimed that s 474 purported to oust the jurisdiction of the High Court vested upon it by s 75(v) of the Constitution. Section 474 was held to be constitutionally valid: at [37] and [38] per Gleeson CJ, at [78] and [83] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ, and at [160] and [163] per Callinan J. Gaudron, McHugh, Gummow, Kirby and Hayne JJ stated at [75]–[76]: When regard is had to the phrase “under this Act” in s 474(2) of the Act, the words of that sub-section are not apt to refer either to decisions purportedly made under the Act or, as some of the submissions made on behalf of the Commonwealth might suggest, to decisions of the kind that might be made under the Act. Moreover, if the words of the sub-section were to be construed in either of those ways, s 474(1)(c) would be in direct conflict with s 75(v) of the Constitution and, thus, invalid. Further, they would confer authority on a non-judicial decision-maker of the Commonwealth to determine conclusively the limits of its own jurisdiction and, thus, at least in some cases, infringe the mandate implicit in the text of Ch III of the Constitution that the judicial power of the Commonwealth be exercised only by the courts named and referred to in s 71. Once it is accepted, as it must be, that s 474 is to be construed conformably with Ch III of the Constitution, specifically, s 75, the expression “decision[s] … made under this Act” must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act. Indeed so much is required as a matter of general principle. This Court has clearly held that an administrative decision which involves jurisdictional error is “regarded, in law, as no decision at all”. Thus, if there has been jurisdictional error because, for example, of a failure to discharge “imperative duties” or to observe “inviolable limitations or restraints”, the decision in question cannot properly be described in the terms used in s 474(2) as “a decision … made under this Act” and is, thus, not a “privative clause decision” as defined in ss 474(2) and (3) of the Act.

PRACTICE POINT [474.60] Decision affected by jurisdictional error A decision that is affected by a jurisdictional error is not a privative clause decision and therefore a person may seek to have the courts review that decision. Section 474 does not prevent the Minister from seeking judicial review of a decision of the Tribunal or the Administrative Appeals Tribunal, which the Minister considers is affected by a jurisdictional error: Minister for Immigration v Kang [2012] FMCA 732 at [54] per Turner FM.

DIVISION 2 – JURISDICTION AND PROCEDURE OF COURTS (SS 474A–484) [Div 2 heading subst Act 137 of 2005, s 3 and Sch 1 item 17; Act 134 of 2001, s 3 and Sch 1 item 7, with effect from 2 Oct 2001; Act 157 of 2001, s 3 and Sch 1 item 6, with effect from 1 Oct 2001]

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;

992

Migration Law

Part 8 - Judicial Review (ss 474-484) Division 2 – Jurisdiction and procedure of courts (ss 474A–484)

(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 section 6 1 section 8 2 section 9 3 section 10 4 section 10A 5 section 11 6 section 12 7 section 13 8 section 14 9 section 17K 10 section 17L 11 section 18A 12 section 18B 13 14 15 16 17 18 19 20 21

s 475A

section section section section section section section section

19A 19D 24C 24N 24P 24PA 42 64

Subject matter of provision Appointment of members of the Tribunal Term of appointment Remuneration and allowances Acting appointments Delegation Outside employment Leave of absence Termination of appointment (not Judges) Disclosure of interests by members Division heads Deputy Division heads Arrangement of business President’s directions—arrangement of business President’s directions—constitution Reconstitution Appointment of Registrar Staff Functions of Registrar and staff Officers of the Tribunal Resolving disagreements Registries

Note: An AAT Act migration decision is a migration decision (see paragraph (d) of the definition of migration decision in subsection 5(1)). [S 474A insrt Act 60 of 2015, s 3 and Sch 2 item 122, with effect from 1 Jul 2015]

475 This Division not to limit section 474 This Division is not to be taken to limit the scope or operation of section 474. [S 475 am Act 157 of 2001, s 3 and Sch 1 item 6, with effect from 1 Oct 2001; subst Act 134 of 2001, s 3 and Sch 1 item 7, with effect from 2 Oct 2001; am Act 28 of 2000; Act 160 of 1999; Act 34 of 1999; Act 102 of 1995 (am Act 100 of 1995); Act 100 of 1995; Act 60 of 1994; insrt Act 184 of 1992, s 33, with effect from 1 Sep 1994]

475A Section 476 not to affect the jurisdiction of the Federal Court or Federal Magistrates Court in certain cases [Repealed] [S 475A rep Act 137 of 2005, s 3 and Sch 1, with effect from 1 Dec 2005; am Act 157 of 2001; insrt Act 134 of 2001, s 3 and Sch 1 item 7, with effect from 2 Oct 2001]

© 2016 THOMSON REUTERS

993

s 475A

Migration Act 1958

[476.20]

476 Jurisdiction of the Federal Circuit Court (1) Subject to this section, the Federal Circuit Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution. [Subs (1) am Act 13 of 2013, s 3 and Sch 2 item 1, with effect from 12 Apr 2013; Act 157 of 2001, s 3 and Sch 1 item 7, with effect from 1 Oct 2001]

(2) The Federal Circuit Court has no jurisdiction in relation to the following decisions: (a) a primary decision; (b) a privative clause decision, or purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500; (c) a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B or 501C; (d) a privative clause decision or purported privative clause decision mentioned in subsection 474(7). [Subs (2) am Act 13 of 2013, s 3 and Sch 2 item 1, with effect from 12 Apr 2013]

(3) Nothing in this section affects any jurisdiction the Federal Circuit Court may have in relation to non-privative clause decisions under section 8 of the Administrative Decisions (Judicial Review) Act 1977 or section 44AA of the Administrative Appeals Tribunal Act 1975. [Subs (3) am Act 13 of 2013, s 3 and Sch 2 item 1, with effect from 12 Apr 2013]

(4) In this section: primary decision means a privative clause decision or purported privative clause decision: (a) that is reviewable under Part 5 or 7 or section 500 (whether or not it has been reviewed); or (b) that would have been so reviewable if an application for such review had been made within a specified period; or (c) that has been, or may be, referred for review under Part 7AA (whether or not it has been reviewed). [Def am Act 135 of 2014, s 3 and Sch 4 item 22, with effect from 18 Apr 2015] [S 476 am Act 135 of 2014; Act 13 of 2013, s 3 and Sch 1 item 333, with effect from 12 Apr 2013; subst Act 137 of 2005, Sch 1[17], with effect from 1 Dec 2005; am Act 79 of 2005; Act 75 of 2003; Act 157 of 2001; subst Act 134 of 2001, s 3 and Sch 1 item 7, with effect from 2 Oct 2001; insrt Act 184 of 1992, s 33, with effect from 1 Sep 1994]

SECTION 476 COMMENTARY Scope ................................................................................................................................................... [476.20] CONCEPTS

Migration decision ............................................................................................................................... [476.40] Primary decision .................................................................................................................................. [476.60] Privative clause decision ..................................................................................................................... [476.80] Purported privative clause decision .................................................................................................. [476.100] In relation to ...................................................................................................................................... [476.120] PRACTICE POINTS

Under the Federal Circuit Court Rules 2001 .................................................................................. [476.140]

[476.20] Scope Section 476 gives the Federal Circuit Court jurisdiction to hear matters relating to a migration decision. Under s 476(1), the Federal Circuit Court has the same jurisdiction, in relation to a migration decision, as the High Court under s 75(v) of the Constitution. In other words, the 994

Migration Law

[476.60]

Part 8 - Judicial Review (ss 474-484) Division 2 – Jurisdiction and procedure of courts (ss 474A–484)

s 476

Federal Circuit Court has jurisdiction to hear matters in relation to a migration decision where a writ of mandamus or prohibition, or an injunction, is sought against an officer of the Commonwealth. This will usually be the Minister or the Tribunal. The Federal Circuit Court hears applications in which an applicant is seeking judicial review in relation to a migration decision. Generally, these matters involve judicial review of: • decisions made by the Tribunal under Part 5 and Part 7 and Part 7AA to either refuse to grant an applicant a visa or to cancel a visa; or • recommendations made by an Independent Protection Assessor, Independent Protection Assessment Reviewer, Independent Merits Reviewer or Independent Merits Assessor; • decision of the Immigration Assessment Authority regarding a fast track reviewable decision under s s 473CC(2)(a); or • decisions by the Minister that an applicant is an excluded fast track review applicant (as defined in s 5 of the Act). The Federal Circuit Court will review a migration decision to determine whether there is a jurisdictional error in that decision. However, the Federal Circuit Court does not consider the merits of the visa application or the cancellation of a visa. Nor does the Federal Circuit Court have jurisdiction in relation to the following: • an application that is not filed within 35 days of the date of the migration decision, unless the Federal Circuit Court makes an order extending this time period: see s 477; • a primary decision, which is defined in s 476(4): s 476(2)(a); • a privative clause decision or purported privative clause decision under s 500 made by the Administrative Appeals Tribunal: s 476(2)(b); • a privative clause decision or purported privative clause decision under ss 501, 501A, 501B or 501C made personally by the Minister: s 476(2)(c); or • a privative clause decision or purported privative clause decision listed in s 474(7) – that is, a decision by the Minister not to exercise, or not to consider the exercise of, the power under ss 37A(2) or (3), 48B, 72(1)(c), 91F, 91L, 91Q, 195A, 197AB, 197AD, 198AE, 351, 391, 417 or 503A(3) or a decision of the Minister under Div 13A of Pt 2 to order that a thing is not to be condemned or forfeited: s 476(2)(d). Matters involving these sections are colloquially known as Ministerial Intervention matters. The Federal Circuit Court was formerly called the Federal Magistrates Court. The Federal Circuit Court of Australia (Consequential Amendments) Act 2013 (Cth) amended s 474 to remove all references to “Federal Magistrates Court” and replace them with “Federal Circuit Court”.

CONCEPTS [476.40] Migration decision The expression “migration decision” is defined in s 5 of the Act to mean a privative clause decision (defined in s 474), a purported privative clause decision (defined in s 5E), or a non-privative clause decision (defined in s 474(6). An automatic cancellation of a student visa under s 137J is not a migration decision and therefore the Federal Circuit Court will not have jurisdiction to consider such matters: Kumar v Minister for Immigration [2008] FMCA 1458. [476.60] Primary decision The expression “primary decision” is defined in s 476(4). The Federal Circuit Court does not, however, have jurisdiction to consider a “primary decision”. Only the High Court has such jurisdiction: MZXOT v Minister for Immigration and Citizenship (2008) 233 CLR 601; 247 ALR 58; [2008] HCA 28. © 2016 THOMSON REUTERS

995

s 476A

Migration Act 1958

[476.80]

In addition, the Federal Court does not have jurisdiction to: • hear a matter regarding a primary decision; nor • remit a matter regarding a primary decision back to the Federal Circuit Court: Prodduturi v Minister for Immigration and Border Protection [2015] FCAFC 5 at [34]–[36] per Perram, Perry and Gleeson JJ. [476.80] Privative clause decision The expression “privative clause decision” is defined in s 474. [476.100] Purported privative clause decision The expression “purported privative clause decision” is defined in s 5E. [476.120] In relation to The Federal Circuit Court has jurisdiction where judicial review is being sought “in relation to” a migration decision. The expression “in relation to” is not limited to a “relationship of ‘direct connection’”: Success Australia Group Pty Ltd v Minister for Immigration [2014] FCCA 327 at [41] per Lucev J.

PRACTICE POINTS [476.140] Under the Federal Circuit Court Rules 2001 The Federal Circuit Court Rules 2001 (Cth) (Rules) set out the way in which matters in the Federal Circuit Court are to be dealt with. The following parts of those Rules are particularly relevant: • Chapter 6 Pt 44 sets out the rules in relation to applications made under s 476; • Schedule 1 Pt 3 Div 1 sets out the costs a successful party may be entitled to in relation to migration proceedings that are concluded: see r 44.15(1). These costs are normally applicable where the successful party is legally represented. Where the successful party is not legally represented, costs would not normally be awarded; and • Schedule 1 Pt 3 Div 2 sets out the costs that a successful party may be entitled to when a notice of discontinuance has been filed: see r 44.15(2) of the Rules and r 44.15(3) to (5) regarding recovery of costs. If the Rules are insufficient or inappropriate, the Federal Circuit Court may have regard to the Federal Court Rules 2001 (Cth): see r 1.05 of the Rules. An application filed under s 476 must be filed within 35 days of the date of the migration decision. However, the Federal Circuit Court has the power to extend the 35-day period: see s 477. 476A Limited jurisdiction of the Federal Court (1) Despite any other law, including section 39B of the Judiciary Act 1903 and section 8 of the Administrative Decisions (Judicial Review) Act 1977, the Federal Court has original jurisdiction in relation to a migration decision if, and only if: (a) the Federal Circuit Court transfers a proceeding pending in that court in relation to the decision to the Federal Court under section 39 of the Federal Circuit Court of Australia Act 1999; or (b) the decision is a privative clause decision, or a purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500; or

996

Migration Law

[476.140]

Part 8 - Judicial Review (ss 474-484) Division 2 – Jurisdiction and procedure of courts (ss 474A–484)

s 476A

(c)

the decision is a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B or 501C; or (d) the Federal Court has jurisdiction in relation to the decision under subsection 44(3) or 45(2) of the Administrative Appeals Tribunal Act 1975. Note: An appeal in relation to any of the following migration decisions cannot be made to the Federal Court under section 44 of the Administrative Appeals Tribunal Act 1975: (a) a privative clause decision; (b) a purported privative clause decision; (c) an AAT Act migration decision. In addition, reference of a question of law arising in relation to a review of any of the proceedings mentioned in paragraph (a), (b) or (c) cannot be made by the Tribunal to the Federal Court under section 45 of the Administrative Appeals Tribunal Act 1975. The only migration decisions in relation to which an appeal under section 44 of that Act, or a referral under section 45 of that Act, can be made to the Federal Court are non-privative clause decisions. [Subs (1) am Act 60 of 2015, s 3 and Sch 2 item 123, with effect from 1 Jul 2015; Act 13 of 2013, s 3 and Sch 2 item 1, with effect from 12 Apr 2013; Act 13 of 2013, s 3 and Sch 1 item 334, with effect from 12 Apr 2013]

(2) Where the Federal Court has jurisdiction in relation to a migration decision under paragraph (1)(a), (b) or (c), that jurisdiction is the same as the jurisdiction of the High Court under paragraph 75(v) of the Constitution. (3) Despite section 24 of the Federal Court of Australia Act 1976, an appeal may not be brought to the Federal Court from: (a) a judgment of the Federal Circuit Court that makes an order or refuses to make an order under subsection 477(2); or (b) a judgment of the Federal Court that makes an order or refuses to make an order under subsection 477A(2). [Subs (3) am Act 13 of 2013, s 3 and Sch 2 item 1, with effect from 12 Apr 2013; insrt Act 10 of 2009, s 3 and Sch 3 item 1, with effect from 15 Mar 2009]

(4) Despite section 33 of the Federal Court of Australia Act 1976, an appeal may not be brought to the High Court from a judgment of the Federal Court that makes an order or refuses to make an order under subsection 477A(2). [Subs (4) insrt Act 10 of 2009, s 3 and Sch 3 item 1, with effect from 15 Mar 2009]

(5) In this section: judgment has the same meaning as in the Federal Court of Australia Act 1976. [Subs (5) insrt Act 10 of 2009, s 3 and Sch 3 item 1, with effect from 15 Mar 2009] [S 476A am Act 60 of 2015; Act 13 of 2013; Act 10 of 2009; insrt Act 137 of 2005, Sch 1[17], with effect from 1 Dec 2005]

SECTION 476A COMMENTARY Scope ................................................................................................................................................. [476A.20] CONCEPTS

Migration decision ............................................................................................................................ [476A.40] Privative clause decision .................................................................................................................. [476A.60] Purported privative clause decision ................................................................................................. [476A.80] In relation to ................................................................................................................................... [476A.100] PRACTICE POINTS

Matters in the Federal Circuit Court ............................................................................................. [476A.120]

© 2016 THOMSON REUTERS

997

s 476A

Migration Act 1958

[476A.20]

[476A.20] Scope According to s 39B(1) of the Judiciary Act 1903 (Cth), the Federal Court has original jurisdiction in respect of proceedings involving constitutional writs against the Commonwealth. However, s 476A constrains the Federal Court’s original jurisdiction under s 39B(1) and (1A)(c) of the Judiciary Act 1903 (Cth): Maurice Blackburn Pty Ltd v Commonwealth [2014] FCA 767 at [26] per Beach J. The Federal Court has original jurisdiction in relation to a migration decision if: • the Federal Circuit Court transfers a proceeding under s 39 of the Federal Circuit Court of Australia Act 1999 (Cth): s 476A(1)(a); • it is a privative clause decision or purported privative clause decision under s 500 made by the Administrative Appeals Tribunal: s 476A(1)(b); • it is a privative clause decision or purported privative clause decision under s 501, 501A, 501B or 501C made personally by the Minister: s 476A(1)(c); and • the Federal Court has jurisdiction under s 44(3) or 45(2) of the Administrative Appeals Tribunal Act 1975 (Cth). The Federal Court also has appellate jurisdiction to hear appeals from the Federal Circuit Court in relation to applications made under s 476. However, the Federal Court does not have jurisdiction to hear appeals in relation to a judgment of the Federal Circuit Court refusing to make an order to extend time under s 477(2): s 476A(3)(a). Any appeal filed in the Federal Court relating to a decision made under s 477(2) in the Federal Circuit Court will be incompetent: SZQLD v Minister for Immigration and Citizenship [2011] FCA 1339; SZQPN v Minister for Immigration and Citizenship [2012] FCA 424; SZQDZ v Minister for Immigration and Citizenship (2012) 200 FCR 207; 286 ALR 331; [2012] FCAFC 26. However, where the Federal Circuit Court refuses to extend time under s 477(2), but makes an order dismissing the substantive application, then an appeal to the Federal Court will not be incompetent: SZQDZ v Minister for Immigration and Citizenship (2012) 200 FCR 207; 286 ALR 331; [2012] FCAFC 26. Even so, the appeal will be “doomed to fail” because the Federal Circuit Court decision not to extend time is unassailable in the Federal Court: SZQPN v Minister for Immigration and Citizenship [2012] FCA 424 at [14] per Jagot J. The Federal Court also has original jurisdiction to determine an application for judicial review (as opposed to an appeal) of the orders of the Federal Circuit Court to refuse to extend time under s 477(2), pursuant to s 39B(1) of the Judiciary Act 1903: Tang v Minister for Immigration and Citizenship (2013) 217 FCR 55; 305 ALR 547; [2013] FCAFC 139 at [11] per Rares, Perram and Wigney JJ. However, the application to the Federal Court must be made under s 39B of the Judiciary Act 1903.

CONCEPTS [476A.40] Migration decision The expression “migration decision” is defined in s 5 of the Act to mean a privative clause decision (defined in s 474), a purported privative clause decision (defined in s 5E) or a non-privative clause decision (defined in s 474(6)). [476A.60] Privative clause decision The expression “privative clause decision” is defined in s 474. [476A.80] Purported privative clause decision The expression “purported privative clause decision” is defined in s 5E. 998

Migration Law

[476A.120]

Part 8 - Judicial Review (ss 474-484) Division 2 – Jurisdiction and procedure of courts (ss 474A–484)

s 476B

[476A.100] In relation to The Federal Circuit Court has jurisdiction where judicial review is being sought “in relation to” a migration decision. The expression “in relation to” is not limited to a “relationship of ‘direct connection’”: Success Australia Group Pty Ltd v Minister for Immigration [2014] FCCA 327 at [41] per Lucev J.

PRACTICE POINTS [476A.120] Matters in the Federal Court The Federal Court Rules 2001 (Cth) (Rules) set out the ways in which matters in the Federal Court are to be dealt with. Relevantly: • Chapter 3 Pt 33 Div 33.2 sets out the procedures in relation to appeals from decisions of the Administrative Appeals Tribunal; • a notice of appeal, in relation to a judgment or order made by the Federal Circuit Court under s 476, must be filed in the Federal Court within 21 days of the judgment or order: r 36.03; • an unsuccessful party to a proceeding will usually be ordered to pay the successful party’s costs of the proceeding on a party and party basis: r 40.01; • Chapter 5 Pt 40 Div 40.2 sets out the taxation process for costs in relation to long form bills of cost; and • Rules 40.43 and 40.44 set out the procedure for obtaining a short form bill of costs in relation to migration appeals. Schedule 3 item 15 specifies the amounts that the successful party may be entitled to for the purposes of obtaining a short form bill of costs. An application filed under s 476A in the Federal Court’s original jurisdiction must be filed within 35 days of the date of the migration decision. However, the Federal Court has the power to extend the 35-day period: see s 477A. The principles considered by the Federal Court in determining whether or not to exercise the discretion to grant an extension of time are set out in s 477A. A notice of appeal from a judgment or order made by the Federal Circuit Court under s 476 must be filed within 21 days of the judgment or order: r 36.03 of the Rules. The Federal Court has discretion to extend this time period. The principles considered by the Federal Court in determining whether or not to exercise the discretion to grant an extension of time are similar to those considered under s 477A and are set out in the following cases: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; 58 ALR 305; [1984] FCA 176 at [18]–[23] per Wilcox J; Jess v Scott (1986) 12 FCR 187; 70 ALR 185; [1986] FCA 365 at [21]–[24] per Lockhart, Sheppard and Dowsett JJ; Parker v The Queen [2002] FCAFC 133 at [6] per Spender, O’Loughlin and Dowsett JJ; Peck v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] FCA 810 at [16]–[17] per Foster J; SZQBI v Minister for Immigration and Citizenship [2011] FCA 1388 at [16]–[25] per Cowdroy J. 476B Remittal by the High Court (1) Subject to subsection (3), the High Court must not remit a matter, or any part of a matter, that relates to a migration decision to any court other than the Federal Circuit Court. [Subs (1) am Act 13 of 2013, s 3 and Sch 2 item 1, with effect from 12 Apr 2013]

© 2016 THOMSON REUTERS

999

s 476B

Migration Act 1958

[476B.20]

(2) The High Court must not remit a matter, or any part of a matter, that relates to a migration decision to the Federal Circuit Court unless that court has jurisdiction in relation to the matter, or that part of the matter, under section 476. [Subs (2) am Act 13 of 2013, s 3 and Sch 2 item 1, with effect from 12 Apr 2013]

(3) The High Court may remit a matter, or part of a matter, that relates to a migration decision in relation to which the Federal Court has jurisdiction under paragraph 476A(1)(b) or (c) to that court. (4) Subsection (1) has effect despite section 44 of the Judiciary Act 1903. [S 476B am Act 13 of 2013; insrt Act 137 of 2005, Sch 1[17], with effect from 1 Dec 2005]

SECTION 476B COMMENTARY [476B.20] Scope Pursuant to s 44(1) of the Judiciary Act 1903 (Cth), the High Court may remit any part of a matter that is pending in the High Court to any federal court. However, s 476B does not permit the High Court to remit a matter that relates to a “migration decision” to either the: • Federal Court, unless it has jurisdiction under s 476A(1)(b) or (c): s 476B(3); or • Federal Circuit Court, unless it has jurisdiction under s 476: s 476B(2). Therefore, the High Court is not able to remit a matter relating to a “primary decision” to the Federal Circuit Court: MZXOT v Minister for Immigration and Citizenship (2008) 233 CLR 601; 247 ALR 58; [2008] HCA 28. 477 Time limits on applications to the Federal Circuit Court (1) An application to the Federal Circuit Court for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision. [Subs (1) am Act 13 of 2013, s 3 and Sch 2 item 1, with effect from 12 Apr 2013; Act 10 of 2009, s 3 and Sch 2 item 1, with effect from 15 Mar 2009]

(2) The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if: (a) an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and (b) the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order. [Subs (2) am Act 13 of 2013, s 3 and Sch 2 item 1, with effect from 12 Apr 2013; subst Act 10 of 2009, s 3 and Sch 2 item 2, with effect from 15 Mar 2009]

(3) In this section: date of the migration decision means: (a) in the case of a migration decision made under subsection 43(1) of the Administrative Appeals Tribunal Act 1975—the date of the written decision under that subsection; or (b) in the case of a migration decision made by the Administrative Appeals Tribunal in the exercise of its powers under Part 5—the day the decision is taken to have been made under subsection 362C(3), 368(2) or 368D(1); or

1000

Migration Law

Part 8 - Judicial Review (ss 474-484) Division 2 – Jurisdiction and procedure of courts (ss 474A–484)

[477.40]

s 477

(c)

in the case of a migration decision made by the Administrative Appeals Tribunal in the exercise of its powers under Part 7—the day the decision is taken to have been made under subsection 426B(3), 430(2) or 430D(1); or (ca) in the case of a migration decision made by the Immigration Assessment Authority—the date of the written statement under subsection 473EA(1); or (d) in any other case—the date of the written notice of the decision or, if no such notice exists, the date that the Court considers appropriate. [Def am Act 60 of 2015, s 3 and Sch 2 items 124 and 143, with effect from 1 Jul 2015; Act 35 of 2015, s 3 and Sch 4 item 33, with effect from 18 Apr 2015; Act 135 of 2014, s 3 and Sch 4 item 23, with effect from 18 Apr 2015] [Subs (3) subst Act 10 of 2009, s 3 and Sch 2 item 2, with effect from 15 Mar 2009]

(4) For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of date of the migration decision in subsection (3). [Subs (4) subst Act 10 of 2009, s 3 and Sch 2 item 2, with effect from 15 Mar 2009]

(5) To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision. [Subs (5) insrt Act 10 of 2009, s 3 and Sch 2 item 2, with effect from 15 Mar 2009] [S 477 am Act 60 of 2015; Act 35 of 2015; Act 135 of 2014; Act 13 of 2013, s 3 and Sch 1 item 335, with effect from 12 Apr 2013; Act 10 of 2009; subst Act 137 of 2005, Sch 1[18], with effect from 1 Dec 2005; Act 134 of 2001, s 3 and Sch 1 item 7, with effect from 2 Oct 2001; am Act 157 of 2001; insrt Act 184 of 1992, s 33, with effect from 1 Sep 1994]

SECTION 477 COMMENTARY Scope ................................................................................................................................................... [477.20] CONCEPTS

Interests of the administration of justice ............................................................................................ [477.40] KEY CASES

Necessary in the interests of the administration of justice ................................................................ [477.60] Reasons for the delay .......................................................................................................................... [477.80] PRACTICE POINTS

Time limits ........................................................................................................................................ [477.100]

CONCEPTS [477.40] Interests of the administration of justice The expression in the “interests of the administration of justice” is not defined in the Act. In SZTES v Minister for Immigration and Border Protection [2015] FCA 719, (SZTES) Wigney J observed at [44] that s 477(2) does not define or confine the matters that the Federal Circuit Court can or should have regard to in considering the interests of the administration of justice. Nevertheless, the expression has received considerable judicial consideration and, in determining whether to grant an extension of time, both the Federal Court and Federal Circuit Court have adopted the non-exhaustive principles set out by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; 58 ALR 305; [1984] FCA 176 at [18]–[23] – that is: • the extent of the delay; • the explanation for the delay; • any prejudice to the respondents;

© 2016 THOMSON REUTERS

1001

s 477

Migration Act 1958

[477.60]

• the impact on the applicant; • the interests of the public at large; and • the merits of the substantive application. In SZTES, Wigney J cautioned undue reliance on the merits of the substantive application, noting at [49] that, “it is generally inappropriate to fully investigate the merits of the substantive case, though obvious strengths or weaknesses may be a factor for or against extending time”. At [49] his Honour cited with approval the comments of French J (as his Honour then was) from Seiler v Minister for Immigration, Local Government and Ethnic Affairs (1994) 48 FCR 83; [1994] FCA 878 at [98]: In deciding to allow time to be extended, I have not taken into account the merits of the application. It was fully argued on the merits in any event. In the circumstances, it would be artificial to import into the consideration of the extension of time some assessment of the likelihood of the success of the application. The question of the merits of a substantive application has to be approached with some caution in any consideration of a claimed extension of time. If an application has no reasonable prospect of success, then the decision to refuse an extension on that basis reduces to a decision to strike it out. To say a substantive application has a reasonable prospect of success is to say no more than that there is a finite non-trivial probability that it will succeed. The statement of its merits is then stochastic. It is based upon necessarily incomplete evidence or consideration of the case. It is difficult to imagine any case which appeared weak but not hopeless in which it would be proper to refuse an extension on that account. On the other hand, the stronger the case appears to be, the higher may be the probability that an injustice will be done if an extension is refused. So a strong case may be a positive factor in favour of the grant of extension, but an apparently weak case cannot be treated as a factor weighing against it. In the event, and for the reasons outlined, I propose to grant the necessary extension of time.

KEY CASES [477.60] Necessary in the interests of the administration of justice In SZNZU v Minister for Immigration and Citizenship [2010] FMCA 197 at [52]–[54] Barnes FM (as she then was) considered the expression “necessary in the interests of the administration of justice” and the relevant case law and stated: The notion “in the interests of the administration of justice” has been considered in many contexts (see the discussion in Genovese v BGC Construction Pty Ltd [2006] FMCA 1507 at [28] per Lucev FM). Relevantly, in SZMFJ v Minister for Immigration [2009] FMCA 771, Nicholls FM (at [44]) identified a number of circumstances relevant to the second limb of s 477(2), being: 1. The extent of the delay and the reason for the delay. 2. Whether there is any merit in the application. 3. “Whether there is any prejudice to the respondents.” 4. The impact on the applicant. 5. The interests of the public at large. 6. The Court’s discretion itself. In Fisher v Minister for Immigration and Citizenship (2007) 162 FCR; [2007] FCA 591, Stone J suggested (at [35]) that the concept “… in the interests of the administration of justice” in s 477(2)(b) “… would involve consideration not only of the reasons for not meeting the original time limit but also whether the application, were the extension of time to be granted, would have any prospects of success”. (Also see Metera v Administrative Appeals Tribunal (2008) 105 ALD 18; [2008] FCA 1627 at [22]). Similarly in SZNZI v Minister for Immigration Smith FM stated (at [11]): The considerations which might bear on that discretion are unconfined. As with other powers to extend time and to waive defaults in relation to court procedures, two “critical” considerations are: “(1) that an explanation, reasonable to the circumstances, is provided for the party’s absence or other 1002

Migration Law

[477.80]

Part 8 - Judicial Review (ss 474-484) Division 2 – Jurisdiction and procedure of courts (ss 474A–484)

s 477

default; and (2) that the party in default has a material argument which, if heard and decided on its merits, might reasonably affect the determination of the rights and duties of the parties in a way different from that in the impugned order” (see Kirby J in Allesch Maunz [2000] HCA 40; (2000) 203 CLR 172 at [48]). Other considerations may come into play, including in my opinion, the implications of the appeals structure and alternative judicial review avenues (see Yu v Minister for Immigration [200] FMCA 1161 at [40]–[41]). None of the relevant considerations should be elevated to being a necessary consideration in all cases, including the two “critical” considerations (see Adams v Kennick Trading (International) Ltd (1986) 4 NSWLR 503 at 506 and 510). When reaching its ultimate conclusion, the Court must weight all of the relevant circumstances together by reference to the statutory criterion provided in s 477(2)(b), quoted above.

[477.80] Reasons for the delay The Federal Circuit Court has considered many reasons for an application not being filed within 35 days of the date of the migration decision. Common reasons include: • Ignorance of the time limits and ability to bring judicial review proceedings. Without any further justification, courts have not found that this is a satisfactory explanation for the delay: MZZRO v Minister for Immigration and Border Protection [2014] FCCA 882 at [33] per Jones J. In SZSDA v Minister for Immigration and Citizenship (2012) 135 ALD 17; [2012] FCA 1319 at [38], Foster J observed: In the present case, there is no satisfactory explanation for the delay. Whilst one may have considerable sympathy for a litigant in person who does not know that he may have a capacity to bring a judicial review application in the Federal Magistrates Court and therefore fails to do so within the stipulated timeframe, ignorance of those requirements (without more) is generally not regarded as a satisfactory explanation for delay.

• Seeking ministerial intervention, for example under s 351 or 417. Without any further justification, seeking to pursue ministerial intervention will not be a satisfactory explanation for a delay in filing an application for judicial review: VU v Minister for Immigration and Citizenship (2008) 101 ALD 211; [2008] FCAFC 59 at [32] per Jessup J (with whom Gyles and Besanko JJ agreed); Plaintiff M90/2009 v Minister for Immigration and Citizenship [2009] HCATrans 279 per Crennan J; Re Minister for Immigration and Multicultural Affairs; Ex parte Sithamparapillai [2004] HCATrans 364 per Hayne J; Applicant A2 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 576 at [9] per von Doussa J; Daniel v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 205 ALR 198; [2004] FCA 21 at [15] per Goldberg J; M211 of 2003 v Refugee Review Tribunal (2004) 82 ALD 24; 212 ALR 520; [2004] FCAFC 293 at [16]–[24] and [36] per Black CJ, Sackville and Sundberg JJ. However, if the reason for delay is not simply due to an applicant seeking ministerial intervention, but also due to other factors – for example bad advice from a migration agent – and there is some prospect in the substantial application, then an extension of time may be granted: Ahmed v Minister for Immigration and Citizenship [2011] HCATrans 35 per Gummow J. • Lack of funds to commence judicial review proceedings. Without further evidence as to an applicant’s financial situation or without any further justification, this will not be a satisfactory reason for a delay in filing an application for judicial review. In Plaintiff M90/2009 v Minister for Immigration and Citizenship [2009] HCATrans 279, Crennan J stated: As regards the plaintiff’s second reason, the plaintiff has asserted that he lacked the necessary funds to institute proceedings within time. No particulars of the plaintiff’s financial position are provided so there is no basis upon which to assess the assertion made. These considerations are not a sufficient explanation of the delay in bringing the application to this Court. © 2016 THOMSON REUTERS

1003

s 477A

Migration Act 1958

[477.100]

• Incorrect advice about option to seek judicial review. Depending on the evidence filed by an applicant, receiving incorrect advice from a migration agent or a lawyer about the option to file an application for judicial review may be a satisfactory explanation for delay: Wong v Minister for Immigration [2009] FMCA 7474 at [37] per Scarlett FM; CZAY v Minister for Immigration [2012] FMCA 50 at [86] per Neville FM; Ahmed v Minister for Immigration and Citizenship [2011] HCATrans 35 per Gummow J.

PRACTICE POINTS [477.100] Time limits The time limits set out in s 477 do not apply in relation to judicial review proceedings in regard to recommendations made by an Independent Protection Assessor, Independent Protection Assessment Reviewer, Independent Merits Reviewer or Independent Merits Assessor: SZQDZ v Minister for Immigration and Citizenship (2012) 200 FCR 207; 286 ALR 331; [2012] FCAFC 26. Where the Federal Circuit Court refuses to grant an extension of time under s 477, any appeal to the Federal Court will be incompetent: s 476A(3)(a); SZQLD v Minister for Immigration and Citizenship [2011] FCA 1339; SZQPN v Minister for Immigration and Citizenship [2012] FCA 424; SZQDZ v Minister for Immigration and Citizenship (2012) 200 FCR 207; 286 ALR 331; [2012] FCAFC 26. However, where the Federal Circuit Court refuses to extend time under s 477(2), but makes an order dismissing the substantive application, an appeal to the Federal Court will not be incompetent: SZQDZ v Minister for Immigration and Citizenship (2012) 200 FCR 207; 286 ALR 331; [2012] FCAFC 26. Even so, the appeal will be “doomed to fail” because the Federal Circuit Court decision not to extend time is unassailable in the Federal Court: SZQPN v Minister for Immigration and Citizenship [2012] FCA 424 at [14] per Jagot J. The Federal Court also has original jurisdiction to determine an application for judicial review (as opposed to an appeal) of the orders of the Federal Circuit Court to refuse to extend time under s 477(2), pursuant to s 39B(1) of the Judiciary Act 1903: Tang v Minister for Immigration and Citizenship (2013) 217 FCR 55; (2013) 139 ALD 217; (2013) 138 ALD 37; (2013) 305 ALR 547; [2013] FCAFC 139 at [11] per Rares, Perram and Wigney JJ. However, the application to the Federal Court must be made under s 39B of the Judiciary Act 1903. 477A Time limits on applications to the Federal Court (1) An application to the Federal Court for a remedy to be granted in exercise of the court’s original jurisdiction under paragraph 476A(1)(b) or (c) in relation to a migration decision must be made to the court within 35 days of the date of the migration decision. [Subs (1) am Act 10 of 2009, s 3 and Sch 2 item 3, with effect from 15 Mar 2009]

(2) The Federal Court may, by order, extend that 35 day period considers appropriate if: (a) an application for that order has been made in writing specifying why the applicant considers that it is necessary administration of justice to make the order; and (b) the Federal Court is satisfied that it is necessary in administration of justice to make the order.

as the Federal Court to the Federal Court in the interests of the the interests of the

[Subs (2) subst Act 10 of 2009, s 3 and Sch 2 item 4, with effect from 15 Mar 2009]

(3) In this section:

1004

Migration Law

[477A.40]

Part 8 - Judicial Review (ss 474-484) Division 2 – Jurisdiction and procedure of courts (ss 474A–484)

s 477A

date of the migration decision has the meaning given by subsection 477(3). [Subs (3) subst Act 10 of 2009, s 3 and Sch 2 item 4, with effect from 15 Mar 2009]

(4) For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of date of the migration decision in subsection 477(3). [Subs (4) subst Act 10 of 2009, s 3 and Sch 2 item 4, with effect from 15 Mar 2009]

(5) To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision. [Subs (5) insrt Act 10 of 2009, s 3 and Sch 2 item 4, with effect from 15 Mar 2009] [S 477A am Act 10 of 2009; insrt Act 137 of 2005, Sch 1[18], with effect from 1 Dec 2005]

SECTION 477A COMMENTARY Scope ................................................................................................................................................. [477A.20] CONCEPTS

Interests of the administration of justice ......................................................................................... [477A.40] KEY CASES

Necessary in the interests of the administration of justice ............................................................. [477A.60] Reasons for the delay ....................................................................................................................... [477A.80] PRACTICE POINTS

Notice of appeal from judgment or order .................................................................................... [477A.100]

[477A.20] Scope Pursuant to s 477A, an application for judicial review under s 476A (that is, in the Federal Court’s original jurisdiction) must be made in the Federal Court within 35 days of the date of the migration decision: s 477A(1). If an application is not filed within 35 days, then an applicant will need an extension of time. Pursuant to s 477A(2), the Federal Court can order that the 35-day limit be extended if: • an applicant makes an application in writing: – for such an order; and – specifies why it is in the interests of the administration of justice for such an order to be made; and • the Federal Court is satisfied that such an order is necessary in the interests of the administration of justice.

CONCEPTS [477A.40] Interests of the administration of justice The expression in the “interests of the administration of justice” is not defined in the Act. This expression has received considerable judicial consideration and, in determining whether to grant an extension of time, both the Federal Court and Federal Circuit Court have adopted the non-exhaustive principles set out by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; 58 ALR 305; [1984] FCA 176 at [18]–[23] – that is: • the extent of the delay; • the explanation for the delay; © 2016 THOMSON REUTERS

1005

s 477A

Migration Act 1958

[477A.60]

• any prejudice to the respondents; • the impact on the applicant; • the interests of the public at large; and • the merits of the substantive application. See also MZYWK v Minister for Immigration and Citizenship [2012] FMCA 802 at [3] per Whelan J; SZMNO v Minister for Immigration and Citizenship [2009] FCA 797 at [14] per Barker J; SZTUF v Minister for Immigration and Border Protection [2014] FCCA 545 at [20] per Lloyd-Jones J; Metera v Administrative Appeals Tribunal (2008) 105 ALD 18; [2008] FCA 1627 at [23] per Cowdroy J; MZYYO v Minister for Immigration and Citizenship (2013) 214 FCR 68; [2013] FCA 49 at [30] per Murphy J.

KEY CASES [477A.60] Necessary in the interests of the administration of justice In SZNZU v Minister for Immigration and Citizenship [2010] FMCA 197 at [52]–[54] Barnes FM (as she then was) considered the expression “necessary in the interests of the administration of justice” and the relevant case law and stated: The notion “in the interests of the administration of justice” has been considered in many contexts (see the discussion in Genovese v BGC Construction Pty Ltd [2006] FMCA 1507 at [28] per Lucev FM). Relevantly, in SZMFJ v Minister for Immigration [2009] FMCA 771, Nicholls FM (at [44]) identified a number of circumstances relevant to the second limb of s 477(2), being: 1. The extent of the delay and the reason for the delay. 2. Whether there is any merit in the application. 3. “Whether there is any prejudice to the respondents.” 4. The impact on the applicant. 5. The interests of the public at large. 6. The Court’s discretion itself. In Fisher v Minister for Immigration and Citizenship (2007) 162 FCR; [2007] FCA 591, Stone J suggested (at [35]) that the concept “… in the interests of the administration of justice” in s 477(2)(b) “… would involve consideration not only of the reasons for not meeting the original time limit but also whether the application, were the extension of time to be granted, would have any prospects of success”. (Also see Metera v Administrative Appeals Tribunal (2008) 105 ALD 18; [2008] FCA 1627 at [22]). Similarly in SZNZI v Minister for Immigration Smith FM stated (at [11]): The considerations which might bear on that discretion are unconfined. As with other powers to extend time and to waive defaults in relation to court procedures, two “critical” considerations are: “(1) that an explanation, reasonable to the circumstances, is provided for the party’s absence or other default; and (2) that the party in default has a material; argument which, if heard and decided on its merits, might reasonably affect the determination of the rights and duties of the parties in a way different from that in the impugned order” (see Kirby J in Allesch Maunz [2000] HCA 40; (2000) 203 CLR 172 at [48]). Other considerations may come into play, including in my opinion, the implications of the appeals structure and alternative judicial review avenues (see Yu v Minister for Immigration [200] FMCA 1161 at [40]–[41]). None of the relevant considerations should be elevated to being a necessary consideration in all cases, including the two “critical” considerations (see Adams v Kennick Trading (International) Ltd (1986) 4 NSWLR 503 at 506 and 510). When reaching its ultimate conclusion, the Court must weight all of the relevant circumstances together by reference to the statutory criterion provided in s 477(2)(b), quoted above.

[477A.80] Reasons for the delay The Federal Court has considered many reasons for an application not being filed within 35 days of the date of the migration decision. Common reasons include: 1006

Migration Law

[477A.100]

Part 8 - Judicial Review (ss 474-484) Division 2 – Jurisdiction and procedure of courts (ss 474A–484)

s 477A

• Ignorance of the time limits and ability to bring judicial review proceedings. Without any further justification, courts have not found that this is a satisfactory explanation for the delay: MZZRO v Minister for Immigration and Border Protection [2014] FCCA 882 at [33] per Jones J. In SZSDA v Minister for Immigration and Citizenship (2012) 135 ALD 17; [2012] FCA 1319 at [38], Foster J observed: In the present case, there is no satisfactory explanation for the delay. Whilst one may have considerable sympathy for a litigant in person who does not know that he may have a capacity to bring a judicial review application in the Federal Magistrates Court and therefore fails to do so within the stipulated timeframe, ignorance of those requirements (without more) is generally not regarded as a satisfactory explanation for delay.

• Seeking ministerial intervention, for example under s 351 or 417. Without any further justification, seeking to pursue ministerial intervention will not be a satisfactory explanation for a delay in filing an application for judicial review: VU v Minister for Immigration and Citizenship (2008) 101 ALD 211; [2008] FCAFC 59 at [32] per Jessup J (with whom Gyles and Besanko JJ agreed); Plaintiff M90/2009 v Minister for Immigration and Citizenship [2009] HCATrans 279 per Crennan J; Re Minister for Immigration and Multicultural Affairs; Ex parte Sithamparapillai [2004] HCATrans 364 per Hayne J; Applicant A2 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 576 at [9] per von Doussa J; Daniel v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 205 ALR 198; [2004] FCA 21 at [15] per Goldberg J; M211 of 2003 v Refugee Review Tribunal (2004) 82 ALD 24; 212 ALR 520; [2004] FCAFC 293 at [16]–[24] and [36] per Black CJ, Sackville and Sundberg JJ. However, if the reason for delay is not simply due to an applicant seeking ministerial intervention, but also due to other factors – for example bad advice from a migration agent – and there is some prospect in the substantial application, then an extension of time may be granted: Ahmed v Minister for Immigration and Citizenship [2011] HCATrans 35 per Gummow J. • Lack of funds to commence judicial review proceedings. Without further evidence as to an applicant’s financial situation or without any further justification, this will not be a satisfactory reason for a delay in filing an application for judicial review. In Plaintiff M90/2009 v Minister for Immigration and Citizenship [2009] HCATrans 279, Crennan J stated: As regards the plaintiff’s second reason, the plaintiff has asserted that he lacked the necessary funds to institute proceedings within time. No particulars of the plaintiff’s financial position are provided so there is no basis upon which to assess the assertion made. These considerations are not a sufficient explanation of the delay in bringing the application to this Court.

• Incorrect advice about option to seek judicial review. Depending on the evidence filed by an applicant, receiving incorrect advice from a migration agent or a lawyer about the option to file an application for judicial review may be a satisfactory explanation for delay: Wong v Minister for Immigration [2009] FMCA 7474 at [37] per Scarlett FM; CZAY v Minister for Immigration [2012] FMCA 50 at [86] per Neville FM; Ahmed v Minister for Immigration and Citizenship [2011] HCATrans 35 per Gummow J.

PRACTICE POINTS [477A.100] Notice of appeal from judgment or order A notice of appeal from a judgment or order made by the Federal Circuit Court under s 476 must be filed within 21 days of the judgment or order: r 36.03 of the Federal Court Rules 2001 (Cth). The Federal Court has discretion to extend this time period. The principles considered by © 2016 THOMSON REUTERS

1007

s 478

Migration Act 1958

[477A.100]

the Federal Court in determining whether or not to exercise the discretion to grant an extension of time are similar to those considered under s 477A and set out in the following cases: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; 58 ALR 305; [1984] FCA 176 at [18]–[23] per Wilcox J; Jess v Scott (1986) 12 FCR 187; 70 ALR 185; [1986] FCA 365 at [21]–[24] per Lockhart, Sheppard and Dowsett JJ; Parker v The Queen [2002] FCAFC 133 at [6] per Spender, O’Loughlin and Dowsett JJ; Peck v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] FCA 810 at [16]–[17] per Foster J; SZQBI v Minister for Immigration and Citizenship [2011] FCA 1388 at [16]–[25] per Cowdroy J. 478 Persons who may make application An application referred to in section 477 or 477A may only be made by the Minister, or where appropriate the Secretary or Australian Border Force Commissioner, and: (a) if the migration decision concerned is made on review under Part 5 or 7 or section 500—the applicant in the review by the relevant Tribunal; or (aa) if the migration decision concerned is made on review under Part 7AA—the referred applicant in the review by the Immigration Assessment Authority; or [Para (aa) insrt Act 135 of 2014, s 3 and Sch 4 item 24, with effect from 18 Apr 2015]

(b) in any other case—the person who is the subject of the decision; or (c) in any case—a person prescribed by the regulations. [S 478 am Act 41 of 2015, s 3 and Sch 3 item 62, with effect from 1 Jul 2015; Act 135 of 2014; Act 137 of 2005, Sch 1[19] – [20], with effect from 1 Dec 2005; Act 157 of 2001; subst Act 134 of 2001, s 3 and Sch 1 item 7, with effect from 2 Oct 2001; insrt Act 184 of 1992, s 33, with effect from 1 Sep 1994]

478A

Application for review by Federal Magistrates Court [Repealed]

[S 478A rep Act 134 of 2001, s 3 and Sch 1 item 7, with effect from 2 Oct 2001; insrt Act 157 of 2001, s 3 and Sch 1 item 10, with effect from 1 Oct 2001]

479 Parties to review The parties to a review of a migration decision resulting from an application referred to in section 477 or 477A are the Minister, or where appropriate the Secretary or Australian Border Force Commissioner, and: (a) if the migration decision concerned is made on review under Part 5 or 7 or section 500—the applicant in the review by the relevant Tribunal; or (aa) if the migration decision concerned is made on review under Part 7AA—the referred applicant in the review by the Immigration Assessment Authority; or [Para (aa) insrt Act 135 of 2014, s 3 and Sch 4 item 24, with effect from 18 Apr 2015]

(b) in any other case—the person who is the subject of the migration decision; or (c) in any case—a person prescribed by the regulations. [S 479 am Act 41 of 2015, s 3 and Sch 3 item 62, with effect from 1 Jul 2015; Act 135 of 2014; Act 137 of 2005, Sch 1[22], with effect from 1 Dec 2005; subst Act 134 of 2001, s 3 and Sch 1 item 7, with effect from 2 Oct 2001; am Act 157 of 2001, s 3 and Sch 3 item 12, with effect from 2 Oct 2001; insrt Act 184 of 1992, s 33, with effect from 1 Sep 1994]

480 Intervention by Attorney-General (1) The Attorney-General may, on behalf of the Commonwealth, intervene in a proceeding resulting from an application referred to in section 477 or 477A. [Subs (1) am Act 137 of 2005, s 3 and Sch 1 item 23, with effect from 1 Dec 2005]

1008

Migration Law

Part 8 - Judicial Review (ss 474-484) Division 2 – Jurisdiction and procedure of courts (ss 474A–484)

s 484

(2) If the Attorney-General intervenes in such a proceeding, the Federal Circuit Court or Federal Court (as the case requires) may make such orders as to costs against the Commonwealth as the court thinks fit. [Subs (2) am Act 13 of 2013, s 3 and Sch 2 item 1, with effect from 12 Apr 2013; Act 137 of 2005, s 3 and Sch 1 item 24, with effect from 1 Dec 2005]

(3) If the Attorney-General intervenes in such a proceeding, he or she is taken to be a party to the proceeding. [S 480 am Act 13 of 2013; Act 137 of 2005; subst Act 134 of 2001, s 3 and Sch 1 item 7, with effect from 2 Oct 2001; am Act 157 of 2001; insrt Act 184 of 1992, s 33, with effect from 1 Sep 1994]

481 Operation etc. of decision The making of an application referred to in section 477 or 477A does not: (a) affect the operation of the decision; or (b) prevent the taking of action to implement the decision; or (c) prevent the taking of action in reliance on the making of the decision. [S 481 am Act 137 of 2005, Sch 1[25], with effect from 1 Dec 2005; subst Act 134 of 2001, s 3 and Sch 1 item 7, with effect from 2 Oct 2001; am Act 157 of 2001; insrt Act 184 of 1992, s 33, with effect from 1 Sep 1994]

482 Changing person holding, or performing the duties of, an office If: (a) a person has, in the performance of the duties of an office, made a migration decision; and (b) the person no longer holds, or, for whatever reason, is not performing the duties of, that office; this Part has effect as if the decision had been made by: (c) the person for the time being holding or performing the duties of that office; or (d) if there is no person for the time being holding or performing the duties of that office or that office no longer exists—such person as the Minister specifies. [S 482 am Act 137 of 2005, Sch 1[26], with effect from 1 Dec 2005; subst Act 134 of 2001, s 3 and Sch 1 item 7, with effect from 2 Oct 2001; am Act 157 of 2001; Act 60 of 1994; insrt Act 184 of 1992, s 33, with effect from 1 Sep 1994]

483 Section 44 of the Administrative Appeals Tribunal Act 1975 [Repealed] [S 483 rep Act 60 of 2015, s 3 and Sch 2 item 125, with effect from 1 Jul 2015; subst Act 137 of 2005, s 3 and Sch 1 item 27, with effect from 1 Dec 2005; Act 134 of 2001, s 3 and Sch 1 item 7, with effect from 2 Oct 2001; insrt Act 184 of 1992, s 33, with effect from 1 Sep 1994]

483A

Jurisdiction of the Federal Magistrates Court [Repealed]

[S 483A rep Act 137 of 2005, s 3 and Sch 1 item 28, with effect from 1 Dec 2005; insrt Act 157 of 2001, s 3 and Sch 1 item 16, with effect from 1 Oct 2001]

484 Exclusive jurisdiction of High Court, Federal Court and Federal Circuit Court (1) Only the High Court, the Federal Court and the Federal Circuit Court have jurisdiction in relation to migration decisions. [Subs (1) am Act 13 of 2013, s 3 and Sch 2 item 1, with effect from 12 Apr 2013]

(2) To avoid doubt, subsection (1) is not intended to confer jurisdiction on the High Court, the Federal Court or the Federal Circuit Court, but to exclude other courts from jurisdiction in relation to migration decisions. [Subs (2) am Act 13 of 2013, s 3 and Sch 2 item 1, with effect from 12 Apr 2013]

(3) To avoid doubt, despite section 67C of the Judiciary Act 1903, the Supreme Court of the Northern Territory does not have jurisdiction in relation to migration decisions.

© 2016 THOMSON REUTERS

1009

s 484

Migration Act 1958

(4) To avoid doubt, jurisdiction in relation to migration decisions is not conferred on any court under the Jurisdiction of Courts (Cross-vesting) Act 1987. [S 484 am Act 13 of 2013, s 3 and Sch 1 item 336, with effect from 12 Apr 2013; subst Act 137 of 2005, s 3 and Sch 1 item 29, with effect from 1 Dec 2005; Act 134 of 2001, s 3 and Sch 1 item 7, with effect from 2 Oct 2001; am Act 157 of 2001; insrt Act 184 of 1992, s 33, with effect from 1 Sep 1994]

1010

Migration Law

PART 8A – RESTRICTIONS ON COURT PROCEEDINGS (SS 486A–486D) [Pt 8A insrt Act 129 of 2001, s 3 and Sch 1 item 4, with effect from 27 Sep 2001]

486A Time limit on applications to the High Court for judicial review (1) An application to the High Court for a remedy to be granted in exercise of the court’s original jurisdiction in relation to a migration decision must be made to the court within 35 days of the date of the migration decision. [Subs (1) am Act 10 of 2009, s 3 and Sch 2 item 5, with effect from 15 Mar 2009; subst Act 137 of 2005, s 3 and Sch 1 item 30, with effect from 1 Dec 2005; am Act 134 of 2001, s 3 and Sch 1 item 7A, with effect from 2 Oct 2001]

(1A) [Repealed] [Subs (1A) rep Act 10 of 2009, s 3 and Sch 2 item 6, with effect from 15 Mar 2009; insrt Act 137 of 2005, s 3 and Sch 1 item 31, with effect from 1 Dec 2005]

(2) The High Court may, by order, extend that 35 day period as the High Court considers appropriate if: (a) an application for that order has been made in writing to the High Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and (b) the High Court is satisfied that it is necessary in the interests of the administration of justice to make the order. [Subs (2) subst Act 10 of 2009, s 3 and Sch 2 item 6, with effect from 15 Mar 2009; am Act 137 of 2005, s 3 and Sch 1 items 32 and 33, with effect from 1 Dec 2005]

(3) In this section: date of the migration decision has the meaning given by subsection 477(3). [Subs (3) subst Act 10 of 2009, s 3 and Sch 2 item 6, with effect from 15 Mar 2009]

(4) For the purposes of subsection (1), the 35 day period begins to run despite a failure to comply with the requirements of any of the provisions mentioned in the definition of date of the migration decision in subsection 477(3). [Subs (4) insrt Act 10 of 2009, s 3 and Sch 2 item 6, with effect from 15 Mar 2009]

(5) To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision. [Subs (5) insrt Act 10 of 2009, s 3 and Sch 2 item 6, with effect from 15 Mar 2009] [S 486A am Act 10 of 2009; Act 137 of 2005; Act 134 of 2001; insrt Act 129 of 2001, s 3 and Sch 1 item 4, with effect from 27 Sep 2001]

SECTION 486A COMMENTARY Scope ................................................................................................................................................. [486A.20] CASE LAW

Administration of justice and enlargement of time ........................................................................ [486A.40]

© 2016 THOMSON REUTERS

1011

s 486A

Migration Act 1958

[486A.20]

[486A.20] Scope Pursuant to s 486A, an application to the High Court of Australia for a remedy to be granted in its original jurisdiction, in relation to a migration decision, is to be made within 35 days of the date of the migration decision: s 486A(1). However, s 486A provides that the High Court may extend the 35-day period, if: • in the application, the applicant explains why it is necessary for the administration of justice for the High Court to make such an order; and • the High Court is satisfied that such an order is necessary for the administration of justice. This section does not limit the High Court’s powers in relation to challenges to migration decisions pursuant to s 75(v) of the Constitution: Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651; 234 ALR 114; [2007] HCA 14. Section 75(v) of the Constitution provides that the High Court has original jurisdiction in relation to all matters in which a writ of mandamus or prohibition, or an injunction, is sought against an officer of the Commonwealth. Relevantly, r 25.07.2 of the High Court Rules 2004 (Cth) requires an application filed in the High Court’s original jurisdiction for a writ of mandamus, to be made within two months of the date of a decision. Where a writ of certiorari is sought under r 25.06.1, application is to be made not later than six months after the decision. There are no time limits in relation to a writ of prohibition or an injunction. Where an application for an order to show cause has not been filed in the High Court’s original jurisdiction within the prescribed time limits, r 4.02 allows the High Court to enlarge any time limit specified under the rules.

CASE LAW [486A.40] Administration of justice and enlargement of time As to whether it is necessary in the administration of justice for the High Court to extend the time for the making of an application, the relevant principles were discussed by McHugh J in Re Commonwealth of Australia (Department of Defence); Ex parte Marks (2000) 177 ALR 491; 75 ALJR 470; [2000] HCA 67. McHugh J set out the following principles at [15]: • the grant of an extension of time is not automatic; • a case would need to be exceptional before time would be enlarged; • an extension of time to seek relief against a decision or judgment can only be granted if it is necessary to do justice between the parties. Therefore, regard should be had to the history of the matter, the conduct of the parties, the nature of the litigation and the consequences for the parties of a grant or refusal of the extension; • the court may take into consideration the explanation for the delay and the applicant’s prospects of success; and • the constitutional writs are directed at the acts or decisions of public bodies or officials, and it is in the public interest that there be an end to litigation. In relation to the reasons for the delay in filing the application, it is well established that seeking Ministerial Intervention or a lack of sufficient funds to commence the proceedings on their own are not sufficient explanations for granting an extension of time: Re Minister for Immigration and Multicultural Affairs; Ex parte Sithamparapillai [2004] HCATrans 364 per Hayne J; Plaintiff M90/2009 v Minister for Immigration and Citizenship [2009] HCATrans 279 per Crennan J.

1012

Migration Law

[486A.40]

Part 8A - Restrictions on court proceedings (ss 486A-486D)

s 486B

486AA Intervention by Attorney-General (1) The Attorney-General may, on behalf of the Commonwealth, intervene in a proceeding resulting from an application referred to in subsection 486A(1). (2) If the Attorney-General intervenes in such a proceeding, the High Court may make such orders as to costs against the Commonwealth as the court thinks fit. (3) If the Attorney-General intervenes in such a proceeding, he or she is taken to be a party to the proceeding. [S 486AA insrt Act 134 of 2001, s 3 and Sch 1 item 7B, with effect from 2 Oct 2001]

486AB Operation etc. of decision The making of an application referred to in section 486A does not: (a) affect the operation of the decision; or (b) prevent the taking of action to implement the decision; or (c) prevent the taking of action in reliance on the making of the decision. [S 486AB am Act 85 of 2008, s 3 and Sch 1 item 36, with effect from 27 Oct 2008; insrt Act 134 of 2001, s 3 and Sch 1 item 7B, with effect from 2 Oct 2001]

486B Multiple parties in migration litigation Application of section (1) This section applies to all proceedings (migration proceedings) in the High Court, the Federal Court or the Federal Circuit Court that raise an issue in connection with visas (including if a visa is not granted or has been cancelled), deportation, taking, or removal of unlawful non-citizens. [Subs (1) am Act 13 of 2013, s 3 and Sch 2 item 1, with effect from 12 Apr 2013; Act 113 of 2012, s 3 and Sch 1 item 31, with effect from 18 Aug 2012; Act 157 of 2001, s 3 and Sch 4 item 4, with effect from 2 Oct 2001]

Consolidation of proceedings (2) Consolidation of any migration proceeding with any other migration proceeding is not permitted unless the court is satisfied that: (a) the consolidation would otherwise be permitted under other relevant laws (including Rules of Court); and (b) the consolidation is desirable for the efficient conduct of the proceedings. (3) No appeal lies from a decision by the court not to consolidate proceedings under subsection (2). Other joint proceedings etc. (4) The following are not permitted in or by a migration proceeding: (a) representative or class actions; (b) joinder of plaintiffs or applicants or addition of parties; (c) a person in any other way (but not including as a result of consolidation under subsection (2)) being a party to the proceeding jointly with, on behalf of, for the benefit of, or representing, one or more other persons, however this is described. Relationship with other laws (5) This section has effect despite any other law, including in particular: (a) Part IVA of the Federal Court of Australia Act 1976; and (b) any Rules of Court. (6) However, this section does not apply to a provision of an Act if the provision: (a) commences after this section commences; and

© 2016 THOMSON REUTERS

1013

s 486B

Migration Act 1958

[486B.20]

(b) specifically states that this section does not apply. Exceptions to general rules (7) This section does not prevent the following persons from being involved in a migration proceeding: (a) the applicants in the proceeding and any persons they represent, if: (i) the regulations set out a definition of family for the purposes of this paragraph; and (ii) all of those applicants and other persons are members of the same family as so defined; (b) a person who becomes a party to the proceeding in performing the person’s statutory functions; (c) the Attorney-General of the Commonwealth or of a State or Territory; (d) any other person prescribed in the regulations. [S 486B am Act 13 of 2013; Act 113 of 2012; Act 157 of 2001; insrt Act 129 of 2001, s 3 and Sch 1 item 6, with effect from 27 Sep 2001]

SECTION 486B COMMENTARY Scope ................................................................................................................................................. [486B.20] CONCEPTS

Family ............................................................................................................................................... [486B.40] PRACTICE POINT

Listings heard together ..................................................................................................................... [486B.60]

[486B.20] Scope Section 486B provides that the consolidation of proceedings in either the High Court, the Federal Court or the Federal Circuit Court are not permitted unless the court is satisfied that the consolidation is permitted under some other law and it would be desirable for the efficient conduct of the proceedings: s 486B(2). In addition, the following joint proceedings are not permitted: representative or class actions; joinder of plaintiffs or applicants or additional parties; or a person in any other way being a party to the proceeding jointly: s 486B(4). The exception to s 486B(2) and (4) is that the person to be joined: • meets the definition of “family” contained in reg 5.43; • becomes a party in performing the person’s statutory functions; • is the Attorney-General of the Commonwealth or of a State or Territory; or • any other person prescribed under reg 5.44 – that is, the legal personal representative of a person who has a serious physical or mental incapacity in a proceeding or a member of the family of the applicant: s 486B(7).

CONCEPTS [486B.40] Family A person who meets the definition of “family” in reg 5.43 will be able to be involved in migration proceedings: s 486B(7)(a). According to reg 5.43 the family of the applicant is either the spouse or de facto partner of the applicant or a dependent child of the applicant. Those who are family members, but do not meet the definition of “family” in reg 5.43, will not be able to be a part of the proceedings. For example, in WACQ v Minister for Immigration and 1014

Migration Law

[486B.60]

Part 8A - Restrictions on court proceedings (ss 486A-486D)

s 486C

Multicultural and Indigenous Affairs [2002] FMCA 78, Raphael FM held that an applicant was not entitled to commence proceedings on behalf of her mother and sister because she did not fall within the definition of “family” in s 486(7)(a). As a result, the application was incompetent.

PRACTICE POINT [486B.60] Listings heard together Even though certain proceedings may not be consolidated or joined under s 486B, it is still possible for proceedings to be listed to be heard together before the same judge or judges at the same time. 486C Persons who may commence or continue proceedings in the Federal Circuit Court or the Federal Court (1) Only the persons mentioned in this section may commence or continue a proceeding in the Federal Circuit Court or the Federal Court that raises an issue: (a) in connection with visas (including if a visa is not granted or has been cancelled), deportation, taking, or removal of unlawful non-citizens; and (b) that relates to the validity, interpretation or effect of a provision of this Act or the regulations; (whether or not the proceeding raises any other issue). [Subs (1) am Act 13 of 2013, s 3 and Sch 2 item 1, with effect from 12 Apr 2013; Act 113 of 2012, s 3 and Sch 1 item 32, with effect from 18 Aug 2012; Act 157 of 2001, s 3 and Sch 4 item 5, with effect from 2 Oct 2001; Act 134 of 2001, s 3 and Sch 1 item 7C, with effect from 2 Oct 2001]

(2) Those persons are: (a) a party to a review mentioned in section 479; or (b) the Attorney-General of the Commonwealth or of a State or a Territory; or (c) a person who commences or continues the proceeding in performing the person’s statutory functions; or (d) any other person prescribed by the regulations. [Subs (2) am Act 157 of 2001, s 3 and Sch 4 item 6, with effect from 2 Oct 2001; subst Act 134 of 2001, s 3 and Sch 1 item 7D, with effect from 2 Oct 2001]

(3) This section applies to proceedings within the Federal Circuit Court’s jurisdiction under section 476 of this Act, section 44 of the Judiciary Act 1903, section 32AB of the Federal Court of Australia Act 1976 or any other law. [Subs (3) am Act 13 of 2013, s 3 and Sch 1 item 338, with effect from 12 Apr 2013; subst Act 137 of 2005, s 3 and Sch 1 item 35, with effect from 1 Dec 2005; am Act 157 of 2001, s 3 and Sch 4 item 7, with effect from 2 Oct 2001]

(3A) This section applies to proceedings transferred to the Federal Court under section 39 of the Federal Circuit Court of Australia Act 1999 and proceedings in which the Federal Court has jurisdiction under paragraph 476A(1)(b) or (c). [Subs (3A) am Act 13 of 2013, s 3 and Sch 1 item 339, with effect from 12 Apr 2013; subst Act 137 of 2005, s 3 and Sch 1 item 35, with effect from 1 Dec 2005; insrt Act 157 of 2001, s 3 and Sch 4 item 8, with effect from 2 Oct 2001]

(4) To avoid doubt, nothing in this section allows a person to commence or continue a proceeding that the person could not otherwise commence or continue. Relationship with other laws (5) This section has effect despite any other law. (6) However, subsection (5) does not apply to a provision of an Act if the provision: (a) commences after this section commences; and

© 2016 THOMSON REUTERS

1015

s 486C

Migration Act 1958

[486C.20]

(b) specifically states that it applies despite this section. [S 486C am Act 13 of 2013, s 3 and Sch 1 item 337, with effect from 12 Apr 2013; Act 113 of 2012; Act 137 of 2005; Act 157 of 2001, s 3 and Sch 4 item 5, with effect from 2 Oct 2001; Act 134 of 2001; insrt Act 129 of 2001, s 3 and Sch 1 item 6, with effect from 27 Sep 2001]

SECTION 486C COMMENTARY [486C.20] Scope Section 486C sets out the persons who may commence or continue proceedings in the Federal Circuit Court or the Federal Court. However, the section does not impose a jurisdictional requirement, which would prevent the court from exercising its procedural powers. Rather, according to Basbas v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1602 (Basbas) at [18] per Gray J, s 486C: has been recognised to be a provision relating to standing, rather than jurisdiction, intended to prevent collateral challenges to decisions made under the Migration Act from being brought by people who are not the subject of those decisions. See VHAF v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 122 FCR 270; [2002] FCA 1243 at [48]–[53], cited with approval by the Full Court in Minister for Immigration and Multicultural Affairs v VFAD of 2002 [2002] FCAFC 390 at [86]–[90]. That the section is intended to apply to standing, as distinct from jurisdiction, is apparent from subs (3) of s 486C. That subsection shows that s 486C applies on the assumption that the Court will have jurisdiction independently of the provisions of the section itself.

However, s 486C does impose a constraint on the exercise of the court’s procedural powers. In Basbas Gray J stated at [20] that this is because: [t]he words “or continue” in subs (1) make it clear that, although the jurisdiction of the Court has been properly invoked, someone who is not within the classes of person who may commence or continue a proceeding cannot take a step that constitutes continuing the proceeding.

486D Disclosing other judicial review proceedings (1) A person must not commence a proceeding in the Federal Circuit Court in relation to a tribunal decision unless the person, when commencing the proceeding, discloses to the court any judicial review proceeding already brought by the person in that or any other court in relation to that decision. [Subs (1) am Act 13 of 2013, s 3 and Sch 2 item 1, with effect from 12 Apr 2013]

(2) A person must not commence a proceeding in the Federal Court seeking the exercise of the court’s original jurisdiction in relation to a tribunal decision unless the person, when commencing the proceeding, discloses to the court any judicial review proceeding already brought by the person in that or any other court in relation to that decision. (3) A person must not commence a proceeding in the High Court seeking the exercise of the court’s original jurisdiction in relation to a tribunal decision unless the person, when commencing the proceeding, discloses to the court any judicial review proceeding already brought by the person in that or any other court in relation to that decision. (4) Proceedings required to be disclosed under subsection (1), (2) or (3) include proceedings brought before the commencement of this section. (5) In this section: judicial review proceeding, in relation to a tribunal decision, means: (a) a proceeding in the Federal Circuit Court in relation to the tribunal decision; or

1016

Migration Law

[486D.20]

Part 8A - Restrictions on court proceedings (ss 486A-486D)

s 486D

(b) a proceeding in the Federal Court seeking the exercise of the court’s original jurisdiction in relation to the tribunal decision; or (c) a proceeding in the High Court seeking the exercise of the court’s original jurisdiction in relation to the tribunal decision. [Def am Act 13 of 2013, s 3 and Sch 2 item 1, with effect from 12 Apr 2013]

tribunal decision means a privative clause decision, or purported privative clause decision, made on review: (a) by the Tribunal under Part 5 or 7 or section 500; or (b) by the Immigration Assessment Authority under Part 7AA. [Def am Act 60 of 2015, s 3 and Sch 2 item 126, with effect from 1 Jul 2015; subst Act 135 of 2014, s 3 and Sch 4 item 25, with effect from 18 Apr 2015] [S 486D am Act 60 of 2015; Act 135 of 2014; Act 13 of 2013; insrt Act 137 of 2005, s 3 and Sch 1 item 37, with effect from 1 Dec 2005]

SECTION 486D COMMENTARY [486D.20] Scope Section 486D provides that a person must not commence proceedings for judicial review of a tribunal decision in the High Court, Federal Court or Federal Circuit Court unless that person has disclosed any other judicial review proceedings in relation to that Tribunal decision. If there has not been compliance with s 486D, an application filed in the court may be deemed incompetent: MZXPI v Minister for Immigration [2010] FMCA 1296; SZKUT v Minister for Immigration [2010] FMCA 241; Avaiya v Minister for Immigration and Border Protection [2014] FCCA 268.

© 2016 THOMSON REUTERS

1017

PART 8B – COSTS ORDERS WHERE PROCEEDINGS HAVE NO REASONABLE PROSPECT OF SUCCESS (SS 486E–486K) [Pt 8B insrt Act 137 of 2005, s 3 and Sch 1 item 38, with effect from 1 Dec 2005]

486E Obligation where there is no reasonable prospect of success (1) A person must not encourage another person (the litigant) to commence or continue migration litigation in a court if: (a) the migration litigation has no reasonable prospect of success; and (b) either: (i) the person does not give proper consideration to the prospects of success of the migration litigation; or (ii) a purpose in commencing or continuing the migration litigation is unrelated to the objectives which the court process is designed to achieve. (2) For the purposes of this section, migration litigation need not be: (a) hopeless; or (b) bound to fail; for it to have no reasonable prospect of success. (3) This section applies despite any obligation that the person may have to act in accordance with the instructions or wishes of the litigant. [S 486E insrt Act 137 of 2005, s 3 and Sch 1 item 38, with effect from 1 Dec 2005]

486F Cost orders (1) If a person acts in contravention of section 486E, the court in which the migration litigation is commenced or continued may make one or more of the following orders: (a) an order that the person pay a party to the migration litigation (other than the litigant), the costs incurred by that party because of the commencement or continuation of the migration litigation; (b) an order that the person repay to the litigant any costs already paid by the litigant to another party to the migration litigation, because of the commencement or continuation of the migration litigation; (c) where the person is a lawyer who has acted for the litigant in the migration litigation: (i) an order that costs incurred by the litigant in the commencement or continuation of the migration litigation, are not payable to the lawyer; (ii) an order that the lawyer repay the litigant costs already paid by the litigant to the lawyer in relation to the commencement or continuation of the migration litigation. (2) If the court, at the time of giving judgment on the substantive issues in the migration litigation, finds that the migration litigation had no reasonable prospect of success, the court must consider whether an order under this section should be made. © 2016 THOMSON REUTERS

1019

s 486F

Migration Act 1958

(3) An order under this section may be made: (a) on the motion of the court; or (b) on the application of a party to the migration litigation. (4) The motion or application must be considered at the time the question of costs in the migration litigation is decided. (5) A person is not entitled to demand or recover from the litigant any part of an amount which the person is directed to pay under an order made under this section. [S 486F insrt Act 137 of 2005, s 3 and Sch 1 item 38, with effect from 1 Dec 2005]

486G Person must be given reasonable opportunity to argue against costs order The court must not make an order under section 486F unless the person has been given a reasonable opportunity to argue why the order should not be made. [S 486G insrt Act 137 of 2005, s 3 and Sch 1 item 38, with effect from 1 Dec 2005]

486H Limited waiver of legal professional privilege (1) If, in proceedings to determine whether an order under section 486F should be made: (a) a person wishes to produce a document, record or information for the purpose of arguing why an order under section 486F should not be made; and (b) to do so would, but for this section, deny legal professional privilege to any person entitled to claim it; the person may produce the document, record or information for that purpose. (2) However: (a) the document, record or information does not cease to be subject to legal professional privilege for any other purpose, or in any other circumstances; and (b) the court must make any orders necessary to ensure that legal professional privilege is protected for other purposes and in other circumstances. (3) Nothing in this section prevents a person who is entitled to claim legal professional privilege in relation to the document, record or information, from waiving that privilege. (4) In this section: legal professional privilege includes privilege (however described) under any provision of Division 1 of Part 3.10 of the Evidence Act 1995. [S 486H insrt Act 137 of 2005, s 3 and Sch 1 item 38, with effect from 1 Dec 2005]

486I Lawyer’s certification (1) A lawyer must not file a document commencing migration litigation, unless the lawyer certifies in writing that there are reasonable grounds for believing that the migration litigation has a reasonable prospect of success. (2) A court must refuse to accept a document commencing migration litigation if it is a document that, under subsection (1), must be certified and it has not been. [S 486I insrt Act 137 of 2005, s 3 and Sch 1 item 38, with effect from 1 Dec 2005]

486J Part does not limit other powers to order costs against third parties This Part does not limit any power a court may otherwise have to make costs orders against a person who is not a party to proceedings. [S 486J insrt Act 137 of 2005, s 3 and Sch 1 item 38, with effect from 1 Dec 2005]

1020

Migration Law

Pt 8B - Orders where proceedings have no reasonable prospect of success (ss486E-486K) s 486K

486K Definitions In this Part: lawyer [Repealed] [Def rep Act 159 of 2008, s 3 and Sch 1 item 41, with effect from 14 Sep 2009]

migration litigation means a court proceeding in relation to a migration decision. [S 486K am Act 159 of 2008; insrt Act 137 of 2005, s 3 and Sch 1 item 38, with effect from 1 Dec 2005]

© 2016 THOMSON REUTERS

1021

PART 8C – REPORTS ON PERSONS IN DETENTION FOR MORE THAN 2 YEARS (SS 486L–486Q) [Pt 8C insrt Act 79 of 2005, s 3 and Sch 1 item 19, with effect from 29 Jun 2005]

486L What is the detention reporting start time for a person? For the purposes of this Part, the detention reporting start time for a person is whichever of the following times (if any) applies to the person: (a) if the person is in immigration detention on the commencement of this Part and has been in immigration detention before then for a period of at least 2 years, or for periods that total at least 2 years—the time when this Part commences; or (b) otherwise—the time after the commencement of this Part when the person has been in immigration detention for a period of 2 years, or for periods that total at least 2 years (some of which detention may have occurred before the commencement of this Part). [S 486L insrt Act 79 of 2005, s 3 and Sch 1 item 19, with effect from 29 Jun 2005]

486M What is a detention reporting time for a person? For the purposes of this Part, a detention reporting time for a person is: (a) the detention reporting start time for the person; or (b) the end of each successive period of 6 months after that time at the end of which the person is in immigration detention. [S 486M insrt Act 79 of 2005, s 3 and Sch 1 item 19, with effect from 29 Jun 2005]

486N Secretary’s obligation to report to Commonwealth Ombudsman (1) The Secretary must give the Commonwealth Ombudsman a report relating to the circumstances of the person’s detention. The report must be given: (a) if the detention reporting time is the time when this Part commences—-as soon as practicable, and in any event within 6 months, after that commencement; or (b) otherwise—within 21 days after the detention reporting time. (2) Without limiting subsection (1), the report must include any matters specified in regulations made for the purposes of this subsection. (3) The Secretary must give the report to the Commonwealth Ombudsman even if the person has, since the detention reporting time, ceased to be in immigration detention. [S 486N insrt Act 79 of 2005, s 3 and Sch 1 item 19, with effect from 29 Jun 2005]

© 2016 THOMSON REUTERS

1023

s 486N

Migration Act 1958

486O Commonwealth Ombudsman to give Minister assessment of detention arrangements Commonwealth Ombudsman to give Minister assessment of appropriateness of detention arrangements (1) As soon as practicable after the Commonwealth Ombudsman receives a report under section 486N, he or she is to give the Minister an assessment of the appropriateness of the arrangements for the person’s detention. Assessment may include recommendations (2) The assessment may include any recommendations the Commonwealth Ombudsman considers appropriate. (3) Without limiting subsection (2), the kinds of recommendations the Ombudsman may make include the following: (a) a recommendation for the continued detention of a person; (b) a recommendation that another form of detention would be more appropriate for a person (for example, residing at a place in accordance with a residence determination); (c) a recommendation that a person be released into the community on a visa; (d) general recommendations relating to the Department’s handling of its detainee caseload. (4) The Minister is not bound by any recommendations the Commonwealth Ombudsman makes. Assessment to include statement for tabling in Parliament (5) The assessment must also include a statement, for the purpose of tabling in Parliament, that sets out or paraphrases so much of the content of the assessment as the Commonwealth Ombudsman considers can be tabled without adversely affecting the privacy of any person. Assessment to be given even if person no longer in detention (6) The Commonwealth Ombudsman must give the assessment to the Minister even if the person has, since the detention reporting time, ceased to be in immigration detention. [S 486O insrt Act 79 of 2005, s 3 and Sch 1 item 19, with effect from 29 Jun 2005]

486P Minister to table statement from Commonwealth Ombudsman The Minister must cause the statement included in an assessment as mentioned in subsection 486O(5) to be laid before each House of the Parliament within 15 sitting days of that House after the Minister receives the assessment. [S 486P insrt Act 79 of 2005, s 3 and Sch 1 item 19, with effect from 29 Jun 2005]

486Q Application of Ombudsman Act 1976 (1) Subject to this Part, the Ombudsman Act 1976 applies in relation to the Commonwealth Ombudsman’s preparation of an assessment under section 486O (including his or her consideration of the report under section 486N to which the assessment relates), as if the preparation of the assessment were an investigation under that Act. (2) The Commonwealth Ombudsman’s functions include the functions conferred on the Commonwealth Ombudsman by this Part. [S 486Q insrt Act 79 of 2005, s 3 and Sch 1 item 19, with effect from 29 Jun 2005]

1024

Migration Law

PART 8D – CIVIL PENALTIES (SS 486R–486ZG) [Pt 8D subst Act 10 of 2013, s 3 and Sch 1 item 24, with effect from 1 Jun 2013; insrt Act 159 of 2008, s 3 and Sch 1 item 42, with effect from 14 Sep 2009]

DIVISION 1 – OBTAINING A CIVIL PENALTY ORDER (SS 486R-486Y) 486R Civil penalty orders Application for order (1) The Minister may apply to an eligible court for an order that a person, who is alleged to have contravened a civil penalty provision, pay the Commonwealth a pecuniary penalty. (2) The Minister must make the application within 6 years of the alleged contravention. Eligible court may order person to pay pecuniary penalty (3) If the eligible court is satisfied that the person has contravened a civil penalty provision, the court may order the person to pay to the Commonwealth such pecuniary penalty for the contravention as the court determines to be appropriate. Note: Subsection (5) sets out the maximum penalty that the eligible court may order the person to pay.

(4) An order under subsection (3) is a civil penalty order. Determining pecuniary penalty (5) The pecuniary penalty must not be more than: (a) if the person is a body corporate—5 times the amount of the pecuniary penalty specified for the civil penalty provision; and (b) otherwise—the amount of the pecuniary penalty specified for the civil penalty provision. (6) In determining the pecuniary penalty, the eligible court must take into account all relevant matters, including: (a) the nature and extent of the contravention; and (b) the nature and extent of any loss or damage suffered because of the contravention; and (c) the circumstances in which the contravention took place; and (d) whether the Department has taken any administrative action against the person in relation to the conduct constituting the contravention or any similar conduct; and (e) whether the person has been issued with an infringement notice under regulations made for the purposes of section 506A in relation to the conduct constituting the contravention or any similar conduct; and (f) whether the person has previously been found by a court in proceedings under this Act to have engaged in any similar conduct. [S 486R subst Act 10 of 2013, s 3 and Sch 1 item 24, with effect from 1 Jun 2013; am Act 13 of 2013; insrt Act 159 of 2008, s 3 and Sch 1 item 42, with effect from 14 Sep 2009]

© 2016 THOMSON REUTERS

1025

s 486R

Migration Act 1958

486S Additional rules relating to the sponsorship civil penalty provisions (1) This section applies if an application for a civil penalty order against a person is made to an eligible court in relation to an alleged contravention of a civil penalty provision in Division 3A of Part 2. Engaging in similar conduct (2) For the purposes of subsection 486R(6), the person is taken to have engaged in similar conduct if the person has failed to satisfy a sponsorship obligation that is different from the sponsorship obligation to which the application relates. (3) Subsection (2) does not limit the circumstances in which a person may be found to have engaged in similar conduct. Order to pay a required amount (4) If, when determining the application, it appears to the eligible court that: (a) an amount of a kind prescribed in the regulations made for purposes of subsection 140S(1) is required to be paid by the person to the Commonwealth, a State or Territory or another person; and (b) the amount remains unpaid after the time for payment; and (c) proceedings to recover the amount have not been brought under section 140S; the court may order that the amount be paid to the Commonwealth, State, Territory or other person (as the case may be). Note: Section 140S allows a person to bring proceedings to recover an amount owed if the eligible court does not make an order under this subsection.

(5) If the eligible court makes an order under subsection (4): (a) an application may be made under subsection 140SA(1), and an order made under subsection 140SA(2), as if proceedings for a civil penalty order were proceedings under section 140S; and (b) section 140SB applies as if the amount ordered to be paid under subsection (4) of this section were a judgement debt under a judgement of an eligible court under section 140S. [S 486S subst Act 10 of 2013, s 3 and Sch 1 item 24, with effect from 1 Jun 2013; insrt Act 159 of 2008, s 3 and Sch 1 item 42, with effect from 14 Sep 2009]

486T Civil enforcement of penalty (1) A pecuniary penalty is a debt payable to the Commonwealth. (2) The Commonwealth may enforce a civil penalty order as if it were an order made in civil proceedings against the person to recover a debt due by the person. The debt arising from the order is taken to be a judgement debt. [S 486T subst Act 10 of 2013, s 3 and Sch 1 item 24, with effect from 1 Jun 2013; am Act 13 of 2013; insrt Act 159 of 2008, s 3 and Sch 1 item 42, with effect from 14 Sep 2009]

486U Conduct contravening more than one civil penalty provision (1) If conduct constitutes a contravention of 2 or more civil penalty provisions, proceedings may be instituted under this Part against a person in relation to the contravention of any one or more of those provisions. (2) However, the person is not liable to more than one pecuniary penalty under this Part in relation to the same conduct. [S 486U subst Act 10 of 2013, s 3 and Sch 1 item 24, with effect from 1 Jun 2013; insrt Act 159 of 2008, s 3 and Sch 1 item 42, with effect from 14 Sep 2009]

1026

Migration Law

Part 8D – Civil penalties (ss 486R–486ZG) Division 1 – Obtaining a civil penalty order (ss 486R-486Y)

s 486Y

486V Multiple contraventions (1) An eligible court may make a single civil penalty order against a person for multiple contraventions of a civil penalty provision if proceedings for the contraventions are founded on the same facts, or if the contraventions form, or are part of, a series of contraventions of the same or a similar character. (2) However, the penalty must not exceed the sum of the maximum penalties that could be ordered if a separate penalty were ordered for each of the contraventions. [S 486V subst Act 10 of 2013, s 3 and Sch 1 item 24, with effect from 1 Jun 2013; am Act 13 of 2013; insrt Act 159 of 2008, s 3 and Sch 1 item 42, with effect from 14 Sep 2009]

486W Proceedings may be heard together An eligible court may direct that 2 or more proceedings for civil penalty orders are to be heard together. [S 486W subst Act 10 of 2013, s 3 and Sch 1 item 24, with effect from 1 Jun 2013; insrt Act 159 of 2008, s 3 and Sch 1 item 42, with effect from 14 Sep 2009]

486X Civil evidence and procedure rules for civil penalty orders An eligible court must apply the rules of evidence and procedure for civil matters when hearing proceedings for a civil penalty order. [S 486X subst Act 10 of 2013, s 3 and Sch 1 item 24, with effect from 1 Jun 2013; insrt Act 159 of 2008, s 3 and Sch 1 item 42, with effect from 14 Sep 2009]

486Y Requirement for persons to assist in applications for civil penalty orders (1) A person commits an offence if: (a) the Secretary requests, in writing, the person to give all reasonable assistance in connection with an application for a civil penalty order; and (b) the person fails to comply with the request. Penalty: 10 penalty units. (2) A request under subsection (1) is not a legislative instrument. (3) The Secretary can request a person to assist under subsection (1) only if: (a) it appears to the Secretary that the person is unlikely to have: (i) contravened the civil penalty provision to which the application relates; or (ii) committed an offence constituted by the same, or substantially the same, conduct as the conduct to which the application relates; and (b) the Secretary suspects or believes that the person can give information relevant to the application. (4) The Secretary cannot request a person to assist under subsection (1) if the person is or has been a lawyer for the person suspected of contravening the civil penalty provision to which the application relates. (5) An eligible court may order a person to comply with a request under subsection (1) in a specified way. Only the Secretary may apply to the eligible court for an order under this subsection. (6) For the purposes of this section, it does not matter whether the application for the civil penalty order has actually been made. [S 486Y subst Act 10 of 2013, s 3 and Sch 1 item 24, with effect from 1 Jun 2013; insrt Act 159 of 2008, s 3 and Sch 1 item 42, with effect from 14 Sep 2009]

© 2016 THOMSON REUTERS

1027

s 486Y

Migration Act 1958

DIVISION 2 – CIVIL PROCEEDINGS AND CRIMINAL PROCEEDINGS (SS 486Z–486ZC) 486Z Civil proceedings after criminal proceedings An eligible court may not make a civil penalty order against a person for a contravention of a civil penalty provision if the person has been convicted of an offence constituted by conduct that is the same, or substantially the same, as the conduct constituting the contravention. [S 486Z subst Act 10 of 2013, s 3 and Sch 1 item 24, with effect from 1 Jun 2013; insrt Act 159 of 2008, s 3 and Sch 1 item 42, with effect from 14 Sep 2009]

486ZA Criminal proceedings during civil proceedings (1) Proceedings for a civil penalty order against a person for a contravention of a civil penalty provision are stayed if: (a) criminal proceedings are commenced or have already been commenced against the person for an offence; and (b) the offence is constituted by conduct that is the same, or substantially the same, as the conduct alleged to constitute the contravention. (2) The proceedings for the civil penalty order may be resumed if the person is not convicted of the offence. Otherwise, the proceedings are dismissed. [S 486ZA subst Act 10 of 2013, s 3 and Sch 1 item 24, with effect from 1 Jun 2013; am Act 13 of 2013; insrt Act 159 of 2008, s 3 and Sch 1 item 42, with effect from 14 Sep 2009]

486ZB Criminal proceedings after civil proceedings Criminal proceedings may be commenced against a person for conduct that is the same, or substantially the same, as conduct that would constitute a contravention of a civil penalty provision regardless of whether a civil penalty order has been made against the person in relation to the contravention. [S 486ZB insrt Act 10 of 2013, s 3 and Sch 1 item 24, with effect from 1 Jun 2013]

486ZC Evidence given in civil proceedings not admissible in criminal proceedings (1) Evidence of information given, or evidence of production of documents, by an individual is not admissible in criminal proceedings against the individual if: (a) the individual previously gave the evidence or produced the documents in proceedings for a civil penalty order against the individual for an alleged contravention of a civil penalty provision (whether or not the order was made); and (b) the conduct alleged to constitute the offence is the same, or substantially the same, as the conduct alleged to constitute the contravention. (2) However, subsection (1) does not apply to criminal proceedings in relation to the falsity of the evidence given by the individual in the proceedings for the civil penalty order. [S 486ZC insrt Act 10 of 2013, s 3 and Sch 1 item 24, with effect from 1 Jun 2013]

DIVISION 3 – MISCELLANEOUS (SS 486ZD–486ZG) 486ZD Ancillary contravention of civil penalty provisions (1) A person must not: (a) attempt to contravene a civil penalty provision; or (b) aid, abet, counsel or procure a contravention of a civil penalty provision; or (c) induce (by threats, promises or otherwise) a contravention of a civil penalty provision; or

1028

Migration Law

Part 8D – Civil penalties (ss 486R–486ZG) Division 3 – Miscellaneous (ss 486ZD–486ZG)

s 486ZF

(d) be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of a civil penalty provision; or (e) conspire with others to effect a contravention of a civil penalty provision. Note: Section 486ZF (which provides that a person’s state of mind does not need to be proven in proceedings for a civil penalty order) does not apply in relation to this section.

Civil penalty (2) A person who contravenes subsection (1) in relation to a civil penalty provision is taken to have contravened the provision. [S 486ZD insrt Act 10 of 2013, s 3 and Sch 1 item 24, with effect from 1 Jun 2013]

486ZE Mistake of fact (1) A person is not liable to have a civil penalty order made against the person for a contravention of a civil penalty provision if: (a) at or before the time of the conduct constituting the contravention, the person: (i) considered whether or not facts existed; and (ii) was under a mistaken but reasonable belief about those facts; and (b) had those facts existed, the conduct would not have constituted a contravention of the civil penalty provision. (2) For the purposes of subsection (1), a person may be regarded as having considered whether or not facts existed if: (a) the person had considered, on a previous occasion, whether those facts existed in the circumstances surrounding that occasion; and (b) the person honestly and reasonably believed that the circumstances surrounding the present occasion were the same, or substantially the same, as those surrounding the previous occasion. (3) A person who wishes to rely on subsection (1) or (2) in proceedings for a civil penalty order bears an evidential burden in relation to that matter. [S 486ZE insrt Act 10 of 2013, s 3 and Sch 1 item 24, with effect from 1 Jun 2013]

486ZF State of mind (1) In proceedings for a civil penalty order against a person for a contravention of a civil penalty provision (other than subsection 245AK(2) or 245AU(2)), it is not necessary to prove: (a) the person’s intention; or (b) the person’s knowledge; or (c) the person’s recklessness; or (d) the person’s negligence; or (e) any other state of mind of the person. [Subs (1) am Act 161 of 2015, s 3 and Sch 1 item 7, with effect from 14 Dec 2015]

(2) Subsection (1) does not apply to the extent that the proceedings relate to a contravention of subsection 486ZD(1) (which is about ancillary contraventions of civil penalty provisions). (3) Subsection (1) of this section does not affect the operation of section 486ZE (which is about mistake of fact). [S 486ZF am Act 161 of 2015; insrt Act 10 of 2013, s 3 and Sch 1 item 24, with effect from 1 Jun 2013]

© 2016 THOMSON REUTERS

1029

s 486ZF

Migration Act 1958

486ZG Civil double jeopardy If a person is ordered to pay a pecuniary penalty for contravening a civil penalty provision in respect of particular conduct, the person is not liable to a pecuniary penalty under some other provision of a law of the Commonwealth in respect of that conduct. [S 486ZG insrt Act 10 of 2013, s 3 and Sch 1 item 24, with effect from 1 Jun 2013]

1030

Migration Law

PART 8E – INVESTIGATION POWERS RELATING TO CERTAIN OFFENCES AND PROVISIONS (SS 487A–487ZH) [Pt 8E heading subst Act 161 of 2015, s 3 and Sch 1 item 8, with effect from 14 Dec 2015] [Pt 8E insrt Act 10 of 2013, s 3 and Sch 1 item 24, with effect from 1 Jun 2013]

DIVISION 1 – PRELIMINARY (S 487A) 487A Definitions In this Part: evidential material means: (a) in relation to a sponsorship-related offence or a work-related offence: (i) a thing with respect to which the offence has been committed or is reasonably suspected of having been committed; or (ii) a thing that it is reasonably suspected will afford evidence as to the commission of the offence; or (iii) a thing that is reasonably suspected of being intended to be used for the purpose of committing the offence; or (b) in relation to a contravention of a sponsorship-related provision or a work-related provision: (i) a thing with respect to which the provision has been contravened or is reasonably suspected of having been contravened; or (ii) a thing that it is reasonably suspected will afford evidence as to the contravention of the provision; or (iii) a thing that is reasonably suspected of being intended to be used for the purpose of contravening the provision. [Def am Act 161 of 2015, s 3 and Sch 1 items 9 and 10, with effect from 14 Dec 2015]

issuing (a) (b) (c)

officer means: a magistrate; or a Judge of the Federal Circuit Court; or a Judge of the Federal Court.

Note: For conferral of powers on an issuing officer, see section 487ZH. [Def am Act 13 of 2013, s 3 and Sch 3 item 97, with effect from 12 Apr 2013]

occupier, in relation to premises comprising a vehicle or vessel, means the person apparently in charge of the vehicle or vessel. person assisting has the meaning given by section 487H. premises includes the following: (a) a structure, building, vehicle or vessel; (b) a place (whether or not enclosed or built on); (c) a part of a thing referred to in paragraph (a) or (b). © 2016 THOMSON REUTERS

1031

s 487A

related (a) (b) (c) (d)

Migration Act 1958

provision means: a sponsorship-related offence; or a sponsorship-related provision; or a work-related offence; or a work-related provision.

[Def subst Act 161 of 2015, s 3 and Sch 1 item 11, with effect from 14 Dec 2015]

search powers has the meaning given by sections 487E, 487F and 487G. search warrant means: (a) a warrant issued by an issuing officer under section 487ZC; or (b) a warrant signed by an issuing officer under section 487ZD. sponsorship-related offence means: (a) an offence against Subdivision D of Division 12 of Part 2; or (b) an offence against section 6 of the Crimes Act 1914 that relates to an offence against that Subdivision; or (c) an ancillary offence (within the meaning of the Criminal Code) that is, or relates to, an offence against that Subdivision. [Def insrt Act 161 of 2015, s 3 and Sch 1 item 12, with effect from 14 Dec 2015]

sponsorship-related provision means a civil penalty provision in Subdivision D of Division 12 of Part 2. [Def insrt Act 161 of 2015, s 3 and Sch 1 item 12, with effect from 14 Dec 2015]

work-related offence means: (a) an offence against Subdivision C of Division 12 of Part 2; or (b) an offence against section 6 of the Crimes Act 1914 that relates to an offence against that Subdivision; or (c) an ancillary offence (within the meaning of the Criminal Code) that is, or relates to, an offence against that Subdivision. work-related provision means a civil penalty provision in Subdivision C of Division 12 of Part 2. [S 487A am Act 161 of 2015; Act 13 of 2013; insrt Act 10 of 2013, s 3 and Sch 1 item 24, with effect from 1 Jun 2013]

DIVISION 2 – REQUIRING PERSONS TO GIVE INFORMATION OR PRODUCE DOCUMENTS (SS 487B–487C) 487B Secretary or Australian Border Force Commissioner may require a person to give information or produce a document (1) If the Secretary or Australian Border Force Commissioner has reason to believe that a person has information or a document that is relevant to: (a) a possible sponsorship-related offence; or (b) a possible contravention of a sponsorship-related provision; or (c) a possible work-related offence; or (d) a possible contravention of a work-related provision; the Secretary or Australian Border Force Commissioner may, by written notice given to the person, require the person to give the information, or to produce the document, to an authorised officer. [Subs (1) am Act 161 of 2015, s 3 and Sch 1 item 13, with effect from 14 Dec 2015; Act 41 of 2015, s 3 and Sch 3 item 64, with effect from 1 Jul 2015]

1032

Migration Law

Part 8E - Investigation powers relating to work-related offences and provisions (ss 487A-487ZH) Division 3 – Search warrants (ss 487D–487ZH) s 487D

Content of notice (2) The notice must: (a) specify the period (which must be at least 14 days after the notice is given to the person) within which the person is required to comply with the notice; and (b) specify how the information or document must be given; and (c) set out the effect of subsection (3) and sections 137.1 and 137.2 of the Criminal Code. Offence (3) A person commits an offence if: (a) the person is given a notice under subsection (1); and (b) the person fails to comply with the notice. Penalty: 30 penalty units. (4) An offence against subsection (3) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code.

(5) Subsection (3) does not apply to the extent that the person is not capable of complying with the notice. Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code). [S 487B am Act 161 of 2015; Act 41 of 2015, s 3 and Sch 3 item 63, with effect from 1 Jul 2015; insrt Act 10 of 2013, s 3 and Sch 1 item 24, with effect from 1 Jun 2013]

487C Self-incrimination (1) A person is not excused from giving information or producing a document under section 487B on the ground that the information or the production of the document might tend to incriminate the person or expose the person to a penalty. (2) However, in the case of an individual: (a) the information given or document produced; and (b) giving the information or producing the document; and (c) any information, document or thing obtained as a direct or indirect consequence of giving the information or producing the document; are not admissible in evidence against the individual: (d) in criminal proceedings (other than proceedings for an offence against section 137.1 or 137.2 of the Criminal Code that relates to Subdivision C or D of Division 12 of Part 2 of this Act); or (e) in civil proceedings (other than proceedings for a civil penalty order for an alleged contravention of a sponsorship-related provision or a work-related provision). [Subs (2) am Act 161 of 2015, s 3 and Sch 1 items 14 and 15, with effect from 14 Dec 2015] [S 487C am Act 161 of 2015; insrt Act 10 of 2013, s 3 and Sch 1 item 24, with effect from 1 Jun 2013]

DIVISION 3 – SEARCH WARRANTS (SS 487D–487ZH) SUBDIVISION A – SEARCH POWERS (SS 487D-487J) 487D Authorised officer may enter premises by consent or under a search warrant (1) If an authorised officer reasonably suspects that there may be evidential material on any premises, the authorised officer may: (a) enter the premises; and

© 2016 THOMSON REUTERS

1033

s 487D

Migration Act 1958

(b) exercise the search powers. (2) However, an authorised officer is not authorised to enter the premises unless: (a) the occupier of the premises has consented to the entry and the authorised officer has shown his or her identity card if required by the occupier; or (b) the entry is made under a search warrant. Note: If entry to the premises is with the occupier’s consent, the authorised officer must leave the premises if the consent ceases to have effect (see section 487L). [S 487D insrt Act 10 of 2013, s 3 and Sch 1 item 24, with effect from 1 Jun 2013]

487E Search powers of authorised officers The following are the search powers that an authorised officer may exercise in relation to premises under section 487D: (a) if entry to the premises is with the occupier’s consent—the power to search the premises and any thing on the premises for the evidential material the authorised officer reasonably suspects may be on the premises; (b) if entry to the premises is under a search warrant: (i) the power to search the premises, and any thing on the premises, for the kind of evidential material specified in the warrant; and (ii) the power to seize evidential material of that kind if the authorised officer finds it on the premises; (c) the power to inspect, examine, take measurements of, conduct tests on or take samples of evidential material referred to in paragraph (a) or (b); (d) the power to make any still or moving image or any recording of the premises or evidential material referred to in paragraph (a) or (b); (e) the power to take onto the premises such equipment and materials as the authorised officer requires for the purpose of exercising powers in relation to the premises; (f) the powers set out in subsections 487F(1) and (2) and section 487G. [S 487E insrt Act 10 of 2013, s 3 and Sch 1 item 24, with effect from 1 Jun 2013]

487F Powers relating to electronic equipment (1) The search powers include the power to operate electronic equipment on the premises if the authorised officer reasonably suspects that: (a) the equipment; or (b) a disk, tape or other storage device that: (i) is on the premises; and (ii) can be used with the equipment or is associated with it; contains evidential material referred to in paragraph 487E(a) or (b). (2) The search powers include the following powers in relation to evidential material described in subsection (1) found in the exercise of the power under that subsection: (a) if entry to the premises is under a search warrant—the power to seize the equipment and the disk, tape or other storage device referred to in that subsection; (b) the power to operate electronic equipment on the premises to put the evidential material in documentary form and remove the documents so produced from the premises; (c) the power to operate electronic equipment on the premises to transfer the evidential material to a disk, tape or other storage device that: (i) is brought to the premises for the exercise of the power; or

1034

Migration Law

Part 8E - Investigation powers relating to work-related offences and provisions (ss 487A-487ZH) Division 3 – Search warrants (ss 487D–487ZH) s 487H

(ii)

is on the premises and the use of which for that purpose has been agreed to in writing by the occupier of the premises; and remove the disk, tape or other storage device from the premises. (3) An authorised officer may operate electronic equipment as mentioned in subsection (1) or (2) only if the authorised officer reasonably believes that the operation of the equipment can be carried out without damage to the equipment. Note: For compensation for damage to electronic equipment, see section 487T.

(4) An authorised officer may seize equipment or a disk, tape or other storage device as mentioned in paragraph (2)(a) only if: (a) it is not practicable to put the evidential material in documentary form as mentioned in paragraph (2)(b) or to transfer the evidential material as mentioned in paragraph (2)(c); or (b) possession of the equipment or the disk, tape or other storage device by the occupier could constitute an offence against a law of the Commonwealth. [S 487F insrt Act 10 of 2013, s 3 and Sch 1 item 24, with effect from 1 Jun 2013]

487G Seizing evidence of the contravention of related provisions etc. (1) This section applies if an authorised officer enters premises under a search warrant to search for evidential material. (2) The search powers include seizing a thing that is not evidential material of the kind specified in the warrant if: (a) in the course of searching for the kind of evidential material specified in the warrant, the authorised officer finds the thing; and (b) the authorised officer reasonably believes that: (i) a related provision has been contravened with respect to the thing; or (ii) the thing is evidence of the contravention of a related provision; or (iii) the thing is intended to be used for the purpose of contravening a related provision; and (c) the authorised officer reasonably believes that it is necessary to seize the thing in order to prevent its concealment, loss or destruction. [S 487G insrt Act 10 of 2013, s 3 and Sch 1 item 24, with effect from 1 Jun 2013]

487H Persons assisting authorised officers Authorised offıcers may be assisted by other persons (1) An authorised officer may be assisted by other persons in exercising powers or performing functions or duties under this Division, if that assistance is necessary and reasonable. A person giving such assistance is a person assisting the authorised officer. Powers of a person assisting the authorised offıcer (2) A person assisting the authorised officer: (a) may enter the premises; and (b) may exercise powers and perform functions and duties under this Division in relation to evidential material; and (c) must do so in accordance with a direction given to the person assisting by the authorised officer. (3) A power exercised by a person assisting the authorised officer as mentioned in subsection (2) is taken for all purposes to have been exercised by the authorised officer.

© 2016 THOMSON REUTERS

1035

s 487H

Migration Act 1958

(4) A function or duty performed by a person assisting the authorised officer as mentioned in subsection (2) is taken for all purposes to have been performed by the authorised officer. (5) If a direction is given under paragraph (2)(c) in writing, the direction is not a legislative instrument. [S 487H insrt Act 10 of 2013, s 3 and Sch 1 item 24]

[Editor’s Note: There is no section 487I in this Act.] 487J Use of force in executing a search warrant In executing a search warrant, an authorised officer, or a person assisting an authorised officer, may use such force against things as is necessary and reasonable in the circumstances. [S 487J insrt Act 10 of 2013, s 3 and Sch 1 item 24, with effect from 1 Jun 2013]

SUBDIVISION B – POWERS OF AUTHORISED OFFICERS TO ASK QUESTIONS AND SEEK PRODUCTION OF DOCUMENTS (S 487K) 487K Authorised officer may ask questions and seek production of documents Entry with consent (1) If an authorised officer is authorised to enter premises because the occupier of the premises consented to the entry, the authorised officer may ask the occupier to: (a) answer any questions relating to the reasons for the authorised officer entering the premises that are put by the authorised officer; and (b) produce any document relating to the reasons for the authorised officer entering the premises that is requested by the authorised officer. Entry under a search warrant (2) If an authorised officer is authorised to enter premises by a search warrant, the authorised officer may require any person on the premises to: (a) answer any questions relating to the reasons for the authorised officer entering the premises that are put by the authorised officer; and (b) produce any document relating to the reasons for the authorised officer entering the premises that is requested by the authorised officer. Offence (3) A person commits an offence if: (a) the person is subject to a requirement under subsection (2); and (b) the person fails to comply with the requirement. Penalty for contravention of this subsection: 30 penalty units. [S 487K insrt Act 10 of 2013, s 3 and Sch 1 item 24, with effect from 1 Jun 2013]

SUBDIVISION C – OBLIGATIONS AND INCIDENTAL POWERS OF AUTHORISED OFFICERS (SS 487L–487T) 487L Consent (1) Before obtaining the consent of an occupier of premises for the purposes of paragraph 487D(2)(a), an authorised officer must inform the occupier that the occupier may refuse consent. (2) A consent has no effect unless the consent is voluntary.

1036

Migration Law

Part 8E - Investigation powers relating to work-related offences and provisions (ss 487A-487ZH) Division 3 – Search warrants (ss 487D–487ZH) s 487P

(3) A consent may be expressed to be limited to entry during a particular period. If so, the consent has effect for that period unless the consent is withdrawn before the end of that period. (4) A consent that is not limited as mentioned in subsection (3) has effect until the consent is withdrawn. (5) If an authorised officer has entered premises because of the consent of the occupier of the premises, the authorised officer, and any person assisting the authorised officer, must leave the premises if the consent ceases to have effect. [S 487L insrt Act 10 of 2013, s 3 and Sch 1 item 24, with effect from 1 Jun 2013]

487M Announcement before entry under search warrant (1) Before entering premises under a search warrant, an authorised officer must: (a) announce that he or she is authorised to enter the premises; and (b) show his or her identity card to the occupier of the premises, or to another person who apparently represents the occupier, if the occupier or other person is present at the premises; and (c) give any person at the premises an opportunity to allow entry to the premises. (2) However, an authorised officer is not required to comply with subsection (1) if the authorised officer reasonably believes that immediate entry to the premises is required: (a) to ensure the safety of a person; or (b) to ensure that the effective execution of the search warrant is not frustrated. (3) If: (a) an authorised officer does not comply with subsection (1) because of subsection (2); and (b) the occupier of the premises, or another person who apparently represents the occupier, is present at the premises; the authorised officer must show his or her identity card to the occupier or other person, as soon as practicable after entering the premises. [S 487M insrt Act 10 of 2013, s 3 and Sch 1 item 24, with effect from 1 Jun 2013]

487N Authorised officer to be in possession of search warrant An authorised officer who is executing a search warrant must be in possession of: (a) the search warrant issued by the issuing officer under section 487ZC, or a copy of the warrant as so issued; or (b) the form of search warrant completed under subsection 487ZD(6), or a copy of the form as so completed. [S 487N insrt Act 10 of 2013, s 3 and Sch 1 item 24, with effect from 1 Jun 2013]

[Editor’s Note: There is no section 487O in this Act.] 487P Details of search warrant etc. to be given to occupier (1) An authorised officer must comply with subsection (2) if: (a) a search warrant is being executed in relation to premises; and (b) the occupier of the premises, or another person who apparently represents the occupier, is present at the premises. (2) The authorised officer must, as soon as practicable: (a) do one of the following: (i) if the search warrant was issued under section 487ZC—make a copy of the warrant available to the occupier or other person (which need not include the signature of the issuing officer who issued it);

© 2016 THOMSON REUTERS

1037

s 487P

Migration Act 1958

(ii)

if the search warrant was signed under section 487ZD—make a copy of the form of warrant completed under subsection 487ZD(6) available to the occupier or other person; and (b) inform the occupier or other person of the rights and responsibilities of the occupier or other person under Subdivision D. [S 487P insrt Act 10 of 2013, s 3 and Sch 1 item 24, with effect from 1 Jun 2013]

487Q Completing execution of search warrant after temporary cessation (1) This section applies if an authorised officer, and all persons assisting, who are executing a search warrant in relation to premises temporarily cease its execution and leave the premises. (2) The authorised officer, and persons assisting, may complete the execution of the search warrant if: (a) the warrant is still in force; and (b) the authorised officer and persons assisting are absent from the premises: (i) for not more than 1 hour; or (ii) if there is an emergency situation, for not more than 12 hours or such longer period as allowed by an issuing officer under subsection (5); or (iii) for a longer period if the occupier of the premises consents in writing. Application for extension in emergency situation (3) An authorised officer, or person assisting, may apply to an issuing officer for an extension of the 12-hour period mentioned in subparagraph (2)(b)(ii) if: (a) there is an emergency situation; and (b) the authorised officer or person assisting reasonably believes that the authorised officer and the persons assisting will not be able to return to the premises within that period. (4) If it is practicable to do so, before making the application, the authorised officer or person assisting must give notice to the occupier of the premises of his or her intention to apply for an extension. Extension in emergency situation (5) An issuing officer may extend the period during which the authorised officer and persons assisting may be away from the premises if: (a) an application is made under subsection (3); and (b) the issuing officer is satisfied, by information on oath or affirmation, that there are exceptional circumstances that justify the extension; and (c) the extension would not result in the period ending after the search warrant ceases to be in force. [S 487Q insrt Act 10 of 2013, s 3 and Sch 1 item 24, with effect from 1 Jun 2013]

487R Completing execution of search warrant stopped by court order An authorised officer, and any persons assisting, may complete the execution of a search warrant that has been stopped by an order of a court if: (a) the order is later revoked or reversed on appeal; and (b) the warrant is still in force when the order is revoked or reversed. [S 487R insrt Act 10 of 2013, s 3 and Sch 1 item 24, with effect from 1 Jun 2013]

487S Expert assistance to operate electronic equipment (1) This section applies if an authorised officer enters premises under a search warrant.

1038

Migration Law

Part 8E - Investigation powers relating to work-related offences and provisions (ss 487A-487ZH) Division 3 – Search warrants (ss 487D–487ZH) s 487T

Securing equipment (2) The authorised officer may do whatever is necessary to secure any electronic equipment that is on premises if the authorised officer reasonably believes that: (a) there is on the premises evidential material of the kind specified in the search warrant; and (b) that evidential material may be accessible by operating the equipment; and (c) expert assistance is required to operate the equipment; and (d) the evidential material may be destroyed, altered or otherwise interfered with, if the authorised officer does not take action under this subsection. The equipment may be secured by locking it up, placing a guard or any other means. (3) The authorised officer must give notice to the occupier of the premises, or another person who apparently represents the occupier, of: (a) the authorised officer’s intention to secure the equipment; and (b) the fact that the equipment may be secured for up to 24 hours. Period equipment may be secured (4) The equipment may be secured until the earlier of the following happens: (a) the 24-hour period ends; (b) the equipment has been operated by the expert. Note: For compensation for damage to electronic equipment, see section 487T.

Extensions (5) The authorised officer may apply to an issuing officer for an extension of the 24-hour period if the authorised officer reasonably believes that the equipment needs to be secured for longer than that period. (6) Before making the application, the authorised officer must give notice to the occupier of the premises, or another person who apparently represents the occupier, of the authorised officer’s intention to apply for an extension. The occupier or other person is entitled to be heard in relation to that application. (7) The provisions of this Division relating to the issue of search warrants apply, with such modifications as are necessary, to the issue of an extension. (8) The 24-hour period may be extended more than once. [S 487S insrt Act 10 of 2013, s 3 and Sch 1 item 24, with effect from 1 Jun 2013]

487T Compensation for damage to electronic equipment (1) This section applies if: (a) as a result of electronic equipment being operated as mentioned in this Division: (i) damage is caused to the equipment; or (ii) the data recorded on the equipment is damaged; or (iii) programs associated with the use of the equipment, or with the use of the data, are damaged or corrupted; and (b) the damage or corruption occurs because: (i) insufficient care was exercised in selecting the person who was to operate the equipment; or (ii) insufficient care was exercised by the person operating the equipment. (2) The Commonwealth must pay the owner of the equipment, or the user of the data or programs, such reasonable compensation for the damage or corruption as the Commonwealth and the owner or user agree on.

© 2016 THOMSON REUTERS

1039

s 487T

Migration Act 1958

(3) However, if the owner or user and the Commonwealth fail to agree, the owner or user may institute proceedings in a court of competent jurisdiction for such reasonable amount of compensation as the court determines. (4) In determining the amount of compensation payable, regard is to be had to whether the occupier of the premises, or the occupier’s employees or agents, if they were available at the time, provided any appropriate warning or guidance on the operation of the equipment. (5) In this section: damage, in relation to data, includes damage by erasure of data or addition of other data. [S 487T insrt Act 10 of 2013, s 3 and Sch 1 item 24, with effect from 1 Jun 2013]

SUBDIVISION D – OCCUPIER’S RIGHTS AND RESPONSIBILITIES (SS 487U– 487V) 487U Occupier entitled to observe execution of search warrant (1) The occupier, or another person who apparently represents the occupier, is entitled to observe the execution of a search warrant if the occupier or other person is present at the premises while the warrant is being executed. (2) The right to observe the execution of the search warrant ceases if the occupier or other person impedes that execution. (3) This section does not prevent the execution of the search warrant in 2 or more areas of the premises at the same time. [S 487U insrt Act 10 of 2013, s 3 and Sch 1 item 24, with effect from 1 Jun 2013]

487V Occupier to provide authorised officer with facilities and assistance (1) The occupier of premises to which a search warrant relates, or another person who apparently represents the occupier, must provide: (a) an authorised officer executing the warrant; and (b) any person assisting the authorised officer; with all reasonable facilities and assistance for the effective exercise of their powers, and the effective performance of their functions and duties. Offence (2) A person commits an offence if: (a) the person is subject to subsection (1); and (b) the person fails to comply with that subsection. Penalty for contravention of this subsection: 30 penalty units. [S 487V insrt Act 10 of 2013, s 3 and Sch 1 item 24, with effect from 1 Jun 2013]

SUBDIVISION E – GENERAL PROVISIONS RELATING TO SEIZURE (SS 487W– 487ZB) 487W Copies of seized things to be provided (1) This section applies if: (a) a search warrant is being executed in relation to premises; and (b) an authorised officer seizes one or more of the following from the premises under this Division: (i) a document, film, computer file or other thing that can be readily copied; (ii) a storage device, the information in which can be readily copied.

1040

Migration Law

Part 8E - Investigation powers relating to work-related offences and provisions (ss 487A-487ZH) Division 3 – Search warrants (ss 487D–487ZH) s 487Y

(2) The occupier of the premises, or another person who apparently represents the occupier and who is present when the search warrant is executed, may request the authorised officer to give a copy of the thing or the information to the occupier or other person. (3) The authorised officer must comply with such a request as soon as practicable after the seizure. (4) However, the authorised officer is not required to comply with such a request if possession of the document, film, computer file, thing or information by the occupier or other person could constitute an offence against a law of the Commonwealth. [S 487W insrt Act 10 of 2013, s 3 and Sch 1 item 24, with effect from 1 Jun 2013]

487X Receipts for seized things (1) An authorised officer must provide a receipt for a thing that is seized under this Division. (2) One receipt may cover 2 or more things that are seized. [S 487X insrt Act 10 of 2013, s 3 and Sch 1 item 24, with effect from 1 Jun 2013]

487Y Return of seized things (1) The Secretary or Australian Border Force Commissioner must take reasonable steps to return a thing seized under this Division when the earliest of the following happens: (a) the reason for the thing’s seizure no longer exists; (b) it is decided that the thing is not to be used in evidence; (c) the period of 60 days after the thing’s seizure ends. Note: See subsections (2) and (3) for exceptions to this rule. [Subs (1) am Act 41 of 2015, s 3 and Sch 3 item 65, with effect from 1 Jul 2015]

Exceptions (2) Subsection (1): (a) is subject to any contrary order of a court; and (b) does not apply if the thing: (i) is forfeited or forfeitable to the Commonwealth; or (ii) is the subject of a dispute as to ownership. (3) The Secretary or Australian Border Force Commissioner is not required to take reasonable steps to return a thing because of paragraph (1)(c) if: (a) proceedings in respect of which the thing may afford evidence were instituted before the end of the 60 days and have not been completed (including an appeal to a court in relation to those proceedings); or (b) the thing may continue to be retained because of an order under section 487Z; or (c) the Commonwealth, the Secretary, the Australian Border Force Commissioner or an authorised officer is otherwise authorised (by a law, or an order of a court, of the Commonwealth or of a State or Territory) to retain, destroy, dispose of or otherwise deal with the thing. [Subs (3) am Act 41 of 2015, s 3 and Sch 3 items 66 and 67, with effect from 1 Jul 2015]

Return of thing (4) A thing that is required to be returned under this section must be returned to the person from whom it was seized (or to the owner if that person is not entitled to possess it). [S 487Y am Act 41 of 2015; insrt Act 10 of 2013, s 3 and Sch 1 item 24, with effect from 1 Jun 2013]

© 2016 THOMSON REUTERS

1041

s 487Y

Migration Act 1958

487Z Issuing officer may permit a seized thing to be retained Application to retain seized thing (1) The Secretary or Australian Border Force Commissioner may apply to an issuing officer for an order permitting the retention of a thing seized under this Division for a further period if proceedings in respect of which the thing may afford evidence have not commenced before the end of: (a) 60 days after the seizure; or (b) a period previously specified in an order of an issuing officer under this section. [Subs (1) am Act 41 of 2015, s 3 and Sch 3 item 68, with effect from 1 Jul 2015]

(2) Before making the application, the Secretary or Australian Border Force Commissioner must: (a) take reasonable steps to discover who has an interest in the retention of the thing; and (b) if it is practicable to do so, notify each person whom the Secretary or Australian Border Force Commissioner believes to have such an interest of the proposed application. [Subs (2) am Act 41 of 2015, s 3 and Sch 3 item 68, with effect from 1 Jul 2015]

Order to retain seized thing (3) The issuing officer may order that the thing may continue to be retained for a period specified in the order if the issuing officer is satisfied that it is necessary for the thing to continue to be retained: (a) for the purposes of investigating whether: (i) a sponsorship-related offence has been committed; or (ii) a sponsorship-related provision has been contravened; or (iii) a work-related offence has been committed; or (iv) a work-related provision has been contravened; or (b) to enable evidence of such an offence or contravention to be secured for the purposes of a prosecution or action. [Subs (3) am Act 161 of 2015, s 3 and Sch 1 item 16, with effect from 14 Dec 2015]

(4) The period specified must not exceed 3 years. [S 487Z am Act 161 of 2015; Act 41 of 2015; insrt Act 10 of 2013, s 3 and Sch 1 item 24, with effect from 1 Jun 2013]

487ZA Disposal of seized things (1) The Secretary or Australian Border Force Commissioner may dispose of a thing seized under this Division if: (a) the Secretary or Australian Border Force Commissioner has taken reasonable steps to return the thing to a person; and (b) either: (i) the Secretary or Australian Border Force Commissioner has been unable to locate the person; or (ii) the person has refused to take possession of the thing. [Subs (1) am Act 41 of 2015, s 3 and Sch 3 item 69, with effect from 1 Jul 2015]

(2) The Secretary or Australian Border Force Commissioner may dispose of the thing in any manner that he or she thinks appropriate. [Subs (2) am Act 41 of 2015, s 3 and Sch 3 item 69, with effect from 1 Jul 2015] [S 487ZA am Act 41 of 2015; insrt Act 10 of 2013, s 3 and Sch 1 item 24, with effect from 1 Jun 2013]

1042

Migration Law

Part 8E - Investigation powers relating to work-related offences and provisions (ss 487A-487ZH) Division 3 – Search warrants (ss 487D–487ZH) s 487ZC

487ZB Compensation for acquisition of property (1) If the operation of section 487ZA would result in an acquisition of property from a person otherwise than on just terms, the Commonwealth is liable to pay a reasonable amount of compensation to the person. (2) If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in a court of competent jurisdiction for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines. (3) In this section: acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution. just terms has the same meaning as in paragraph 51(xxxi) of the Constitution. [S 487ZB insrt Act 10 of 2013, s 3 and Sch 1 item 24, with effect from 1 Jun 2013]

SUBDIVISION F – ISSUE OF SEARCH WARRANTS (SS 487ZC–487ZF) 487ZC Issue of search warrants Application for search warrant (1) An authorised officer may apply to an issuing officer for a search warrant under this section in relation to premises. Issue of search warrant (2) The issuing officer may issue the search warrant if the issuing officer is satisfied, by information on oath or affirmation, that there are reasonable grounds for suspecting that there is, or there may be within the next 72 hours, evidential material on the premises. (3) However, the issuing officer must not issue the search warrant unless the authorised officer or some other person has given to the issuing officer, either orally or by affidavit, such further information (if any) as the issuing officer requires concerning the grounds on which the issue of the warrant is being sought. Content of search warrant (4) The search warrant must: (a) state: (i) the sponsorship-related offence or offences; or (ii) the sponsorship-related provision or provisions; or (iii) the work-related offence or offences; or (iv) the work-related provision or provisions; to which the warrant relates; and (b) describe the premises to which the warrant relates; and (c) state that the warrant is issued under this Subdivision; and (d) specify the kind of evidential material that is to be searched for under the warrant; and (e) state that the evidential material specified, and any other evidential material found in the course of executing the warrant, may be seized under the warrant; and (f) name one or more authorised officers; and (g) authorise the authorised officers named in the warrant: (i) to enter the premises; and (ii) to exercise the powers set out in this Division in relation to the premises; and

© 2016 THOMSON REUTERS

1043

s 487ZC

Migration Act 1958

(h) state whether entry is authorised to be made at any time of the day or during specified hours of the day; and (i) specify the day (not more than 1 week after the issue of the warrant) on which the warrant ceases to be in force. [Subs (4) am Act 161 of 2015, s 3 and Sch 1 item 17, with effect from 14 Dec 2015] [S 487ZC am Act 161 of 2015; insrt Act 10 of 2013, s 3 and Sch 1 item 24, with effect from 1 Jun 2013]

487ZD Search warrants by telephone, fax etc. Application for search warrant (1) An authorised officer may apply to an issuing officer by telephone, fax or other electronic means for a search warrant under section 487ZC in relation to premises: (a) in an urgent case; or (b) if the delay that would occur if an application were made in person would frustrate the effective execution of the warrant. (2) The issuing officer may require communication by voice to the extent that it is practicable in the circumstances. (3) Before applying for the search warrant, the authorised officer must prepare an information of the kind mentioned in subsection 487ZC(2) in relation to the premises that sets out the grounds on which the warrant is sought. If it is necessary to do so, the authorised officer may apply for the warrant before the information is sworn or affirmed. Issuing offıcer may complete and sign search warrant (4) The issuing officer may complete and sign the same search warrant that would have been issued under section 487ZC if the issuing officer is satisfied that there are reasonable grounds for doing so: (a) after considering the terms of the information; and (b) after receiving such further information (if any) as the issuing officer requires concerning the grounds on which the issue of the warrant is being sought. (5) After completing and signing the search warrant, the issuing officer must inform the authorised officer, by telephone, fax or other electronic means, of: (a) the terms of the warrant; and (b) the day on which, and the time at which, the warrant was signed. Obligations on authorised offıcer (6) The authorised officer must then do the following: (a) complete a form of search warrant in the same terms as the warrant completed and signed by the issuing officer; (b) state on the form the following: (i) the name of the issuing officer; (ii) the day on which, and the time at which, the search warrant was signed; (c) send the following to the issuing officer: (i) the form of search warrant completed by the authorised officer; (ii) the information referred to in subsection (3), which must have been duly sworn or affirmed. (7) The authorised officer must comply with paragraph (6)(c) by the end of the day after the earlier of the following: (a) the day on which the search warrant ceases to be in force; (b) the day on which the search warrant is executed.

1044

Migration Law

Part 8E - Investigation powers relating to work-related offences and provisions (ss 487A-487ZH) Division 3 – Search warrants (ss 487D–487ZH) s 487ZG

Issuing offıcer to attach documents together (8) The issuing officer must attach the documents provided under paragraph (6)(c) to the search warrant signed by the issuing officer. [S 487ZD insrt Act 10 of 2013, s 3 and Sch 1 item 24, with effect from 1 Jun 2013]

487ZE Authority of search warrant (1) A form of search warrant duly completed under subsection 487ZD(6) is authority for the same powers as are authorised by the search warrant signed by the issuing officer under subsection 487ZD(4). (2) In any proceedings, a court is to assume (unless the contrary is proved) that an exercise of power was not authorised by a search warrant under section 487ZD if: (a) it is material, in those proceedings, for the court to be satisfied that the exercise of power was authorised by that section; and (b) the warrant signed by the issuing officer authorising the exercise of the power is not produced in evidence. [S 487ZE insrt Act 10 of 2013, s 3 and Sch 1 item 24, with effect from 1 Jun 2013]

487ZF Offence relating to search warrants by telephone, fax etc. An authorised officer must not: (a) state in a document that purports to be a form of search warrant under section 487ZD the name of an issuing officer unless that issuing officer signed the warrant; or (b) state on a form of search warrant under that section a matter that, to the authorised officer’s knowledge, departs in a material particular from the terms of the warrant signed by the issuing officer under that section; or (c) purport to execute, or present to another person, a document that purports to be a form of search warrant under that section that the authorised officer knows departs in a material particular from the terms of a warrant signed by an issuing officer under that section; or (d) give to an issuing officer a form of search warrant under that section that is not the form of search warrant that the authorised officer purported to execute. Penalty: Imprisonment for 2 years. [S 487ZF insrt Act 10 of 2013, s 3 and Sch 1 item 24, with effect from 1 Jun 2013]

SUBDIVISION G – IDENTITY CARDS (S 487ZG) 487ZG Identity cards (1) The Secretary or Australian Border Force Commissioner must issue an identity card to an authorised officer for the purposes of this Division. [Subs (1) am Act 41 of 2015, s 3 and Sch 3 item 70, with effect from 1 Jul 2015]

Identity card must be carried by authorised offıcer (2) An authorised officer must carry his or her identity card at all times when exercising powers as an authorised officer under this Division. Form of identity card (3) The identity card must: (a) be in the form approved by the Secretary or Australian Border Force Commissioner; and

© 2016 THOMSON REUTERS

1045

s 487ZG

Migration Act 1958

(b) contain a recent photograph of the authorised officer. [Subs (3) am Act 41 of 2015, s 3 and Sch 3 item 71, with effect from 1 Jul 2015]

Offence (4) A person commits an offence if: (a) the person has been issued with an identity card under subsection (1); and (b) the person ceases to be an authorised officer; and (c) the person does not, as soon as practicable after so ceasing, return the identity card to the Secretary or Australian Border Force Commissioner. Penalty: 1 penalty unit. [Subs (4) am Act 41 of 2015, s 3 and Sch 3 item 72, with effect from 1 Jul 2015]

(5) An offence against subsection (4) is an offence of strict liability. Note: For strict liability, see section 6.1 of the Criminal Code.

(6) Subsection (4) does not apply if the identity card was lost or destroyed. Note: A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3) of the Criminal Code. [S 487ZG am Act 41 of 2015; insrt Act 10 of 2013, s 3 and Sch 1 item 24, with effect from 1 Jun 2013]

SUBDIVISION H – POWERS OF ISSUING OFFICERS (S 487ZH) 487ZH Powers of issuing officers Powers conferred personally (1) A power conferred on an issuing officer by this Division is conferred on the issuing officer: (a) in a personal capacity; and (b) not as a court or a member of a court. Powers need not be accepted (2) The issuing officer need not accept the power conferred. Protection and immunity (3) An issuing officer exercising a power conferred by this Division has the same protection and immunity as if the issuing officer were exercising the power: (a) as the court of which the issuing officer is a member; or (b) as a member of the court of which the issuing officer is a member. [S 487ZH insrt Act 10 of 2013, s 3 and Sch 1 item 24, with effect from 1 Jun 2013]

1046

Migration Law

PART 9 – MISCELLANEOUS (SS 487ZI–507) [Former Pt 5 renum Act 60 of 1994, s 83, with effect from 1 Sep 1994]

DIVISION 1 – BOGUS DOCUMENTS (SS 487ZI–487ZL) [Div 1 insrt Act 116 of 2014, s 3 and Sch 7 item 3, with effect from 4 Nov 2014]

487ZI Prohibition on, and forfeiture of, bogus documents (1) A person (whether a citizen or non-citizen) must not give, present, produce or provide a bogus document to an officer, an authorised system, the Minister, a tribunal or any other person or body performing a function or purpose under, or in relation to, this Act (the official), or cause such a document to be so given, presented, produced or provided. [Subs (1) am Act 116 of 2014, s 3 and Sch 7 item 5, with effect from 18 Apr 2015; Act 116 of 2014, s 3 and Sch 7 item 4, with effect from 4 Nov 2014]

(2) A bogus document given, presented, produced or provided in contravention of subsection (1) is forfeited to the Commonwealth. [S 487ZI insrt Act 116 of 2014, s 3 and Sch 7 item 3, with effect from 4 Nov 2014]

487ZJ Seizure of bogus documents (1) If an officer reasonably suspects that a document is forfeited under subsection 487ZI(2), then the officer may seize the document. (2) As soon as practicable after seizing the document, the officer must give written notice of the seizure to the person who gave, presented, produced or provided the document to the official under subsection 487ZI(1). (3) The notice must: (a) identify the document; and (b) state that the document has been seized; and (c) specify the reason for the seizure; and (d) state that the document will be condemned as forfeited unless the person institutes proceedings against the Commonwealth before the end of the period specified in the notice: (i) to recover the document; or (ii) for a declaration that the document is not forfeited. (4) For the purposes of paragraph (3)(d), the period must: (a) start on the date of the notice; and (b) end 90 days after that date. [S 487ZJ insrt Act 116 of 2014, s 3 and Sch 7 item 3, with effect from 4 Nov 2014]

487ZK Document condemned as forfeited (1) If a document is seized under subsection 487ZJ(1), then: (a) the person who gave, presented, produced or provided the document to the official under subsection 487ZI(1); and (b) if that person is not the owner of the document—the owner; may, subject to paragraph (2)(b), institute proceedings in a court of competent jurisdiction: © 2016 THOMSON REUTERS

1047

s 487ZK

Migration Act 1958

(c) (d) (2) The (a)

to recover the document; or for a declaration that the document is not forfeited. proceedings: may be instituted even if the seizure notice required to be given under subsection 487ZJ(2) in relation to the document has not yet been given; and (b) may only be instituted before the end of the period specified in the seizure notice. (3) If, before the end of the period specified in the seizure notice, the person or owner does not institute the proceedings, the document is condemned as forfeited to the Commonwealth immediately after the end of that period. (4) If, before the end of the period specified in the seizure notice, the person or owner does institute the proceedings, the document is condemned as forfeited to the Commonwealth at the end of the proceedings unless there is: (a) an order for the person or owner to recover the document; or (b) a declaration that the document is not forfeited. (5) For the purposes of subsection (4), if the proceedings go to judgment, they end: (a) if no appeal against the judgment is lodged within the period for lodging such an appeal—at the end of that period; or (b) if an appeal against the judgment is lodged within that period—when the appeal lapses or is finally determined. [S 487ZK insrt Act 116 of 2014, s 3 and Sch 7 item 3, with effect from 4 Nov 2014]

487ZL Dealing with a document after it is condemned as forfeited (1) If, under section 487ZK, a document is condemned as forfeited to the Commonwealth, it must be dealt with or disposed of (including by being given to another person) in accordance with any direction given by the Minister under section 499. (2) If the Minister considers that the document may be relevant to proceedings in a court or tribunal, then the Minister: (a) must give a direction under section 499 for the safe keeping of the document; and (b) must authorise access to the document for the purposes of those proceedings. [S 487ZL insrt Act 116 of 2014, s 3 and Sch 7 item 3, with effect from 4 Nov 2014]

DIVISION 2 – OTHER (SS 487–507) [Div 2 heading insrt Act 116 of 2014, s 3 and Sch 7 item 3, with effect from 4 Nov 2014]

487 Liability for identification tests No civil or criminal liability is incurred, by a person who carries out or helps to carry out an identification test under this Act, in respect of a thing done by the person if: (a) it was properly and necessarily done in good faith in carrying out or helping to carry out the identification test; and (b) the person believed on reasonable grounds that the identification test was carried out in accordance with this Act. Note: This section does not provide any protection in respect of action taken maliciously. [S 487 reinsrt Act 2 of 2004, s 3 and Sch 1 item 34, with effect from 27 Aug 2004; rep Act 137 of 2000, s 3 and Sch 2 item 283, with effect from 24 May 2001; am Act 24 of 1992; subst Act 59 of 1989; am Act 175 of 1980, s 10, with effect from 14 Jan 1981; Act 117 of 1979, s 29 and Sch, with effect from 1 Nov 1979; Act 10 of 1966]

488 Tampering with movements records (1) A person must not:

1048

Migration Law

Part 9 - Miscellaneous (ss 487ZI-507) Division 2 – Other (ss 487–507)

s 488

(a) read; or (b) examine; or (c) reproduce by any means; or (d) use; or (e) disclose by any means; any part of the movement records, otherwise than in accordance with an authority given under subsection (2). Penalty: Imprisonment for 2 years. [Subs (1) subst Act 184 of 1992, s 34, with effect from 1 Sep 1994; am Act 24 of 1992, s 6 and Sch 2, with effect from 3 Jun 1992]

(2) The Minister may: (a) authorise an officer to perform for the purposes of one or more of the following: (i) this Act; (ii) the Family Law Act 1975; (iii) a law relating to customs or excise; (iv) a law relating to quarantine or health; (v) law enforcement; (vi) the Education Services for Overseas Students Act 2000; (vii) prescribed Commonwealth, State or Territory legislation; one or more of the actions prohibited by subsection (1); or (aa) authorise an officer, for the purpose of making a movement record available to, and for the use of: (i) the person to whom the record relates; or (ii) the duly appointed agent of that person; to perform one or more of those actions; or (b) authorise an officer of the Attorney-General’s Department to perform for the purposes of the Family Law Act 1975 one or more of those actions; or (c) authorise an officer of Customs, within the meaning of the Customs Act 1901, to perform for the purposes of a law relating to customs or excise one or more of those actions; or (d) authorise a quarantine officer, within the meaning of the Quarantine Act 1908, to perform for the purposes of a law relating to quarantine or health one or more of those actions; or (e) authorise a member of the Australian Federal Police to perform for the purposes of law enforcement one or more of those actions; or (f) authorise an employee of the Department whose Minister administers the Education Services for Overseas Students Act 2000 to perform for the purposes of that Act one or more of those actions; or (g) authorise a prescribed employee of a prescribed agency of the Commonwealth, or of a State or Territory, to perform for prescribed purposes one or more of those actions. [Subs (2) am Act 63 of 2007, s 3 and Sch 2 item 1, with effect from 1 May 2007; Act 166 of 2000, s 3 and Sch 3 items 1 and 2, with effect from 4 Jun 2001; former subs (1A) insrt Act 184 of 1992, s 34, with effect from 1 Sep 1994; am Act 24 of 1992, s 6 and Sch 2, with effect from 3 Jun 1992]

(3) Authority under subsection (2) to disclose any part of the movement records may be limited to authority to so disclose to a specified person, a person in a specified class, or a specified organisation, only. [Former subs (1B) insrt Act 184 of 1992, s 34, with effect from 1 Sep 1994]

© 2016 THOMSON REUTERS

1049

s 488

Migration Act 1958

(4) A person (other than an authorised officer carrying out duties or performing functions under or for the purposes of this Act) shall not: (a) delete, alter or add to any part of the movement records; (b) alter any computer program connected with making, transferring or keeping movement records; or (c) in any other way tamper with a notified data base. Penalty: Imprisonment for 10 years. [S 488 am Act 63 of 2007; Act 166 of 2000; Act 184 of 1992; Act 24 of 1992; insrt Act 151 of 1988, with effect from 1 Jul 1989]

488A Giving information to other relevant agencies (1) For the purposes of: (a) assisting with the regulation of providers; or (b) promoting compliance with the conditions of a particular student visa or visas, or of student visas generally; the Secretary may give information obtained or received for the purposes of this Act to an agency of the Commonwealth, or of a State or Territory, that is responsible for or otherwise concerned with the regulation of providers. (2) However, subsection (1) does not override section 488. Note: Section 488 prohibits the disclosure etc. of movement records except in limited circumstances.

(3) In this section: provider has the same meaning as in the Education Services for Overseas Students Act 2000. [S 488A insrt Act 166 of 2000, s 3 and Sch 3 item 3, with effect from 4 Jun 2001]

488AA Things seized under Crimes Act search warrant and information about such things (1) This section applies to the following: (a) a thing seized (warrant material) under a search warrant issued under Division 2 of Part 1AA of the Crimes Act 1914; (b) information (warrant information) that is about, or obtained from, warrant material. (2) A constable or Commonwealth officer who, under subsection 3ZQU(1) of the Crimes Act 1914, may use or make available warrant material, is authorised to make available warrant material or warrant information: (a) to a person covered by subsection (4); and (b) for a purpose mentioned in subsection (3). (3) A person covered by subsection (4) is authorised to receive and use warrant material and warrant information, or make it available to another person covered by subsection (4), for the following purposes: (a) making a decision, or assisting in making a decision, to grant or refuse to grant a visa; (b) making a decision, or assisting in making a decision, to cancel a visa; (c) making a decision, or assisting in making a decision, to revoke a cancellation of a visa; (d) making a decision in relation to the detention, removal or deportation of a non-citizen from Australia.

1050

Migration Law

Part 9 - Miscellaneous (ss 487ZI-507) Division 2 – Other (ss 487–507)

s 491

Note: Subsection 3ZQU(4) of the Crimes Act 1914 contemplates that another law of the Commonwealth may require or authorise the use or making available of a document or other thing to persons, or for purposes, in addition to those listed in subsection 3ZQU(1) of that Act.

(4) The following persons are covered by this subsection: (a) the Minister; (b) an officer, including the Secretary. [S 488AA insrt Act 106 of 2014, s 3 and Sch 5 item 2, with effect from 25 Sep 2014]

488B Authorisation to disclose information to an officer (1) An airline operator, a shipping operator, a travel agent or a prescribed organisation may, for any purpose that is likely to facilitate the administration or enforcement of this Act or the regulations, disclose to an officer information about any matter relating to travel: (a) that has been, is being, or is proposed to be, undertaken by any person on the way (directly or indirectly) to the migration zone; or (b) that has been, is being, or is proposed to be, undertaken and that involves the departure from the migration zone of any person; even if the information is personal information. [Subs (1) am Act 159 of 2008, s 3 and Sch 1 item 43, with effect from 14 Sep 2009]

(2) To avoid doubt, this section does not: (a) require anyone to disclose information; or (b) affect a requirement of, or under, a provision of this Act or the regulations for a person to disclose information (whether by answering a question, by providing a document or by other means). (3) In this section: officer includes a person who is a clearance officer within the meaning of section 165. organisation has the same meaning as in the Privacy Act 1988. travel agent includes an organisation that is involved in arranging or facilitating travel. [S 488B am Act 159 of 2008; insrt Act 130 of 2001, s 3 and Sch 1 item 1, with effect from 21 Dec 2001]

489 Notified data bases The Minister may, by notice in the Gazette, declare a data base containing information kept for the purposes of this Act in relation to the entry of persons into, and departure of persons from, Australia to be a notified data base for the purposes of this section. [S 489 insrt Act 151 of 1988, with effect from 1 Jul 1989]

490 Identification card to be deemed to continue to be in a form approved by the Minister Where the Minister revokes the approval of a form of identification card in relation to members of the crews of vessels, an identification card in accordance with that form signed by the master of a vessel not later than 3 months after the date of that revocation shall, notwithstanding that revocation, be deemed, for the purposes of this Act, to continue to be an identification card in accordance with a form approved by the Minister. [S 490 am Act 59 of 1989, s 35 and Sch 2, with effect from 19 Dec 1989; Act 112 of 1983, s 37 and Sch, with effect from 2 Apr 1984; former s 65A insrt Act 10 of 1966, s 10, with effect from 6 May 1996]

491 Offences in relation to escaping from custody [Repealed] [S 491 rep Act 85 of 2001, s 3 and Sch 1 item 8, with effect from 27 Jul 2001; am Act 60 of 1994; Act 184 of 1992; Act 24 of 1992; Act 59 of 1989 (am Act 159 of 1989); Act 112 of 1983; former s 66A insrt Act 117 of 1979, s 27, with effect from 29 Oct 1979]

© 2016 THOMSON REUTERS

1051

s 491

Migration Act 1958

492 Commencement of prosecutions (1) Subject to this section, a prosecution for an offence against this Act or the regulations may be instituted at any time within 5 years after the commission of that offence. [Subs (1) am Act 89 of 1999, s 3 and Sch 1 item 11, with effect from 22 Jul 1999]

(2) A prosecution of a person for an offence against section 234, 236 or 243 that is alleged to have been committed after the commencement of this subsection may be instituted at any time. [Subs (2) am Act 144 of 2008, s 3 and Sch 10 item 72, with effect from 1 Jul 2009; insrt Act 27 of 1997, s 3 and Sch 4 item 7, with effect from 1 May 1997]

(3) A prosecution for an offence: (a) against section 232A, 233 or 233A of this Act as in force before the commencement of this subsection; and (b) alleged to have been committed after the commencement of the Migration Legislation Amendment Act (No. 1) 1999; may be instituted at any time. [Subs (3) subst Act 50 of 2010, s 3 and Sch 1 item 12, with effect from 1 Jun 2010; insrt Act 89 of 1999, s 3 and Sch 1 item 12, with effect from 22 Jul 1999]

(4) A prosecution for an offence against section 233A, 233B, 233C, 233D, 233E or 234A that is alleged to have been committed after the commencement of this subsection may be instituted at any time. [Subs (4) insrt Act 50 of 2010, s 3 and Sch 1 item 12, with effect from 1 Jun 2010] [S 492 am Act 50 of 2010; Act 144 of 2008; Act 89 of 1999; Act 27 of 1997, s 3 and Sch 4 item 6, with effect from 1 May 1997; former s 66B insrt Act 117 of 1979, s 27, with effect from 29 Oct 1979]

493 Conduct of directors, employees and agents (1) Where, in proceedings for an offence against this Act or the regulations or for a civil penalty order, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is sufficient to show: (a) the conduct was engaged in by a director, employee or agent of the body corporate within the scope of his or her actual or apparent authority; and (b) that the director, employee or agent had the state of mind. [Subs (1) am Act 5 of 2015, s 3 and Sch 3 item 118, with effect from 25 Mar 2015; Act 10 of 2013, s 3 and Sch 1 item 25, with effect from 1 Jun 2013]

(2) Any conduct engaged in on behalf of a body corporate by a director, employee or agent of the body corporate within the scope of his or her actual or apparent authority shall be taken, for the purposes of a prosecution for an offence against this Act or the regulations or of proceedings for a civil penalty order, to have been engaged in also by the body corporate unless the body corporate establishes that the body corporate took reasonable precautions and exercised due diligence to avoid the conduct. [Subs (2) am Act 5 of 2015, s 3 and Sch 3 item 118, with effect from 25 Mar 2015; Act 10 of 2013, s 3 and Sch 1 item 26, with effect from 1 Jun 2013]

(3) Where, in proceedings for an offence against this Act or the regulations or for a civil penalty order, it is necessary to establish the state of mind of a person other than a body corporate in relation to particular conduct, it is sufficient to show: (a) that the conduct was engaged in by an employee or agent of the person within the scope of his or her actual or apparent authority; and (b) that the employee or agent had the state of mind. [Subs (3) am Act 5 of 2015, s 3 and Sch 3 items 119 and 120, with effect from 25 Mar 2015; Act 10 of 2013, s 3 and Sch 1 item 27, with effect from 1 Jun 2013]

1052

Migration Law

Part 9 - Miscellaneous (ss 487ZI-507) Division 2 – Other (ss 487–507)

s 494AA

(4) Any conduct engaged in on behalf of a person other than a body corporate by an employee or agent of the person within the scope of his or her actual or apparent authority shall be taken, for the purposes of a prosecution for an offence against this Act or the regulations or of proceedings for a civil penalty order, to have been engaged in also by the first-mentioned person unless the first-mentioned person establishes that the first-mentioned person took reasonable precautions and exercised due diligence to avoid the conduct. [Subs (4) am Act 5 of 2015, s 3 and Sch 3 item 121, with effect from 25 Mar 2015; Act 10 of 2013, s 3 and Sch 1 item 28, with effect from 1 Jun 2013]

(5) Where: (a) a person other than a body corporate is convicted of an offence; and (b) the person would not have been convicted of the offence if subsections (3) and (4) had not been enacted; the person is not liable to be punished by imprisonment for that offence. (6) A reference in subsection (1) or (3) to the state of mind of a person includes a reference to: (a) the knowledge, intention, opinion, belief or purpose of the person; and (b) the person’s reasons for the intention, opinion, belief or purpose. (7) A reference in this section to a director of a body corporate includes a reference to a constituent member of a body corporate incorporated for a public purpose by a law of the Commonwealth, of a State or of a Territory. (8) A reference in this section to engaging in conduct includes a reference to failing or refusing to engage in conduct. [S 493 am Act 5 of 2015, s 3 and Sch 3 item 117, with effect from 25 Mar 2015; Act 10 of 2013; Act 97 of 2001; Act 137 of 2000; former s 66BA insrt Act 59 of 1989, s 30, with effect from 19 Dec 1989]

494 Jurisdiction of courts (1) A provision of the Judiciary Act 1903 by which a court of a State is invested with jurisdiction with respect to offences against the laws of the Commonwealth has effect, in relation to offences against this Act, as if that jurisdiction were so invested without limitation as to locality other than the limitation imposed by section 80 of the Constitution. (2) Subject to section 80 of the Constitution, where a person has committed an offence against a provision of this Act outside a Territory and is found in, or brought into, the Territory, a court of the Territory has the same jurisdiction in respect of the offence as it would have if the offence had been committed in the Territory. (3) The trial of an offence against a provision of this Act not committed within a State may be held by a court of competent jurisdiction at any place where the court may sit. [Former s 66C insrt Act 117 of 1979, s 27, with effect from 29 Oct 1979]

494AA Bar on certain legal proceedings relating to unauthorised maritime arrivals (1) The following proceedings against the Commonwealth may not be instituted or continued in any court: (a) proceedings relating to an unauthorised entry by an unauthorised maritime arrival; (b) proceedings relating to the status of an unauthorised maritime arrival as an unlawful non-citizen during any part of the ineligibility period; (c) proceedings relating to the lawfulness of the detention of an unauthorised maritime arrival during the ineligibility period, being a detention based on the status of the unauthorised maritime arrival as an unlawful non-citizen;

© 2016 THOMSON REUTERS

1053

s 494AA

Migration Act 1958

[494AA.20]

(d) proceedings relating to the exercise of powers under repealed section 198A; (e) proceedings relating to the performance or exercise of a function, duty or power under Subdivision B of Division 8 of Part 2 in relation to an unauthorised maritime arrival. [Subs (1) am Act 35 of 2013, s 3 and Sch 1 items 52–55, with effect from 1 Jun 2013; Act 113 of 2012, s 3 and Sch 1 items 33 and 34, with effect from 18 Aug 2012]

(2) This section has effect despite anything else in this Act or any other law. (3) Nothing in this section is intended to affect the jurisdiction of the High Court under section 75 of the Constitution. (4) In this section: Commonwealth includes: (a) an officer of the Commonwealth; and (b) any other person acting on behalf of the Commonwealth. ineligibility period means the period from the time of the unauthorised entry until the time when the person next ceases to be an unlawful non-citizen. [Def am Act 35 of 2013, s 3 and Sch 1 item 56, with effect from 1 Jun 2013]

offshore entry [Repealed] [Def rep Act 35 of 2013, s 3 and Sch 1 item 57, with effect from 1 Jun 2013]

unauthorised entry means an entry into Australia that occurs: (a) at an excised offshore place after the excision time for that place; or (b) at any other place on or after the commencement of section 5AA. [Def insrt Act 35 of 2013, s 3 and Sch 1 item 58, with effect from 1 Jun 2013] [S 494AA am Act 35 of 2013, s 3 and Sch 1 item 51, with effect from 1 Jun 2013; Act 113 of 2012; insrt Act 128 of 2001, s 3 and Sch 1 item 7, with effect from 27 Sep 2001]

SECTION 494AA COMMENTARY [494AA.20] Scope According to s 494AA, the following proceedings against the Commonwealth may not be instituted or continued: • proceedings relating to unauthorised entry by an unauthorised maritime arrival; • proceedings relating to the status of an unauthorised maritime arrival as an unlawful non-citizen during the ineligibility period; • proceedings relating to the lawfulness of the detention of an unauthorised maritime arrival during the ineligibility period; • proceedings relating to the exercise of the powers under the repealed s 198A; and • proceedings relating to the performance or exercise of a function, duty or power under Pt 2 Div 8 subdiv B in relation to an unauthorised maritime arrival: s 494AA(1). This section does not affect the High Court’s jurisdiction under s 75 of the Constitution: s 494AA(3). Nor does this section prevent an unauthorised maritime arrival from instituting judicial review proceedings in the Federal Circuit Court, challenging the recommendation made by an independent merits review (or independent protection assessor) as to whether the unauthorised maritime arrival satisfies the definition of “refugee”: SZQGA v Minister for Immigration and Citizenship [2012] FCA 593 at [96]–[97] per Barker J.

1054

Migration Law

[494AB.20]

Part 9 - Miscellaneous (ss 487ZI-507) Division 2 – Other (ss 487–507)

s 494AB

494AB Bar on certain legal proceedings relating to transitory persons (1) The following proceedings against the Commonwealth may not be instituted or continued in any court: (a) proceedings relating to the exercise of powers under section 198B; (b) proceedings relating to the status of a transitory person as an unlawful non-citizen during any part of the ineligibility period; (c) proceedings relating to the detention of a transitory person who is brought to Australia under section 198B, being a detention based on the status of the person as an unlawful non-citizen; (ca) proceedings relating to the performance or exercise of a function, duty or power under Subdivision B of Division 8 of Part 2 in relation to a transitory person; (d) proceedings relating to the removal of a transitory person from Australia under this Act. [Subs (1) am Act 113 of 2012, s 3 and Sch 1 item 35, with effect from 18 Aug 2012]

(2) This section has effect despite anything else in this Act or any other law. (3) Nothing in this section is intended to affect the jurisdiction of the High Court under section 75 of the Constitution. (4) In this section: Commonwealth includes: (a) an officer of the Commonwealth; and (b) any other person acting on behalf of the Commonwealth. ineligibility period means the period from the time when the transitory person was brought to Australia under section 198B until the time when the person next ceases to be an unlawful non-citizen. [S 494AB am Act 113 of 2012; insrt Act 10 of 2002, s 3 and Sch 1 item 6, with effect from 12 Apr 2002]

SECTION 494AB COMMENTARY [494AB.20] Scope Section 494AB provides that the following proceedings against the Commonwealth may not be instituted or continued: • proceedings relating to the exercise of powers under s 198B; • proceedings relating to the status of a transitory person as an unlawful non-citizen during the ineligibility period; • proceedings relating to the detention of a transitory person brought to Australia under s 198B; • proceedings relating to the performance or exercise of a function, duty or power under Pt 2 Div 8 subdiv B in relation to a transitory person; and • proceedings relating to the removal of a transitory person from Australia: s 494AB(1). This section does not affect the High Court’s jurisdiction under s 75 of the Constitution: s 494AB(3). Section 494AB(1) will be enlivened in circumstances where a transitory person has instituted proceedings for relief to prevent his or her removal, but has also sought consideration about his or her application for a protection visa: WAIV v Minister for Immigration and © 2016 THOMSON REUTERS

1055

s 494A

Migration Act 1958

[494A.20]

Multicultural and Indigenous Affairs [2002] FCA 1186 at [31] per French J; WAJC v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1631 per French J. 494A Giving documents by Minister where no requirement to do so by section 494B method (1) If: (a) a provision of this Act or the regulations requires or permits the Minister to give a document to a person; and (b) the provision does not state that the document must be given: (i) by one of the methods specified in section 494B; or (ii) by a method prescribed for the purposes of giving documents to a person in immigration detention; the Minister may give the document to the person by any method that he or she considers appropriate (which may be one of the methods mentioned in subparagraph (b)(i) or (ii) of this section). Note: Section 494D deals with giving documents to a person’s authorised recipient. [Subs (1) am Act 85 of 2008, s 3 and Sch 4 item 3, with effect from 27 Oct 2008]

(2) If a person is a minor, the Minister may give a document to an individual who is at least 18 years of age if the Minister reasonably believes that: (a) the individual has day-to-day care and responsibility for the minor; or (b) the individual works in or for an organisation that has day-to-day care and responsibility for the minor and the individual’s duties, whether alone or jointly with another person, involve care and responsibility for the minor. [Subs (2) insrt Act 112 of 2008, s 3 and Sch 1 item 22, with effect from 5 Dec 2008]

(3) However, subsection (2) does not apply if subsection 52(3C) (which relates to giving notifications in the case of combined applications) applies in relation to the minor. [Subs (3) insrt Act 112 of 2008, s 3 and Sch 1 item 22, with effect from 5 Dec 2008]

(4) If the Minister gives a document to an individual, as mentioned in subsection (2), the Minister is taken to have given the document to the minor. However, this does not prevent the Minister giving the minor a copy of the document. [Subs (4) insrt Act 112 of 2008, s 3 and Sch 1 item 22, with effect from 5 Dec 2008] [S 494A am Act 112 of 2008; Act 85 of 2008; insrt Act 58 of 2001, s 3 and Sch 3 item 20, with effect from 10 Aug 2001]

SECTION 494A COMMENTARY Scope ................................................................................................................................................. [494A.20] Practice point .................................................................................................................................... [494A.40]

[494A.20] Scope Section 494A provides that if the Minister is required to give a person a document and neither the Act nor the Regulations specify the method by which the Minister is required to give that document, the Minister can give the document by any method he or she considers appropriate: s 494A(1). In relation to documents about the proposed cancellation of a visa, the cancellation of a visa or the revocation of a cancellation, the Minister must send the document in accordance with reg 2.55. In this regulation, reference is made to a “person’s last residential address, business 1056

Migration Law

[494A.40]

Part 9 - Miscellaneous (ss 487ZI-507) Division 2 – Other (ss 487–507)

s 494B

address or post box address known to the Minister”. The “last residential address” is not confined to addresses “known” only after the person’s last entry to Australia: Le v Minister for Immigration and Citizenship (2007) 157 FCR 321; [2007] FCAFC 20; Choi v Minister for Immigration and Citizenship [2008] FMCA 1717. In addition, the “residential address” must be an address where the applicant actually resided: Minister for Immigration and Multicultural Affairs v George (2004) 139 FCR 127; 85 ALD 513; [2004] FCAFC 276; Horne v Minister for Immigration and Citizenship (2008) 101 ALD 143; 246 ALR 380; [2008] FCA 581; Lu v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 135 FCR 346; [2004] FCA 181. [494A.40] Practice point To the extent that s 494A relates to Part 2 Div 3 subdiv AB (dealing with the code for dealing with visa applications), it is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with: s 51A. If the Minister decides to send a document by one of the methods provided for in s 494B, the deeming provisions in s 494C will apply. If a person has notified the Minister of an authorised recipient, in accordance with s 494D, the Minister must send the document to the authorised recipient. The person is then taken to have received the document. 494B Methods by which Minister gives documents to a person Coverage of section (1) For the purposes of provisions of this Act or the regulations that: (a) require or permit the Minister to give a document to a person (the recipient); and (b) state that the Minister must do so by one of the methods specified in this section; the methods are as follows. (1A) If a person is a minor, the Minister may use the methods mentioned in subsections (4) and (5) to dispatch or transmit, as the case may be, a document to an individual (a carer of the minor): (a) who is at least 18 years of age; and (b) who the Minister reasonably believes: (i) has day-to-day care and responsibility for the minor; or (ii) works in or for an organisation that has day-to-day care and responsibility for the minor and whose duties, whether alone or jointly with another person, involve care and responsibility for the minor. Note: If the Minister gives an individual a document by the method mentioned in subsection (4) or (5), the individual is taken to have received the document at the time specified in section 494C in respect of that method. [Subs (1A) insrt Act 112 of 2008, s 3 and Sch 1 item 23, with effect from 5 Dec 2008]

(1B) However, subsection (1A) does not apply if subsection 52(3C) (which relates to giving notifications in the case of combined applications) applies in relation to the minor. [Subs (1B) insrt Act 112 of 2008, s 3 and Sch 1 item 23, with effect from 5 Dec 2008]

Giving by hand (2) One method consists of the Minister (including by way of an authorised officer) handing the document to the recipient.

© 2016 THOMSON REUTERS

1057

s 494B

Migration Act 1958

[494A.40]

Handing to a person at last residential or business address (3) Another method consists of the Minister (including by way of an authorised officer) handing the document to another person who: (a) is at the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents; and (b) appears to live there (in the case of a residential address) or work there (in the case of a business address); and (c) appears to be at least 16 years of age. Dispatch by prepaid post or by other prepaid means (4) Another method consists of the Minister dating the document, and then dispatching it: (a) within 3 working days (in the place of dispatch) of the date of the document; and (b) by prepaid post or by other prepaid means; and (c) to: (i) the last address for service provided to the Minister by the recipient for the purposes of receiving documents; or (ii) the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents; or (iii) if the recipient is a minor—the last address for a carer of the minor that is known by the Minister. [Subs (4) am Act 112 of 2008, s 3 and Sch 1 item 24, with effect from 5 Dec 2008]

Transmission by fax, email or other electronic means (5) Another method consists of the Minister transmitting the document by: (a) fax; or (b) email; or (c) other electronic means; to: (d) the last fax number, email address or other electronic address, as the case may be, provided to the Minister for the purposes of receiving documents; or (e) if the recipient is a minor—the last fax number, email address or other electronic address, as the case may be, for a carer of the minor that is known by the Minister. [Subs (5) am Act 31 of 2014, s 3 and Sch 4 items 44 and 45, with effect from 24 Jun 2014; Act 112 of 2008, s 3 and Sch 1 item 25, with effect from 5 Dec 2008]

When the Minister hands a document by way of an authorised offıcer (6) For the purposes of sections 494C and 494D, a reference in those sections to an act of the Minister includes, if the act is of a kind referred to in subsection (2) or (3) of this section, a reference to an act of the Minister by way of an authorised officer. Documents given to a carer (7) If the Minister gives a document to a carer of a minor, the Minister is taken to have given the document to the minor. However, this does not prevent the Minister giving the minor a copy of the document. [Subs (7) insrt Act 112 of 2008, s 3 and Sch 1 item 26, with effect from 5 Dec 2008] [S 494B am Act 31 of 2014; Act 112 of 2008; insrt Act 58 of 2001, s 3 and Sch 3 item 20, with effect from 10 Aug 2001]

1058

Migration Law

[494B.40]

Part 9 - Miscellaneous (ss 487ZI-507) Division 2 – Other (ss 487–507)

s 494B

SECTION 494B COMMENTARY Scope ................................................................................................................................................. [494B.20] CONCEPTS

Minister ............................................................................................................................................. [494B.40] Dispatching ....................................................................................................................................... [494B.60] Address ............................................................................................................................................. [494B.80] Address provided for the purposes of receiving documents ......................................................... [494B.100] Last address (including last residential or business address) ....................................................... [494B.120] Prepaid post includes ordinary post ............................................................................................... [494B.140] Transmitting the document ............................................................................................................. [494B.160] Giving or give ................................................................................................................................. [494B.180] Is taken ............................................................................................................................................ [494B.200] KEY CASES

Last residential address .................................................................................................................. [494B.220] Incorrect address provided by applicant ........................................................................................ [494B.240] Address for purposes of receiving documents .............................................................................. [494B.260] Transmitting the document by email ............................................................................................. [494B.280] No suburb provided in the address for correspondence ............................................................... [494B.300] Postcode is not an essential part of the address ............................................................................ [494B.320] Failure to include the word street in the address contained on the document ............................ [494B.340] No error in providing return to sender instructions ...................................................................... [494B.360] PRACTICE POINT

Minister must give the authorised recipient the document ........................................................... [494B.380] Exhaustive statement of requirements of natural justice hearing rule ......................................... [494B.390]

[494B.20] Scope Section 494B specifies alternative methods that control the ways in which the Minister may give documents to a person. One of these methods must be used whenever a provision of the Act or the Regulations requires the document to be given in conformity with this section: see Explanatory Memorandum to the Migration Legislation Amendment (Electronic Transactions and Methods of Notification) Bill 2001 (Cth) at [154]. However, the Minister is free to determine which method to use in any given case: Minister for Immigration and Border Protection v Kim [2014] FCA 390; Haque v Minister for Immigration and Citizenship (2010) 115 CLR 371; 185 FCR 86; [2010] FCA 461 at [13] and [62] per Jacobson J. Relevantly, this provision mirrors ss 379A and 441A (which are provisions in relation to the former Migration Review Tribunal and the Refugee Review Tribunal, which have since 1 July 2015 been amalgamated with the Administrative Appeals Tribunal), which deal with the methods by which the Tribunal give documents: see Explanatory Memorandum to the Migration Legislation Amendment (Electronic Transactions and Methods of Notification) Bill 2001 (Cth) at [155]. Regulation 2.55 and s 494B contain almost identical expressions in relation to the methods by which the Minister gives documents. In other words, the meaning and judicial interpretation of expressions in s 494B apply to the same expressions in reg 2.55: Sainju v Minister for Immigration and Citizenship (2010) 185 FCR 86; 115 ALD 371; [2010] FCA 461 at [13] and [62] per Jacobson J. CONCEPTS [494B.40] Minister Section 494B(2) and (3) refer to the “Minister” (including by way of his authorised officer) handing the document to the recipient. Section 494B(4) and (5) refer to only the Minister either © 2016 THOMSON REUTERS

1059

s 494B

Migration Act 1958

[494B.60]

dating and dispatching the document or faxing or emailing the document to the recipient. By reason of s 497 of the Act, neither the Minister nor his or her delegate is required to carry out administrative and clerical functions. Since the posting, faxing or emailing of documents are administrative or clerical tasks, for the purposes of s 494B(4) and (5), neither the Minister nor his or her delegate is required to personally perform those functions: Milon v Minister for Immigration [2009] FMCA 85 at [31] per Emmett FM. [494B.60] Dispatching Under s 494B(4), one of the methods by which the Minister can give a person a document is by dating the document and “dispatching” it by prepaid post or other prepaid means. To “dispatch” a document means to send the document: SZOBI v Minister for Immigration and Citizenship (No 2) (2010) 119 ALD 233; [2010] FCAFC 151 at [29] per Bromberg J (Stone and Jagot JJ agreeing) (special leave was refused in SZOBI v Minister for Immigration and Citizenship [2011] HCATrans 347). Accordingly, s 494B(4) concerns the sending of a document, not the receiving of a document: at [18] per Stone and Jagot JJ (Bromberg J agreeing). [494B.80] Address The term “address” in relation to a person’s residential or business address in s 494B(3) and (4) is “properly identified by the street name and number, where relevant, and suburb. The postcode is not an essential part of the identification”: SZLBR v Minister for Immigration and Citizenship (2008) 216 FLR 141; [2008] FMCA 154 at [40] per Emmett FM. Further, the address for dispatch is the address on the envelope. Therefore s 494B(4) will be satisfied if the document is posted to the address provided by the applicant (or their authorised recipient), regardless of the address contained on the document inside the envelope: Minister for Immigration and Citizenship v SZKPQ (2008) 166 FCR 84; 101 ALD 5; [2008] FCAFC 21 at [22] per Branson, Emmett and Bennett JJ. Section 494B(4) does not specifically require that the name of the applicant be included on the envelope. However, Moore, Rares and Flick JJ stated in Minister for Immigration and Citizenship v SZMTR (2009) 180 FCR 586; [2009] FCAFC 186 at [36] that “common sense suggests that the name of that recipient be included on the envelope” or, at least, that an addressee is identified on the envelope. [494B.100] Address provided for the purposes of receiving documents The address at which the Minister is to give documents is the address that a person provided to the Minister for the “purposes of receiving documents”. According to Jagot J, in Maroun v Minister for Immigration and Citizenship (2009) 112 ALD 424; [2009] FCA 1284, the words “for the purposes of receiving documents” are “words of limitation”: at [32]. These words differ to those that appear in ss 379A and 441A (which are provisions in relation to the former Migration Review Tribunal and the Refugee Review Tribunal, which have since 1 July 2015 been amalgamated with the Administrative Appeals Tribunal) in relation to the methods by which the Tribunal give documents. In ss 379A and 441A, the address provided by an applicant is the address “provided … in connection with the review”. According to Jagot J, this description is “more general” to that contained in s 494B: at [32]. [494B.120] “Last” address (including last residential or business address) The ordinary meaning of the word “last” does not mean “single” or “only”. Rather, it means the “most recent at the time in question”: Maroun v Minister for Immigration and Citizenship (2009) 112 ALD 424; [2009] FCA 1284 at [36]. 1060

Migration Law

[494B.260]

Part 9 - Miscellaneous (ss 487ZI-507) Division 2 – Other (ss 487–507)

s 494B

[494B.140] Prepaid post includes ordinary post Prepaid post includes ordinary post “in respect of which the applicable charge has been paid by way of a fixing of a stamp or other proper means”: Minister for Immigration and Citizenship v SZKPQ (2008) 166 FCR 84; 101 ALD 5; [2008] FCAFC 21 at [13] per Emmett J (Branson and Bennett JJ agreeing). [494B.160] Transmitting the document In relation to the giving of a document by fax, email or other electronic means, the words “transmitting the document” in s 494B(5) relate to the “sending” of the document and do not imply that actual communication must have occurred: Sainju v Minister for Immigration and Citizenship (2010) 185 FCR 86; 115 ALD 371; [2010] FCA 461 at [41], [57] and [71]. [494B.180] Giving or give The words “give” or “giving” in relation to a document are frequently used in s 494B. In VEAN v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 280 at [31], Weinberg J noted that the word “give” is a word of “wide amplitude” and does not equate with “physically handing over an object”. Further, his Honour noted at [32], in relation to the meaning of the word “give”: The Concise Oxford Dictionary defines “give”, inter alia, as “making another the recipient of something in the subject’s possession”. To cause something to be put in the possession of another, relevantly, to give the object to that other.

[494B.200] Is taken Section 494B(7) provides that if a document is given to a minor, the Minister “is taken to have given” the document to the minor. Section 5(23) relevantly provides that the words “is taken”, when followed by the infinitive form of a verb, have the same force and effect as the words “is deemed”, when followed by the infinitive form of that verb.

KEY CASES [494B.220] Last residential address In Minister for Immigration and Border Protection v Kim [2014] FCA 390, Ms Kim provided both her Australian and South Korean residential addresses on her student visa application form. Buchanan J held that the last residential address provided for receiving documents was Ms Kim’s Australian address, as Ms Kim was in Australia at the time she made her application: at [18]. [494B.240] Incorrect address provided by applicant In Cheng v Minister for Immigration and Citizenship (2011) 198 FCR 559; [2011] FCA 1290, the applicant wrote the incorrect address in his visa application. The delegate of the Minister sent the letter refusing the visa to the incorrect address provided in the visa application. The result was that the applicant filed his application for review to the Migration Review Tribunal outside the time limit specified in s 347. The Migration Review Tribunal therefore found that it did not have jurisdiction to consider his application. Flick J held that there was no error in the Migration Review Tribunal’s finding because the notification letter was correctly sent, under s 494B, to the last address provided to the Minister. It did not matter that the address provided to the Minister was actually the wrong address as this was the address provided by the applicant: at [46]–[47]. [494B.260] Address for “purposes of receiving documents” In Maroun v Minister for Immigration and Citizenship (2009) 112 ALD 424; [2009] FCA 1284, the applicant in his visa application form completed question 18 (his residential address in © 2016 THOMSON REUTERS

1061

s 494B

Migration Act 1958

[494B.280]

Australia), but did not complete question 20 (his address for correspondence). He completed question 21, which asked whether he agreed for the Department to communicate with him by facsimile, email or other electronic means. The applicant answered “yes” and provided an email address. A note followed this question that stated that if his visa application was refused, he would be notified by mail. The applicant’s visa application was refused and the delegate notified him at the residential address provided on the form. The applicant did not receive the notification letter and therefore did not file his application with the Migration Review Tribunal within the period specified in s 347. The applicant claimed that he did not provide a residential address for the purposes of receiving documents as required by s 494BI(ii) and that the only address he provided for receiving documents was his email address. Since the notification letter was not sent to his email address, he was not validly notified of the decision. Flick J found at [33]: I do not accept these submissions. The appellant provided his residential address in Australia. He did so in a form which asked for an address for correspondence but which the appellant chose not to provide. He agreed to receive documents by email on a form which told him that if his visa application was refused notice of that refusal would be given by mail. That can be understood only as the Minister advising the appellant that despite his provision of an email address any notice of refusal would be to a postal address as provided and not to an email address. In the context of the form as a whole the appellant must be taken to have provided the residential address as his address for the purpose of, at the least, receiving any notice of refusal of the appellant’s visa application.

[494B.280] Transmitting the document by email In Sainju v Minister for Immigration and Citizenship (2010) 185 FCR 86; 115 ALD 371; [2010] FCA 461, Jacobson J considered the words “transmitting the document by … email” in reg 2.55(3)(d). The words in this regulation are identical to those contained in s 494B. The applicant in this matter provided an email address in her application form for revocation of the cancellation of her student visa. A delegate of the Minister sent the applicant the decision not to revoke the cancellation to the applicant’s email address provided in the application form. The applicant claimed that she did not receive this email and therefore was out of time to file an application for review in the Migration Review Tribunal. Jacobson J held that the words “transmitting” mean “sending” and that a person is taken to have received the document at the end of the day on which it was sent: at [57]. His Honour further stated that the “the relevant question is when was the email sent, not when it came to the attention of addressee”: at [77]. [494B.300] No suburb provided in the address for correspondence In SZRVF v Minister for Immigration and Citizenship [2013] FCCA 764, the applicant applied for a protection visa and provided the Department with the following address for correspondence: “PO Box NSW 1835.” No suburb was provided. A delegate of the Minister notified the applicant, under s 66, that her application for a protection visa had been refused. Pursuant to s 494B(4), the notification letter was sent to the address provided by the applicant, but included the suburb “Auburn” (which the applicant had not specified in the address for correspondence). The applicant failed to make an application for review to the Refugee Review Tribunal within the time period specified in s 412, and therefore the Refugee Review Tribunal found that it did not have jurisdiction. The applicant claimed that the Minister had failed to comply with s 494B(4) because the address on the notification letter included the suburb “Auburn”, which was not the address that she had provided. Burn J held that the inclusion of the suburb name on the notification letter did not render the address incorrect and that therefore there had been compliance with s 494B(4): at [31]. 1062

Migration Law

[494B.340]

Part 9 - Miscellaneous (ss 487ZI-507) Division 2 – Other (ss 487–507)

s 494B

[494B.320] Postcode is not an essential part of the address There is authority to the effect that a postcode is not an essential part of an address. Therefore, failure to include a postcode, or failure to correctly record a postcode on a notification letter, will not result in non-compliance with the notification provisions under the Act. For example, in SZKGF v Minister for Immigration and Citizenship [2008] FCAFC 84, the Refugee Review Tribunal sent a letter to the applicant pursuant to s 424A inviting the applicant to comment on certain information. Pursuant to s 441A(4), the invitation letter was purportedly sent by prepaid post to the last address for correspondence provided to the Refugee Review Tribunal (this provision is in similar terms to s 494B(4)). However, the invitation letter contained the incorrect postcode. Stone, Jacobson and Edmonds JJ held, at [11], that the postcode was not a part of the address and therefore did not result in non-compliance with the notification provisions. In reaching this conclusion, their Honours relied upon the decision in SZLBR v Minister for Immigration and Citizenship (2008) 216 FLR 141; [2008] FMCA 154. In that matter, the applicant, in his review application, had provided the Refugee Review Tribunal with the following address for correspondence: “288/226 Elizabeth Street Surry Hills NSW 2010.” Pursuant to s 425 of the Act, the Refugee Review Tribunal sent a letter inviting the applicant to a hearing. According to the terms of s 441A(4), the invitation letter was purportedly sent by prepaid post to the last address for correspondence provided to the Refugee Review Tribunal (this provision is in similar terms to s 494B(4)). However, the invitation letter contained the incorrect postcode. Emmett FM held at [38]–[41]: The compliance with s 441A of the Act requires dispatch, relevantly, by prepaid post to the last address for service. In considering the meaning of address, I have regard to the definition of “address” in the New Shorter Oxford Dictionary as, inter alia, “the name of the place to which anyone’s letters etc are directed; ones place of residence”. The use of the word “place” in that definition, to my mind, signifies a physical location. The Macquarie Dictionary defines “place” as, inter alia, “an open space, or square, in a city or town; an area, especially one regarded as an entity and identifiable by name, used for habitation, as a city, town, or village”. In light of those definitions, the address of “one’s place of residence” is properly identified by the street name and number, where relevant, and suburb. The postcode is not an essential part of the identification of that physical location. In the matter before this Court, the letter was sent by pre paid post to “288/226 Elizabeth Street Surry Hills”, being the physical location of the place of residence provided by the applicant and identified by the street name and number and suburb. Accordingly, I am satisfied that, in the circumstances, the Tribunal has complied with the requirements of the statutory regime as imposed by ss 425, 425A and 441A of the Act.

[494B.340] Failure to include the word “street” in the address contained on the document In SZOQY v Minister for Immigration and Citizenship [2011] FMCA 120, the applicant, in his application for review, provided the Refugee Review Tribunal with the following address for correspondence: “28 The Boulevard Street, Lidcombe.” Pursuant to s 425 of the Act, the Refugee Review Tribunal sent a letter inviting the applicant to a hearing. According to the terms of s 441A(4), the invitation letter was sent by prepaid post to the address “28 The Boulevard, Lidcombe”, the last address for correspondence provided to the Refugee Review Tribunal (this provision is in similar terms to s 494B(4)). The invitation letter failed to contain the word “street” in the address. The letter was returned “unclaimed” and the applicant failed to appear at the hearing. © 2016 THOMSON REUTERS

1063

s 494C

Migration Act 1958

[494B.360]

The Minister tendered evidence that the address “28 The Boulevard Street, Lidcombe” did not exist and that the address “28 The Boulevard, Lidcombe” was the applicant’s actual address. The Minister also tendered evidence that an officer from Australia Post had actually attended the correct address; however, since there was no-one at the address at that time, the officer left a card advising that an item of mail was available for collection from Lidcome Post Office. The item was not collected and subsequently was returned to the Refugee Review Tribunal. Cameron FM held that there was no jurisdictional error and that the Refugee Review Tribunal had complied with s 441A(4) because it had sent the invitation to the applicant’s actual (and correct) address: at [23]. His Honour further stated at [23]: In this connection, it must be recalled that the address notified by the applicant was incorrect because it contained the redundant word – “Street”. I accept the Minister’s submission that his error has no greater significance than if the applicant had misspelt “Boulevard”. As the address “28 Boulevard Street, Lidcombe” did not exist but “28 The Boulevard, Lidcombe” did and was the applicant’s actual address, it would be absurd to conclude that making a minor alteration to the advised address when addressing the hearing invitation, which had the effect that the address was correctly cited, led to the outcome that the Tribunal had not complied with s 441A(4).

[494B.360] No error in providing return to sender instructions The inclusion of words such as “if not delivered within 7 days, return to GPO Box #### Sydney NSW 2001” on the envelope will not mean that the Minister has not dispatched a document within the meaning of s 494B(4) or caused any miscarriage in the method for the giving of documents under this section: SZOBI v Minister for Immigration and Citizenship (No 2) (2010) 119 ALD 233; [2010] FCAFC 151 at [22] per Stone and Jagot JJ (special leave was refused in SZOBI v Minister for Immigration and Citizenship [2011] HCATrans 347).

PRACTICE POINTS [494B.380] Minister must give the authorised recipient the document Pursuant to s 494D, if a person gives the Minister written notice of an authorised recipient, for the purposes of s 494B the Minister must give the authorised recipient the document. [494B.390] Exhaustive statement of requirements of natural justice hearing rule To the extent that s 494B relates to Pt 2 Div 3 subdiv AB (dealing with the code for considering visa applications), it is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with: s 51A. 494C When a person is taken to have received a document from the Minister (1) This section applies if the Minister gives a document to a person by one of the methods specified in section 494B (including in a case covered by section 494A). Giving by hand (2) If the Minister gives a document to a person by the method in subsection 494B(2) (which involves handing the document to the person), the person is taken to have received the document when it is handed to the person. Handing to a person at last residential or business address (3) If the Minister gives a document to a person by the method in subsection 494B(3) (which involves handing the document to another person at a residential or business address), the person is taken to have received the document when it is handed to the other person.

1064

Migration Law

[494C.20]

Part 9 - Miscellaneous (ss 487ZI-507) Division 2 – Other (ss 487–507)

s 494C

Dispatch by prepaid post or by other prepaid means (4) If the Minister gives a document to a person by the method in subsection 494B(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document: (a) if the document was dispatched from a place in Australia to an address in Australia—7 working days (in the place of that address) after the date of the document; or (b) in any other case—21 days after the date of the document. Transmission by fax, email or other electronic means (5) If the Minister gives a document to a person by the method in subsection 494B(5) (which involves transmitting the document by fax, email or other electronic means), the person is taken to have received the document at the end of the day on which the document is transmitted. [Subs (5) am Act 31 of 2014, s 3 and Sch 4 items 46 and 47, with effect from 24 Jun 2014]

(6) [Repealed] [Subs (6) rep Act 106 of 2014, s 3 and Sch 6 item 4, with effect from 25 Sep 2014]

Document not given effectively (7) If: (a) the Minister purports to give a document to a person in accordance with a method specified in section 494B (including in a case covered by section 494A) but makes an error in doing so; and (b) the person nonetheless receives the document or a copy of it; then the person is taken to have received the document at the times mentioned in this section as if the Minister had given the document to the person without making an error in doing so, unless the person can show that he or she received it at a later time, in which case, the person is taken to have received it at that time. [Subs (7) insrt Act 112 of 2008, s 3 and Sch 1 item 27, with effect from 5 Dec 2008] [S 494C am Act 106 of 2014; Act 31 of 2014; Act 112 of 2008; insrt Act 58 of 2001, s 3 and Sch 3 item 20, with effect from 10 Aug 2001]

SECTION 494C COMMENTARY Scope ................................................................................................................................................. [494C.20] CONCEPTS

Taken to have received the document ............................................................................................. [494C.40] KEY CASES

Section 494C does not create a rebuttable presumption ................................................................. [494C.60] Time periods and natural justice ...................................................................................................... [494C.80] PRACTICE POINT

Section 494C ................................................................................................................................... [494C.100]

[494C.20] Scope Where any of the subsections of s 494C have effect, a person will be deemed to have received a document regardless of what events actually transpired. Section 494C is, accordingly, a “statutory deeming provision” that “does not create a rebuttable presumption that notification has occurred”: Minister for Immigration and Citizenship v Manaf (2009) 111 ALD 437; [2009] © 2016 THOMSON REUTERS

1065

s 494C

Migration Act 1958

[494C.40]

FCA 963 at [21] per Sundberg J. Rather, the section “provides that in certain circumstances, a person is taken to have received a document”: Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172 at [13] per Spender, Kiefel and Dowsett JJ. Accordingly, a court on review cannot inquire into whether or not in fact a document has, or has not, been received. “The Act conclusively provides for this effect”: Kim v Minister for Immigration and Multicultural Affairs [2006] FCAFC 64 at [8]. Regulation 2.55 and s 494C contain nearly identical expressions in relation to when a person is taken to have received a document. In other words, the meaning and judicial interpretation of expressions in s 494C apply to the same expressions in reg 2.55: Sainju v Minister for Immigration and Citizenship (2010) 185 FCR 86; 115 ALD 371; [2010] FCA 461 at [13] and [62] per Jacobson J. Relevantly, s 494C mirrors the methods set out in ss 379C and 441A (which are provisions in relation to the former Migration Review Tribunal and the Refugee Review Tribunal, which have since 1 July 2015 been amalgamated with the Administrative Appeals Tribunal), which deal with the circumstances in which a person is taken to have received a document from the Tribunal and the Minister.

CONCEPTS [494C.40] Taken to have received the document Section 5(23) of the Act clarifies the meaning of the phrase “is taken” by providing: “To avoid doubt, in this Act ‘is taken’, when followed by the infinitive form of a verb, has the same force and effect as ‘is deemed’ when followed by the infinitive form of that verb.” The expression “taken to have received the document” appears in s 494C(2), (3), (4), (5) and (7). In relation to this expression and s 494C(4), Spender J observed in Murphy v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 135 FCR 550; [2004] FCA 657 at [69]: The person is “taken to have received the document”, in the circumstances of this case, seven working days after the date of the document. In my view this provision manifests an intention that a person is taken to have received the document seven working days after the date of the document, without qualification. There is nothing to indicate that the effect of the subsection is to be read as if there was a proviso that a person was not taken to have received the document where the documents had been returned undelivered to the sender within seven working days after the date of the document, or that the subsection operates in its terms only “until the contrary is proved”.

By sending a document by one of the methods in s 494B, s 494C provides that a person is “taken to have received the document” at the time specified in this section regardless of whether the document was actually received: SZNZL v Minister for Immigration and Citizenship (2010) 186 FCR 271; [2010] FCA 621 at [36] per Barker J.

KEY CASES [494C.60] Section 494C does not create a rebuttable presumption The deeming provisions in s 494C are mandatory and it is not possible for an applicant to tender evidence to rebut the time when the applicant is deemed to have received the document (other than in s 494C(7) in relation to circumstances where the document has not been given in accordance with s 494B). In Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172 (Xie), the Full Federal Court of Australia considered whether s 494C(4), which applies to documents dispatched by prepaid post or other prepaid means, created an irrebuttable presumption as to the time of receipt of the documents, or whether evidence could be brought to establish the actual time of receipt. 1066

Migration Law

[494C.80]

Part 9 - Miscellaneous (ss 487ZI-507) Division 2 – Other (ss 487–507)

s 494C

The applicant in that matter applied for a student visa and provided the Department with a postal address for receiving documents. The delegate of the Minister refused to grant the visa and notified the applicant by letter sent under s 494B(4) by registered post to the address provided by the applicant. The applicant did not collect the letter from Australia Post and therefore was out of time to file an application for review with the Migration Review Tribunal. The applicant claimed that since he did not receive the notification letter within the 21-day period provided for under s 494C(4), the deeming provisions in that section did not apply. Spender, Kiefel and Dowsett JJ held at [13], that: Subsection 494C(4) does not purport to create a rebuttable presumption of fact. It provides that in certain circumstances, a person is to be “taken to have received the document …”. Nothing in the section suggests that this is merely a rebuttable presumption.

Their Honours quoted with approval Spender J’s comment in Murphy v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 135 FCR 550; [2004] FCA 657 at [69], in relation to s 494C(4), that: In my view this provision manifests an intention that a person is taken to have received the document seven working days after the date of the document, without qualification. There is nothing to indicate … that the subsection operates in its terms only “until the contrary is proved”.

In Tay v Minister for Immigration and Citizenship (2010) 183 FCR 163; [2010] FCAFC 23, the Full Federal Court of Australia considered whether s 494C(5), which applies to documents transmitted by fax, email or other electronic means, created a rebuttable presumption of fact and whether the applicant could lead evidence to show that she did not receive the document on the day it was deemed to be received in accordance with s 494C(5). Dowsett, Stone and Bennett JJ, accepting the reasoning in Xie, held that s 494C(4) and (5) were identical and that therefore the reasoning in Xie was equally applicable to s 494C(5): at [19]. Dowsett, Stone and Bennett JJ further stated at [24]–[25]: Section 494C makes very detailed provision for determining when a document is taken (deemed) to have been received from the Minister. Those provisions must be construed in a statutory context of similarly detailed provisions concerning the methods by which the Minister may give documents to a person when this is a requirement (s 494B) and when it is not required (s 494A) and the identification of the authorised recipient of documents (s 494D). These provisions all evidence concern that there should be certainty in the transfer of documents from the Minister both as to the method and as to the time of delivery. This was recognised by the Full Court in Xie leading it to conclude that s 494C(4) did not create a rebuttable presumption … That s 494C(5) does not create a rebuttable presumption of fact is supported not only by our construction of the relevant statutory and regulatory provisions, but also by extrinsic material relevant to the introduction of these provisions. Sections 494A, 494B, 494C and 494D were introduced into the Migration Act by the Migration Legislation Amendment (Electronic Transactions and Methods of Notification) Act 2001 (Cth). On 5 April 2001, in his second reading speech concerning the bill that preceded this Act, the Minister for Immigration and Multicultural Affairs said: These amendments essentially consolidate into the Migration Act existing provisions found in either the Migration Act or the migration regulations. They clarify when notification of a decision occurs and on what date. This is critical for review mechanisms, as an application for review must be made within a specified period, or the case is out of time.

[494C.80] Time periods and natural justice The periods of time prescribed in s 494C(2) – (5) for when a document is deemed to have been received are not capable of being extended. In Cheng v Minister for Immigration and Citizenship (2011) 198 FCR 559; [2011] FCA 1290, the applicant wrote the incorrect address in his visa application. The delegate of the Minister sent the letter refusing the visa to the incorrect address provided in the visa application. The © 2016 THOMSON REUTERS

1067

s 494D

Migration Act 1958

[494C.100]

result was that the applicant filed his application for review to the Migration Review Tribunal outside the time limit specified in s 347. The Migration Review Tribunal therefore found that it did not have jurisdiction to consider his application. Flick J held that there was no error in the Migration Review Tribunal’s finding because the notification letter was correctly sent, under s 494B, to the last address provided to the Minister. It did not matter that the address provided to the Minister was actually the wrong address as this was the address provided by the applicant: at [46]–[47]. In addition, the applicant claimed that he was denied natural justice because he was not given an opportunity to be heard in relation to the incorrect address and the application of s 494C. Flick J was of the view that this argument was without substance: at [23]. Even if the applicant was entitled to be heard on these issues, there is nothing meaningful that the applicant could have said: at [27]. Flick J further stated at [29]: Given the absence of any power to extend the time within which an application for review may be made, and an apparent acceptance of the underlying factual basis upon which the Tribunal declined jurisdiction, the utility of extending any opportunity to be heard in respect to the return of the letter and the circumstances in which the erroneous address was provided remains elusive. It may well have been a “a hollow opportunity”: SZEYK v Minister for Immigration and Citizenship [2008] FCA 1940 at [39] per Bennett J. “Whether one talks in terms of procedural fairness or natural justice”, it will be recalled that “the concern of the law is to avoid practical injustice”: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6 at [37], 214 CLR 1 at 14 per Gleeson J. See also: Button v [The Queen] [2010] NSWCCA 264 at [15] per Latham J (Simpson and Kirby JJ agreeing); Medan v [The Queen] [2011] WASCA 142 at [59] per Buss JA (Pullin JA and Hall J agreeing); Re Roth; Ex parte Cazaly Iron Pty Ltd [2011] WASC 226 at [30] per Beech J. In SZNZL [2010] FCA 621 at [46], 186 FCR 271 at 279 a question was similarly raised as to whether “issues of procedural fairness arise in connection with the Tribunal’s consideration of whether it has jurisdiction”.

PRACTICE POINT [494C.100] Section 494C To the extent that s 494C relates to Pt 2 Div 3 subdiv AB (dealing with the code for considering visa applications), it is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with: s 51A. If an applicant has notified the Minister of an authorised recipient under s 494D, the Minister must send the document to the authorised recipient. In those circumstances, the applicant is deemed to have received the document in the time specified in s 494C. 494D Authorised recipient (1) If a person (the first person) gives the Minister written notice of the name and address of another person (the authorised recipient) authorised by the first person to receive documents in connection with specified matters arising under this Act or the regulations, the Minister must give the authorised recipient, instead of the first person, any documents in connection with those matters that the Minister would otherwise have given to the first person. Note: If the Minister gives a person a document by a method specified in section 494B, the person is taken to have received the document at the time specified in section 494C in respect of that method. [Subs (1) am Act 106 of 2014, s 3 and Sch 4 items 11 and 12, with effect from 25 Sep 2014]

(2) If the Minister gives a document to the authorised recipient, the Minister is taken to have given the document to the first person. However, this does not prevent the Minister giving the first person a copy of the document.

1068

Migration Law

[494D.20]

Part 9 - Miscellaneous (ss 487ZI-507) Division 2 – Other (ss 487–507)

s 494D

(3) Subject to subsection (3A), the first person (but not the authorised recipient) may vary or withdraw the notice under subsection (1) at any time, but must not (unless the regulations provide otherwise) vary the notice so that any more than one person becomes the first person’s authorised recipient. [Subs (3) am Act 106 of 2014, s 3 and Sch 4 item 13, with effect from 25 Sep 2014]

(3A) In addition to the first person being able to vary the notice under subsection (1) by varying the address of the authorised recipient, that recipient may also vary that notice by varying that address. [Subs (3A) insrt Act 106 of 2014, s 3 and Sch 4 item 14, with effect from 25 Sep 2014]

(4) [Repealed] [Subs (4) rep Act 106 of 2014, s 3 and Sch 4 item 15, with effect from 25 Sep 2014]

(5) The Minister need not comply with subsection (1) if: (a) the authorised recipient is not a registered migration agent (within the meaning of Part 3); and (b) the Minister reasonably suspects that the authorised recipient is giving immigration assistance (within the meaning of that Part); and (c) the Minister has given the first person a notice, by one of the methods specified in section 494B, stating that he or she does not intend to give the authorised recipient documents as mentioned in subsection (1). [Subs (5) am Act 106 of 2014, s 3 and Sch 4 item 16, with effect from 25 Sep 2014; insrt Act 85 of 2008, s 3 and Sch 4 item 4, with effect from 10 Aug 2001] [S 494D am Act 106 of 2014; Act 85 of 2008; insrt Act 58 of 2001, s 3 and Sch 3 item 20, with effect from 10 Aug 2001]

SECTION 494D COMMENTARY Scope ................................................................................................................................................. [494D.20] CONCEPTS

Notice ................................................................................................................................................ [494D.40] Address ............................................................................................................................................. [494D.60] Give the authorised recipient ........................................................................................................... [494D.80] Giving or give ................................................................................................................................ [494D.100] Vary or withdraw the notice .......................................................................................................... [494D.120] KEY CASES

Letter addressed to applicant, care of the authorised recipient .................................................... [494D.140] Section 494D(3) and varying the notice under s 494D(1) ........................................................... [494D.160] Fraud practised by an authorised recipient may render a decision of the Minister invalid ........ [494D.180] The Minister must give the authorised recipient, instead of the applicant, relevant documents .... [494D.200] PRACTICE POINT

Exhaustive statement of requirements of natural justice hearing rule ......................................... [494D.220]

[494D.20] Scope If an applicant for a visa gives the Minister a written notice of the name and address of another person being authorised to receive documents, the Minister must, instead of giving them to the applicant, give that other person any documents that the Minister would otherwise have given the applicant: s 494D(1). If the Minister gives the authorised recipient a document, the applicant is taken to have received that document: s 494D(2). However, the applicant may vary or withdraw the notice given under s 494D(1): s 494D(3). © 2016 THOMSON REUTERS

1069

s 494D

Migration Act 1958

[494D.40]

The primary object of s 494D is “to eliminate uncertainty as to whether a document has been given to an applicant”: Le v Minister for Immigration and Citizenship (2007) 157 FCR 321; [2007] FCAFC 20 at [25] per Emmett, Allsop and Middleton JJ.

CONCEPTS [494D.40] Notice According to s 494D(1), the applicant is to give the Minister written notice of the name and address of the authorised recipient. This section does not require that the notice be in any particular form. Section 495 provides the Minister with a discretion to approve forms, but that power is expressly limited to other provisions of the Act where the term “approved form” is used. Section 494D(1) is not such a provision: MZZDJ v Minister for Immigration and Border Protection (2013) 215 FCR 153; 137 ALD 466; [2013] FCAFC 156 at [24] per Jagot, Bromberg and Mortimer JJ. In addition, there is no requirement that the notice under s 494D(1) be signed: Jalagam v Minister for Immigration and Citizenship [2009] FCA 197 at [36] per Edmonds J. [494D.60] Address Section 494D(1) provides that the applicant is to give the Minister written notice of the name and address of the authorised recipient. The term “address” is not defined in the Act but in this section it is not to be read as “limited to a postal address or street address”: MZZDJ v Minister for Immigration and Border Protection (2013) 215 FCR 153; 137 ALD 466; [2013] FCAFC 156 (MZZDJ) at [29] per Jagot, Bromberg and Mortimer JJ. The use of the term “address” is to be consistent with the way that term is used in s 494B and therefore can be applied to an electronic address, including email: MZZDJ at [30] per Jagot, Bromberg and Mortimer JJ. [494D.80] Give the authorised recipient The expression “give the authorised recipient, instead of the first person” is not to be construed narrowly. Therefore, a letter that is sent to a person, care of that person’s authorised recipient, will not constitute a “giving” of that letter to the authorised recipient: VEAN v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 280 at [31] per Weinberg J. [494D.100] Giving or give The word “give” is of “wide amplitude” and does not equate with “physically handing over an object”: VEAN v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 280 at [31] per Weinberg J. [494D.120] Vary or withdraw the notice According to s 494D(3), an applicant can vary or withdraw the notice under s 494D(1) appointing an authorised recipient. While a withdrawal is “an absolute act and operates on the entire written notice”, to “vary” means to alter the notice: MZZDJ v Minister for Immigration and Border Protection (2013) 215 FCR 153; 137 ALD 466; [2013] FCAFC 156 at [31]–[32] per Jagot, Bromberg and Mortimer JJ.

KEY CASES [494D.140] Letter addressed to applicant, care of the authorised recipient If an applicant has an authorised recipient under s 494D, it will deemed that there has been compliance with s 494B(4) if the envelope is addressed to the authorised recipient. The letter inside the envelope may refer to the applicant. In Minister for Immigration and Citizenship v SZKPQ (2008) 166 FCR 84; 101 ALD 5; [2008] FCAFC 21, the applicant applied for a protection visa and had an authorised recipient in accordance with s 494D. A delegate of the 1070

Migration Law

[494D.160]

Part 9 - Miscellaneous (ss 487ZI-507) Division 2 – Other (ss 487–507)

s 494D

Minister refused the visa and the notification letter was addressed to the applicant, care of his authorised recipient. However, the letter was sent by prepaid post in an envelope addressed only to the authorised recipient. Bennett, Emmett and Branson JJ held that there had been compliance with s 494B(4) even though the notification letter was addressed to the applicant and not his authorised recipient. Emmett J stated at [25]: Section 494D(1) clearly contemplates that a document addressed to an applicant for a visa, which would otherwise have been given to that person, must be given to the authorised recipient. That provision tends to indicate that a letter such as the delegate’s letter in the present case ought to be addressed to a visa applicant rather than to the authorised recipient. The scheme of the legislation is that the authorised recipient is to be given the document that would otherwise have been given to the visa applicant. It is inconsistent with that notion that the document should itself be addressed to the authorised recipient rather than the applicant for a visa.

Emmett, Bennett and Branson JJ considered the cases of VEAN of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 570; 204 ALR 80; [2003] FCAFC 311 (VEAN) and SZFOH v Minister for Immigration and Citizenship (2007) 159 FCR 199; 241 ALR 653; [2007] FCAFC 63 (SZFOH). Emmett J (with whom Bennett and Branson agreed) held at [26] that the matter was distinguishable from VEAN because in that case the notification document was sent to the authorised recipient in an envelope addressed to the visa applicant care of that visa applicant’s authorised recipient. Emmett J (with whom Bennett and Branson agreed) further stated at [26] that to the extent that the decision in VEAN: suggests either that notification documents must contain within them the address of the authorised recipient or may not contain the address of an applicant for a visa, the decision should not be followed. In so far as the second case [SZFOH] construed the first case [VEAN] in that way, that construction was erroneous.

[494D.160] Section 494D(3) and varying the notice under s 494D(1) In MZZDJ v Minister for Immigration and Border Protection (2013) 215 FCR 153; 137 ALD 466; [2013] FCAFC 156, the applicant applied for a protection visa and had given notice under s 494D(1) of his authorised recipient. The applicant and his authorised recipient attended an interview with a delegate of the Minister. At that interview, the authorised recipient informed the delegate that she would be going overseas and requested that the delegate notify her of the decision by email. The delegate forgot about this and sent the notification letter, refusing to grant the visa, to the authorised recipient by prepaid post. When this was brought to the delegate’s attention, the delegate attempted to renotify the applicant of the decision by sending it by email to the applicant’s authorised recipient. When the applicant attempted to file an application with the Refugee Review Tribunal for review, the Tribunal found that it did not have jurisdiction to consider the application because it was lodged out of time since the applicant had been validly notified by the first notification letter sent to the authorised recipient by prepaid post. Jagot, Bromberg and Mortimer JJ considered the word “notice” in s 494D and found that the section did not require notices to be in any particular form: at [24]. Their Honours stated at [26]: The level of formality required (or not required) by s 494D is not without significance. The absence of strict prescriptions about form underlines the facultative nature of this provision: it is intended to give applicants a readily accessible means of ensuring communication in relation to their visa applications is undertaken in the most effective manner if they do not wish, for whatever reason, to be entirely responsible for receiving communications and taking necessary action.

In addition, Jagot, Bromberg and Mortimer JJ were of the view that the term “address” in s 494D should be consistent with s 494B; therefore an address can be an electronic one, such as an email: at [29]–[30]. © 2016 THOMSON REUTERS

1071

s 494D

Migration Act 1958

[494D.180]

Section 494D(3) permits an applicant to either withdraw the notice under s 494D(1) or to vary it. In relation to varying the notice, the term “vary” should not be read narrowly: at [32] per Jagot, Bromberg and Mortimer JJ. Therefore, in relation to a variation of a notice under s 494D(1), Jagot, Bromberg and Mortimer JJ were of the view that: • the variation of the notice can be permanent or temporary: at [33]; • the variation can be oral: at [34]; and • the variation can be made by the authorised person under s 494D(1): at [35]. Given the above, Jagot, Bromberg and Mortimer JJ held that the applicant’s authorised recipient had made an oral variation to the notice under s 494D at the interview with the delegate. Therefore, the first notification letter sent by the delegate to the authorised recipient by prepaid post was not in fact “given” to the applicant and the Tribunal had erred by relying on this notification to find that it did not have jurisdiction. [494D.180] Fraud practised by an authorised recipient may render a decision of the Minister invalid If a document is given to an authorised recipient pursuant to s 494D(1), but the authorised recipient has practised fraud on the Minister with the consequence, for example, that an applicant does not in fact receive the document (due to the fraud, and not for mere negligence etc), any decision of the Minister may be rendered invalid (notwithstanding that the Tribunal is taken to have given the document to the applicant for the purposes of s 494D(2)). The High Court’s decision in SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; 81 ALJR 1404; [2007] HCA 35 (SZFDE) is the key authority on the effect of fraudulent and negligent conduct by a migration agent or third party. In SZFDE, the Refugee Review Tribunal sent a document to the applicant’s authorised recipient, pursuant to s 441G(1) (which is in similar terms to s 494D(1)), inviting the applicant to attend a hearing. Relevantly, the authorised recipient had falsely posed as a solicitor and migration agent and had advised the applicant for review not to attend the hearing in the Refugee Review Tribunal. As the third party’s fraud resulted in the stultification of the operation of the natural justice provisions in Pt 7 Div 4 of the Act, the Tribunal was “disabled from the due discharge of its imperative statutory functions with respect to the conduct of the review”: at [51] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ. The court described this as “fraud on the Tribunal” (at [51]) and that therefore the Tribunal’s decision was “no decision at all”: at [52] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon and Crennan JJ. Importantly, their Honours stated at [53] that: The significance of the outcome in this appeal should not be misunderstood. The appeal has turned upon the particular importance of the provisions of Div 4 of Pt 7 of the Act for the conduct by the Tribunal of review and the place therein of the ss 425 and 426A. In the Full Court French J correctly emphasised that there are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made. The outcome in the present appeal stands apart from the above such considerations.

[494D.200] The Minister “must” give the authorised recipient, instead of the applicant, relevant documents In Lee v Minister for Immigration and Citizenship (2007) 159 FCR 181; 241 ALR 363; [2007] FCAFC 62, the appellant had applied to the Migration Review Tribunal for review of a decision. The appellant relevantly appointed an authorised recipient for the purposes of s 379G(1) (which is in similar terms to s 494D(1)). The Tribunal subsequently sent a letter to the appellant 1072

Migration Law

[494D.220]

Part 9 - Miscellaneous (ss 487ZI-507) Division 2 – Other (ss 487–507)

s 495A

directly, but failed to send it to the authorised recipient. The Minister led evidence of actual delivery of the document to the appellant himself and argued, therefore, that there was no failure to comply with s 379G(1). The Full Court of the Federal Court held that s 379G(1) “is expressed in mandatory terms, and the tribunal must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant”. Further, the qualification in s 379G(2) that the Tribunal can give a copy of the document to the applicant does not supplant the Tribunal’s obligation to give a copy of the document to the authorised recipient: at [34] per Besanko J (Moore and Buchanan JJ agreeing). In addition, Besanko J rejected the Minister’s suggestion that proof of actual service of a document on the applicant will overcome the failure of the Tribunal to comply with s 379G(1): at [38] (Moore and Buchanan JJ agreeing).

PRACTICE POINT [494D.220] Exhaustive statement of requirements of natural justice hearing rule To the extent that s 494D relates to Pt 2 Div 3 subdiv AB (dealing with the code for considering visa applications), it is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with: s 51A. Where a document is sent to an authorised recipient, an applicant is deemed to have received the document in the time period specified in s 494C. 495 Minister may approve forms The Minister may, in writing, approve a form for the purposes of a provision of this Act in which the expression “approved form” is used. [Former s 175 renum Act 60 of 1994, s 83, with effect from 1 Sep 1994; former s 66D renum Act 59 of 1989, s 35, with effect from 20 Dec 1989; subst Act 59 of 1989, s 31, with effect from 19 Dec 1989; insrt Act 117 of 1979, s 27, with effect from 29 Oct 1979]

495A Minister may arrange for use of computer programs to make decisions etc. (1) The Minister may arrange for the use, under the Minister’s control, of computer programs for any purposes for which the Minister may, or must, under the designated migration law: (a) make a decision; or (b) exercise any power, or comply with any obligation; or (c) do anything else related to making a decision, exercising a power, or complying with an obligation. (2) The Minister is taken to have: (a) made a decision; or (b) exercised a power, or complied with an obligation; or (c) done something else related to the making of a decision, the exercise of a power, or the compliance with an obligation; that was made, exercised, complied with, or done (as the case requires) by the operation of a computer program under an arrangement made under subsection (1). (3) For the purposes of this section, the following provisions are the designated migration law: (a) Subdivisions A, AA, AB and AC of Division 3 of Part 2 (other than section 48B); (aa) section 257A;

© 2016 THOMSON REUTERS

1073

s 495A

Migration Act 1958

(b) any provision of this Act or of the regulations that the Minister, by legislative instrument, determines to be part of the designated migration law. [Subs (3) am Act 115 of 2015, s 3 and Sch 1 item 54, with effect from 16 Feb 2016; Act 141 of 2005, s 3 and Sch 4 item 14, with effect from 12 Dec 2005]

(4) [Repealed] [Subs (4) rep Act 141 of 2005, s 3 and Sch 4 item 15, with effect from 12 Dec 2005] [S 495A am Act 115 of 2015; Act 141 of 2005; insrt Act 58 of 2001, s 3 and Sch 2 item 9, with effect from 10 Aug 2001 Cross-reference: Legislative Instruments: IMMI 07/091 — Migration Act 1958 – Designated Migration Law: This Determination makes Pt 2, Div 3, Subdiv AF part of the designated migration law for the purposes of s 495A(1). The Instrument operates to allow the Minister to arrange for the use of a computer program to grant a Bridging Visa to applicants who have made valid applications for certain substantive visas.]

495B Minister may substitute more favourable decisions for certain computer-based decisions (1) The Minister may substitute a decision (the substituted decision) for a decision (the initial decision) made by the operation of a computer program under an arrangement made under subsection 495A(1) if: (a) a certificate under paragraph 271(1)(l) relates to the computer program and to the initial decision; and (b) the certificate states that the computer program was not functioning correctly; and (c) the substituted decision could have been made under the same provision of the designated migration law as the initial decision; and (d) the substituted decision is more favourable to the applicant. (2) The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances. (3) Subsection (1) has effect despite: (a) any law of the Commonwealth; or (b) any rule of common law; to the contrary effect. [S 495B insrt Act 58 of 2001, s 3 and Sch 2 item 9, with effect from 10 Aug 2001]

496 Delegation (1) The Minister may, by writing signed by him or her, delegate to a person any of the Minister’s powers under this Act. (1A) The delegate is, in the exercise of a power delegated under subsection (1), subject to the directions of the Minister. [Subs (1A) insrt Act 114 of 1998, s 3 and Sch 1 item 14, with effect from 1 Jun 1999]

(2) The Secretary may, by writing signed by him or her, delegate to a person any of the Secretary’s powers under this Act. (3) If an application for a visa that has a health criterion is made, the Minister may: (a) delegate to a person the power to consider and decide whether that criterion is satisfied; and (b) consider and decide, or delegate to another person the power to consider and decide, all other aspects of the application. [Subs (3) insrt Act 184 of 1992, s 35, with effect from 1 Sep 1994]

(4) To avoid doubt, if there is a delegation described in paragraph (3)(a) in relation to an application for a visa:

1074

Migration Law

Part 9 - Miscellaneous (ss 487ZI-507) Division 2 – Other (ss 487–507)

s 499

(a) Subdivision AB of Division 3 of Part 2 has effect accordingly; and (b) for the purposes of subsection 65(1), the Minister is satisfied or not satisfied that the health criterion for the visa has been satisfied if the delegate who was given that delegation is so satisfied or not so satisfied, as the case may be. [Subs (4) insrt Act 184 of 1992, s 35, with effect from 1 Sep 1994]

(5) Subsection (1A) does not limit subsection 499(1). [Subs (5) insrt Act 114 of 1998, s 3 and Sch 1 item 15, with effect from 1 Jun 1999] [S 496 am Act 114 of 1998; former s 176 renum Act 60 of 1994, s 83, with effect from 1 Sep 1994; am Act 184 of 1992; former s 66DA renum Act 59 of 1989, s 35, with effect from 20 Dec 1989; insrt Act 59 of 1989, s 31, with effect from 19 Dec 1989]

497 Delegate not required to perform certain administrative tasks (1) If the Minister delegates the power to grant or refuse to grant visas, the delegation does not require the delegate personally to perform any task in connection with the grant or refusal, except the taking of a decision in each case whether or not a visa should be granted. [Subs (1) subst Act 60 of 1994, s 80(a), with effect from 1 Sep 1994; am Act 184 of 1992, s 38 and Sch, with effect from 1 Sep 1994]

(2) If the Minister delegates the power to cancel visas, the delegation does not require the delegate personally to perform any task in connection with the cancellation, except the taking of a decision in each case whether a visa should be cancelled. [Former subs (1A) renum Act 60 of 1994, s 83, with effect from 1 Sep 1994; insrt Act 60 of 1994, s 80(a), with effect from 1 Sep 1994]

(3) Nothing in subsection (1) or (2) shall be taken to imply that: (a) a person on whom a power is conferred by or under this or any other Act; or (b) a delegate of such a person; is required personally to perform all administrative and clerical tasks connected with the exercise of the power. [Former subs (2) renum Act 60 of 1994, s 83, with effect from 1 Sep 1994; am Act 60 of 1994, s 80(b), with effect from 1 Sep 1994] [Former s 177 renum Act 60 of 1994, s 83, with effect from 1 Sep 1994; am Act 60 of 1994; Act 184 of 1992; former s 66DB renum Act 59 of 1989, s 35, with effect from 20 Dec 1989; insrt Act 59 of 1989, s 31, with effect from 19 Dec 1989]

498 Exercise of powers under Act (1) The powers conferred by or under this Act shall be exercised in accordance with any applicable regulations under this Act. (2) Nothing in this section shall be taken to limit the operation of subsection 29(4). [Former s 178 renum Act 60 of 1994, s 83, with effect from 1 Sep 1994; former s 66DC renum Act 59 of 1989, s 35, with effect from 20 Dec 1989; insrt Act 59 of 1989, s 31, with effect from 19 Dec 1989]

499 Minister may give directions (1) The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about: (a) the performance of those functions; or (b) the exercise of those powers. [Subs (1) subst Act 114 of 1998, s 3 and Sch 1 item 16, with effect from 1 Jun 1999]

(1A) For example, a direction under subsection (1) could require a person or body to exercise the power under section 501 instead of the power under section 200 (as it applies because of section 201) in circumstances where both powers apply. [Subs (1A) insrt Act 114 of 1998, s 3 and Sch 1 item 16, with effect from 1 Jun 1999]

© 2016 THOMSON REUTERS

1075

s 499

Migration Act 1958

[499.20]

(2) Subsection (1) does not empower the Minister to give directions that would be inconsistent with this Act or the regulations. (2A) A person or body must comply with a direction under subsection (1). [Subs (2A) insrt Act 114 of 1998, s 3 and Sch 1 item 17, with effect from 1 Jun 1999]

(3) The Minister shall cause a copy of any direction given under subsection (1) to be laid before each House of the Parliament within 15 sitting days of that House after that direction was given. (4) Subsection (1) does not limit subsection 496(1A). [Subs (4) insrt Act 114 of 1998, s 3 and Sch 1 item 18, with effect from 1 Jun 1999] [S 499 am Act 114 of 1998, s 3 and Sch 1 item 16, with effect from 1 Jun 1999; former s 179 renum Act 60 of 1994, s 83, with effect from 1 Sep 1994; former s 66DC renum Act 59 of 1989, s 35, with effect from 20 Dec 1989; insrt Act 59 of 1989, s 31, with effect from 19 Dec 1989 Cross-reference: Legislative Instruments: Migration Act 1958 – General Direction under section 499 – Australia’s Criminal Deportation Policy – Criminal Deportation under section 200: This Direction provides guidance to decision makers in considering the making of deportation decisions under ss 200 and 201.]

SECTION 499 COMMENTARY Scope ................................................................................................................................................... [499.20] CONCEPTS

Person or body .................................................................................................................................... [499.40] Give or given ....................................................................................................................................... [499.60] KEY CASES

Minister is not bound to follow directions ......................................................................................... [499.80] Direction continues to operate after a change of Minister .............................................................. [499.100]

[499.20] Scope Under this section, the Minister may make a direction about the performance of functions or the exercise of powers under the Act. The person to whom the direction applies must comply with the direction. A direction made under s 499 imposes a statutory duty, on the person to whom it is directed, to have regard to the direction when performing a function or exercising a power under the Act: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; 24 ALR 577; 46 FLR 409. The Minister is not bound by a direction made under s 499: Howells v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 580; 213 ALR 379; [2004] FCAFC 327 at [31] per Ryan, Lander and Crennan JJ. There are various directions made under this section. For example, Direction No 55 – Visa Refusal and Cancellation under s 501 (25 July 2012), relates to decisions made under s 501 and is binding on all decision-makers (other than the Minister) exercising the power under s 501 after 1 September 2012.

CONCEPTS [499.40] Person or body Pursuant to s 499(2A), a person or body must comply with a direction. This includes a tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583; 30 AAR 74; [1999] FCA 1238 (Rokobatini) at [38] per Katz J. 1076

Migration Law

[499.100]

Part 9 - Miscellaneous (ss 487ZI-507) Division 2 – Other (ss 487–507)

s 500

[499.60] Give or given The words “give” and “given” under s 499 “are not used in the sense of ‘serve’ or ‘send’”. The expression “to give” means “to issue”: Rokobatini at [9] per Whitlam and Gyles JJ.

KEY CASES [499.80] Minister is not bound to follow directions The Minister is not bound to follow a direction made under s 499: Howells v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 580; 213 ALR 379; [2004] FCAFC 327 (Howells) at [31] per Ryan, Lander and Crennan JJ. However, the Minister may have regard to the direction as a guide in making a decision. In Howells, the Minister cancelled the applicant’s visa under s 501. The applicant claimed that the Minister had fettered his discretion under s 501 by relying on Direction No 17 (since revoked). A minute to the Minister, prepared by the delegate, referred to Direction No 17 and stated that the Minister was not bound by the Direction, but could have regard to the matters referred to in the Direction when determining whether or not to exercise the power under s 501. Ryan, Lander and Crennan JJ considered the various case law dealing with Direction No 17, in which it had been held that the Minister had fettered his discretion under s 501 by wrongly assuming he was bound by the Direction. Ryan, Lander and Crennan JJ stated at [129], that it would be a “question of fact whether he has proceeded in a way that demonstrates that the Minister has fettered the minister’s discretion”. Ryan, Lander and Crennan JJ stated at [131]: The minister is entitled to have regard to the matters contained in Direction No 17 to remind the minister of the matters which are relevant to the exercise of the discretion under s 501 but if the minute or the surrounding circumstances or a combination of both show that the minister has slavishly adhered to Direction No 17 without applying an independent mind, then it would be appropriate to find that the exercise of the discretion has miscarried.

Ryan, Lander and Crennan JJ held that the Minister had not fettered his discretion. The minute clearly stated that the Minister was not bound by the Direction and there was no evidence to suggest that the Minister had approached his decision in any other way than on the basis that his discretion was unfettered. [499.100] Direction continues to operate after a change of Minister Where a Direction has been validly made under s 499, it will continue to operate, even when there is a change of Minister. In Jagroop v Minister for Immigration and Border Protection (2013) 61 AAR 542; [2013] FCA 1287 (overturned on appeal, but not on this point: see Jagroop v Minister for Immigration and Border Protection (2014) 225 FCR 482; [2014] FCAFC 123), the applicant claimed that Direction No 55 ceased to validly operate after Minister Bowen (the Minister who made the Direction) was no longer the relevant Minister. This was because only the Minister administering the Act may make directions under s 499(1). Marshall J did not accept this and at [89] stated: When a direction is made under s 499 of the Migration Act, it is a direction having the force of one being made by the occupant of the office of the Minister administering the Act and not by virtue of the personal identity of the particular Minister. It follows that a direction made by a person holding the office of Minister will continue in force despite that person ceasing to hold that office.

500 Review of decision (1) Applications may be made to the Administrative Appeals Tribunal for review of:

© 2016 THOMSON REUTERS

1077

s 500

Migration Act 1958

(a)

decisions of the Minister under section 200 because of circumstances specified in section 201, other than decisions to which a certificate under section 502 applies; or (b) decisions of a delegate of the Minister under section 501 (subject to subsection (4A)); or (ba) decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa; or (c) a decision, other than a decision to which a certificate under section 502 applies, to refuse under section 65 to grant a protection visa, relying on: (i) subsection 5H(2) or 36(1C); or (ii) paragraph 36(2C)(a) or (b) of this Act. Note: Decisions to refuse to grant a protection visa to fast track applicants are generally not reviewable by the Administrative Appeals Tribunal. However, some decisions of this kind are reviewable by that Tribunal, in the circumstances mentioned in paragraph (a), or subparagraph (b)(i) or (iii), of the definition of fast track decision in subsection 5(1). [Subs (1) am Act 135 of 2014, s 3 and Sch 4 item 26, with effect from 18 Apr 2015; Act 135 of 2014, s 3 and Sch 5 item 21, with effect from 16 Dec 2014; Act 129 of 2014, s 3 and Sch 1 items 2–6, with effect from 11 Dec 2014; Act 121 of 2011, s 3 and Sch 1 item 33, with effect from 24 Mar 2012; Act 114 of 1998, s 3 and Sch 1 item 19, with effect from 1 Jun 1999; Act 60 of 1994, s 3 and Sch 1 item 111, with effect from 1 Sep 1994; Act 213 of 1992, s 4(2)(a) and (b), with effect from 1 Sep 1994; subst Act 213 of 1992, s 4(1)(a), with effect from 24 Dec 1992; am Act 59 of 1989, s 32, with effect from 19 Dec 1989; Act 112 of 1983, s 36, with effect from 2 Apr 1984]

(2) A person is not entitled to make an application under paragraph (1)(a) unless: (a) the person is an Australian citizen; or (b) the person is a lawful non-citizen whose continued presence in Australia is not subject to any limitation as to time imposed by law. [Subs (2) am Act 60 of 1994, s 3 and Sch 1 item 112, with effect from 1 Sep 1994; Act 213 of 1992, s 4(1)(b), with effect from 24 Dec 1992; Act 59 of 1989, s 32, with effect from 19 Dec 1989; Act 112 of 1983, s 36, with effect from 2 Apr 1984]

(3) A person is not entitled to make an application under subsection (1) for review of a decision referred to in paragraph (1)(b) or (c) unless the person would be entitled to seek review of the decision under Part 5 or 7 if the decision had been made on another ground. [Subs (3) subst Act 213 of 1992, s 4(2)(c), with effect from 1 Sep 1994; Act 213 of 1992, s 4(1)(c), with effect from 24 Dec 1992]

(4) The (a) (b) (c)

following decisions are not reviewable under Part 5 or 7: a decision under section 200 because of circumstances specified in section 201; a decision under section 501; a decision to refuse to grant a protection visa, or to cancel a protection visa, relying on: (i) subsection 5H(2) or 36(1C); or (ii) paragraph 36(2C)(a) or (b) of this Act.

[Subs (4) am Act 135 of 2014, s 3 and Sch 5 item 22, with effect from 16 Dec 2014; Act 121 of 2011, s 3 and Sch 1 item 34, with effect from 24 Mar 2012; Act 114 of 1998, s 3 and Sch 1 item 20, with effect from 1 Jun 1999]

(4A) The following decisions are not reviewable under this section, or under Part 5 or 7: (a) a decision to refuse to grant a protection visa relying on subsection 36(1B); (b) a decision to cancel a protection visa because of an assessment by the Australian Security Intelligence Organisation that the holder of the visa is directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979);

1078

Migration Law

Part 9 - Miscellaneous (ss 487ZI-507) Division 2 – Other (ss 487–507)

(c)

s 500

a decision of a delegate of the Minister under subsection 501(3A) to cancel a visa.

[Subs (4A) am Act 129 of 2014, s 3 and Sch 1 item 7, with effect from 11 Dec 2014; insrt Act 30 of 2014, s 3 and Sch 3 item 6, with effect from 28 May 2014]

(5) [Repealed] [Subs (5) rep Act 60 of 2015, s 3 and Sch 2 item 127, with effect from 1 Jul 2015; subst Act 38 of 2005, s 3 and Sch 1 item 226, with effect from 16 May 2005; am Act 112 of 1983, s 36, with effect from 2 Apr 1984]

(5A) [Repealed] [Subs (5A) rep Act 60 of 2015, s 3 and Sch 2 item 127, with effect from 1 Jul 2015; insrt Act 38 of 2005, s 3 and Sch 1 item 226, with effect from 16 May 2005]

(6) Where an application has been made to the Tribunal for the review of a decision under section 200 ordering the deportation of a person, the order for the deportation of the person shall not be taken for the purposes of section 253 to have ceased or to cease to be in force by reason only of any order that has been made by: (a) the Tribunal (for example, an order under section 41 (stay orders) of the Administrative Appeals Tribunal Act 1975); or (b) [Repealed] (c) the Federal Court of Australia or a Judge of that Court under section 44A of that Act; or (d) the Federal Circuit Court of Australia or a Judge of that Court under section 44A of that Act. [Subs (6) am Act 60 of 2015, s 3 and Sch 2 item 128, with effect from 1 Jul 2015; Act 13 of 2013, s 3 and Sch 1 item 340, with effect from 12 Apr 2013; Act 157 of 2001, s 3 and Sch 1 item 29, with effect from 1 Oct 2001]

(6A) If a decision under section 501 of this Act relates to a person in the migration zone, section 28 of the Administrative Appeals Tribunal Act 1975 does not apply to the decision. [Subs (6A) insrt Act 114 of 1998, s 3 and Sch 1 item 21, with effect from 1 Jun 1999]

(6B) If a decision under section 501 of this Act relates to a person in the migration zone, an application to the Tribunal for a review of the decision must be lodged with the Tribunal within 9 days after the day on which the person was notified of the decision in accordance with subsection 501G(1). Accordingly, paragraph 29(1)(d) and subsections 29(7), (8), (9) and (10) of the Administrative Appeals Tribunal Act 1975 do not apply to the application. [Subs (6B) insrt Act 114 of 1998, s 3 and Sch 1 item 21, with effect from 1 Jun 1999]

(6C) If a decision under section 501 relates to a person in the migration zone, an application to the Tribunal for a review of the decision must be accompanied by, or by a copy of: (a) the document notifying the person of the decision in accordance with subsection 501G(1); and (b) one of the sets of documents given to the person under subsection 501G(2) at the time of the notification of the decision. [Subs (6C) insrt Act 114 of 1998, s 3 and Sch 1 item 21, with effect from 1 Jun 1999]

(6D) If an application is made to the Tribunal for a review of a decision under section 501 that relates to a person in the migration zone: (a) the Registrar of the Tribunal must notify the Minister that the application has been made; and (b) paragraph 29AC(1)(b) and section 37 of the Administrative Appeals Tribunal Act 1975 do not apply to the decision or the application. [Subs (6D) subst Act 60 of 2015, s 3 and Sch 2 item 129, with effect from 1 Jul 2015; insrt Act 114 of 1998, s 3 and Sch 1 item 21, with effect from 1 Jun 1999]

© 2016 THOMSON REUTERS

1079

s 500

Migration Act 1958

(6E) [Repealed] [Subs (6E) rep Act 60 of 2015, s 3 and Sch 2 item 129, with effect from 1 Jul 2015; insrt Act 114 of 1998, s 3 and Sch 1 item 21, with effect from 1 Jun 1999]

(6F) If: (a) an application is made to the Tribunal for a review of a decision under section 501 of this Act; and (b) the decision relates to a person in the migration zone; then: (c) the Minister must lodge with the Tribunal, within 14 days after the day on which the Minister was notified that the application had been made, a copy of every document that: (i) is in the Minister’s possession or under the Minister’s control; and (ii) was relevant to the making of the decision; and (iii) contains non disclosable information; and (d) the Tribunal may have regard to that non disclosable information for the purpose of reviewing the decision, but must not disclose that non disclosable information to the person making the application. [Subs (6F) am Act 60 of 2015, s 3 and Sch 2 item 130, with effect from 1 Jul 2015; insrt Act 114 of 1998, s 3 and Sch 1 item 21, with effect from 1 Jun 1999]

(6FA) The Tribunal may direct the Minister to lodge a specified number of additional copies of a document to which paragraph (6F)(c) applies within the period mentioned in that paragraph. The Minister must comply with the direction. [Subs (6FA) insrt Act 60 of 2015, s 3 and Sch 2 item 131, with effect from 1 Jul 2015]

(6G) If: (a) an application is made to the Tribunal for a review of a decision under section 501 of this Act; and (b) the decision relates to a person in the migration zone; the Tribunal must not: (c) hold a hearing (other than a directions hearing); or (d) make a decision under section 43 of the Administrative Appeals Tribunal Act 1975; in relation to the decision under review until at least 14 days after the day on which the Minister was notified that the application had been made. [Subs (6G) insrt Act 114 of 1998, s 3 and Sch 1 item 21, with effect from 1 Jun 1999]

(6H) If: (a) an application is made to the Tribunal for a review of a decision under section 501; and (b) the decision relates to a person in the migration zone; the Tribunal must not have regard to any information presented orally in support of the person’s case unless the information was set out in a written statement given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review. [Subs (6H) insrt Act 114 of 1998, s 3 and Sch 1 item 21, with effect from 1 Jun 1999]

(6J) If: (a) an application is made to the Tribunal for a review of a decision under section 501; and

1080

Migration Law

Part 9 - Miscellaneous (ss 487ZI-507) Division 2 – Other (ss 487–507)

s 500

(b) the decision relates to a person in the migration zone; the Tribunal must not have regard to any document submitted in support of the person’s case unless a copy of the document was given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review. However, this does not apply to documents given to the person or Tribunal under subsection 501G(2) or subsection (6F) of this section. [Subs (6J) insrt Act 114 of 1998, s 3 and Sch 1 item 21, with effect from 1 Jun 1999]

(6K) If: (a) an application is made to the Tribunal for a review of a decision under section 501 of this Act; and (b) the decision relates to a person in the migration zone; and (c) the Tribunal is of the opinion that particular documents, or documents included in a particular class of documents, may be relevant in relation to the decision under review; then: (d) the Tribunal may cause to be served on the Minister a notice in writing stating that the Tribunal is of that opinion and requiring the Minister to lodge with the Tribunal, within a time specified in the notice, a copy, or the number of copies specified in the notice, of each of those documents that is in the Minister’s possession or under the Minister’s control; and (e) the Minister must comply with any such notice. [Subs (6K) insrt Act 60 of 2015, s 3 and Sch 2 item 132, with effect from 1 Jul 2015; insrt Act 114 of 1998, s 3 and Sch 1 item 21, with effect from 1 Jun 1999]

(6L) If: (a) an application is made to the Tribunal for a review of a decision under section 501 of this Act; and (b) the decision relates to a person in the migration zone; and (c) the Tribunal has not made a decision under section 42A, 42B, 42C or 43 of the Administrative Appeals Tribunal Act 1975 in relation to the decision under review within the period of 84 days after the day on which the person was notified of the decision under review in accordance with subsection 501G(1); the Tribunal is taken, at the end of that period, to have made a decision under section 43 of the Administrative Appeals Tribunal Act 1975 to affirm the decision under review. [Subs (6L) insrt Act 114 of 1998, s 3 and Sch 1 item 21, with effect from 1 Jun 1999]

(7) In this section, decision has the same meaning as in the Administrative Appeals Tribunal Act 1975. (8) In this section: business day means a day that is not: (a) a Saturday; or (b) a Sunday; or (c) a public holiday in the Australian Capital Territory; or (d) a public holiday in the place concerned. [Subs (8) insrt Act 114 of 1998, s 3 and Sch 1 item 22, with effect from 1 Jun 1999] [S 500 am Act 60 of 2015; Act 135 of 2014; Act 129 of 2014; Act 30 of 2014; Act 13 of 2013; Act 121 of 2011; Act 38 of 2005; Act 157 of 2001; Act 114 of 1998; Act 60 of 1994; Act 213 of 1992; Act 59 of 1989; Act 112 of 1983; former s 66E insrt Act 61 of 1981, s 60, with effect from 12 Jun 1981]

© 2016 THOMSON REUTERS

1081

s 500

Migration Act 1958

[500.20]

SECTION 500 COMMENTARY Scope ................................................................................................................................................... [500.20] CONCEPTS

Migration zone .................................................................................................................................... [500.40] Non-disclosable information ............................................................................................................... [500.60] Article 1F ............................................................................................................................................. [500.80] Article 32 ........................................................................................................................................... [500.100] Article 33(2) ...................................................................................................................................... [500.120] Presented orally in support of a person’s case ................................................................................. [500.130] KEY CASES

Plaintiff M47-2012 v Director General of Security ......................................................................... [500.140] AAT’s way of operating: procedural fairness and natural justice ................................................... [500.160] Section 500(6H) does not preclude the Tribunal from considering information adduced during cross-examination ..................................................................................................................... [500.180]

[500.20] Scope Section 500 confers jurisdiction on the Administrative Appeals Tribunal (AAT) in relation to a decision of the Minister under s 200, decisions of a delegate under s 501, and decisions to refuse to grant, or to cancel, a protection visa in certain circumstances. The AAT is also conferred with jurisdiction in relation to matters pertaining to migration agents (see ss 306, 306AJ, 311F and 311M), certain “Part 5-reviewable decisions” (ss 381 – 382) and certain “Part 7-reviewable decisions” (ss 443 – 444). Among other things, the Explanatory Memorandum to the Migration (Offences and Undesirable Persons) Amendment Act 1992 (Cth) provided at [7] that s 180(1) (the precursor to s 500(1)) gives the AAT “determinative jurisdiction” to review decisions under s 180A (the precursor to s 501). Further, the Explanatory Memorandum noted at [10] that the purpose of s 180(1)(c) (now, s 500(1)(c)), is to: extend the jurisdiction of the AAT to review decisions to refuse or cancel protection visas relying on Articles 1F, 32 or 33(2) of the Refugees Convention … The Articles of the Refugees Convention referred to in new paragraph 180(1)(C) have the effect of removing the obligation to provide protection as a refugee to a person who has committed crimes against peace, war crimes, crimes against humanity, serious non-political criminal offences, or otherwise presents a threat to the security of Australia or to the Australian community.

However, the High Court has questioned whether Arts 32 and 33(2) of the 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol Relating to the Status of Refugees (Refugees Convention), have the effect stated by Parliament in the above passage (Art 1F standing in a different category). In Plaintiff M47-2012 v Director General of Security (2012) 292 ALR 243; 86 ALJR 1372; [2012] HCA 46 (Plaintiff M47), the Commonwealth itself (in the name of the first, second, third and fourth defendants) argued that s 500 was enacted under the misapprehension that a protection visa could be refused by reason of the disentitling conditions in Arts 32 and 33(2). Specifically, it was submitted that Arts 32 and 33(2) have no part to play in the application of s 36(2) and that there is no other provision in the Act authorising the refusal of a protection visa in reliance upon them. It was therefore argued by the Commonwealth that s 500 was enacted under a false premise: at [41]. The High Court did not accept the Commonwealth’s submission in Plaintiff M47 that s 500(1)(c), in particular, was enacted under a false premise, preferring to give meaning to the words that appear in that section: see, for example, at [41] per French CJ, at [206] and [221] per Hayne J, at [314] per Heydon J and at [450] per Kiefel J. Nevertheless, in separate judgments, French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ each expressed their own 1082

Migration Law

[500.120]

Part 9 - Miscellaneous (ss 487ZI-507) Division 2 – Other (ss 487–507)

s 500

view as to whether Arts 32 and 33(2) authorise the refusal of a protection visa under the Act (whether by reference to s 500(1)(C) as itself forming part of the criteria for a protection visa, or by reference to the character test in s 501(6)(d)(v)). Despite the uncertainty regarding the degree to which Arts 32 and 33(2) of the Refugees Convention are incorporated into the Act, it is clear that Art 1F does qualify the definition of “refugee”, and that therefore a protection visa can be properly refused under s 65(1) by “relying” on Art 1F: see, for example, NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 CLR 161; 213 ALR 668; 79 ALJR 609; [2005] HCA 6, at [42]–[53] per Gleeson CJ, McHugh, Gummow, Hayne, Callinan and Heydon JJ (Kirby J not deciding this point); Plaintiff M47 at [37] per French CJ, at [132] per Gummow J, at [186]–[187] per Hayne J.

CONCEPTS [500.40] Migration zone The words “migration zone” have the meaning given by s 5(1). [500.60] Non-disclosable information The words “non-disclosable information” have the meaning given by s 5(1). [500.80] Article 1F Article 1F of the Refugees Convention provides: This Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instrument drawn up to make provision in respect of such crimes; (b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; (c) he has been guilty of acts contrary to the purposes and principles of the United Nations.

[500.100] Article 32 Article 32 of the Convention is headed “Expulsion”, and provides: 1. The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order. 2. The expulsion of such a refugee shall be only in pursuance of a decision reached in accordance with due process of law. Except where compelling reasons of national security otherwise require, the refugee shall be allowed to submit evidence to clear himself, and to appeal to and be represented for the purpose before competent authority or a person or persons specially designated by the competent authority. 3. The Contracting States shall allow such a refugee a reasonable period within which to seek legal admission into another country. The Contracting States reserve the right to apply during that period such internal measures as they may deem necessary. [500.120] Article 33(2) Article 33 of the Convention is headed “Prohibition of Expulsion or Return (‘Refoulement’)”. Sub-clause (2) derives its context by reference to sub-cl (1). Those sub-clauses provide: 1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. © 2016 THOMSON REUTERS

1083

s 500

Migration Act 1958

[500.130]

2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country. [500.130] Presented orally in support of a person’s case The words “presented orally in support of a person’s case” in s 500(6H) are not directed “at any information, however that information may come before the Tribunal”: Uelese v Minister for Immigration and Border Protection [2015] HCA 15 at [43] per French CJ, Kiefel, Bell and Keane JJ. These words describe the “active presentation of the case propounded by an applicant for review”, they do not describe the “process of eliciting information under cross-examination”: Uelese v Minister for Immigration and Border Protection [2015] HCA 15 at [44] per French CJ, Kiefel, Bell and Keane JJ.

KEY CASES [500.140] Plaintiff M47-2012 v Director General of Security In Plaintiff M47-2012 v Director General of Security (2012) 292 ALR 243; 86 ALJR 1372; [2012] HCA 46, the plaintiff, a Sri Lankan national, arrived in Australia as the holder of a special purpose visa, which expired at midnight on the day of his arrival. He then became an unlawful non-citizen and was detained under s 189. The plaintiff subsequently applied for a protection visa, and a delegate of the Minister found him to be a person to whom Australia has protection obligations under the Refugees Convention. However, prior to the delegate’s finding, ASIO had provided the Department of Immigration and Citizenship with an adverse security assessment for the purposes of public interest criterion 4002 (PIC 4002). The delegate therefore found that, due to this assessment, the plaintiff did not meet the requirements of Sch 2 cl 866.225 of the Migration Regulations 1994 (Cth) (Regulations) (which prescribed that an applicant must not receive an adverse security assessment under PIC 4002). Relevantly, PIC 4002 reposed power solely in the hands of an officer of ASIO to determine whether or not the plaintiff presented a security risk. Any such assessment was not subject to merits review. The plaintiff was therefore refused the grant of a protection visa. The Refugee Review Tribunal subsequently affirmed this decision. Due to the plaintiff’s unlawful status, he was held in immigration detention. However, in light of the delegate’s finding that the plaintiff was owed protection obligations under the Refugees Convention (notwithstanding his ineligibility for a protection visa), the Department did not propose to remove the plaintiff to Sri Lanka, but was also unable, at the time of the High Court’s decision, to identify any other country to which the plaintiff could be sent. The plaintiff therefore faced the prospect of indefinite detention. Various questions were reserved to the High Court for hearing in a Special Case. The Chief Justice, and each of the justices, recorded separate reasons for judgment and expressed differing opinions in relation to the role played by Arts 1F, 32 and 33(2) of the Refugees Convention in the Act. The separate obiter dicta which emerges may be summarised as follows: • Art 1F of the Refugees Convention qualifies the definition of “refugee”, such that a protection visa can be refused in reliance on Art 1F for the purposes of s 500(1)(c): at [37] per French CJ, at [132] per Gummow J, at [186]–[187] per Hayne J; • unlike Art 1F, Arts 32 and 33(2) of the Refugees Convention do not qualify the definition of “refugee”. Accordingly, a protection visa cannot be refused on the basis of those Articles alone: at [38] per French CJ; • Arts 32 and 33(2) of the Refugees Convention are subsumed by s 501(6)(d)(v): at [42] per French CJ, at [191] per Hayne J; 1084

Migration Law

[500.160]

Part 9 - Miscellaneous (ss 487ZI-507) Division 2 – Other (ss 487–507)

s 500

• a decision to refuse to grant a protection visa, because its grant is prevented by s 501(6)(d)(v), is capable of being a decision “relying on” Arts 32 and 33(2) which would, in turn, engage s 500(1)(c): at [193], [221] per Hayne J, at [389] per Crennan J; • a decision to refuse to grant or to cancel a protection visa because an applicant fails to satisfy s 501(6)(d)(v) may involve consideration of matters that answer to the description of “national security” or “danger to security”, but it is “strained to characterise such a decision as one ‘relying on’ Arts 32 or 33(2)”: at [488] per Bell J; • Section 500(1)(c) does not say “decisions of the Minister under s 501”. Accordingly, one section does not engage the other. The Act speaks of decisions under s 501 as though they are distinct from decisions “relying on” Arts 32 and 33(2). This mitigates against viewing s 501 decisions as being decisions “relying on” Arts 32 and 33(2) exclusively: at [312]–[313] per Heydon J, at [428] per Kiefel J; • on the possible assumption that s 500(1)(c) itself creates a power to refuse or cancel a visa relying on either of Arts 32 or 33(2), the criteria in Arts 32 and 33(2) constitute criteria for the refusal of a protection visa: at [313] per Heydon J; and • Arts 1F, 32 and 33(2) are not criteria respecting the grant of a visa; rather, what is contemplated by s 5001(c) is that the procedure concerning refusal of a visa on these grounds is subject to review by the AAT for that purpose: at [457] per Kiefel J. The principal basis on which the plaintiff issued proceedings in the High Court was to challenge ASIO’s adverse security assessment of him, arguing that PIC 4002 was invalid by reason of its inconsistency with ss 500(1)(c) and 501(6)(d)(v) of the Act. By a majority of 4 to 3, French CJ and Hayne, Crennan and Kiefel JJ held, in separate judgments, that PIC 4002 was beyond the power conferred by s 31(3) (which allows the Regulations to prescribe criteria for the grant of a visa) and was therefore invalid. In particular, the court held as follows: • The Regulations cannot be inconsistent with the Act and, therefore, cannot extend the scope or general operation of the Act. Relevantly, s 500(1)(c) suggests a protection visa can be refused by reliance on Arts 32 and 33(2) of the Refugees Convention. Alternatively, s 501(6)(d)(v) makes it clear that a protection visa can be refused on character grounds where a person represents a danger to the Australian community (and, in this way, subsumes Arts 32 and 33(2)). However, PIC 4002 was wider in scope than, and subsumes the criteria in, ss 500(1)(c) and 501(6)(d)(v). Further, PIC 4002 set no threshold to enliven its application. PIC 4002 was therefore invalid for being inconsistent with the Act: at [54], [71] per French CJ, at [221] per Hayne J. • The process created by PIC 4002 required that a protection visa be refused based entirely upon the opinion formed by an officer of ASIO. This would have the effect of bringing the consideration of an application for a protection visa to a premature end, and would preclude any merits review. This is inconsistent with the scheme provided for in ss 500(1)(c) and 501(6)(d)(v), which reposed power in the Minister personally, or the Minister’s delegate, to refuse an application relying on Arts 32 and 33(2). This was also inconsistent with the scheme of merits review created by the Act. In effect, PIC 4002 purported to shift power from the Minister to an ASIO officer. PIC 4002 was therefore inconsistent with the scheme under the Act relating to decisions concerning protection visas, and the review of such decisions: at [71] per French CJ, at [386], [396] and [298] per Crennan J, at [181] and [206] per Hayne J, at [457]–[459] per Kiefel J. [500.160] AAT’s way of operating: procedural fairness and natural justice Unlike Pt 5 Div 5 (in relation to the Part 5-reviewable decisions and Pt 7 Div 4 (in relation to Part 7-reviewable decisions), Pt 9 of the Act does not seek to codify the Tribunal’s way of operating in relation to the review of decisions covered by s 500(1). Further, while Pt IV (and © 2016 THOMSON REUTERS

1085

s 500

Migration Act 1958

[500.160]

Div 5 in particular) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) does prescribe the procedural powers of the AAT in conducting a review, the obligation of the Tribunal to afford procedural fairness and natural justice remains largely implied by the common law. Although neither the Act, nor the AAT Act, contain an exhaustive statement of the natural justice hearing rule in relation to the AAT, s 39(1) of the AAT Act provides: (1) Subject to sections 35, 36 and 36B, the Tribunal shall ensure that every party to a proceeding before the Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision in the proceeding and to make submissions in relation to those documents.

The first part of s 39(1) of the AAT Act has been said to be a statutory recognition of an obligation which the law would imply in any event. The second part (relating to the obligation to ensure that a party has an opportunity to inspect documents) reflects a clear statutory policy that a party should have an opportunity to inspect documents that may play a part in the AAT reaching a decision and should also have the opportunity to make submissions on those documents: see O’Sullivan v Repatriation Commission (2003) 128 FCR 590; [2003] FCA 387 at [45] per Sackville J; Sullivan v Department of Transport (1978) 1 ALD 383; 20 ALR 323 at 342 (ALR) per Deane J. In Jagroop v Minister for Immigration and Border Protection (2014) 225 FCR 482; [2014] FCAFC 123, Dowsett, Murphy and White JJ observed at [33]: …the AAT was obliged by both s 39(1) and the common law to ensure that the appellant was given “a reasonably opportunity” to present his case. A reasonably opportunity is not synonymous with “every possible opportunity” or even “Every opportunity”. Whether or not an applicant has been provided with the requisite opportunity is to be determined objectively, having regard to all the relevant circumstances.

Accordingly, a breach by the AAT of the principles of procedural fairness will constitute an error of law: Kioa v West (1985) 159 CLR 550; 62 ALR 321; [1985] HCA 81 at 582-584 (CLR) per Mason J. For example, if the AAT refuses to grant an adjournment in circumstances where this would deny the applicant a fair opportunity to present their case, this would constitute an error of law: see O’Sullivan v Repatriation Commission (2003) 128 FCR 590; [2003] FCA 387 at [44] per Sackville J; Sullivan v Department of Transport (1978) 1 ALD 383; 20 ALR 323 at 342 (ALR) per Deane J. In addition to general principles of procedural fairness which apply to the AAT, various subsections of s 500 also constrain the tribunal in its conduct of a review. In Milne v Minister for Immigration and Citizenship (2010) 52 AAR 1; [2010] FCA 495 at [39], Gray J noted in this respect: [T]he effect of s 500(6H) … was to confine the information that the applicant presented to the Tribunal to information set out in writing and given to the Minister at least two business days before the beginning of the Tribunal hearing. The effect of s 500(6J) was that the applicant could not rely on any document unless he had given a copy of that document to the Minister at least two business days before the Tribunal hearing. There would have been no point in the Tribunal adjourning the hearing of the applicant’s case to enable him to deal with the issue of rehabilitation by providing further information or further documents. The Tribunal could not have received that further information or those further documents. Further, the effect of s 500(6L) … was to require the Tribunal to give its decision … within 84 days.

Gray J then proceeded at [40] to refer to an earlier decision in Goldie v Minister for Immigration & Multicultural Affairs (2001) 111 FCR 378; 33 AAR 446; [2001] FCA 1318 at [25]–[26], where his Honour explained the history and purpose of s 500(6H) and (6J) (Nicholson and Stone JJ agreeing): The scheme for dealing with applications for review under s 500 of the Migration Act has at its heart subss (6H) and (6J). These subsections impose serious restrictions on an applicant for review. The 1086

Migration Law

[500.180]

Part 9 - Miscellaneous (ss 487ZI-507) Division 2 – Other (ss 487–507)

s 500

Tribunal is obliged not to have regard to any information presented orally, or to any documents submitted, in support of the applicant’s case unless the Minister has had two business days’ notice of the information or the document before the hearing. The purpose of these drastic provisions is apparent. The Minister is to be given an opportunity to answer the case to be put by the applicant for review without the necessity of an adjournment of the hearing. The purpose of the scheme in s 500 is that an applicant for review should not be able to change the nature of his or her case, catching the Minister by surprise, and forcing the Tribunal into granting one or more adjournments to enable the Minister to meet the new case put. If this purpose were not sufficiently apparent from the terms of the legislation, it is apparent from the second reading speech in relation to the bill by which the provisions were introduced. That bill became the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 (Cth). The expressed intention of the bill was to prevent the use of the procedure of merits review to prolong the stay in Australia of a person denied a visa by the application of the character test. Crucial to the scheme is the 84 day time limit for the whole process, laid down in subs (6L). It is plain that the scheme is designed to disadvantage an applicant for review. Subsections (6H) and (6J) are not counterbalanced by any express obligation on the Minister to disclose the entire case against the applicant prior to the hearing. The purpose of subss (6H) and (6J) can only be to advantage the Minister at the hearing.

Relevantly, on appeal the Full Court of the Federal Court considered it unnecessary to express a view about the effect of ss 500(6H), 500(6J) and 500(6L) of the Act: see Milne v Minister for Immigration and Citizenship [2011] FCAFC 41 at [60]. However, the words “in support of the person’s case” in ss 500(6H) and 500(6J) were interpreted by the Full Federal Court in Jagroop v Minister for Immigration and Border Protection [2014] FCAFC 123 to be words of qualification. The Full Court said that these words indicate that the prohibition relates only to information and documents presented as part of an applicant’s case-in-chief to support his or her own case, and not to information or documents which an applicant may wish to present in answer to the case presented by the minister or the AAT of its own initiative: at [96], [101]. Similarly, Dowsett, Murphy and White JJ held that s 500(6H) does not prevent an applicant from making submissions in respect of the evidence before the AAT. As the Full Court noted at [102]: …the legislature should not reasonably be supposed to have intended that an applicant provide, at least two days in advance of a hearing, a written statement of all the submissions to be made in respect of evidence which, at that stage, the AAT has not received and about which an applicant may not yet be aware.

In light of the above limitations placed on the AAT by s 500(6H), (6J) and (6L), a failure of the AAT to comply with the second limb of s 39(1) of the AAT Act will not necessarily lead to invalidity. That is because the provisions of the AAT Act and s 500 are, subject to some qualifications and exceptions, intended to operate in conjunction with one another: see, Jagroop v Minister for Immigration and Border Protection [2014] FCAFC 123 at [91]. [500.180]

Section 500(6H) does not preclude the Tribunal from considering information adduced during cross-examination In Uelese v Minister for Immigration and Border Protection [2015] HCA 15 the Tribunal considered a decision by the Minister to cancel the applicant’s visa on character grounds under s 501(2). During the Tribunal hearing it became apparent, that the applicant was the father of 5 children in Australia, not 3 children (which was the number of children that the Minister’s delegate took into account when considering the best interests of the children when determining whether or not to cancel the visa). This information had not previously been provided by the applicant and was adduced in the course of cross-examination of a witness called on behalf of the applicant. © 2016 THOMSON REUTERS

1087

s 500A

Migration Act 1958

[500.180]

Chief Justice French and Kiefel, Bell and Keane JJ, held at [43]–[44] that the words “presented orally in support of a person’s case” in s 500(6H) are not directed “at any information, however that information may come before the Tribunal”. Rather, these words describe the “active presentation of the case propounded by an applicant for review”, they do not describe the “process of eliciting information under cross-examination”. Therefore, the Tribunal had erred by failing to consider this information. 500A Refusal or cancellation of temporary safe haven visas Refusal or cancellation of temporary safe haven visas (1) The Minister may refuse to grant to a person a temporary safe haven visa, or may cancel a person’s temporary safe haven visa if, in the Minister’s opinion: (a) the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or (b) having regard to either or both of the following: (i) the person’s past and present criminal conduct; (ii) the person’s past and present general conduct; the person is not of good character; or (c) in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would: (i) engage in criminal conduct in Australia; or (ii) harass, molest, intimidate or stalk another person in Australia (see subsection (2)); or (iii) vilify a segment of the Australian community; or (iv) incite discord in the Australian community or in a segment of that community; or (v) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way; or (d) the person is a threat to national security; or (e) the person’s presence in Australia would prejudice Australia’s international relations. (2) For the purposes of subsection (1), conduct may amount to harassment or molestation of a person even though: (a) it does not involve violence, or threatened violence, to the person; or (b) it consists only of damage, or threatened damage, to property belonging to, in the possession of, or used by, the person. Refusal or cancellation of temporary safe haven visas (3) The Minister may refuse to grant to a person a temporary safe haven visa, or may cancel a person’s temporary safe haven visa if: (a) the person has been sentenced to death (see subsection (4)); or (b) the person has been sentenced to imprisonment for life (see subsection (4)); or (c) the person has been sentenced to a term of imprisonment of 12 months or more (see subsections (4) and (5)); or (d) the person has been convicted of an offence that was committed:

1088

Migration Law

Part 9 - Miscellaneous (ss 487ZI-507) Division 2 – Other (ss 487–507)

s 500A

(i) while the person was in immigration detention; or (ii) during an escape by the person from immigration detention; or (iii) after the person escaped from immigration detention but before the person was taken into immigration detention again; or (e) the person has been convicted of an offence against section 197A. [Subs (3) am Act 81 of 2011, s 3 and Sch 1 item 2, with effect from 26 Apr 2011]

(4) For the purposes of subsection (3), a sentence imposed on a person, or the conviction of a person for an offence, is to be disregarded if: (a) the conviction concerned has been quashed or otherwise nullified; or (b) the person has been pardoned in relation to the conviction concerned. [Subs (4) am Act 81 of 2011, s 3 and Sch 1 item 3, with effect from 26 Apr 2011]

(5) For the purposes of subsection (3), if a person has been convicted of an offence and the court orders the person to participate in: (a) a residential drug rehabilitation scheme; or (b) a residential program for the mentally ill; the person is taken to have been sentenced to a term of imprisonment equal to the number of days the person is required to participate in the scheme or program. Minister to exercise power personally (6) The powers under subsections (1) and (3) may only be exercised by the Minister personally. Minister to table decision (7) If the Minister makes a decision under subsection (1) or (3) to refuse to grant, or to cancel, a temporary safe haven visa, the Minister is to cause to be laid before each House of the Parliament a statement that: (a) sets out the decision; and (b) sets out the reasons for the decision. (8) A statement under subsection (7) is not to include: (a) the name of the non-citizen; or (b) any information that may identify the non-citizen; or (c) if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned—the name of that other person or any information that may identify that other person. (9) A statement under subsection (7) is to be laid before each House of the Parliament within 15 sitting days of that House after: (a) if the decision is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or (b) if the decision is made between 1 July and 31 December (inclusive) in a year—1 January in the following year. Minister to notify person of decision (10) If the Minister makes a decision under subsection (1) or (3) to refuse to grant a person a temporary safe haven visa, or to cancel a person’s temporary safe haven visa, the Minister must notify the person of the decision. However, failure to do so does not affect the validity of the decision.

© 2016 THOMSON REUTERS

1089

s 500A

Migration Act 1958

[500A.20]

Natural justice and code of procedure not to apply to decision (11) The rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection (1) or (3). Automatic refusal to grant visa to an immediate family member (12) If the Minister refuses to grant a person a temporary safe haven visa under subsection (1) or (3), then the Minister is also taken to have refused to grant a temporary safe haven visa to each immediate family member of the person. The immediate family member need not be notified of the refusal. Automatic cancellation of immediate family member’s visa (13) If a person’s temporary safe haven visa is cancelled under subsection (1) or (3), then a temporary safe haven visa held by each immediate family member of the person is also cancelled. The immediate family member need not be notified of the cancellation. Definitions (14) In this section: court includes a court martial or similar military tribunal. [Def subst Act 91 of 2009, s 3 and Sch 1 item 250, with effect from 22 Sep 2009; Act 159 of 2006, s 3 and Sch 1 item 253, with effect from 1 Oct 2007]

immediate family member of a person means another person who is a member of the immediate family of the person (within the meaning of the regulations). imprisonment includes any form of punitive detention in a facility or institution. sentence includes any form of determination of the punishment for an offence. [S 500A am Act 81 of 2011; Act 91 of 2009; Act 159 of 2006; insrt Act 34 of 1999, s 3 and Sch 1 item 14, with effect from 20 May 1999]

SECTION 500A COMMENTARY Scope ................................................................................................................................................. [500A.20] CONCEPTS

Character test .................................................................................................................................... [500A.40] Section 500A(1)(b) and good character .......................................................................................... [500A.60] Association ....................................................................................................................................... [500A.80] Minister personally ......................................................................................................................... [500A.100] Natural justice does not apply ....................................................................................................... [500A.120] Failure to notify a person of a decision under s 500A(1) or s 500A(3) does not affect the validity of the decision .................................................................................................................................. [500A.140] KEY CASES

Failure to comply with s 500A(10) does not amount to a jurisdictional error ........................... [500A.160] Power to be exercised by the Minister personally ........................................................................ [500A.180] Section 500A(1)(b) and good character ........................................................................................ [500A.200] Section 500A(1)(a) and meaning of association ........................................................................... [500A.220] Practice point .................................................................................................................................. [500A.240]

[500A.20] Scope In April 1999, the Australian Government announced that it would provide a temporary safe haven to 4,000 persons displaced from the Kosovo region of the Republic of Yugoslavia. As part of a suite of legislation to give effect to, and to manage, this commitment, s 500A was inserted by the Migration Legislation Amendment (Temporary Safe Haven Visas) Act 1999 (Cth). The basis for this provision was outlined in the Second Reading speech on 11 May 1999: 1090

Migration Law

[500A.60]

Part 9 - Miscellaneous (ss 487ZI-507) Division 2 – Other (ss 487–507)

s 500A

As temporary safe haven is to be provided to persons at short notice and in situations where extensive character checking is not possible, it is necessary to have effective powers to withdraw temporary safe haven which has been provided to any person who represents a danger to the Australian community, or Australia’s security or whose presence in Australia would be harmful to Australia’s international relations. This power is exercisable only by the minister personally, and allows the minister to refuse to grant, or to cancel a visa without prior notice. Where the minister uses this power, the minister must table a statement about its use in both houses of the Parliament. Any decision to refuse to grant or to cancel a temporary safe haven visa under this special power will automatically apply to members of the immediate family of that person.

Accordingly, s 500A(1) and (3) provide the Minister with the power to refuse the grant of, or the power to cancel, a temporary safe haven visa, where one or more of the conditions contained in those provisions are fulfilled: Minister for Immigration and Multicultural and Indigenous Affairs v Godley (2005) 141 FCR 552; [2005] FCAFC 10 at [48] per Madgwick, Lander and Crennan JJ (in relation to s 501(6)). The Minister can only exercise this power personally: s 500A(6). Further, where the Minister makes a decision to refuse or cancel a temporary safe haven visa, the refusal and cancellation automatically apply to the person’s immediate family members: s 500A(12) and (13). In recognition of the seriousness of a refusal to grant, or the cancellation of, a temporary safe haven visa, the Minister is required to table in Parliament a statement that sets out the decision and the reasons for the decision: s 500A(7); see also W157/00A v Minister for Immigration and Multicultural Affairs (2001) 190 ALR 55; [2001] FCA 1536 at [56].

CONCEPTS [500A.40] Character test Section 500A does not use the words “character test”, nor does it refer to any such test. However, it is clear that s 500A(1) imports what would otherwise be regarded as the “character test” under s 501(6) (but omitting s 501(6)(a) – (ab), and adding s 500A(d) – (e)). Accordingly, regard should be had to the cases interpreting the relevant provisions of the “character test” under s 501(6) when interpreting s 500A(1). [500A.60] Section 500A(1)(b) and “good character” The Minister may refuse to grant, or may cancel, a temporary safe haven visa under s 500A(1)(b) if the person is not of good character, having regard to the person’s past and present criminal conduct and general conduct. In order to determine whether a person is not of good character, regard must be had to either the person’s “past and present criminal conduct”, or the person’s “past and present general conduct”, or both: Mujedenovski v Minister for Immigration and Citizenship (2009) 112 ALD; [2009] FCAFC 149 at [41] per Ryan, Mansfield and Tracy JJ (in relation to s 501(6)(c)). The words “of good character” are not defined in the Act. However, in Godley v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 83 ALD 411; [2004] FCA 774, Lee J (with whom Madgwick, Lander and Crennan JJ agreed on appeal in Minister for Immigration and Multicultural and Indigenous Affairs v Godley (2005) 141 FCR 552; [2005] FCAFC 10) stated at [51]: The words “of good character” mean enduring moral qualities reflected in soundness and reliability in moral judgment in the performance of day to day activities and in dealing with fellow citizens. It is not simply a matter of repute, fame or standing in the community but of continuing performance according to moral principle. A person of ill repute by reason of past criminal conduct may nonetheless, on objective examination at a later state in life, be shown to be a person reformed and now of good character. © 2016 THOMSON REUTERS

1091

s 500A

Migration Act 1958

[500A.80]

[500A.80] Association Under s 500A(1)(a), the Minister may refuse to grant or may cancel a temporary safe haven visa if the person has, or had, an “association” with someone else, or a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct. There is conflicting case law on the meaning of the word “association” in this context, in the cases of Minister for Immigration and Multicultural Affairs v Chan (2001) 34 AAR 94; [2001] FCA 1552 (Chan) and Haneef v Minister for Immigration and Citizenship (2007) 161 FCR 40; 242 ALR 290; [2007] FCA 1273 (Haneef). In Chan, Emmett J concluded that the test to satisfy s 501(6)(b) (which is in similar terms to s 500A(1)(a)) is that there merely be “an association”. Whereas Spender J in Haneef was of the view that there needs to be “an alliance or link or combination between the visa holder with the persons engaged in criminal activity” and the link, alliance or combination must reflect “adversely on the character of the visa holder”: at [230]. [500A.100] Minister personally Under s 500A(6), the powers conferred on the Minister by s 500A(1) and (3) must be exercised by the “Minister personally”. The word “Minister” in this provision refers to any Minister that administers the Act: Re Patterson; Ex parte Taylor (2001) 207 CLR 391; 182 ALR 657; [2001] HCA 51 (Re Patterson) at [186] and [191] per Gummow and Hayne JJ, at [59] per Gaudron J (agreeing); see also Acts Interpretation Act 1901 (Cth), ss 19A – 19B. The requirements in s 500A(6) will be met if the person making the decision answers to the description of “Minister” and makes the decision personally: at [328] per Kirby J; see also Acts Interpretation Act 1901 (Cth), ss 19A – 19B. [500A.120] Natural justice does not apply The rules of natural justice and procedural fairness do not apply to any decision made by the Minister under either s 500A(1) or (3): s 500A(11). In considering s 501(5) (which is in similar terms to s 500A(11)), the High Court has held that the rules of natural justice have been deliberately excluded because there will be “emergency cases” that require “swift action” and the prompt removal of a person, and therefore the “niceties of natural justice and fair procedure” will delay such action: Re Patterson at [331] per Kirby J. [500A.140] Failure to notify a person of a decision under s 500A(1) or s 500A(3) does not affect the validity of the decision Under s 500A(10), the Minister is required to notify a person of a decision made under s 500A(1) or (3). However, s 500A(10) also makes clear that a failure to do so does not affect the validity of the decision: see also, Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212; 201 ALR 327; [2003] HCA 56 at [48] per Gleeson CJ, Gummow and Heydon JJ; W157/00A v Minister for Immigration and Multicultural Affairs (2001) 190 ALR 55; [2001] FCA 1536 at [15].

KEY CASES [500A.160] Failure to comply with s 500A(10) does not amount to a jurisdictional error In Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212; 201 ALR 327; [2003] HCA 56 (Palme) Gleeson CJ, Gummow, Heydon, McHugh and Kirby JJ, considered a written notice purportedly issued pursuant to s 501G regarding a decision to cancel Mr Palme’s visa under s 501(2) on character grounds. Gleeson CJ, Gummow, Heydon, McHugh and Kirby JJ held that the written notice was deficient because it did not set out the reasons as required by s 501G(1)(e). 1092

Migration Law

[500A.180]

Part 9 - Miscellaneous (ss 487ZI-507) Division 2 – Other (ss 487–507)

s 500A

Section 501G(4) relevantly provides that any failure to comply with the notification requirements of s 501G does not invalidate the decision (and, therefore, is in similar terms to s 500A(10): see, for example, W157/00A v Minister for Immigration and Multicultural Affairs (2001) 190 ALR 55; [2001] FCA 1536 at [15]). In Palme, Gleeson CJ, Gummow, Heydon, McHugh and Kirby JJ considered whether a consequence of the deficient notification meant that the decision could be quashed on the grounds of jurisdictional error, despite s 501G(4). Their Honours held that even though the written notice was deficient, this did not taint the decision with any jurisdictional error, and at [41] stated: What then are the consequences? The duty imposed upon the Minister was not, as was suggested, a duty of imperfect obligation. That mandamus may lie to compel performance of the duty denies such a contention. Once that duty is performed, the reasons set out by the Minister may disclose error of a kind which attracts prohibition under s 75(v) of the Constitution. Yet, as has been remarked earlier in these reasons, the prosecutor does not seek mandamus, perhaps from a prudent apprehension of what may be the product of the proper discharge of the statutory duty.

Further, McHugh J stated at [55]: The prosecutor contends that the Minister’s failure to give reasons constitutes jurisdictional error with the result that the Minister had no jurisdiction or power to cancel the visa. Jurisdiction is the authority to decide. It is not easy to accept the notion that a decision is made without authority because subsequently the decision-maker fails to give reasons for the decisions. Nevertheless, it is always possible that a statutory scheme has made the giving of reasons a condition precedent to the validity of a decision. If it has, a decision that does not give reasons will be made without authority. Whether a scheme has that effect is determined by applying the principles stated by the Court in Project Blue Sky Inc v Australian Broadcasting Authority … In Project Blue Sky, the majority Justices rejected … at [92]–[93] the traditional distinction between “mandatory” and “directory” requirements, saying that “[a] better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid”.

[500A.180] Power to be exercised by the Minister personally Under s 500A(6), the powers conferred on the Minister by s 500A(1) and (3) must be exercised by the “Minister personally”. The word “Minister” was considered in Re Patterson; Ex parte Taylor (2001) 207 CLR 391; 182 ALR 657; [2001] HCA 51. In that matter the prosecutor’s visa was cancelled on character grounds under s 501(3) by the Parliamentary Secretary to the Minister. Section 501(4) had provided that the power could only be exercised by the Minister personally (and was therefore of similar effect as s 500A(6)). The prosecutor claimed that the power under s 501(3) had not been properly exercised because the cancellation decision was made by the Parliamentary Secretary and not the Minister. Gummow and Hayne JJ, with whom Gaudron J agreed, considered the meaning of the word “Minister” under s 501(3) and (4). Their Honours stated at [186]: The identity of the repository of the power conferred by s 501(3) depends upon the identification by the use of the expression “the Minister”. Section 19A of the Interpretation Act supplies the answer. So far as relevant, it states that, if a provision of an Act refers to a Minister by using the expression “the Minister” without specifying which Minister is referred to and if for the time being two or more Ministers administer the provision in question, then, unless the contrary intention appears, the reference is to any of the those Ministers. This is the effect of pars (aa) and (b) of s 19A(1) of the Interpretation Act. Section 501(3) of the Migration Act is a provision upon which s 19A of the Interpretation Act operates in this way.

Based on the above, Gummow and Hayne JJ held at [191] that the Parliamentary Secretary was one of the Ministers administering s 501(3), and therefore the power under that provision was exercised by the Minister personally. © 2016 THOMSON REUTERS

1093

s 500A

Migration Act 1958

[500A.200]

[500A.200] Section 500A(1)(b) and good character In Mujedenovski v Minister for Immigration and Citizenship (2009) 112 ALD; [2009] FCAFC 149 Ryan, Mansfield and Tracy JJ held that the Administrative Appeals Tribunal had committed a jurisdictional error in its construction of s 501(6)(c) (which is in similar terms to s 500A(1)(b)). Ryan, Mansfield and Tracy JJ noted at [41] that in order to determine whether a person is not of good character, regard must be had to either the person’s “past and present criminal conduct”, or the person’s “past and present general conduct”, or both. It was not possible to determine whether a person was not of good character by simply looking at the person’s past conduct. The Administrative Appeals Tribunal accepted that the applicant had not engaged in any inappropriate conduct for some seven years at the time of the decision to refuse the applicant a contributory parent/migrant visa. However, it was not satisfied that the applicant passed the character test because in the past he had been convicted of being in a contrived marriage. Ryan, Mansfield and Tracy JJ were of the view, at [43], that since the Administrative Appeals Tribunal acknowledged that in the past seven years there was no evidence of any impropriety, then the tribunal treated the concept of “past and present general conduct” compendiously, regarding “the past general conduct as of such significance that the absence of positive evidence of present general good character meant that it was satisfied” that the applicant fell within s 501(6)(c)(ii). In Minister for Immigration and Multicultural and Indigenous Affairs v Godley (2005) 141 FCR 552; [2005] FCAFC 10, Madgwick, Lander and Crennan JJ considered s 501(6)(c) (which is in similar terms to s 500A(1)(b)) and whether a person does not pass the character test because he or she is not of good character. The Minister submitted that there was no onus on him to make any decision under s 501(6) in circumstances where the Minister was unsure whether a person was or was not of good character. Therefore the Minister could refuse to make a decision about this issue and the person would then not have satisfied the Minister that he or she passed the character test, and the Minister, in his discretion, could refuse to grant the visa. Madgwick, Lander and Crennan JJ rejected the Minister’s submissions because they were contrary to the terms of s 501(6): at [54]. Their Honours stated at [54]–[55]: A person does not pass the character test only if one of the paragraphs in s 501(6) applies to that person. There is no other way of determining whether one or more of these paragraphs apply than a positive finding to that effect by the Minister. If the only paragraph under consideration is par (c) in s 501(6), absent any decision by the Minister that the person is not of good character, then the person has passed the character test. It follows, therefore, that if the Minister is unsure whether a person is or is not of good character, is unable to reach a positive decision that the person is not of good character and declines to do so then, if that is the only matter under consideration, that person will have passed the character test.

In relation to the meaning of the words “of good character”, Madgwick, Lander and Crennan JJ accepted, at [34], Lee J’s reasoning in the first instance decision in Godley v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 83 ALD 411; [2004] FCA 774 at [51]–[53]: The words “of good character” mean enduring moral qualities reflected in soundness and reliability in moral judgment in the performance of day to day activities and in dealing with fellow citizens. It is not simply a matter of repute, fame or standing in the community but of continuing performance according to moral principle. A person of ill repute by reason of past criminal conduct may nonetheless, on objective examination at a later state in life, be shown to be a person reformed and now of good character. (See: Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431-432). A finding that a person “is not of good character” required the Minister to make a supervening determination after having regard to the matters set out in s 501(6)(c). The consideration of past and present criminal conduct and/or past and present general conduct provide indicia as to the presence or 1094

Migration Law

[500A.240]

Part 9 - Miscellaneous (ss 487ZI-507) Division 2 – Other (ss 487–507)

s 500A

absence of good character but do not in themselves answer the question. The Minister must look at the totality of the circumstances and determine whether the person before him is distinguishable from the others as a person not of good character, a question not to be confused with characterisation by conduct alone. (See: Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 at 197). The distinction between “criminal” and “general” conduct as indicia of absence of good character may suggest that the word “criminal” is likely to carry the common meaning of the more serious offences than misdemeanours that involve lesser faults and omission. (See: 4 Bl. Com, 5; Shorter Oxford English Dictionary at 456 – “crime”, “criminal”).

[500A.220] Section 500A(1)(a) and meaning of “association” Under s 500A(1)(a), the Minister may refuse to grant or may cancel a temporary safe haven visa if the person has, or had, an “association” with someone else, or a group or organisation whom the Minister reasonably suspects has been or is involved in criminal conduct. There is conflicting case law on the meaning of the word “association”, in this context, in the cases of Minister for Immigration and Multicultural Affairs v Chan (2001) 34 AAR 94; [2001] FCA 1552 (Chan) and Haneef v Minister for Immigration and Citizenship (2007) 161 FCR 40; 242 ALR 290; [2007] FCA 1273 (Haneef). In Haneef the Minister cancelled the applicant’s business visa on the basis that he did not pass the character test under s 501(6)(b) due to his “association” with certain individuals (who were his cousins). Spender J considered the meaning of the term “association” in s 501(6)(b) and had regard to the decision in Chan, in which Emmett J concluded that the test to satisfy s 501(6)(b) is that there merely be “an association”. In Haneef Spender J held that the decision in Chan was wrong: at [177] and [180]. His Honour stated at [178]–[179]: On its proper construction, the composite phrase “has an association with someone else, or with a group or organisation, who the Minister reasonably suspects has been, or is involved, in criminal conduct” is not properly to be interpreted by considering separately whether there is an association between the visa holder and a person or group, and then consider as a separate matter, whether the Minister reasonably suspects that the person or group is or has been engaged in criminal activity. The proper connotation of the phrase has to be ascertained from the context in which it appears; the object and purpose of the statute in which the provision is found; the legislative history of the matter; and a consideration of the consequences of adopting the competing interpretations.

Spender J held at [230]: In my opinion 501(6)(b) is a composite phrase and has to be construed as such. In my opinion it has the connotation that there is an alliance or link or combination between the visa holder with the persons engaged in criminal activity. That alliance, link or combination reflects adversely on the character of the visa holder. Such a meaning would exclude professional relationships, or those which are merely social or familial. It would exclude the victim of domestic violence.

Neither the Full Court of the Federal Court nor the High Court have considered the term “association” in either s 500A(1)(a) or (6)(b), or whether Spender J’s conclusions are correct.

PRACTICE POINT [500A.240] Decisions made under s 500A(1) The Minister may notify a person of a decision made under s 500A(1) or (3) by any method the Minister considers appropriate: s 494A(1). Decisions made under s 500A(1) or (3) are not “Part 5-reviewable decisions” (see s 338(1)(c)), “Part 7-reviewable decisions”, or otherwise reviewable by the Administrative Appeals Tribunal. Accordingly, if a person wishes to challenge a decision made under s 500A, the only option is to seek judicial review in either the High Court’s original jurisdiction under s 75(v) of the © 2016 THOMSON REUTERS

1095

s 501

Migration Act 1958

[500A.240]

Constitution or in the Federal Circuit Court pursuant to s 476(1) (a decision made under s 500A is not a “primary decision” for the purposes of s 476(4), as any decision made is not reviewable under Pt 5 or 7, or under s 500). 501 Refusal or cancellation of visa on character grounds Decision of Minister or delegate—natural justice applies (1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. Note: Character test is defined by subsection (6).

(2) The Minister may cancel a visa that has been granted to a person if: (a) the Minister reasonably suspects that the person does not pass the character test; and (b) the person does not satisfy the Minister that the person passes the character test. Decision of Minister—natural justice does not apply (3) The Minister may: (a) refuse to grant a visa to a person; or (b) cancel a visa that has been granted to a person; if: (c) the Minister reasonably suspects that the person does not pass the character test; and (d) the Minister is satisfied that the refusal or cancellation is in the national interest. (3A) The Minister must cancel a visa that has been granted to a person if: (a) the Minister is satisfied that the person does not pass the character test because of the operation of: (i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or (ii) paragraph (6)(e) (sexually based offences involving a child); and (b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. [Subs (3A) insrt Act 129 of 2014, s 3 and Sch 1 item 8, with effect from 11 Dec 2014]

(3B) Subsection (3A) does not limit subsections (2) and (3). [Subs (3B) insrt Act 129 of 2014, s 3 and Sch 1 item 8, with effect from 11 Dec 2014]

(4) The power under subsection (3) may only be exercised by the Minister personally. (5) The rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection (3) or (3A). [Subs (5) am Act 129 of 2014, s 3 and Sch 1 item 9, with effect from 11 Dec 2014]

Character test (6) For the purposes of this section, a person does not pass the character test if: (a) the person has a substantial criminal record (as defined by subsection (7)); or (aa) the person has been convicted of an offence that was committed: (i) while the person was in immigration detention; or (ii) during an escape by the person from immigration detention; or (iii) after the person escaped from immigration detention but before the person was taken into immigration detention again; or

1096

Migration Law

Part 9 - Miscellaneous (ss 487ZI-507) Division 2 – Other (ss 487–507)

s 501

(ab) the person has been convicted of an offence against section 197A; or (b) the Minister reasonably suspects: (i) that the person has been or is a member of a group or organisation, or has had or has an association with a group, organisation or person; and (ii) that the group, organisation or person has been or is involved in criminal conduct; or (ba) the Minister reasonably suspects that the person has been or is involved in conduct constituting one or more of the following: (i) an offence under one or more of sections 233A to 234A (people smuggling); (ii) an offence of trafficking in persons; (iii) the crime of genocide, a crime against humanity, a war crime, a crime involving torture or slavery or a crime that is otherwise of serious international concern; whether or not the person, or another person, has been convicted of an offence constituted by the conduct; or (c) having regard to either or both of the following: (i) the person’s past and present criminal conduct; (ii) the person’s past and present general conduct; the person is not of good character; or (d) in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would: (i) engage in criminal conduct in Australia; or (ii) harass, molest, intimidate or stalk another person in Australia; or (iii) vilify a segment of the Australian community; or (iv) incite discord in the Australian community or in a segment of that community; or (v) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way; or (e) a court in Australia or a foreign country has: (i) convicted the person of one or more sexually based offences involving a child; or (ii) found the person guilty of such an offence, or found a charge against the person proved for such an offence, even if the person was discharged without a conviction; or (f) the person has, in Australia or a foreign country, been charged with or indicted for one or more of the following: (i) the crime of genocide; (ii) a crime against humanity; (iii) a war crime; (iv) a crime involving torture or slavery; (v) a crime that is otherwise of serious international concern; or (g) the person has been assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979); or

© 2016 THOMSON REUTERS

1097

s 501

Migration Act 1958

(h) an Interpol notice in relation to the person, from which it is reasonable to infer that the person would present a risk to the Australian community or a segment of that community, is in force. Otherwise, the person passes the character test. [Subs (6) am Act 129 of 2014, s 3 and Sch 1 items 10–12, with effect from 11 Dec 2014; Act 81 of 2011, s 3 and Sch 1 item 4, with effect from 26 Apr 2011]

Substantial criminal record (7) For the purposes of the character test, a person has a substantial criminal record if: (a) the person has been sentenced to death; or (b) the person has been sentenced to imprisonment for life; or (c) the person has been sentenced to a term of imprisonment of 12 months or more; or (d) the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or (e) the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution; or (f) the person has: (i) been found by a court to not be fit to plead, in relation to an offence; and (ii) the court has nonetheless found that on the evidence available the person committed the offence; and (iii) as a result, the person has been detained in a facility or institution. [Subs (7) am Act 129 of 2014, s 3 and Sch 1 items 13 and 14, with effect from 11 Dec 2014]

Concurrent sentences (7A) For the purposes of the character test, if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms. Example: A person is sentenced to 2 terms of 3 months imprisonment for 2 offences, to be served concurrently. For the purposes of the character test, the total of those terms is 6 months. [Subs (7A) insrt Act 129 of 2014, s 3 and Sch 1 item 15, with effect from 11 Dec 2014]

Periodic detention (8) For the purposes of the character test, if a person has been sentenced to periodic detention, the person’s term of imprisonment is taken to be equal to the number of days the person is required under that sentence to spend in detention. Residential schemes or programs (9) For the purposes of the character test, if a person has been convicted of an offence and the court orders the person to participate in: (a) a residential drug rehabilitation scheme; or (b) a residential program for the mentally ill; the person is taken to have been sentenced to a term of imprisonment equal to the number of days the person is required to participate in the scheme or program. Pardons etc. (10) For the purposes of the character test, a sentence imposed on a person, or the conviction of a person for an offence, is to be disregarded if: (a) the conviction concerned has been quashed or otherwise nullified; or (b) both: (i) the person has been pardoned in relation to the conviction concerned; and

1098

Migration Law

Part 9 - Miscellaneous (ss 487ZI-507) Division 2 – Other (ss 487–507)

[500A.240]

(ii)

s 501

the effect of that pardon is that the person is taken never to have been convicted of the offence.

[Subs (10) am Act 129 of 2014, s 3 and Sch 1 item 16, with effect from 11 Dec 2014; Act 81 of 2011, s 3 and Sch 1 item 5, with effect from 26 Apr 2011]

Conduct amounting to harassment or molestation (11) For the purposes of the character test, conduct may amount to harassment or molestation of a person even though: (a) it does not involve violence, or threatened violence, to the person; or (b) it consists only of damage, or threatened damage, to property belonging to, in the possession of, or used by, the person. Definitions (12) In this section: court includes a court martial or similar military tribunal. [Def subst Act 91 of 2009, s 3 and Sch 1 item 251, with effect from 22 Sep 2009; Act 159 of 2006, s 3 and Sch 1 item 254, with effect from 1 Oct 2007]

imprisonment includes any form of punitive detention in a facility or institution. sentence includes any form of determination of the punishment for an offence. Note 1: Visa is defined by section 5 and includes, but is not limited to, a protection visa. Note 2: For notification of decisions under subsection (1) or (2), see section 501G. Note 3: For notification of decisions under subsection (3), see section 501C. [S 501 am Act 129 of 2014; Act 81 of 2011; Act 91 of 2009; Act 159 of 2006; subst Act 114 of 1998, s 3 and Sch 1 item 23, with effect from 1 Jun 1999; former s 180A renum Act 60 of 1994, s 83, with effect from 1 Sep 1994; am Act 60 of 1994; insrt Act 213 of 1992, s 5, with effect from 24 Dec 1992 Cross-reference: Ministerial Directions: Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction No. 65): The purpose of this Direction is to guide decision-makers performing functions or exercising powers under s 501 to refuse to grant a visa to, or to cancel the visa of, a person who does not satisfy the decision-maker that the person passes the character test or to revoke a mandatory cancellation under s 501CA.]

SECTION 501 COMMENTARY Scope ................................................................................................................................................... [501.20] CONCEPTS

National interest .................................................................................................................................. [501.40] Minister personally .............................................................................................................................. [501.60] Natural justice does not apply ............................................................................................................ [501.80] Character test ..................................................................................................................................... [501.100] Section 501(6)(c) and good character .............................................................................................. [501.120] Association ........................................................................................................................................ [501.140] Offence ............................................................................................................................................... [501.160] KEY CASES

Power to be exercised by the Minister personally ........................................................................... [501.180] Constitutional validity of s 501(6)(aa) ............................................................................................. [501.200] Section 501(6)(c) and good character .............................................................................................. [501.220] Procedural fairness and automatic cancellation of visa under s 501F(3) ....................................... [501.240] Minister to take into account legal consequence of decision to exercise power under s 501 ....... [501.260] Reasonable steps to notify person of intention to cancel visa ........................................................ [501.280] Reasonable steps to notify person of intention to cancel visa Consideration of the risk of future harm to Australian community if the person were to remain in Australia .......................................... [501.290] Section 501(6)(b) and meaning of association ................................................................................. [501.300] © 2016 THOMSON REUTERS

1099

s 501

Migration Act 1958

[501.20]

PRACTICE POINT

Decisions ........................................................................................................................................... [501.320]

[501.20] Scope This section gives the Minister and/or his or her delegate (only under s 501(1) and (2)) the discretion to either refuse to grant a visa or to cancel a visa if a person does not pass the character test (as outlined in s 501(6)). A decision under s 501 involves two steps, being a consideration of: 1. whether or not a person passes the character test, as set out in s 501(6); and 2. if a person does not pass the character test, whether to exercise the power to either refuse to grant a visa or cancel a visa: Brown v Minister for Immigration and Citizenship (2009) 112 ALD 67; [2009] FCA 1098 at [16] per Edmonds J. The “protection of the Australian community lies at the heart” of the discretionary power under this section: Djalic v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 292; 206 ALR 488; [2004] FCAFC 151 at [68] per Tamberlin, Sackville and Stone JJ. As stated by Lander J (with whom Carr and Sundberg JJ agreed) in Akpata v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 65 at [104]: The object of the Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens. To facilitate this object the Minister has been given a discretion to refuse or cancel a visa where the visa applicant or visa holder does not pass the Character Test. In exercising this power, the Minister has a responsibility to the Parliament and to the Australian community to protect the community from criminal or other reprehensible conduct and to refuse to grant visas, or cancel visas held by non-citizens whose actions are so abhorrent to the community that they should not be allowed to enter or remain within it. The powers conferred under section 499 enable directions to be given, in exercising discretions under section 501, for the protection of the Australian community.

In exercising the discretion under this section, the Minister may take into account the effect the cancelling of a person’s visa will have in protecting the Australian community: Djalic v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 292; 206 ALR 488; [2004] FCAFC 151 at [72] per Tamberlin, Sackville and Stone JJ. Section 501 has been given a broad construction and as Lander J (with whom Carr and Sundberg JJ agreed) in Akpata v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 65 at [107] stated: In short, any matter that would move the Minister to allow a person of proven bad character (as is defined in the Act) to travel to or remain in Australia, notwithstanding that proven bad character, would be relevant to a decision by the Minister.

CONCEPTS [501.40] National interest Under s 501(3), the Minister may either refuse to grant a visa or cancel a visa if the Minister reasonably suspects that the person does not pass the character test and is satisfied that it is in the “national interest”. The term “national interest” is not defined under the Act. It is not a “legal concept”; rather it is for Parliament and the executive to determine what is in the “national interest”: Re Patterson; Ex parte Taylor (2001) 207 CLR 391; 182 ALR 657; [2001] HCA 51 (Re Patterson) at [79] per Gaudron J; Re Application of Amalgamated Anthracite Collieries Ltd (1927) 43 TLR 672. In Re Patterson, Kirby J stated at [334] that “[i]t would be contrary to principle for the words ‘in the national interest’ to be given a confined meaning”. In determining whether the refusal to grant a visa, or cancellation of a visa, is in the “national interest”, a wide range of subject matters may be taken into account. 1100

Migration Law

[501.120]

Part 9 - Miscellaneous (ss 487ZI-507) Division 2 – Other (ss 487–507)

s 501

In Gbojueh v Minister for Immigration and Citizenship (2012) 202 FCR 417; 289 ALR 107; [2012] FCA 288, the Federal Court considered the meaning of the words “in the national interest” in the context of s 501A(2). Bromberg J stated at [43]–[45] that while the Minister is largely unrestrained to determine what factors are to be regarded as relevant when determining whether the cancellation or refusal of a visa is in the national interest, there is one consideration that is so central to this question that the Minister is bound to take it into account – that is, the potential for harm to the Australian community. His Honour’s comments were consistent with the view expressed by Black CJ and Sackville J in Lu v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 141 FCR 346; [2004] FCAFC 340. [501.60] Minister personally Under s 501(4), the power under s 501(3) must be exercised by the “Minister personally”. The word “Minister” in this provision refers to any Minister that administers the Act: Re Patterson; Ex parte Taylor (2001) 207 CLR 391; 182 ALR 657; [2001] HCA 51 at [186] and [191] per Gummow and Hayne JJ, and at [59] per Gaudron J (agreeing). The requirements in s 501(4) will be met if the person making the decision answers to the description of “Minister” and makes the decision personally: at [328] per Kirby J. [501.80] Natural justice does not apply The rules of natural justice and procedural fairness do not apply to a decision made by the Minister personally under s 501(3). The rules of natural justice have been deliberately excluded because there will be “emergency cases” that require “swift action” and the prompt removal of a person, and therefore the “niceties of natural justice and fair procedure” will delay such action: Re Patterson; Ex parte Taylor (2001) 207 CLR 391; 182 ALR 657; [2001] HCA 51 at [331] per Kirby J. However, where the Minister does exercise the power conferred by s 501(3), s 501C(3) requires the Minister to: • give the person written notice of the Minister’s decision; • give the person particulars of “relevant information” (as defined under s 501C(2)); and • invite the person to make representations as to why the decision should be revoked. [501.100] Character test Section 501(6) sets out the circumstances the Minister (or delegate) must consider when determining whether a person passes the character test. A person will not pass the character test if one or more of the conditions in s 501(6)(a) – (d) are fulfilled: Minister for Immigration and Multicultural and Indigenous Affairs v Godley (2005) 141 FCR 552; [2005] FCAFC 10 at [48] per Madgwick, Lander and Crennan JJ. If a person does not fall within any of the conditions in s 501(6)(a) – (d), then the person passes the test. [501.120] Section 501(6)(c) and “good character” Under s 501(6)(c), to determine whether a person is not of good character, regard must be had to either the person’s “past and present criminal conduct”, or the person’s “past and present general conduct”, or both: Mujedenovski v Minister for Immigration and Citizenship (2009) 112 ALD; [2009] FCAFC 149 at [41] per Ryan, Mansfield and Tracy JJ. The words “of good character” are not defined in the Act. However, in Godley v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 83 ALD 411; [2004] FCA 774, Lee J (with whom Madgwick, Lander and Crennan JJ agreed on appeal in Minister for Immigration and Multicultural and Indigenous Affairs v Godley (2005) 141 FCR 552; [2005] FCAFC 10) stated at [51]: © 2016 THOMSON REUTERS

1101

s 501

Migration Act 1958

[501.140]

The words “of good character” mean enduring moral qualities reflected in soundness and reliability in moral judgment in the performance of day to day activities and in dealing with fellow citizens. It is not simply a matter of repute, fame or standing in the community but of continuing performance according to moral principle. A person of ill repute by reason of past criminal conduct may nonetheless, on objective examination at a later state in life, be shown to be a person reformed and now of good character.

[501.140] Association Under s 501(6)(b), a person will not pass the character test if the person has, or had, an “association” with someone else, or a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal activity. There is conflicting case law on the meaning of the word “association” in this section, in the cases of Minister for Immigration and Multicultural Affairs v Chan (2001) 34 AAR 94; [2001] FCA 1552 (Chan) and Haneef v Minister for Immigration and Citizenship (2007) 161 FCR 40; 242 ALR 290; [2007] FCA 1273 (Haneef). In Chan, Emmett J concluded that the test to satisfy s 501(6)(b) is that there merely be “an association”. On the other hand, Spender J in Haneef was of the view that there needs to be “an alliance or link or combination between the visa holder with the persons engaged in criminal activity” and the link, alliance or combination must reflect “adversely on the character of the visa holder”: at [230]. [501.160] Offence The term “offence” in s 501(6)(aa) is not defined in the Act. In WASB v Minister for Immigration and Citizenship (2013) 217 FCR 292; [2013] FCA 1016, Barker J was of the view, at [38], that in relation to the word “offence”: there is nothing to indicate that the term carries any meaning other than its ordinary meaning and nor, in my view, is any other construction open – the ordinary meaning of “offence”, as defined in the Oxford Dictionary, is “a breach of a law or rule; an illegal act”.

KEY CASES [501.180] Power to be exercised by the Minister personally Under s 501(4), the power under s 501(3) must be exercised by the “Minister personally”. This term was considered in Re Patterson; Ex parte Taylor (2001) 207 CLR 391; 182 ALR 657; [2001] HCA 51 (Re Patterson). In that matter, the prosecutor’s visa was cancelled on character grounds under s 501(3) by the Parliamentary Secretary to the Minister. The prosecutor claimed that the power under s 501(3) had not been properly exercised because the cancellation decision was made by the Parliamentary Secretary and not the Minister. In Re Patterson Gummow and Hayne JJ (with whom Gaudron J agreed), considered the meaning of the word “Minister” under s 501(3) and (4). Their Honours stated at [186]: The identity of the repository of the power conferred by s 501(3) depends upon the identification by the use of the expression “the Minister”. Section 19A of the Interpretation Act supplies the answer. So far as relevant, it states that, if a provision of an Act refers to a Minister by using the expression “the Minister” without specifying which Minister is referred to and if for the time being two or more Ministers administer the provision in question, then, unless the contrary intention appears, the reference is to any of the those Ministers. This is the effect of pars (aa) and (b) of s 19A(1) of the Interpretation Act. Section 501(3) of the Migration Act is a provision upon which s 19A of the Interpretation Act operates in this way.

Based on the above, Gummow and Hayne JJ held at [191] that the Parliamentary Secretary was one of the Ministers administering s 501(3) and therefore the power under this provision was exercised by the Minister personally. 1102

Migration Law

[501.220]

Part 9 - Miscellaneous (ss 487ZI-507) Division 2 – Other (ss 487–507)

s 501

[501.200] Constitutional validity of s 501(6)(aa) Section 501(6) sets the circumstances under which a person does not pass the character test. Section 501(6)(aa) deals with offences a person committed while in immigration detention, or while escaping from immigration detention. In NBNB v Minister for Immigration and Border Protection (2014) 138 ALD 455; 307 ALR 90; [2014] FCAFC 39 (NBNB), the applicant claimed that s 501(6)(aa) was constitutionally invalid because the character test under this provision did not support s 51(xix) of the Constitution, which permits Parliament to prescribe the conditions under which aliens may enter or remain in Australia. In NBNB, Allsop CJ, Buchanan and Katzmann JJ held that s 501(6)(aa) was not constitutionally invalid: at [8] per Allsop CJ and Katzmann J, and at [104] per Buchanan J. Buchannan J stated at [103] (Allsop CJ and Katzmann J agreeing): The investing of a power to consider whether a person (an alien) should be refused a visa because he or she committed a crime (perhaps a very serious one) in a detention centre while awaiting completion of processes connected with their entry into Australia is plainly not unconnected with the exercise of a power concerning aliens. The speculative possibility that a power so invested might be exercised unreasonably, or in an unauthorised manner by a particular Commonwealth officer does not derogate from the power of the Parliament to grant the discretion.

[501.220] Section 501(6)(c) and good character Under s 501(6)(c), a person does not pass the character test if the person is not of good character, having regard to the person’s past and present criminal conduct, and general conduct. In Mujedenovski v Minister for Immigration and Citizenship (2009) 112 ALD; [2009] FCAFC 149 Ryan, Mansfield and Tracy JJ held that the Administrative Appeals Tribunal had committed a jurisdictional error in its construction of s 501(6)(c). Ryan, Mansfield and Tracy JJ noted at [41] that in order to determine whether a person is not of good character, regard must be had to either the person’s “past and present criminal conduct”, or the person’s “past and present general conduct”, or both. It was not possible to determine whether a person was not of good character by simply looking at the person’s past conduct. The Administrative Appeals Tribunal accepted that the applicant had not engaged in any inappropriate conduct for some seven years at the time of the decision to refuse the applicant a contributory parent/migrant visa. However, it was not satisfied that the applicant passed the character test because in the past he had been convicted of being in a contrived marriage. Ryan, Mansfield and Tracy JJ were of the view, at [43], that since the Administrative Appeals Tribunal acknowledged that in the past seven years there was no evidence of any impropriety, then the tribunal treated the concept of “past and present general conduct” compendiously, regarding the “the past general conduct as of such significance that the absence of positive evidence of present general good character meant that it was satisfied” that the applicant fell within s 501(6)(c)(ii). In Minister for Immigration and Multicultural and Indigenous Affairs v Godley (2005) 141 FCR 552; [2005] FCAFC 10, Madgwick, Lander and Crennan JJ considered s 501(6)(c) and whether a person does not pass the character test because he or she is not of good character. The Minister submitted that there was no onus on him to make any decision under s 501(6), in circumstances where the Minister was unsure whether a person was or was not of good character. Therefore the Minister could refuse to make a decision about this issue and the person would then not have satisfied the Minister that he or she passed the character test and the Minister, in his discretion, could refuse to grant the visa. Madgwick, Lander and Crennan JJ rejected the Minister’s submissions because they were contrary to the terms of s 501(6): at [54]. Madgwick, Lander and Crennan JJ stated at [54]–[55]: A person does not pass the character test only if one of the paragraphs in s 501(6) applies to that person. There is no other way of determining whether one or more of these paragraphs apply than a positive © 2016 THOMSON REUTERS

1103

s 501

Migration Act 1958

[501.240]

finding to that effect by the Minister. If the only paragraph under consideration is par (c) in s 501(6), absent any decision by the Minister that the person is not of good character, then the person has passed the character test. It follows, therefore, that if the Minister is unsure whether a person is or is not of good character, is unable to reach a positive decision that the person is not of good character and declines to do so then, if that is the only matter under consideration, that person will have passed the character test.

In relation to the meaning of the words “of good character”, Madgwick, Lander and Crennan JJ accepted, at [34], Lee J’s reasoning in the first instance decision in Godley v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 83 ALD 411; [2004] FCA 774 at [51]–[53]: The words “of good character” mean enduring moral qualities reflected in soundness and reliability in moral judgment in the performance of day to day activities and in dealing with fellow citizens. It is not simply a matter of repute, fame or standing in the community but of continuing performance according to moral principle. A person of ill repute by reason of past criminal conduct may nonetheless, on objective examination at a later state in life, be shown to be a person reformed and now of good character. (See: Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431-432). A finding that a person “is not of good character” required the Minister to make a supervening determination after having regard to the matters set out in s 501(6)(c). The consideration of past and present criminal conduct and/or past and present general conduct provide indicia as to the presence or absence of good character but do not in themselves answer the question. The Minister must look at the totality of the circumstances and determine whether the person before him is distinguishable from the others as a person not of good character, a question not to be confused with characterisation by conduct alone. (See: Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 at 197). The distinction between “criminal” and “general” conduct as indicia of absence of good character may suggest that the word “criminal” is likely to carry the common meaning of the more serious offences than misdemeanours that involve lesser faults and omission. (See: 4 Bl. Com, 5; Shorter Oxford English Dictionary at 456 – “crime”, “criminal”).

[501.240]

Procedural fairness and automatic cancellation of visa under s 501F(3) Where the Minister decides to refuse to grant a visa or cancel a visa under s 501F(3), any other visa held by the applicant (except for a protection visa or a visa prescribed by the Regulations) is taken to have been cancelled. In Akpata v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 65, the Minister refused to grant the applicant a Parent 103 Visa on character grounds under s 501. Consequently, pursuant to s 501F(3) the applicant’s bridging visa was automatically cancelled, which meant that he was liable to be detained because he was an unlawful non-citizen. The applicant claimed that he had been denied procedural fairness because he was not informed by the Minister that his bridging visa would be cancelled pursuant to s 501F(3). Lander, Carr and Sundberg JJ held that the Minister was not required to inform the applicant of the effects of s 501F(3). Lander J stated at [148] (Carr and Sundberg JJ agreeing), that the “principles of natural justice and in particular to act fairly did not require the Minister to advise or warn the appellant of the consequences of an adverse decision”. [501.260]

Minister to take into account legal consequence of decision to exercise power under s 501 In NBMZ v Minister for Immigration and Border Protection (2014) 138 ALD 495; 307 ALR 49; [2014] FCAFC 38, the applicant was found to satisfy the criteria under the Refugee Convention and was permitted to apply for a protection visa. The Minister refused the visa under s 501 on character grounds, because of the applicant’s past conviction for damaging Commonwealth 1104

Migration Law

[501.290]

Part 9 - Miscellaneous (ss 487ZI-507) Division 2 – Other (ss 487–507)

s 501

property. Allsop CJ, Buchanan and Katzmann JJ held that the Minister had committed a jurisdictional error by failing to consider the consequences to the applicant in the exercise of the power under s 501. The applicant, being refused a protection visa, would need to be detained and removed from Australia. However, due to Australia’s non-refoulement obligations under the Refugee Convention, the applicant could not be returned to his home country, which meant he would be detained indefinitely. The Minister did not take any of these issues into consideration when exercising the power under s 501. Therefore, he committed a jurisdictional error. [501.280] Reasonable steps to notify person of intention to cancel visa Under s 501, there is no express requirement that the Minister notify a person of the Minister’s intention to cancel their visa. However, there is an implied requirement that the Minister will take reasonable steps to notify a person of the intention to cancel the visa. In Osborne v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 416; [2002] FCA 1113, French J stated that the requirement in s 501(2) that the person “does not satisfy the Minister that [he or she] passes the character test” implies that some prior notice should be provided to the person whose visa the Minister intends to cancel: at [19]. In relation to that requirement, French J stated at [19]: It is not to be supposed that the Parliament intended that condition to be met by the silence of the visa holder in the absence of any notice of the Minister’s intention to cancel. Some process of notification is therefore contemplated even though the Act does not set it out. Indeed the regulations seem to assume as much.

French J then further explained the implied condition by stating at [20]: The implied condition of notification is not absolute. It could not be. For otherwise a person could defeat the cancellation provisions simply by moving to an address not known to the Minister or his officers. The implied condition requires only that reasonable steps be taken to notify the visa holder. To send a notice of intended cancellation to his last known address is a reasonable step. When that last known address is the address of a close relative of the visa holder, in this case his mother, and with whom he had expressed an intention to resume living, then it is plainly a reasonable process. The aid of the regulations is not required to determine what is reasonable in these circumstances. They do not in terms condition the effect of exercise of the power under s 501. They establish a mechanism for notification which appears, in a formal sense, to have been followed in this case.

The regulation referred to in the above passage is reg 2.55. In Minister for Immigration and Multicultural and Indigenous Affairs v George (2004) 139 FCR 127; 85 ALD 513; [2004] FCAFC 276, the Full Court of the Federal Court followed the decision in Osborne v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 416; [2002] FCA 1113. [501.290]

Reasonable steps to notify person of intention to cancel visa Consideration of the risk of future harm to Australian community if the person were to remain in Australia There have been different views expressed by judges of the Federal Court as to whether it is a mandatory relevant consideration that the Minister consider the risk of future harm to the Australian community if a person were to remain in Australia when considering whether to cancel a visa under s 501(2): Ayoub v Minister for Immigration and Border Protection [2015] FCFAFC 83 at [33] per Flick, Griffiths and Perry JJ. In Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424; [2014] FCA 673, Mortimer J held at [122]–[123] that the consideration of the risk of future harm to the Australian community was “an integral aspect of the exercise of the power in s 501(2)” and a relevant consideration in the exercise of the discretionary power under this section. However, Rangiah J, with whom North J agreed, in Moana v Minister for Immigration and Border Protection [2015] FCAFC 54 at [70] disagreed with Mortimer J. At [71]–[72] Rangiah J observed: © 2016 THOMSON REUTERS

1105

s 501

Migration Act 1958

[501.290]

If the Minister is to be held to be bound to examine the likelihood of a person engaging in future conduct which may cause harm in every exercise of the discretion under s 501(2), then an implication to that effect must appear from the subject matter, scope and purpose of the Act. It is not enough to argue that principles concerning other statutory provisions with a protective purpose must apply analogously to s 501(2). It is one thing to conclude, as I have, that the Minister must consider the risk of harm, but is a step removed to decide that the statute contains an implication that the Minister must evaluate the risk of harm in a particular way. The cases concerning 501A relied on by the Minister … establish that the seriousness of an offence may, of itself, lead the Minister to conclude that a visa should be cancelled in the national interest. I consider that the seriousness of an offence or other relevant past conduct may also lead the Minister to conclude that a visa should be cancelled in the discretion under s 501(2) without evaluating the likelihood that the visa holder will reoffend or engage in harmful conduct. It is implicit in s 501 that Parliament considers that a person who does not pass the character test poses a risk of harm of some kind, although that does not lead to a presumption that the discretion should be exercised in a particular way. In a particular case, however, the Minister may take the view the seriousness of the offence or conduct means that any risk is intolerable. It follows that in exercising the discretion in s 501(2), the Minister is not bound to engage in an evaluation of the likelihood of a person engaging in future conduct which may cause harm

Justice Jessup in Moana v Minister for Immigration and Border Protection [2015] FCAFC 54 also disagreed with Mortimer J, but for a different reason to that of Rangiah and North JJ: at [7]. At [7]–[9], Jessup J held: In my respectful view, the judgment in Tanielu misstated the law and should not be followed. In Peko-Wallsend, Mason J did not say that, where the discretion to be exercised was unconfined by the terms of the statute, it was in all cases imperative for the decision-maker to identify, from the subject matter, scope and purpose of the relevant provision, the considerations that were, implicitly, to be take into account. What his Honour said, in the concluding sentence in the passage set out in para 4 above, was that, where the discretion was unconfined in this way, the court would not find that the decision-maker was bound to take a particular matter into account unless an implication to that effect was to be found in the subject matter, scope and purpose of the relevant statute. that is to say, only if it were apparent from the subject matter, scope and purpose of the Act that the power in question ought not to be exercised without taking a particular consideration into account would a court hold that the power could not be so exercised. The effect of the judgment in Tanielu, in my respectful view, was to turn this negative stipulation into a positive requirement, applicable in cases in which there was no explicit setting out of the considerations which were required to be taken into account as part of the valid exercise of a discretionary power which is, in terms, unconfined. This does not represent the law as articulated by Mason J in Peko-Wallsend. Moreover, it is not as though s 501(2) of the Act is utterly devoid of indications as to the considerations which ought to inform the exercise of the discretion for which it provides, such as, for example, a provision which said no more than the Minister was empowered to cancel any visa at any time. The subsection is within a category of provisions, regularly found in legislation, which specify preconditions to the taking of an executive step, and thereby provide the context in which the discretion arises. For example, a power given to a local council to remove for disposal an unregistered vehicle left standing by the kerb for more than a month could be exercised on no other ground than that there was such a vehicle by the kerb. Likewise, my view, the power to cancel a visa under s 501(2) of the Act might validly be exercised upon the Minister taking into account no consideration other than that set out in the subsection, namely that, in circumstances where the Minister reasonably suspected that the person did not pass the character test, the person did not satisfy the Minister that he or she did that test.

However, in Minister for Immigration and Multicultural and Indigenous Affairs v Huynh (2004) 139 FCR 505; [2004] FCAFC 256, Kiefel and Bennett JJ differed to the views of North and Rangiah JJ in relation to s 501, in that they were of the view that the Act did “not state what factors the Minister is bound to consider in determining whether or not to cancel a person’s visa”: [72]. Based on this, Kiefel and Bennett JJ held at [74]: 1106

Migration Law

[501.300]

Part 9 - Miscellaneous (ss 487ZI-507) Division 2 – Other (ss 487–507)

s 501

A reference to those matters confirms the breadth of the Minister’s discretion. The object of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens: s 4(1). To advance that object provision is made for the removal or deportation from Australia of non-citizens whose presence is not permitted by the Act: s 4(4). If the Minister were able, consistent with the object of the Act, to consider a matter as broad as the national interest, in determining whether a person ought to be permitted to remain in Australia, it does not seem possible to imply some obligation on the Minister’s part to consider specific factors, personal to the visa holder, such as the circumstances surrounding the offences they have committed. By way of illustration, the Minister may consider national interest requires that the commission of a particular type of offence will inevitably result in the cancellation of a visa, where there has been a sentence to imprisonment for the requisite term. To construe the sectiona s requiring the Minister to consider factors such as the level of involvement of the visa holder in the offences would cut across that broad discretion. It follows in our view that the obligation of which his Honour the primary judge spoke cannot be read into s 501.

In Ayoub v Minister for Immigration and Border Protection [2015] FCFAFC 83 at [37], Flick, Griffiths and Perry JJ considered these competing views, however decided that it was not necessary to reach a determination. However, their Honours did observe at [37] “reservation may nevertheless be presently expressed with respect to the concern expressed by Mortimer J in Tanielu to incorporate the risk of harm to the Australian community as an integral aspect of the exercise of the power in s 501(2)”. [501.300] Section 501(6)(b) and meaning of “association” Under s 501(6)(b), a person will not pass the character test if the person has or had an “association” with someone else, or a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal activity. There is conflicting case law – Minister for Immigration and Multicultural Affairs v Chan (2001) 34 AAR 94; [2001] FCA 1552 (Chan) and Haneef v Minister for Immigration and Citizenship (2007) 161 FCR 40; 242 ALR 290; [2007] FCA 1273 (Haneef) – on the meaning of the word “association” in this section. In Haneef the Minister cancelled the applicant’s business visa on the basis that he did not pass the character test under s 501(6)(b) because of his “association” with certain individuals (his cousins). Spender J considered the meaning of the term “association” in s 501(6)(b) as expressed by Emmett J in Chan. His Honour concluded that the test to satisfy s 501(6)(b) is that there merely be “an association”. Spender J held that the decision in Chan was wrong: at [177] and [180]. His Honour stated at [178]–[179],: On its proper construction, the composite phrase “has an association with someone else, or with a group or organisation, who the Minister reasonably suspects has been, or is involved, in criminal conduct” is not properly to be interpreted by considering separately whether there is an association between the visa holder and a person or group, and then consider as a separate matter, whether the Minister reasonably suspects that the person or group is or has been engaged in criminal activity. The proper connotation of the phrase has to be ascertained from the context in which it appears; the object and purpose of the statute in which the provision is found; the legislative history of the matter; and a consideration of the consequences of adopting the competing interpretations.

Spender J held at [230] that: In my opinion 501(6)(b) is a composite phrase and has to be construed as such. In my opinion it has the connotation that there is an alliance or link or combination between the visa holder with the persons engaged in criminal activity. That alliance, link or combination reflects adversely on the character of the visa holder. Such a meaning would exclude professional relationships, or those which are merely social or familial. It would exclude the victim of domestic violence.

Neither the Full Court of the Federal Court, nor the High Court, have considered the term “association” in s 501(6)(b) or whether Spender J’s conclusions are correct. © 2016 THOMSON REUTERS

1107

s 501A

Migration Act 1958

[501.320]

PRACTICE POINT [501.320] Decisions Direction [55] – Visa Refusal and Cancellation under s 501 (25 July 2012) is binding on all decision-makers (other than the Minister) in relation to decisions made under s 501 after 1 September 2012: s 499. Direction [41] – Visa Refusal and Cancellation under s 501 (3 June 2009) applies to decisions prior to 1 September 2012. A Direction under s 499 is not binding on the Minister where the Minister acts personally: Romano v Minister for Immigration and Citizenship (2011) 124 ALD 198; [2011] FCA 1351 at [23] per Edmonds J. Where the Minister makes a decision under either s 501(1) or (2), the Minister must give notification of that decision in accordance with s 501G: s 501G(1). Where the Minister makes a decision under s 501(3), pursuant to s 501C(3), the Minister must, as soon as practicable, give the person written notice setting out the decision and relevant information, and invite the person to make representations about revocation of the original decision. Section 494B sets out the methods by which the Minister (and his or her delegate) is to notify a person of a decision not to grant a visa under this section. Regulation 2.55 sets out the methods by which the Minister (and his or her delegate) is to notify a person of a decision to cancel a visa. A decision of a delegate of the Minister made under s 501 is reviewable by the Administrative Appeals Tribunal: see s 500(1)(b). However, any decision made by the Minister personally, under either s 501(1), (2) or (3), is not reviewable by the Administrative Appeals Tribunal. The Federal Court has jurisdiction to consider applications for judicial review in relation to decisions made under s 501: see s 476A(1)(b) and (c). The High Court also has jurisdiction to consider decisions under s 501. This is because pursuant to s 75(v) of the Constitution, the High Court has original jurisdiction to hear matters in which a writ of mandamus, prohibition or an injunction is sought against an officer of the Commonwealth. However, the Federal Circuit Court does not have jurisdiction to consider decisions made under s 501: see s 476(2)(b) and (c). The High Court has original jurisdiction under s 75(v) of the Constitution. 501A Refusal or cancellation of visa—setting aside and substitution of non-adverse decision under subsection 501(1) or (2) (1) This section applies if: (a) a delegate of the Minister; or (b) the Administrative Appeals Tribunal; makes a decision (the original decision): (c) not to exercise the power conferred by subsection 501(1) to refuse to grant a visa to the person; or (d) not to exercise the power conferred by subsection 501(2) to cancel a visa that has been granted to a person; whether or not the person satisfies the delegate or Tribunal that the person passes the character test and whether or not the delegate or Tribunal reasonably suspects that the person does not pass the character test. [Subs (1) am Act 129 of 2001, s 3 and Sch 2 items 1 and 2, with effect from 1 Jun 1999]

Action by Minister—natural justice applies (2) The Minister may set aside the original decision and: (a) refuse to grant a visa to the person; or

1108

Migration Law

[501.320]

Part 9 - Miscellaneous (ss 487ZI-507) Division 2 – Other (ss 487–507)

s 501A

(b) cancel a visa that has been granted to the person; if: (c)

the Minister reasonably suspects that the person does not pass the character test (as defined by section 501); and (d) the person does not satisfy the Minister that the person passes the character test; and (e) the Minister is satisfied that the refusal or cancellation is in the national interest. Action by Minister—natural justice does not apply (3) The Minister may set aside the original decision and: (a) refuse to grant a visa to the person; or (b) cancel a visa that has been granted to the person; if: (c) the Minister reasonably suspects that the person does not pass the character test (as defined by section 501); and (d) the Minister is satisfied that the refusal or cancellation is in the national interest. (4) The rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection (3). (4A) Under subsection (2) or (3), the Minister may cancel a visa that has been granted to a person even if the original decision under subsection (1) was a decision not to exercise the power conferred by subsection 501(1) to refuse to grant a visa to the person. [Subs (4A) insrt Act 129 of 2001, s 3 and Sch 2 item 3, with effect from 1 Jun 1999]

Minister’s exercise of power (5) The power under subsection (2) or (3) may only be exercised by the Minister personally. (6) The Minister does not have a duty to consider whether to exercise the power under subsection (2) or (3) in respect of the original decision, whether or not the Minister is requested to do so, or in any other circumstances. Decision not reviewable under Part 5 or 7 (7) A decision under subsection (2) or (3) is not reviewable under Part 5 or 7. Note 1: For notification of decisions under subsection (2), see section 501G. Note 2: For notification of decisions under subsection (3), see section 501C. [S 501A am Act 129 of 2001; insrt Act 114 of 1998, s 3 and Sch 1 item 23, with effect from 1 Jun 1999]

SECTION 501A COMMENTARY Scope ................................................................................................................................................. [501A.20] CONCEPTS

Original decision not to exercise the power to refuse to grant a visa ........................................... [501A.40] Character test .................................................................................................................................... [501A.60] National interest ............................................................................................................................... [501A.80] Minister personally ......................................................................................................................... [501A.100] Natural justice does not apply ....................................................................................................... [501A.120] Power is non-compellable .............................................................................................................. [501A.140] KEY CASES

Power to be exercised by the Minister personally ........................................................................ [501A.160] Procedural fairness and automatic cancellation under s 501F(3) of visa .................................... [501A.180] © 2016 THOMSON REUTERS

1109

s 501A

Migration Act 1958

[501A.20]

Minister to take into account legal consequence of decision to exercise power under s 501A .... [501A.200] Reasonable steps to notify person of intention to cancel visa ..................................................... [501A.220] PRACTICE POINT

Decisions ......................................................................................................................................... [501A.240]

[501A.20] Scope This section applies where a visa is granted, or remains in effect, as a result of a decision by a delegate of the Minister or the Administrative Appeals Tribunal, not to exercise the power contained in s 501(1) or (2): s 501A(1). As cl 60 of the Explanatory Memorandum to the Migration Amendment (Strengthening of Provisions Relating to Character and Conduct) Bill 1998 (Cth) makes clear, s 501A(2) and (3) allow the Minister to set aside the “original decision” and substitute a decision that is less favourable to the person in question, where the Minister is satisfied that it is in the national interest to do so. However, any such decision by the Minister must be founded on the Minister’s reasonable suspicion that the person does not pass the character test. The basis for s 501A(2) was outlined in the Second Reading speech on 11 November 1998: Over the past 12 months or so, the AAT has made a number of character decisions that are clearly at odds with community standards and expectations. The AAT has found a number of non-citizens, who have been convicted of very serious crimes, to be of good character, and has ruled that they should be granted a visa. This has alarmed the community and I might say the community, when they are aware of these decisions, hold the Government and not the AAT responsible. It is essential that the Minister, acting personally, have the power to intervene or set aside such decisions in the national interest. The Minister should, however, continue to be required to table the making of any such decisions in the Parliament.

Relevantly, a person will be afforded natural justice with respect to any decision made by the Minister under s 501A(2). That is because the words of s 501A(2)(d) imply that the Minister will take reasonable steps to notify a person of an intention to refuse to grant, or to cancel, a visa: see, for example, Osborne v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 416; [2002] FCA 1113 at [19]–[20] per French J (in relation to s 501(2)(b)). However, the Minister is not obliged to afford natural justice with respect to any decision made under s 501A(3). Rather, s 501C requires the Minister to invite a concerned person to make representations, after a decision has already been made under s 501A(3), as to why that decision should be revoked. The reasons for abrogating natural justice in respect of decisions made under s 501A(3) were explained in the Second Reading speech to the Migration Amendment (Strengthening of Provisions Relating to Character and Conduct) Bill 1998 (Cth) on 11 May 1998: From time to time, there will be emergency cases involving non-citizens who may be a significant threat to the community. These people may be threatening violence or some other act of destruction or have a prior history of serious crime. In these emergency circumstances, the Minister, again acting personally, should have the power to act without notice and have them taken into detention. Once the visa is cancelled, the non-citizen will have a right to make a submission to the Minister as to why the cancellation should be revoked. Natural justice will apply in such cases. However, if they cannot satisfy the Minister that they pass the character test, they should be removed immediately. Parliament should be notified of the making of such decisions but the decisions should not be subject to merits review because of their national significance. The Minister is very accountable for his actions – to the Parliament, his colleagues, and to the people of Australia. 1110

Migration Law

[501A.80]

Part 9 - Miscellaneous (ss 487ZI-507) Division 2 – Other (ss 487–507)

s 501A

CONCEPTS [501A.40] Original decision not to exercise the power to refuse to grant a visa Under s 501A(1)(c), the Minister may substitute his or her own decision only where the Administrative Appeals Tribunal or a delegate makes an “original decision” “not to exercise” the power conferred by s 501(1) to refuse to grant a visa. However, s 501A(1)(c) ought not be read as encompassing only those circumstances in which the tribunal or a delegate grants a visa under s 501(1). That is because, plainly, s 501(1) does not itself authorise the grant of a visa (the delegate may grant a visa because the person satisfies the relevant criteria; or the tribunal may grant a visa pursuant to its powers under s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth)). By way of further illustration, a tribunal may simply remit a matter to a delegate for reconsideration. Accordingly, a literal interpretation is to be avoided, which would otherwise have absurd results. In Lam v Minister for Immigration and Multicultural Affairs (2000) 104 FCR 454; 63 ALD 632; [2000] FCA 1226 at [25], Lehane J held: In my view, the literal construction proposed by the applicant does indeed produce a result so absurd, and so at odds with the apparent object of the provision, that an available construction which would avoid those difficulties is to be preferred. Because both par (c) and par (d) of s 501A(1) are plainly intended to operate in respect of both decisions of a delegate and decisions of the tribunal, par (c) should be given, if possible, a construction which encompasses the decisions which a delegate and the Tribunal are authorised to make in exercise of the power conferred by s 501. In neither case does that include, literally, a decision to grant a visa as a result of not exercising the power conferred by s 501(1). In each case a decision may be made in exercise of the power under s 501(1) which may be described as an exercise in favour (but, because other criterion must be satisfied, not conclusively in favour) of the grant of a visa. That, which is the sense for which the minister contends, is the sense in which, in my view, the expression “a decision to grant a visa” may and should be read.

Lehane J’s statutory construction of s 501A(1) was upheld on appeal in Lam v Minister for Immigration and Multicultural Affairs (2002) 117 FCR 325; 66 ALD 569; [2002] FCA 175; [2002] FCAFC 36, and has also been cited with approval in subsequent cases: see, for example, Maddaferi v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 326; 70 ALD 644; [2002] FCAFC 220 at [60]–[64]. [501A.60] Character test The reference to “character test” in s 501A is a reference to the test contained in s 501(6). [501A.80] National interest Under s 501A(2) and (3), the Minister may set aside the original decision and refuse or cancel a visa if the Minister reasonably suspects that the person does not pass the character test under s 501 and is satisfied that it is in the “national interest”. The term “national interest” is not defined under the Act. It is not a “legal concept”; rather it is for Parliament and the executive to determine what is in the “national interest”: Re Patterson; Ex parte Taylor (2001) 207 CLR 391; 182 ALR 657; [2001] HCA 51 (Re Patterson) at [79] per Gaudron J; Re Application of Amalgamated Anthracite Collieries Ltd (1927) 43 TLR 672. In Re Patterson at [334], Kirby J stated that “it would be contrary to principle for the words ‘in the national interest’ to be given a confined meaning”. In determining whether the refusal to grant a visa or the cancellation of a visa is in the “national interest” a wide range of subject matters may be taken into account. In Gbojueh v Minister for Immigration and Citizenship (2012) 202 FCR 417; 289 ALR 107; [2012] FCA 288, the Federal Court considered the meaning of the words “in the national interest” in the context of s 501A(2). Bromberg J stated at [43]–[45] that, while the Minister is largely unrestrained to determine what factors are to be regarded as relevant when determining whether the cancellation or refusal of a visa is in the national interest, there is one consideration that is so central to this question that the Minister is bound to take it into account - the potential © 2016 THOMSON REUTERS

1111

s 501A

Migration Act 1958

[501A.100]

for harm to the Australian community. His Honour’s comments were consistent with the view expressed by Black CJ and Sackville J in Lu v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 141 FCR 346; [2004] FCAFC 340. [501A.100] Minister personally Under s 501A(5), the powers under s 501A(2) and (3) must be exercised by the “Minister personally”. The word “Minister” in this provision refers to any Minister that administers the Act: Re Patterson; Ex parte Taylor (2001) 207 CLR 391; 182 ALR 657; [2001] HCA 51 (Re Patterson) at [186] and [191] per Gummow and Hayne JJ, and at [59] per Gaudron J (agreeing). The requirements in s 501A(5) will be met if the person making the decision answers to the description of “Minister” and makes the decision personally: at [328] per Kirby J. [501A.120] Natural justice does not apply The rules of natural justice and procedural fairness do not apply to a decision made by the Minister personally under s 501A(3). The rules of natural justice have been deliberately excluded because there will be “emergency cases” that require “swift action” and the prompt removal of a person, and the “niceties of natural justice and fair procedure” would delay such action: Re Patterson; Ex parte Taylor (2001) 207 CLR 391; 182 ALR 657; [2001] HCA 51 at [331] per Kirby J (in relation to s 501(3)). However, where the Minister does exercise the power conferred by s 501A(3), s 501C(3) requires the Minister to: • give the person written notice of the Minister’s decision; • give the person particulars of “relevant information” (as defined under s 501C(2)); and • invite the person to make representations as to why the decision should be revoked. [501A.140] Power is non-compellable Pursuant to s 501A(6), the Minister does not have a duty to consider whether to exercise the powers under s 501A(2) or (3). Accordingly, there is no duty on the Minister to make a decision one way or the other: see, for example, Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636; 290 ALR 616; [2012] HCA 31 at [110] per Heydon J.

KEY CASES [501A.160] Power to be exercised by the Minister personally Under s 501A(5), the powers conferred by s 501A(2) and (3) must be exercised by the “Minister personally”. This expression was considered in Re Patterson; Ex parte Taylor (2001) 207 CLR 391; 182 ALR 657; [2001] HCA 51. In that matter, the prosecutor’s visa was cancelled on character grounds under s 501(3) by the Parliamentary Secretary to the Minister. The prosecutor claimed that the power under s 501(3) had not been properly exercised because the cancellation decision was made by the Parliamentary Secretary and not the Minister. Gummow and Hayne JJ, with whom Gaudron J agreed, considered the meaning of the word “Minister” under s 501(3) and (4). At [186], their Honours stated: The identity of the repository of the power conferred by s 501(3) depends upon the identification by the use of the expression “the Minister”. Section 19A of the Interpretation Act supplies the answer. So far as relevant, it states that, if a provision of an Act refers to a Minister by using the expression “the Minister” without specifying which Minister is referred to and if for the time being two or more Ministers administer the provision in question, then, unless the contrary intention appears, the reference is to any of the those Ministers. This is the effect of pars (aa) and (b) of s 19A(1) of the Interpretation Act. Section 501(3) of the Migration Act is a provision upon which s 19A of the Interpretation Act operates in this way. 1112

Migration Law

[501A.220]

Part 9 - Miscellaneous (ss 487ZI-507) Division 2 – Other (ss 487–507)

s 501A

Based on the above, Gummow and Hayne JJ held at [191] that the Parliamentary Secretary was one of the Ministers administering s 501(3) and that therefore the power under this provision was exercised by the Minister personally. [501A.180] Procedural fairness and automatic cancellation under s 501F(3) of visa Where the Minister decides to refuse to grant a visa or cancel a visa under s 501F(3), any other visa held by the applicant (except for a protection visa or a visa prescribed by the Regulations) is taken to have been cancelled. In Akpata v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 65, the Minister refused to grant the applicant a Parent 103 Visa on character grounds under s 501. The consequence of this was that the applicant’s bridging visa was automatically cancelled, pursuant to s 501F(3), which meant that he was liable to be detained because he was an unlawful non-citizen. The applicant claimed that he had been denied procedural fairness because he was not informed by the Minister that his bridging visa would be cancelled pursuant to s 501F(3). Lander, Carr and Sundberg JJ held that the Minister was not required to inform the applicant of the effects of s 501F(3). Lander J stated at [148] (Carr and Sundberg JJ agreeing) that the “principles of natural justice and in particular to act fairly did not require the Minister to advise or warn the appellant of the consequences of an adverse decision”. [501A.200] Minister to take into account legal consequence of decision to exercise power under s 501A In NBMZ v Minister for Immigration and Border Protection (2014) 138 ALD 495; 307 ALR 49; [2014] FCAFC 38, the applicant was found to satisfy the criteria under the Refugee Convention and was permitted to apply for a protection visa. The Minister refused the visa under s 501 on character grounds, because of the applicant’s past conviction for damaging Commonwealth property. Allsop CJ, Buchanan and Katzmann JJ held that the Minister had committed a jurisdictional error by failing to consider the consequences to the applicant of exercising the power under s 501. The applicant, on being refused a protection visa, would need to be detained and removed from Australia. However, due to Australia’s non-refoulement obligations under the Refugee Convention, the applicant could not be returned to his home country, which meant he would be detained indefinitely. The Minister did not take any of these issues into consideration when exercising the power under s 501. Therefore, he committed a jurisdictional error. Although the above case concerned the application of s 501, the principles espoused by the Full Federal Court would arguably apply with equal force to s 501A(2) and (3). [501A.220] Reasonable steps to notify person of intention to cancel visa Under s 501A(2), there is no express requirement that the Minister notify a person of the Minister’s intention to refuse or cancel a visa. However, there is arguably an implied requirement that the Minister will take reasonable steps to notify a person of the intention to cancel a visa. In Osborne v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 416; [2002] FCA 1113, French J stated that the requirement in s 501(2) that the person “does not satisfy the Minister that the person passes the character test” implies that some prior notice should be provided to the person whose visa the Minister intends to cancel: at [19]. In relation to that requirement, French J stated at [19]: It is not to be supposed that the Parliament intended that condition to be met by the silence of the visa holder in the absence of any notice of the Minister’s intention to cancel. Some process of notification is therefore contemplated even though the Act does not set it out. Indeed the regulations seem to assume as much.

French J then further explained the implied condition by stating at [20]: © 2016 THOMSON REUTERS

1113

s 501B

Migration Act 1958

[501A.240]

The implied condition of notification is not absolute. It could not be. For otherwise a person could defeat the cancellation provisions simply by moving to an address not known to the Minister or his officers. The implied condition requires only that reasonable steps be taken to notify the visa holder. To send a notice of intended cancellation to his last known address is a reasonable step. When that last known address is the address of a close relative of the visa holder, in this case his mother, and with whom he had expressed an intention to resume living, then it is plainly a reasonable process. The aid of the regulations is not required to determine what is reasonable in these circumstances. They do not in terms condition the effect of exercise of the power under s 501. They establish a mechanism for notification which appears, in a formal sense, to have been followed in this case.

The regulation referred to in the above passage is reg 2.55. In Minister for Immigration and Multicultural and Indigenous Affairs v George (2004) 139 FCR 127; 85 ALD 513; [2004] FCAFC 276, the Full Court of the Federal Court followed the decision in Osborne v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 416; [2002] FCA 1113.

PRACTICE POINT [501A.240] Decisions Where the Minister makes a decision under s 501A(2), the Minister must give notification of that decision in accordance with s 501G: s 501G(1). Where the Minister makes a decision under s 501A(3), pursuant to s 501C(3), the Minister must, as soon as practicable, give the person written notice setting out the decision and relevant information, and invite the person to make representations about revocation of the original decision. The Minister may notify a person of a decision made under s 501A(3) by any method the Minister considers appropriate: s 494A(1). Decisions made under s 501A(2) or (3) are not reviewable under Part 5 and Part 7 of the Act: s 501A(7). Accordingly, if a person wishes to challenge a decision made under s 501A, the only option is to seek judicial review in either the High Court’s original jurisdiction under s 75(v) of the Constitution, or in the Federal Court pursuant to s 476A(1)(c). The Federal Circuit Court does not have jurisdiction to hear any judicial review application in respect of a decision made under s 501A: s 476(2)(c). 501B Refusal or cancellation of visa—setting aside and substitution of adverse decision under subsection 501(1) or (2) (1) This section applies if a delegate of the Minister makes a decision (the original decision) under subsection 501(1) or (2) to refuse to grant a visa to a person or to cancel a visa that has been granted to a person. (2) The Minister may set aside the original decision and: (a) refuse to grant a visa to the person; or (b) cancel a visa that has been granted to the person; if: (c) the Minister reasonably suspects that the person does not pass the character test (as defined by section 501); and (d) the person does not satisfy the Minister that the person passes the character test; and (e) the Minister is satisfied that the refusal or cancellation is in the national interest. (3) The power under subsection (2) may only be exercised by the Minister personally. (4) A decision under subsection (2) is not reviewable under Part 5 or 7.

1114

Migration Law

[501B.60]

Part 9 - Miscellaneous (ss 487ZI-507) Division 2 – Other (ss 487–507)

s 501B

(5) To avoid doubt, the Minister may set aside the original decision in accordance with subsection (2) even if the original decision is the subject of an application for review by the Administrative Appeals Tribunal. Note: For notification of decisions under this section, see section 501G. [S 501B insrt Act 114 of 1998, s 3 and Sch 1 item 23, with effect from 1 Jun 1999]

SECTION 501B COMMENTARY Scope ................................................................................................................................................. [501B.20] CONCEPTS

Character test .................................................................................................................................... [501B.40] National interest ................................................................................................................................ [501B.60] Minister personally ........................................................................................................................... [501B.80] KEY CASES

Power to be exercised by the Minister personally ........................................................................ [501B.100] Procedural fairness and automatic cancellation of visa under s 501F(3) ..................................... [501B.120] Minister to take into account legal consequence of decision to exercise power under s 501A .... [501B.140] Reasonable steps to notify person of intention to cancel visa ..................................................... [501B.160] PRACTICE POINT

Decisions ......................................................................................................................................... [501B.180]

[501B.20] Scope This section permits the Minister to intervene to set aside a decision of a delegate, but only where the original decision is adverse (unlike s 501A, which enables the Minister to set aside “non-adverse” decisions). However, the Minister may only substitute a decision which is also adverse. The Minister may take this step at any stage of the review process, including where the delegate’s decision is the subject of an application for review by the Administrative Appeals Tribunal. Although the rationale of s 501B was not the subject of explanation in either the Explanatory Memorandum to the Migration Amendment (Strengthening of Provisions Relating to Character and Conduct) Bill 1998 (Cth), or in the Second Reading speech to the Bill, the effect of the Minister exercising his or her power under this provision will be to preclude merits review: see s 401B(4).

CONCEPTS [501B.40] Character test The reference to “character test” in s 501B(2)(c) is a reference to the test contained in s 501(6). [501B.60] National interest Under s 501B(2), the Minister may set aside the original decision and refuse or cancel a visa if the Minister reasonably suspects that the person does not pass the character test under s 501 and is satisfied that it is in the “national interest” to do so. The term “national interest” is not defined under the Act. It is not a “legal concept”; rather it is for Parliament and the executive to determine what is in the “national interest”: Re Patterson; Ex parte Taylor (2001) 207 CLR 391; 182 ALR 657; [2001] HCA 51 (Re Patterson) at [79] per Gaudron J; Re Application of Amalgamated Anthracite Collieries Ltd (1927) 43 TLR 672. In Re Patterson at [334], Kirby J stated that “it would be contrary to principle for the words ‘in the national interest’ to be given © 2016 THOMSON REUTERS

1115

s 501B

Migration Act 1958

[501B.80]

a confined meaning”. In determining whether refusing to grant a visa or the cancellation of a visa is in the “national interest”, a wide range of subject matters may be taken into account. In Gbojueh v Minister for Immigration and Citizenship (2012) 202 FCR 417; 289 ALR 107; [2012] FCA 288, the Federal Court considered the meaning of the words “in the national interest” in the context of s 501A(2). Bromberg J stated at [43]–[45] that, while the Minister is largely unrestrained in determining what factors are to be regarded as relevant when deciding whether the cancellation or refusal of a visa is in the national interest, there is one consideration that is so central to this question that the Minister is bound to take it into account - the potential for harm to the Australian community. His Honour’s comments were consistent with the view expressed by Black CJ and Sackville J in Lu v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 141 FCR 346; [2004] FCAFC 340. [501B.80] Minister personally Under s 501B(3), the powers under s 501B(2) must be exercised by the “Minister personally”. The word “Minister” in this provision refers to any Minister that administers the Act: Re Patterson; Ex parte Taylor (2001) 207 CLR 391; 182 ALR 657; [2001] HCA 51 at [186] and [191] per Gummow and Hayne JJ, and at [59] per Gaudron J (agreeing). The requirements in s 501B(3) will be met if the person making the decision answers to the description of “Minister” and makes the decision personally: at [328] per Kirby J.

KEY CASES [501B.100] Power to be exercised by the Minister personally Under s 501B(3), the power conferred by s 501B(2) must be exercised by the “Minister personally”. This term was considered in Re Patterson; Ex parte Taylor (2001) 207 CLR 391; 182 ALR 657; [2001] HCA 51. In that matter, the prosecutor’s visa was cancelled on character grounds under s 501(3) by the Parliamentary Secretary to the Minister. The prosecutor claimed that the power under s 501(3) had not been properly exercised because the cancellation decision was made by the Parliamentary Secretary and not the Minister. Gummow and Hayne JJ, with whom Gaudron J agreed, considered the meaning of the word “Minister” under s 501(3) and (4). Gummow and Hayne JJ stated at [186]: The identity of the repository of the power conferred by s 501(3) depends upon the identification by the use of the expression “the Minister”. Section 19A of the Interpretation Act supplies the answer. So far as relevant, it states that, if a provision of an Act refers to a Minister by using the expression “the Minister” without specifying which Minister is referred to and if for the time being two or more Ministers administer the provision in question, then, unless the contrary intention appears, the reference is to any of the those Ministers. This is the effect of pars (aa) and (b) of s 19A(1) of the Interpretation Act. Section 501(3) of the Migration Act is a provision upon which s 19A of the Interpretation Act operates in this way.

Based on the above, Gummow and Hayne JJ held at [191] that the Parliamentary Secretary was one of the Ministers administering s 501(3) and that therefore the power under this provision was exercised by the Minister personally. [501B.120] Procedural fairness and automatic cancellation of visa under s 501F(3) If the Minister decides to refuse to grant a visa or cancel a visa under this section, pursuant to s 501F(3), any other visa held by the applicant (except for a protection visa or a visa prescribed by the Regulations) is taken to have been cancelled. In Akpata v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 65, the Minister refused to grant the applicant a Parent 103 Visa on character grounds under 1116

Migration Law

[501B.160]

Part 9 - Miscellaneous (ss 487ZI-507) Division 2 – Other (ss 487–507)

s 501B

s 501. The consequence of this was that the applicant’s bridging visa was automatically cancelled, pursuant to s 501F(3), which meant that he was liable to be detained because he was an unlawful non-citizen. The applicant claimed that he had been denied procedural fairness because he was not informed by the Minister that his bridging visa would be cancelled pursuant to s 501F(3). Lander, Carr and Sundberg JJ held that the Minister was not required to inform the applicant of the effects of s 501F(3). Lander J stated at [148] (Carr and Sundberg JJ agreeing), that the “principles of natural justice and in particular to act fairly did not require the Minister to advise or warn the appellant of the consequences of an adverse decision”. [501B.140] Minister to take into account legal consequence of decision to exercise power under s 501A In NBMZ v Minister for Immigration and Border Protection (2014) 138 ALD 495; 307 ALR 49; [2014] FCAFC 38, the applicant was found to satisfy the criteria under the Refugee Convention and was permitted to apply for a protection visa. The Minister refused the visa under s 501 on character grounds, because of the applicant’s past conviction for damaging Commonwealth property. Allsop CJ, Buchanan and Katzmann JJ held that the Minister had committed a jurisdictional error by failing to consider the consequences to the applicant in exercising the power under s 501. Having been refused a protection visa, the applicant would need to be detained and removed from Australia. However, due to Australia’s non-refoulement obligations under the Refugee Convention, the applicant could not be returned to his home country, which meant he would be detained indefinitely. The Minister did not take any of these issues into consideration when exercising the power under s 501. Therefore, he committed a jurisdictional error. Although the above case concerned the application of s 501, the principles espoused by the Full Federal Court would arguably apply with equal force to s 501B(2). [501B.160] Reasonable steps to notify person of intention to cancel visa There is no express requirement in s 501B(2) that a person be notified of the Minister’s intention to refuse or cancel a visa. However, there is arguably an implied requirement that the Minister will take reasonable steps to notify a person of the intention to cancel a visa. In Osborne v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 416; [2002] FCA 1113 (Osborne), French J stated that the requirement in s 501(2) that the person “does not satisfy the Minister that the person passes the character test” implies that some prior notice should be given to the person whose visa the Minister intends to cancel: at [19]. In relation to that requirement, French J stated at [19]: It is not to be supposed that the Parliament intended that condition to be met by the silence of the visa holder in the absence of any notice of the Minister’s intention to cancel. Some process of notification is therefore contemplated even though the Act does not set it out. Indeed the regulations seem to assume as much.

French J then further explained the implied condition, by stating at [20]: The implied condition of notification is not absolute. It could not be. For otherwise a person could defeat the cancellation provisions simply by moving to an address not known to the Minister or his officers. The implied condition requires only that reasonable steps be taken to notify the visa holder. To send a notice of intended cancellation to his last known address is a reasonable step. When that last known address is the address of a close relative of the visa holder, in this case his mother, and with whom he had expressed an intention to resume living, then it is plainly a reasonable process. The aid of the regulations is not required to determine what is reasonable in these circumstances. They do not in terms condition the effect of exercise of the power under s 501. They establish a mechanism for notification which appears, in a formal sense, to have been followed in this case. © 2016 THOMSON REUTERS

1117

s 501BA

Migration Act 1958

[501B.180]

The regulation referred to in the above passage is reg 2.55. In Minister for Immigration and Multicultural and Indigenous Affairs v George (2004) 139 FCR 127; 85 ALD 513; [2004] FCAFC 276, the Full Court of the Federal Court followed the decision in Osborne

PRACTICE POINT [501B.180] Decisions The Minister may set aside a decision of the delegate at any stage, including in circumstances where the original decision is the subject of an application for review by the Administrative Appeals Tribunal: s 501B(5). Where the Minister makes a decision under s 501B(2), the Minister must give notification of that decision in accordance with s 501G: s 501G(1). A decision made under s 501B(2) is not reviewable under Part 5 and Part 7 of this Act: s 501B(4). Accordingly, if a person wishes to challenge a decision made under s 501B, the only option is to seek judicial review in either the High Court’s original jurisdiction under s 75(v) of the Constitution, or in the Federal Court pursuant to s 476A(1)(c). The Federal Circuit Court does not have jurisdiction to hear any judicial review application in respect of a decision made under s 501B: s 476(2)(c). 501BA Cancellation of visa—setting aside and substitution of non-adverse decision under section 501CA (1) This section applies if: (a) a delegate of the Minister; or (b) the Administrative Appeals Tribunal; makes a decision under section 501CA (the original decision) to revoke a decision under subsection 501(3A) to cancel a visa that has been granted to a person. Action by Minister—natural justice does not apply (2) The Minister may set aside the original decision and cancel a visa that has been granted to the person if: (a) the Minister is satisfied that the person does not pass the character test because of the operation of: (i) paragraph 501(6)(a), on the basis of paragraph 501(7)(a), (b) or (c); or (ii) paragraph 501(6)(e); and (b) the Minister is satisfied that the cancellation is in the national interest. (3) The rules of natural justice do not apply to a decision under subsection (2). Minister’s exercise of power (4) The power under subsection (2) may only be exercised by the Minister personally. Decision not reviewable under Part 5 or 7 (5) A decision under subsection (2) is not reviewable under Part 5 or 7. Note: For notification of decisions under subsection (2), see section 501G. [S 501BA insrt Act 129 of 2014, s 3 and Sch 1 item 17, with effect from 11 Dec 2014]

501C Refusal or cancellation of visa—revocation of decision under subsection 501(3) or 501A(3) (1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3) or 501A(3) to:

1118

Migration Law

Part 9 - Miscellaneous (ss 487ZI-507) Division 2 – Other (ss 487–507)

s 501C

(a) refuse to grant a visa to a person; or (b) cancel a visa that has been granted to a person. (2) For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers: (a) would be the reason, or a part of the reason, for making the original decision; and (b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member. (3) As soon as practicable after making the original decision, the Minister must: (a) give the person, in the way that the Minister considers appropriate in the circumstances: (i) a written notice that sets out the original decision; and (ii) particulars of the relevant information; and (b) except in a case where the person is not entitled to make representations about revocation of the original decision (see subsection (10))—invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision. (4) The Minister may revoke the original decision if: (a) the person makes representations in accordance with the invitation; and (b) the person satisfies the Minister that the person passes the character test (as defined by section 501). (5) The power under subsection (4) may only be exercised by the Minister personally. (6) If the Minister revokes the original decision, the original decision is taken not to have been made. This subsection has effect subject to subsection (7). (7) Any detention of the person that occurred during any part of the period: (a) beginning when the original decision was made; and (b) ending at the time of the revocation of the original decision; is lawful and the person is not entitled to make any claim against the Commonwealth, an officer or any other person because of the detention. (8) If the Minister makes a decision (the subsequent decision) to revoke, or not to revoke, the original decision, the Minister must cause notice of the making of the subsequent decision to be laid before each House of the Parliament within 15 sitting days of that House after the day on which the subsequent decision was made. (9) If the person does not make representations in accordance with the invitation, the Minister must cause notice of that fact to be laid before each House of the Parliament within 15 sitting days of that House after the last day on which the representations could have been made. (10) The regulations may provide that, for the purposes of this section: (a) a person; or (b) a person included in a specified class of persons; is not entitled to make representations about revocation of an original decision unless the person is a detainee. (11) A decision not to exercise the power conferred by subsection (4) is not reviewable under Part 5 or 7. [S 501C insrt Act 114 of 1998, s 3 and Sch 1 item 23, with effect from 1 Jun 1999]

© 2016 THOMSON REUTERS

1119

s 501C

Migration Act 1958

[501C.20]

SECTION 501C COMMENTARY Scope ................................................................................................................................................. [501C.20] CONCEPTS

Relevant information and non-disclosable information .................................................................. [501C.40] Revocation of decision ..................................................................................................................... [501C.60] Regulations ....................................................................................................................................... [501C.80] Minister personally ......................................................................................................................... [501C.100] KEY CASES

A failure to comply with Migration Act 1958 s 501C(3) will not render the original decision invalid, but may render the invitation to make representations invalid (thereby warranting mandamus) ............................................................................................................................. [501C.120] Power to be exercised by the Minister personally ........................................................................ [501C.140] PRACTICE POINT

Invitation ......................................................................................................................................... [501C.160] Decision under s 501C(4) .............................................................................................................. [501C.170]

[501C.20] Scope This section applies where the Minister makes a decision to refuse or cancel a visa under s 501(3) or 501A(3): s 501C(1). Relevantly, the Minister is not required to afford natural justice in respect of any decision made under those provisions: see Re Patterson; Ex parte Taylor (2001) 207 CLR 391; 182 ALR 657; [2001] HCA 51 at [331] per Kirby J. The reason for excluding natural justice under these provisions was explained in the Second Reading speech to the Migration Amendment (Strengthening of Provisions Relating to Character and Conduct) Bill 1998 (Cth) on 11 November 1998: From time to time, there will be emergency cases involving non-citizens who may be a significant threat to the community. These people may be threatening violence or some other act of destruction or have a prior history of serious crime. In these emergency circumstances, the Minister, again acting personally, should have the power to act without notice and have them taken into detention.

Presumably in light of the exclusion of natural justice from the exercise of power under ss 501(3) and 501A(3), the Minister is required by s 501C(3) to invite the person to make representations as to why the Minister’s decision should be revoked. Further, where the Minister makes a decision to revoke, or not revoke, his or her original decision, the Minister must cause notice of the decision to be laid before each House of Parliament: s 501C(9). Again, this was explained in the Second Reading speech: Once the visa is cancelled, the non-citizen will have a right to make a submission to the Minister as to why the cancellation should be revoked. Natural justice will apply in such cases. However, if they cannot satisfy the Minister that they pass the character test, they should be removed immediately. Parliament should be notified of the making of such decisions but the decisions should not be subject to merits review because of their national significance. The Minister is very accountable for his actions – to the Parliament, his colleagues, and to the people of Australia.

It is to be noted that ss 503A(2)(c) and 503A(6): operate to override the natural justice requirement to provide information to a person whose visa has been cancelled where that information is credible, relevant and significant to the Minister’s decision whether to revoke the cancellation decision under s 501C(4): Vella v Minister for Immigration and Border Protection [2015] FCAFC 53 at [61] per Buchanan, Flick and Wigney JJ.

CONCEPTS [501C.40] Relevant information and non-disclosable information Under s 501C(3)(a)(ii), the Minister must, as soon as practicable after making the original decision, provide to the person affected “particulars of the relevant information”. “Relevant 1120

Migration Law

[501C.120]

Part 9 - Miscellaneous (ss 487ZI-507) Division 2 – Other (ss 487–507)

s 501C

information” is defined in s 501C(2) to exclude “non-disclosable information”. Relevantly, non-disclosable information is in turn defined in s 5(1). Non-disclosable information does not include “protected information” under s 503A: Vella v Minister for Immigration and Border Protection [2015] FCAFC 53 at [25] per Buchanan, Flick and Wigney JJ. [501C.60] Revocation of decision If the Minister revokes a decision made under s 501(3) or 501A(3), then, pursuant to s 501C(6), the original decision is taken not to have been made: see also Zhao v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1532 at [11]. [501C.80] Regulations Regulation 2.52 sets out the period and the manner in which the Minister must invite a person to make representations about the revocation of an original decision. Further, for the purposes of s 501C(10), reg 2.52(7) makes clear that a person is not entitled to make representations about revocation of an original decision if the person is not a detainee, is a non-citizen, and either the person has been refused a visa under s 501 or 501A, or the last visa held by the person has been cancelled under either of those sections. [501C.100] Minister personally Under s 501C(5), the power conferred on the Minister by s 501C(4) must be exercised by the “Minister personally”. The word “Minister” in this provision refers to any Minister that administers the Act: Re Patterson; Ex parte Taylor (2001) 207 CLR 391; 182 ALR 657; [2001] HCA 51 at [186] and [191] per Gummow and Hayne JJ, and at [59] per Gaudron J (agreeing). The requirements in s 501B(3) will be met if the person making the decision answers to the description of “Minister” and makes the decision personally: at [328] per Kirby J.

KEY CASES [501C.120] A failure to comply with s 501C(3) will not render the original decision invalid, but may render the invitation to make representations invalid (thereby warranting mandamus) In Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 51, the Minister exercised his power under s 501(3) to refuse the applicant a student visa. The Minister invited the applicant, pursuant to s 501C(3), to make representations regarding the revocation of the original decision. In so doing, however, the Minister did not disclose certain information on the basis of the apprehension that s 503A (as it then existed) prohibited the release of such information. The applicant subsequently made representations to the Minister for the purposes of s 501C(3), but the Minister decided not to revoke the original decision to refuse the visa. The applicant then argued before the Federal Court that, because he was not provided with the information the Minister failed to disclose, the invitation to make representations was illusory. Lindgren J agreed that the Minister ought to have disclosed the information that was otherwise concealed, and that the Minister therefore failed to comply with s 501C(3): at [100]. However, Lindgren J found that a failure to comply with s 501C(3) does not affect the validity of the original decision: at [139]–[145]. The court cited at [142] McHugh J’s comments in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212; 201 ALR 327; [2003] HCA 56, where his Honour stated at [55]: The prosecutor contends that the Minister’s failure to give reasons constitutes jurisdictional error with the result that the Minister had no jurisdiction or power to cancel the visa. Jurisdiction is the authority to decide. It is not easy to accept the notion that a decision is made without authority because subsequently the decision-maker fails to give reasons for the decision. Nevertheless, it is always © 2016 THOMSON REUTERS

1121

s 501C

Migration Act 1958

[501C.140]

possible that a statutory scheme has made the giving of reasons a condition precedent to the validity of a decision. If it has, a decision that does not give reasons will be made without authority. Whether a scheme has that effect is determined by applying the principles stated by the Court in Project Blue Sky Inc v Australian Broadcasting Authority … In Project Blue Sky, the majority Justices rejected … at [92]–[93] the traditional distinction between “mandatory” and “directory” requirements, saying that “[a] better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid”.

Lindgren J noted at [143], in respect of the above passage: “Applying this ‘purpose of the legislation’ test, I do not think that it was a purpose of s 501C(3) to render invalid an original decision taken earlier by the Minister under s 501(3), if s 501C(3) should not be complied with.” Lindgren J’s judgment was upheld on appeal in Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 146 FCR 10; [2004] FCAFC 242. However, in light of the Minister’s failure to comply with s 501C(3), Lindgren J made an order in the nature of mandamus that the Minister perform his otherwise undischarged obligations imposed by s 501C(3) and (4) in relation to the Minister’s exercise of power under s 501(3). [501C.140] Power to be exercised by the Minister personally Under s 501C(5), the power conferred by s 501C(4) to revoke an original decision must be exercised by the “Minister personally”. This expression was considered in Re Patterson; Ex parte Taylor (2001) 207 CLR; 182 ALR 657; [2001] HCA 51. In that matter, the prosecutor’s visa was cancelled by the Parliamentary Secretary to the Minister on character grounds under s 501(3). The prosecutor claimed that the power under s 501(3) had not been properly exercised because the cancellation decision was made by the Parliamentary Secretary and not the Minister. Gummow and Hayne JJ, with whom Gaudron J agreed, considered the meaning of the word “Minister” under s 501(3) and (4). Gummow and Hayne JJ stated at [186]: The identity of the repository of the power conferred by s 501(3) depends upon the identification by the use of the expression “the Minister”. Section 19A of the Interpretation Act supplies the answer. So far as relevant, it states that, if a provision of an Act refers to a Minister by using the expression “the Minister” without specifying which Minister is referred to and if for the time being two or more Ministers administer the provision in question, then, unless the contrary intention appears, the reference is to any of the those Ministers. This is the effect of pars (aa) and (b) of s 19A(1) of the Interpretation Act. Section 501(3) of the Migration Act is a provision upon which s 19A of the Interpretation Act operates in this way.

Based on the above, Gummow and Hayne JJ held at [191] that the Parliamentary Secretary was one of the Ministers administering s 501(3) and therefore the power under this provision was exercised by the Minister personally.

PRACTICE POINT [501C.160] Invitation An invitation provided to a person under s 501C(3) can be given by any method the Minister considers appropriate (s 494A(1)), and must otherwise comply with reg 2.52. [501C.170] Decision under s 501C(4) A decision made under s 501C(4) is not reviewable under Part 5 or Part 7 of the Act: s 501C(1). Accordingly, if a person wishes to challenge a decision made under s 501C, the only option is to seek judicial review in either the High Court’s original jurisdiction under s 75(v) of the Constitution, or in the Federal Court pursuant to s 476A(1)(c). The Federal Circuit Court does not have jurisdiction to hear any judicial review application in respect of a decision made under s 501C: s 476(2)(c).

1122

Migration Law

[501C.170]

Part 9 - Miscellaneous (ss 487ZI-507) Division 2 – Other (ss 487–507)

s 501D

501CA Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment) (1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person. (2) For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers: (a) would be the reason, or a part of the reason, for making the original decision; and (b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member. (3) As soon as practicable after making the original decision, the Minister must: (a) give the person, in the way that the Minister considers appropriate in the circumstances: (i) a written notice that sets out the original decision; and (ii) particulars of the relevant information; and (b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision. (4) The Minister may revoke the original decision if: (a) the person makes representations in accordance with the invitation; and (b) the Minister is satisfied: (i) that the person passes the character test (as defined by section 501); or (ii) that there is another reason why the original decision should be revoked. (5) If the Minister revokes the original decision, the original decision is taken not to have been made. (6) Any detention of the person that occurred during any part of the period: (a) beginning when the original decision was made; and (b) ending at the time of the revocation of the original decision; is lawful and the person is not entitled to make any claim against the Commonwealth, an officer or any other person because of the detention. (7) A decision not to exercise the power conferred by subsection (4) is not reviewable under Part 5 or 7. Note: For notification of decisions under subsection (4) to not revoke, see section 501G. [S 501CA insrt Act 129 of 2014, s 3 and Sch 1 item 18, with effect from 11 Dec 2014 Cross-reference: Ministerial Directions: Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction No. 65): The purpose of this Direction is to guide decision-makers performing functions or exercising powers under s 501 to refuse to grant a visa to, or to cancel the visa of, a person who does not satisfy the decision-maker that the person passes the character test or to revoke a mandatory cancellation under s 501CA.]

501D Refusal or cancellation of visa—method of satisfying Minister that person passes the character test The regulations may provide that, in determining for the purposes of section 501, 501A or 501B, whether: (a) a person; or

© 2016 THOMSON REUTERS

1123

s 501D

[501D.20]

Migration Act 1958

(b) a person included in a specified class of persons; satisfies the Minister that the person passes the character test (as defined by section 501), any information or material submitted by or on behalf of the person must not be considered by the Minister unless the information or material is submitted within the period, and in the manner, ascertained in accordance with the regulations. [S 501D insrt Act 114 of 1998, s 3 and Sch 1 item 23, with effect from 1 Jun 1999]

SECTION 501D COMMENTARY [501D.20] Scope This section makes clear that the Minister may consider certain information or material in determining whether a person passes the character test, for the purposes of s 501, 501A or 501B, unless the Regulations preclude the Minister from considering such information by reason of the period and manner in which it is given. Relevantly, reg 2.53 prescribes the period and manner in which information is to be given for the purposes of s 501D. 501E Refusal or cancellation of visa—prohibition on applying for other visas (1) A person is not allowed to make an application for a visa, or have an application for a visa made on the person’s behalf, at a particular time (the application time) that occurs during a period throughout which the person is in the migration zone if: (a) at an earlier time during that period, the Minister made a decision under section 501, 501A or 501B to refuse to grant a visa to the person or to cancel a visa that has been granted to the person; and (b) the decision was neither set aside nor revoked before the application time. [Subs (1) am Act 106 of 2014, s 3 and Sch 1 item 4, with effect from 25 Sep 2014]

(1A) In relation to the Minister’s decision to refuse to grant a visa to the person, as mentioned in paragraph (1)(a), it does not matter whether: (a) the application for the visa was made on the person’s behalf; or (b) the person knew about, or understood the nature of, the application for the visa due to: (i) any mental impairment; or (ii) the fact that the person was, at the time the application was made, a minor. [Subs (1A) insrt Act 106 of 2014, s 3 and Sch 1 item 5, with effect from 25 Sep 2014]

(1B) In paragraph (1)(a) and subsection (1A), a reference to a refusal to grant a visa, or to the cancellation of a visa, includes a reference to such a refusal or cancellation in relation to a visa for which an application is taken to have been made by the operation of this Act or a regulation. [Subs (1B) insrt Act 135 of 2014, s 3 and Sch 2 item 24, with effect from 16 Dec 2014]

(2) Subsection (1) does not prevent a person, at the application time, from making an application for: (a) a protection visa; or (b) a visa specified in the regulations for the purposes of this subsection. Note: The person may however be prevented from applying for a protection visa because of section 48A.

1124

Migration Law

[501E.40]

Part 9 - Miscellaneous (ss 487ZI-507) Division 2 – Other (ss 487–507)

s 501E

(3) Subsection (1) does not prevent a person, at the application time, from making an application for a visa if, before the application time, the Minister had, acting personally, granted a permanent visa to the person. [Subs (3) insrt Act 129 of 2014, s 3 and Sch 1 item 19, with effect from 11 Dec 2014]

(4) Subsection (1) does not prevent a person, at the application time, from making an application for a visa if: (a) before the application time, the person was granted a visa of a kind referred to in subsection (2) or (3); and (b) the person would, but for the operation of subsection (2) or (3), have been prevented from applying for that visa. [Subs (4) insrt Act 129 of 2014, s 3 and Sch 1 item 19, with effect from 11 Dec 2014] [S 501E am Act 135 of 2014; Act 129 of 2014; Act 106 of 2014; insrt Act 114 of 1998, s 3 and Sch 1 item 23, with effect from 1 Jun 1999]

SECTION 501E COMMENTARY Scope ................................................................................................................................................. [501E.20] KEY CASES

If Migration Act 1958 s 501E(1) applies, a person cannot validly apply for a bridging visa (notwithstanding that the person can apply for a protection visa) ..................................................................... [501E.40]

[501E.20] Scope Section 501E prevents a person who, while in the migration zone, has had a visa application refused or a visa cancelled under any of s 501, 501A or 501B, from making an application for a visa while that person remains in the migration zone. The exception to this prohibition is where the decision to refuse or cancel the visa has been revoked or set aside, where the Regulations permit the person to apply for a certain visa, or where the person applies for a protection visa.

KEY CASES [501E.40] If s 501E(1) applies, a person cannot validly apply for a bridging visa (notwithstanding that the person can apply for a protection visa) In Madafferi v Minister for Immigration and Multicultural Affairs [2001] FCA 788, the applicant had been detained for overstaying his visa. The applicant applied for a further visa and, subsequently, the Minister personally refused to grant that visa pursuant to s 501A(2)(a) of the Act. The applicant was therefore precluded by s 501E(1)(a) of the Act from making a further application for a visa while he was in the migration zone, although he could apply for a protection visa under s 501E(2)(a). The applicant therefore applied for a protection visa, and proceeded to file an application with the Federal Court seeking a declaration to the effect that, upon applying for a protection visa, he was taken to have applied for a bridging visa and that the bridging visa was taken to have been granted by virtue of s 75(1) of the Constitution. If the applicant succeeded in his application for the declaration, there would have been no basis for him to be kept in immigration detention. Goldberg J rejected this argument. Although his Honour accepted that, when a non-citizen applies for a protection visa, the application ordinarily serves as an application for a bridging visa, this is not the case in circumstances where s 501E(1)(a) applies. That is because s 46(1)(d) has the effect of rendering any such application invalid: at [17]–[19].

© 2016 THOMSON REUTERS

1125

s 501F

Migration Act 1958

[501F.20]

501F Refusal or cancellation of visa—refusal of other visa applications and cancellation of other visas (1) This section applies if the Minister makes a decision under section 501, 501A or 501B to refuse to grant a visa to a person or to cancel a visa that has been granted to a person. (2) If: (a) the person has made another visa application that has neither been granted nor refused; and (b) the visa applied for is neither a protection visa nor a visa specified in the regulations for the purposes of this subsection; the Minister is taken to have decided to refuse that other application. (3) If: (a) the person holds another visa; and (b) that other visa is neither a protection visa nor a visa specified in the regulations for the purposes of this subsection; the Minister is taken to have decided to cancel that other visa. (4) If the decision referred to in subsection (1) is set aside or revoked, the decision that the Minister is taken to have made under subsection (2) or (3) is also set aside or revoked, as the case may be. (5) A decision that the Minister is taken to have made under subsection (2) or (3) is not reviewable under Part 5 or 7. Note: For notification of decisions under this section, see section 501G. [S 501F insrt Act 114 of 1998, s 3 and Sch 1 item 23, with effect from 1 Jun 1999]

SECTION 501F COMMENTARY Scope ................................................................................................................................................. [501F.20] KEY CASES Procedural fairness and automatic cancellation of visa under s 501F(3) ....................................... [501F.40]

[501F.20] Scope Where a visa has been refused or cancelled under any of s 501, 501A or 501B, the Minister will be taken to have refused or cancelled any other visa that the person may have applied for or may hold (except for a protection visa or any visa prescribed by the Regulations): s 501F(2) and (3).

KEY CASES [501F.40] Procedural fairness and automatic cancellation of visa under s 501F(3) In Akpata v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 65, the Minister refused to grant the applicant a Parent 103 Visa on character grounds under s 501. The consequence of this was that the applicant’s bridging visa was automatically cancelled, pursuant to s 501F(3), which meant that he was liable to be detained because he was an unlawful non-citizen. The applicant claimed that he had been denied procedural fairness because he was not informed by the Minister that his bridging visa would be cancelled pursuant to s 501F(3). Lander, Carr and Sundberg JJ held that the Minister was not required to inform the applicant of the effects of s 501F(3). Lander J (with whom Carr and Sundberg JJ agreed) stated at [148] that the “principles of natural justice and in particular to act fairly did not require the Minister to advise or warn the appellant of the consequences of an adverse decision”.

1126

Migration Law

[501F.40]

Part 9 - Miscellaneous (ss 487ZI-507) Division 2 – Other (ss 487–507)

s 501G

501G Refusal or cancellation of visa—notification of decision (1) If a decision is made under subsection 501(1) or (2) or 501A(2) or section 501B, 501BA, 501CA or 501F to: (a) refuse to grant a visa to a person; or (b) cancel a visa that has been granted to a person; or (ba) not revoke a decision to cancel a visa that has been granted to a person; the Minister must give the person a written notice that: (c) sets out the decision; and (d) specifies the provision under which the decision was made and sets out the effect of that provision; and (e) sets out the reasons (other than non-disclosable information) for the decision; and (f) if the decision was made by a delegate of the Minister under subsection 501(1) or (2) or section 501CA and the person has a right to have the decision reviewed by the Administrative Appeals Tribunal: (i) states that the decision can be reviewed by the Tribunal; and (ii) states the time in which the application for review may be made; and (iii) states who can apply to have the decision reviewed; and (iv) states where the application for review can be made; and (v) in a case where the decision relates to a person in the migration zone—sets out the effect of subsections 500(6A) to (6L) (inclusive); and (vi) sets out such additional information (if any) as is prescribed. [Subs (1) am Act 129 of 2014, s 3 and Sch 1 items 20–22, with effect from 11 Dec 2014]

(2) If the decision referred to in subsection (1): (a) was made by a delegate of the Minister under subsection 501(1) or (2) or section 501CA; and (b) is reviewable by the Administrative Appeals Tribunal; and (c) relates to a person in the migration zone; the notice under subsection (1) that relates to the decision must be accompanied by 2 copies of every document, or part of a document, that: (d) is in the delegate’s possession or under the delegate’s control; and (e) was relevant to the making of the decision; and (f) does not contain non-disclosable information. [Subs (2) am Act 129 of 2014, s 3 and Sch 1 item 22, with effect from 11 Dec 2014]

(3) A notice under subsection (1) must be given in the prescribed manner. (4) A failure to comply with this section in relation to a decision does not affect the validity of the decision. [S 501G am Act 129 of 2014; insrt Act 114 of 1998, s 3 and Sch 1 item 23, with effect from 1 Jun 1999]

SECTION 501G COMMENTARY Scope ................................................................................................................................................. [501G.20] CONCEPTS

Sets out the reasons .......................................................................................................................... [501G.40] Prescribed manner ............................................................................................................................ [501G.60] Failure to comply with section does not affect the validity of the decision .................................. [501G.80]

© 2016 THOMSON REUTERS

1127

s 501G

Migration Act 1958

[501G.20]

KEY CASES

Failure to comply with s 501G does not amount to a jurisdictional error .................................. [501G.100] Defective notification means that time to apply to the Administrative Appeals Tribunal does not start ......................................................................................................................................... [501G.120] Address known to the Minister in reg 2.55 for sending notifications about cancellation decisions ................................................................................................................................. [501G.140] Post box address under reg 2.55 for the purpose of sending a notification under s 501G ......... [501G.160] Transmitting the document under reg 2.55 for the purpose of sending a notification under s 501G .................................................................................................................................... [501G.180]

[501G.20] Scope The purpose of this provision is to communicate to a person a decision to either refuse to grant the person a visa, or a decision to cancel that person’s visa: Nezovic v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2003) 133 FCR 190; 203 ALR 33; [2003] FCA 1263 at [31] per French J. In relation to decisions under s 501(2) to cancel a person’s visa on character grounds, the purpose of the obligation imposed by s 501G is to “safeguard the integrity of such decisions”: W157/00A v Minister for Immigration and Multicultural Affairs (2001) 190 ALR 55; [2001] FCA 1536 at [63] per Lee J. The notification requirements under this section differ to those contained in s 368 and s 430 (which are provisions in relation to the former Migration Review Tribunal and the Refugee Review Tribunal, which have since 1 July 2015 been amalgamated with the Administrative Appeals Tribunal).

CONCEPTS [501G.40] Sets out the reasons Pursuant to s 501G(1)(e), the notification must set out the reasons for the decision. That is, the written notice must contain, or enclose, an explanation as to why the Minister reached their decision: Minister for Immigration and Multicultural Affairs v W157/00A (2002) 125 FCR 433; 203 ALR 5; [2000] FCAFC 281 at [85] per Goldberg J. It is a question of fact whether a document “constitutes or evidences the reasons why a decision-maker made a particular decision”: Long v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 610; [2003] FCAFC 218 at [32] per Carr J. The obligation to give reasons is expanded by s 25D of the Acts Interpretation Act 1901 (Cth): Javillonar v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 311; [2001] FCA 854 at [9] per Stone J. Section 25D provides: Where an Act requires a tribunal, body or person making a decision to give reasons for the decision, whether the expression “reasons”, “grounds” or any other expression is used, the instrument giving the reasons shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based.

[501G.60] Prescribed manner Pursuant to s 501G(3), a written notice under s 501G(1) must be given in the prescribed manner. In relation to decisions to refuse to grant a visa, the prescribed manner is set out in reg 2.16. Relevantly, reg 2.16(3) provides that, in relation to a decision to refuse to grant a visa, the Minister must notify an applicant by one of the methods specified in s 494B. In relation to decisions to cancel a visa, the prescribed manner is set out in reg 2.55. However, if the applicant is in detention, reg 5.02 sets out the prescribed manner. These provisions list a variety of methods by which the Minister may provide a written notification under s 501G. The Minister must send the notification by one of the methods listed in these provisions. It is up to the Minister by which method he or she utilises to notify an applicant. 1128

Migration Law

[501G.100]

Part 9 - Miscellaneous (ss 487ZI-507) Division 2 – Other (ss 487–507)

s 501G

Regulation 2.55 and ss 494B and 494C contain identical expressions in relation to the methods by which the Minister provides documents. The meaning and judicial interpretation of expressions in ss 494B and 494C apply to the same expressions in reg 2.55: Sainju v Minister for Immigration and Citizenship (2010) 185 FCR 86; 115 ALD 371; [2010] FCA 461 at [13] per Jacobson J. [501G.80]

Failure to comply with section does not affect the validity of the decision Pursuant to s 501G(4), failure to notify a person, in accordance with s 501G, does not invalidate the decision to refuse to grant a person a visa or to cancel a visa. In addition, non-compliance with s 501G will not amount to any jurisdictional error in the decision made under s 501(1) or (2), s 501A(2), s 501B or s 501F: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212; 201 ALR 327; [2003] HCA 56 at [48] per Gleeson CJ, Gummow and Heydon JJ.

KEY CASES [501G.100]

Failure to comply with s 501G does not amount to a jurisdictional error In Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212; 201 ALR 327; [2003] HCA 56, Gleeson CJ, Gummow, Heydon, McHugh and Kirby JJ considered a written notice purportedly issued pursuant to s 501G regarding a decision to cancel Mr Palme’s visa under s 501(2) on character grounds. Gleeson CJ, Gummow, Heydon, McHugh and Kirby JJ held that the written notice was deficient because it did not set out the reasons as required by s 501G(1)(e). Gleeson CJ, Gummow, Heydon, McHugh and Kirby JJ then considered whether a consequence of this deficiency meant that the decision could be quashed on the grounds of jurisdictional error, despite s 501G(4). Gleeson CJ, Gummow and Heydon JJ held that even though the written notice was deficient, this did not taint the decision with any jurisdictional error, and stated at [41]: What then are the consequences? The duty imposed upon the Minister was not, as was suggested, a duty of imperfect obligation. That mandamus may lie to compel performance of the duty denies such a contention. Once that duty is performed, the reasons set out by the Minister may disclose error of a kind which attracts prohibition under s 75(v) of the Constitution. Yet, as has been remarked earlier in these reasons, the prosecutor does not seek mandamus, perhaps from a prudent apprehension of what may be the product of the proper discharge of the statutory duty.

Further, McHugh J stated at [55]: The prosecutor contends that the Minister’s failure to give reasons constitutes jurisdictional error with the result that the Minister had no jurisdiction or power to cancel the visa. Jurisdiction is the authority to decide. It is not easy to accept the notion that a decision is made without authority because subsequently the decision-maker fails to give reasons for the decision. Nevertheless, it is always possible that a statutory scheme has made the giving of reasons a condition precedent to the validity of a decision. If it has, a decision that does not give reasons will be made without authority. Whether a scheme has that effect is determined by applying the principles stated by the Court in Project Blue Sky Inc v Australian Broadcasting Authority … In Project Blue Sky, the majority Justices rejected … at [92]–[93] the traditional distinction between “mandatory” and “directory” requirements, saying that “[a] better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid”. © 2016 THOMSON REUTERS

1129

s 501G

Migration Act 1958

[501G.120]

[501G.120]

Defective notification means that time to apply to the Administrative Appeals Tribunal does not start Where a written notice has not complied with any of the obligations set out in s 501G(1)(c) – (f), there will not be any notification for the purposes of s 501G, and time to make an application to the Administrative Appeals Tribunal under s 500(6B) will not begin. In Pomare v Minister for Immigration and Citizenship (2008) 167 FCR 494; 47 AAR 341; [2008] FCA 458, the applicant claimed that the Administrative Appeals Tribunal had erred in finding that it did not have jurisdiction to consider their application because it was lodged out of time pursuant to s 500(6B). This is because the written notice under s 501G was defective, relevantly because it did not comply with s 501G(1)(f)(iv) by not stating where the application could be made. The applicant was incarcerated in New South Wales and the written notice only provided a GPO Box in Victoria. Lindgren J held that the written notice did not comply with s 501G(1)(f)(iv) because the notice needed to state the address of the Administrative Appeals Tribunal’s registry office or the addresses of the registry offices: at [26]. A post office box was not sufficient because it is not possible to know when an application has been “made” when it is sent to a post office box: at [23]. Since the notice was defective, the time to make the application to the Administrative Appeals Tribunal had not started. In Wilson v Minister for Immigration and Citizenship (2012) 135 ALD 60; [2012] FCA 1421, the applicant claimed that the Administrative Appeals Tribunal had erred in finding that it did not have jurisdiction to consider their application because it was lodged out of time pursuant to s 500(6B). The written notice under s 501G was defective in that it did not accurately state the time in which the application for review may be made, as required by s 501G(1)(f)(ii). The written notice stated the following in relation to the time for making an application to the Administrative Appeals Tribunal: You are entitled to have this decision reviewed by the Administrative Appeals Tribunal (AAT). If you wish to have this decision reviewed, you must lodge your application for review within nine (9) days after the day on which you were notified of the decision to cancel your visa under subsection 501(2) of the Act. You are taken to have been notified of the decision when this notification letter and the attached information is delivered to you or your authorised representative (if applicable). If the letter is delivered by post, it is taken to have been received seven (7) working days after the date shown on it. If it is delivered by hand, fax or email, it is taken to be received on the day of actual delivery.

Edmonds J accepted the applicant’s submissions and held that the written notice did not comply with s 501G(1)(f)(ii). This is because the words “delivered” or “delivered by post” in the written notice do not appear anywhere in either reg 2.55 or s 494B (which deal with the methods by which the Minister provides documents) and these words imply actual delivery. Edmonds J held that the last three sentences of the written notice were inadequate and inaccurate, and that therefore the written notice did not comply with s 501G(1)(f)(ii): at [32]. Consequently, the applicant had not been notified under s 501G and time to lodge an application for review under s 500(6B) had not started. [501G.140]

“Address known to the Minister” in reg 2.55 for sending notifications about cancellation decisions A written notice regarding the cancellation of a visa must be sent to an applicant in the prescribed manner. Regulation 2.55 sets out the prescribed manner. Relevantly, under this regulation, a written notification may be: • handed to another person who is at the person’s (being the person whose visa is cancelled) “last residential or business address known to the Minister”: reg 2.55(3)(b); 1130

Migration Law

[501G.180]

Part 9 - Miscellaneous (ss 487ZI-507) Division 2 – Other (ss 487–507)

s 501G

• dispatched by prepaid post to the person’s “last residential address, business address or post box address known to the Minister”: reg 2.55(3)(c); and • transmitted by fax, email or other electronic means to the “last fax number, email address or other electronic address known to the Minister”: reg 2.55(3)(d). In Ball v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 199; 199 ALR 374; [2003] FCA 699, the applicant’s visa was cancelled on character grounds and the notification under s 501G was dispatched by prepaid post to the last address known to the Minister. An officer at the Department obtained the address from the Western Australian Police Service. In relation to the concept of “last known address” in reg 2.55, Ryan J stated at [25] that: the concept of last known address in reg 2.55(3)(c) does not depend on the Minister’s knowledge coming from a particular source. Nor does it require that the Minister’s knowledge be verified in any particular way. It is sufficient that the means of knowledge relied on by the Minister be reasonable in the circumstances. In the present case, the knowledge acquired from the Western Australian Police about the applicant’s residential address was accurate when acquired and remained accurate until the applicant left Western Australia on 18 January 2003. Short of physically locating the applicant, it is difficult to perceive what more the Department could reasonably have done to bring to her notice the intention to consider cancellation of her visa.

In Osborne v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 416; [2002] FCA 1113, a notice of intended cancellation was sent to the applicant’s last known address, which was the address of a close relative, being his mother, with whom he had expressed an intention to resume living after he was released from jail. French J held that, in those circumstances, it was reasonable for the notice to have been sent to this address and for this to be the last known address. In Minister for Immigration and Multicultural Affairs v George (2004) 139 FCR 127; 85 ALD 513; [2004] FCAFC 276, Black CJ, Emmett and Selway JJ were of the view that the last residential address in reg 2.55 must be an address at which the applicant has actually resided at some point in time: at [36]. Their Honours were of the view that the consequence of a notice being sent to the last known residential address, at which the applicant never resided, was that an applicant would not be taken to have been notified and the Minister could not rely on deemed receipt provisions in reg 2.55(7) (unless the applicant actually received the notice and the Minister could then rely on reg 2.55(9)). In Lu v Minister for Immigration and Multicultural Affairs (2004) 135 FCR 450; [2004] FCA 181, Emmett J was also of the view that the reference to “residential address” in reg 2.55 must be an address at which the applicant had resided at some point: at [32]. However, the last known residential address is not confined to only addresses known after an applicant’s last entry into Australia: Choi v Minister for Immigration and Citizenship [2008] FMCA 1717 at [40] per Smith FM. [501G.160]

“Post box address” under reg 2.55 for the purpose of sending a notification under s 501G Under reg 2.55, a written notice under s 501G can be sent to the last “post box address” known to the Minister: see reg 2.55(3)(c), (3A)(c) and (e). The expression “post box address” means a postal address known to the Minister, which is not a residential or business address: Zhang v Minister for Immigration and Citizenship (2007) 161 FCR 419; [2007] FCAFC 151 at [30] per Finn, Kenny and Greenwood JJ. [501G.180]

“Transmitting the document” under reg 2.55 for the purpose of sending a notification under s 501G Under reg 2.55, a written notice under s 501G can be given by “transmitting” it by fax, email or other electronic means to the last address known to the Minister: see reg 2.55(3)(d), (3A)(d) and © 2016 THOMSON REUTERS

1131

s 501H

Migration Act 1958

[501G.180]

(f). In Sainju v Minister for Immigration and Citizenship (2010) 185 FCR 86; 115 ALD 371; [2010] FCA 461, Jacobson J considered the words “by transmitting” and “transmitted” in reg 2.55(8) and whether these mean “by sending” or “sent”, regardless of whether the document is actually received by the applicant. Jacobson J held that “by transmitting” means “by sending” and an applicant is taken to have received the transmitted document at the end of the day on which it is sent: at [57]. Jacobson J explained in relation to deeming provisions at [58]: The purpose of provisions such as these is to achieve administrative certainty as to whether a document has been given to a person, and as to the time at which this has occurred. It affects time limits for review of administrative decisions and may, in some instances, foreclose that possibility.

501H Refusal or cancellation of visa—miscellaneous provisions Additional powers (1) A power under section 501, 501A, 501B or 501BA to refuse to grant a visa to a person, or to cancel a visa that has been granted to a person, is in addition to any other power under this Act, as in force from time to time, to refuse to grant a visa to a person, or to cancel a visa that has been granted to a person. [Subs (1) am Act 129 of 2014, s 3 and Sch 1 item 23, with effect from 11 Dec 2014]

Cross-references to decisions under section 501 (2) A reference in Part 5 to a decision made under section 501 includes a reference to a decision made under section 501A, 501B, 501BA, 501C or 501F. [Subs (2) am Act 129 of 2014, s 3 and Sch 1 item 24, with effect from 11 Dec 2014] [S 501H am Act 129 of 2014; insrt Act 114 of 1998, s 3 and Sch 1 item 23, with effect from 1 Jun 1999]

501HA Application of sections 501 to 501H to transitional (permanent) visas and transitional (temporary) visas If, under the Migration Reform (Transitional Provisions) Regulations, a person: (a) held a permanent return visa, permanent entry permit or permanent visa that continues in effect as a transitional (permanent) visa; or (b) held a temporary entry permit or temporary visa that continues in effect as a transitional (temporary) visa; or (c) is taken to hold a transitional (permanent) visa; the person is also taken, for the purposes of sections 501 to 501H, to have been granted a visa. [S 501HA insrt Act 85 of 2008, s 3 and Sch 4 item 5, with effect from 19 Sep 2008]

501J Refusal or cancellation of protection visa—Minister may substitute more favourable decision (1) If the Minister thinks that it is in the public interest to do so, the Minister may set aside an AAT protection visa decision and substitute another decision that is more favourable to the applicant in the review, whether or not the Administrative Appeals Tribunal had the power to make that other decision. (2) For the purposes of this section, an AAT protection visa decision is a decision of the Administrative Appeals Tribunal in relation to an application for, or the cancellation of, a protection visa. (3) In exercising the power under subsection (1), the Minister is not bound by Subdivision AA or AC of Division 3 of Part 2 or by the regulations, but is bound by all other provisions of this Act. (4) The power under subsection (1) may only be exercised by the Minister personally.

1132

Migration Law

[501J.20]

Part 9 - Miscellaneous (ss 487ZI-507) Division 2 – Other (ss 487–507)

s 501J

(5) If the Minister substitutes a decision under subsection (1), the Minister must cause to be laid before each House of the Parliament a statement that: (a) sets out the decision of the Administrative Appeals Tribunal; and (b) sets out the decision substituted by the Minister; and (c) sets out the reasons for the Minister’s decision, referring in particular to the Minister’s reasons for thinking that his or her actions are in the public interest. (6) A statement made under subsection (5) is not to include: (a) the name of the applicant; or (b) any information that may identify the applicant; or (c) if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned—the name of that other person or any information that may identify that other person. (7) A statement under subsection (5) is to be laid before each House of the Parliament within 15 sitting days of that House after: (a) if the decision is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or (b) if a decision is made between 1 July and 31 December (inclusive) in a year—1 January in the following year. (8) The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances. [S 501J insrt Act 131 of 2001, s 3 and Sch 1 item 6, with effect from 1 Oct 2001]

SECTION 501J COMMENTARY Scope .................................................................................................................................................. [501J.20] CONCEPTS

Public interest .................................................................................................................................... [501J.40] Exercised by the Minister personally ............................................................................................... [501J.60] Minister does not have a duty to consider whether to exercise the power – power is non-compellable ........................................................................................................................ [501J.80] The Minister is under no duty to afford a person procedural fairness in determining whether or not to exercise the power under s 501J ............................................................................ [501J.100] PRACTICE POINTS

Writ of mandamus, prohibition or injunction sought against officer ............................................. [501J.120]

[501J.20] Scope Under this section the Minister has the power to substitute a more favourable decision for the decision of the tribunal if the Minister considers it is in the public interest to do so. This power is exercisable by the Minister personally, and the Minister does not have any duty to consider whether or not to exercise this power in any particular case. The power under this section is equivalent to the Minister’s power under s 417 to substitute a more favourable decision under Part 7 of the Act: Explanatory Memorandum to the Migration Legislation Amendment Bill (No 6) 2001 (Cth) at [64]. The Explanatory Memorandum to the Migration Reform Bill 1992 (Cth), Migration (Delayed Visa Applications) Tax Bill 1992 (Cth) states at [361] that the operation of the power under s 417: © 2016 THOMSON REUTERS

1133

s 501J

Migration Act 1958

[501J.40]

means that the actions of the Minister in declining to consider the exercise of this power, or in declining to exercise the power after considering its exercise, will not give rise to any right of review, whether merits or judicial review.

CONCEPTS [501J.40] Public interest The Minister has the discretion to substitute a more favourable decision, if he or she thinks that it is in the public interest to do so. The expression “public interest” is not defined in either the Act or Regulations. In Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636; 290 ALR 616; [2012] HCA 31, French CJ and Keifel J stated at [30]: The powers so conferred are conditional upon a ministerial judgment of the “public interest”. That is a term to which it is difficult to give precise content. It has been described in this Court as: a discretionary value judgment to be made by reference to undefined factual matters, confined only “in so far as the subject matter and the scope and purpose of the statutory enactments may enable … give reasons to be [pronounced] definitely extraneous to any object the legislature could have had in view”.

[501J.60] Exercised by the Minister personally The power under this section must be exercised by the Minister personally and cannot be delegated. [501J.80]

Minister does not have a duty to consider whether to exercise the power – power is non-compellable Section 501J(8) makes it clear that the Minister does not have a duty to consider whether to exercise the power under s 501J(1) in respect of any decision of the tribunal. Accordingly, the power is said to be “non-compellable”, and cannot be enlivened by a request for its exercise nor by the existence of circumstances which might be thought, in the public interest, to attract its application: Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636; 290 ALR 616; [2012] HCA 31 at [30] per French CJ and Kiefel J, at [99(i)] per Gummow, Hayne, Crennan and Bell JJ.

KEY CASES [501J.100] The Minister is under no duty to afford a person procedural fairness in determining whether or not to exercise the power under s 501J In Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636; 290 ALR 616; [2012] HCA 31, French CJ, Keifel, Gummow, Hayne, Crennan, Bell and Heydon JJ held that the principles of procedural fairness do not apply to the dispensing provisions of ss 48B, 195A, 351 and 417 (the equivalent provision under Part 7 to s 501J of the Act: at [50], [53], [99], [110]–[111] and [118]. The four plaintiffs (Plaintiff S10, Plaintiff S49, Plaintiff S51 and Plaintiff S42), each non-citizens who had unsuccessfully applied for visas to remain in Australia, applied to the High Court in relation to their failure to attract the exercise by the Minister of his non-compellable, non-delegable personal discretion to make decisions in favour of unsuccessful visa applicants and persons in detention. Those powers are contained in ss 48B (Minister may grant a protection visa to person whose application for protection has already been refused), 195A (Minister may grant a visa to a person in immigration detention), 351 (Minister may substitute a decision under Part 5 of the Act, for a decision more favourable and 417 (Minister may substitute a decision under Part 7 of the Refugee Review Tribunal for a decision more favourable). Relevantly, Plaintiff S10 was refused a protection visa and the tribunal affirmed that decision. Plaintiff S10 then unsuccessfully applied to the Federal Magistrates Court and Federal Court for 1134

Migration Law

[501J.100]

Part 9 - Miscellaneous (ss 487ZI-507) Division 2 – Other (ss 487–507)

s 501J

judicial review, and to the High Court for special leave. Subsequently, Plaintiff S10 requested that the Minister exercise his powers under ss 417 and 48B. His request under s 417 was referred to the Minister, who determined that he did not wish to consider the exercise of that power. In relation to his request under s 48B, the relevant departmental officers declined to refer his request to the Minister. Plaintiff S10 applied to the High Court on the basis that there was a breach of procedural fairness in the way the Minister and the departmental officers dealt with his requests under ss 417 and 48B. Plaintiff S10’s application, and the other four plaintiffs’ applications, dealt with whether the executive power of the Commonwealth is constrained by a requirement that procedural fairness be afforded to a person whose rights, interests or legitimate expectations may be destroyed, defeated or prejudiced by its exercise. French CJ and Kiefel J held at [4] that: the consideration by officers of the Department of the requests by the plaintiffs for the Minister to consider exercising non-compellable powers under the Act did not attract the requirements of procedural fairness. Further, the Minister is not obliged to accord procedural fairness, in the form of the so-called hearing rule, in personally considering whether to exercise the Minister’s discretion under ss 48B, 195A, 351 or 417.

Their Honours came to this conclusion on the basis that the Minister is not under any duty to respond to a request for his or her consideration of the exercise of power under s 417 (and ss 48B, 195A and 315). As there was no statutory duty to consider such an application, “no question of procedural fairness arises when the Minister declines to embark upon such a consideration”: at [50]. In addition, French CJ and Kiefel J rejected the plaintiffs’ submissions that the issue of ministerial guidelines in relation to the dispensing provisions involved a decision by the Minister to decide to consider the exercise of the powers conferred by s 417 (and ss 48B, 195A and 351) and held that “there was no implied requirement that the guidelines be applied in such a way as to accord with the hearing rule aspect of procedural fairness”: at [52]. Gummow, Hayne, Crennan and Bell JJ observed the following significant characteristics of s 417 (and ss 48B, 195A and 351) at [99(i)]–[99(ix)]: • the powers conferred under that section must be exercised by the Minister personally, and cannot be delegated; • the tabling requirements render the Minister accountable to each House of the Parliament; • the exercise of the powers under the section are not preconditioned by the making of a request by any other person, and if a request is made, there is no requirement to consider it; • the exercise of the powers is preconditioned on: – the Minister having decided to consider whether to exercise the power; and – the Minister thinking that it is in the public interest to do so; • the term “public interest” does not have any fixed or precise content and will involve a value judgment; • the personal circumstances of an individual may be taken into account, but they are not mandatory relevant considerations; • individual interests and rights are dealt with by provisions of the Act regulating applications and providing for review of decisions concerning visas; • the premise of s 351 is that on a merits review the tribunal has determined that there is no right to the visa sought; and © 2016 THOMSON REUTERS

1135

s 501K

Migration Act 1958

[501J.120]

• against that background, the focus of s 351 is upon the Minister’s view of the public interest rather than the satisfaction of the conditions for the visa. In light of the above, Gummow, Hayne, Crennan and Bell JJ held at [100]: The cumulative significance of the matters referred to above in (i)-(ix) is to disclose a situation akin to that identified by Brennan J in South Australia v O’Shea, namely where a senior officer standing at the peak of the administration of the statute is not required to give an opportunity for a hearing in every case affecting an individual who has had an opportunity of a merits review in the course of the administrative process. Upon their proper construction and in their application to the present cases, the dispensing provisions are not conditioned on observance of the principles of procedural fairness. In particular, there was no requirement to provide to the plaintiffs the opportunities to be heard which they assert in their submissions. The use in the provisions of the Act in question here of language emphatic both of the distinctive nature of the powers conferred upon the Minister (as personal, non-compellable, “public interest” powers), and of the availability of access to the exercise of those powers only to persons who have sought or could have sought, but have not established their right to, a visa is of determinative significance. It reveals the “necessary intendment” referred to in the Offshore Processing Case that the provisions are not attended by a requirement for the observance of procedural fairness.

PRACTICE POINTS [501J.120] Writ of mandamus, prohibition or injunction sought against officer Pursuant to s 75(v) of the Constitution, the High Court has original jurisdiction to hear matters in which a writ of mandamus, prohibition or an injunction is sought against an officer of the Commonwealth. Where an application for prerogative relief is filed in the High Court’s original jurisdiction challenging a matter in relation to the exercise (or non-exercise) of the discretion in s 501J, the granting of such relief would serve no useful purpose. This is because the power under this section is non-compellable – that is, the Minister is under no duty to exercise that power: Minister for Immigration and Multicultural and Indigenous Affairs, Re; Ex parte Applicants S134/2002 (2003) 211 CLR 441; 195 ALR 1; [2003] HCA 1 at [100] per Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ. 501K Identity of applicants for protection visas not to be published by the Administrative Appeals Tribunal (1) This section applies to a review by the Administrative Appeals Tribunal if the review relates to a person in the person’s capacity as: (a) a person who applied for a protection visa; or (b) a person who applied for a protection-related bridging visa; or (c) a person whose protection visa has been cancelled; or (d) a person whose protection-related bridging visa has been cancelled. (2) The Administrative Appeals Tribunal must not publish (in electronic form or otherwise), in relation to the review, any information which may identify: (a) the person; or (b) any relative or other dependant of the person. Note: Section 5G may be relevant for determining relationships for the purposes of this subsection. [Subs (2) am Act 144 of 2008, s 3 and Sch 10 item 73, with effect from 1 Jul 2009]

(3) In this section: application for a protection-related bridging visa means an application for a bridging visa, where the applicant for the bridging visa is, or has been, an applicant for a protection visa.

1136

Migration Law

Part 9 - Miscellaneous (ss 487ZI-507) Division 2 – Other (ss 487–507)

s 501L

protection-related bridging visa means a bridging visa granted as a result of an application for a protection-related bridging visa. [S 501K am Act 144 of 2008; insrt Act 131 of 2001, s 3 and Sch 1 item 6, with effect from 1 Oct 2001]

501L Disclosure of information to the Minister (1) The Minister may, by written notice, require the head of an agency of a State or Territory to disclose to the Minister personal information that: (a) is of a kind specified in the notice; and (b) relates to a person, or to a person included in a class of persons, specified in the notice. (2) The Minister must not give a notice under subsection (1) to the head of an agency of a State or Territory unless the Minister reasonably believes: (a) that the head of the agency has, or can reasonably acquire, the information; and (b) the information is relevant for the purposes of considering whether: (i) a person satisfies the Minister that the person passes the character test (as defined in section 501); or (ii) the Minister reasonably suspects, or is satisfied, that a person does not pass the character test. (3) The head of an agency of a State or Territory who is given a notice under subsection (1) must, as soon as practicable after the notice is given, comply with the notice to the extent that he or she has, or can reasonably acquire, the information specified in the notice. (4) Despite subsection (3), the registrar (however described) of a court of a State or Territory is not required to comply with a notice under subsection (1) to the extent that the information specified in the notice, in relation to a person specified in the notice, is information that relates to proceedings that have not been finally determined by the court. (5) The head of an agency of a State or Territory is not excused from complying with a notice under subsection (1) on the ground that disclosing the information specified in the notice would contravene a law of the Commonwealth, a State or a Territory that: (a) primarily relates to the protection of the privacy of individuals; and (b) prohibits or regulates the use or disclosure of personal information. Immunity from suit (6) A person is not liable to: (a) any proceedings for contravening a provision of a law referred to in subsection (5); or (b) civil proceedings for loss, damage or injury of any kind suffered by another person; merely because the person gives information to the Minister for the purposes of ensuring that the head of an agency of a State or Territory complies with a notice under subsection (1). (7) In this section: agency of a State or Territory includes the following: (a) the Crown in right of a State or Territory; (b) a Minister of a State or Territory; (c) a State or Territory government department; (d) an instrumentality of a State or Territory, including a body corporate established for a public purpose by or under a law of a State or Territory; (e) a company in which a controlling interest is held by any one of the following persons, or by 2 or more of the following persons together:

© 2016 THOMSON REUTERS

1137

s 501L

Migration Act 1958

(f) (g) (h) head of (a) (b)

[501J.120]

(i) the Crown in right of a State or Territory; (ii) a person or body covered by paragraph (b) or (d); a State or Territory court; a State or Territory tribunal; a State or Territory parole board. an agency means: if the agency is a State or Territory court—the registrar (however described) of the court; or otherwise—the principal officer (however described) of the agency.

[S 501L insrt Act 129 of 2014, s 3 and Sch 1 item 25, with effect from 11 Dec 2014]

502 Minister may decide in the national interest that certain persons are to be excluded persons (1) If: (a) the Minister, acting personally, intends to make a decision: (i) under section 200 because of circumstances specified in section 201; or (ii) to refuse under section 65 to grant a protection visa relying on subsection 5H(2) or 36(1C); in relation to a person; and (b) the Minister decides that, because of the seriousness of the circumstances giving rise to the making of that decision, it is in the national interest that the person be declared to be an excluded person; the Minister may, as part of the decision, include a certificate declaring the person to be an excluded person. [Subs (1) am Act 135 of 2014, s 3 and Sch 5 item 16, with effect from 18 Apr 2015; Act 129 of 2014, s 3 and Sch 1 item 26, with effect from 11 Dec 2014; Act 114 of 1998, s 3 and Sch 1 item 24, with effect from 1 Jun 1999; Act 60 of 1994, s 82 and Sch 1 item 114, with effect from 1 Sep 1994; Act 213 of 1992, s 6, with effect from 1 Sep 1994]

(2) A decision under subsection (1) must be taken by the Minister personally. (3) If the Minister makes a decision under subsection (1), the Minister must cause notice of the making of the decision to be laid before each House of the Parliament within 15 sitting days of that House after the day on which the decision was made. [S 502 am Act 135 of 2014; Act 129 of 2014; Act 114 of 1998; former s 180B renum Act 60 of 1994, s 83, with effect from 1 Sep 1994; am Act 60 of 1994; Act 213 of 1992; insrt Act 213 of 1992, s 5, with effect from 24 Dec 1992]

SECTION 502 COMMENTARY Scope ................................................................................................................................................... [502.20] CONCEPTS

Taken by the Minister personally ....................................................................................................... [502.40] National interest .................................................................................................................................. [502.60] Certificate ............................................................................................................................................. [502.80] Excluded person ................................................................................................................................ [502.100] KEY CASES

Certificate declaring the person to be an excluded person .............................................................. [502.120] PRACTICE POINT

No power to consider decision made under s 502 .......................................................................... [502.140]

1138

Migration Law

[502.100]

Part 9 - Miscellaneous (ss 487ZI-507) Division 2 – Other (ss 487–507)

s 502

[502.20] Scope Under this section, the Minister, acting personally, may include a certificate declaring a person to be an excluded person if: • the Minister intends to make a decision: – under s 200 because of circumstances specified in s 201; or – to refuse to grant a protection visa, or to cancel a protection visa, relying on one or more of the following Articles of the Refugees Convention, namely, Art 1F, 32 or 33(2): s 502(1); and – the Minister decides that, because of the seriousness of the circumstances giving rise to the making of that decision, it is in the national interest that the person be declared to be an excluded person. If the Minister makes such a declaration, the Minister must cause the notice of the making of that decision to be laid before each House of the Parliament within 15 sitting days after the day on which the decision was made. The effect of a person being declared an “excluded person” is that they are not able to seek review, in the Administrative Appeals Tribunal, of a decision under s 200, or a decision to either refuse to grant a protection visa or to cancel a protection visa.

CONCEPTS [502.40] Taken by the Minister personally The power under this section must be exercised by the Minister personally and cannot be delegated. [502.60] National interest The expression “national interest” is not defined in the Act. However, it is for the Minister to assess whether it is in the national interest for a person to be declared an excluded person, provided that the relevant interest is capable of being regarded as an interest of national importance: Singh v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 453; 179 ALR 542; [2000] FCA 1426 at [20] per Wilcox, Spender and Emmett JJ. In Jia Le Geng v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 87; 52 ALD 20; [1998] FCA 768 at 11 (FCR), French J stated: The consideration of the national interest is a matter peculiarly within the province of a Minister of the crown responsible to the Parliament. It is this character of the power under s 502 as well as the exclusion of the Administrative Appeals Tribunal review in relation to its exercise, that lifts the power beyond the reach of the legislative scheme of merits review.

(This decision was upheld by the High Court in Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507; 178 ALR 421; [2001] HCA 17.) [502.80] Certificate There must be an actual certificate which declares a person to be an excluded person. A decision by the Minister simply declaring that a person is to be an excluded person is not enough to comply with s 502(1): Singh v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 453; 179 ALR 542; [2000] FCA 1426 at [34] per Wilcox J (with whom Spender J agreed). [502.100] Excluded person The expression “excluded person” is not defined in the Act. However, a person who is declared to be an excluded person (and a certificate has been issued to that effect) is unable to seek review in the Administrative Appeals Tribunal of a decision under s 200 or a decision to refuse to grant the person a protection visa, or a decision to cancel the person’s protection visa. © 2016 THOMSON REUTERS

1139

s 503

Migration Act 1958

[502.120]

KEY CASES [502.120] Certificate declaring the person to be an excluded person Singh v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 453; 179 ALR 542; [2000] FCA 1426, the Minister made a decision under s 200 to deport Mr Singh. The Minister also made a decision, pursuant to s 502, that Mr Singh be declared an excluded person. The document entitled “certificate” and signed by the Minister contained a recital of the Minister’s decision to declare Mr Singh an excluded person. Other than this document, there was no other “certificate” for the purposes of s 502(1)(b). Consequently, Mr Singh was unable to apply to the Administrative Appeals Tribunal for review of the decision. Wilcox and Spender JJ did not consider that the document entitled “certificate” was an actual certificate for the purposes of s 502(1)(b) because the document only recited the Minister’s decision. Wilcox J (with whom Spender J agreed) stated at [36]: There is no doubt the Minister intended to exercise the power conferred on him by s 502. Equally, however, there is no doubt that he failed to do so. For there to be a valid exercise of the power, the Minister must do more than reach a particular decision, and more than simply say he or she has reached that decision. The Minister must “as part of the decision (to deport), include a certificate declaring the person to be an excluded person”. The certificate is important; it is the instrument that excludes AAT review. Section 500 of the Act permits AAT review of decisions under s 200 because of circumstances specified in s 201; “other than decisions to which a certificate under s 502 applies”.

PRACTICE POINT [502.140] No power to consider decision made under s 502 Pursuant to s 500(1), the Administrative Appeals Tribunal does not have the power to consider a decision made under this section. 503 Exclusion of certain persons from Australia (1) A person in relation to whom a decision has been made: (a) under section 200 because of circumstances specified in section 201; or (b) under section 501, 501A or 501B; or (c) to refuse under section 65 to grant a protection visa relying on subsection 5H(2) or 36(1C); is not entitled to enter Australia or to be in Australia at any time during the period determined under the regulations. [Subs (1) am Act 135 of 2014, s 3 and Sch 5 item 17, with effect from 18 Apr 2015; Act 129 of 2014, s 3 and Sch 1 item 27, with effect from 11 Dec 2014; Act 114 of 1998, s 3 and Sch 1 item 25, with effect from 1 Jun 1999; am Act 60 of 1994, s 81(a), with effect from 1 Sep 1994; subst Act 213 of 1992, s 7, with effect from 1 Sep 1994]

(2) The period referred to in subsection (1) commences, in the case of a person who has been deported or removed from Australia, when the person is so deported or removed. (3) Different periods may be prescribed under subsection (1) in relation to different situations. (4) This section does not apply to a holder of a criminal justice visa or to a holder of a permanent visa that was granted by the Minister acting personally. [Subs (4) am Act 129 of 2014, s 3 and Sch 1 item 28, with effect from 11 Dec 2014; insrt Act 60 of 1994, s 81(b), with effect from 1 Sep 1994] [S 503 am Act 135 of 2014; Act 129 of 2014; Act 114 of 1998; former s 180C renum Act 60 of 1994, s 83, with effect from 1 Sep 1994; am Act 60 of 1994; Act 213 of 1992; insrt Act 213 of 1992, s 5, with effect from 24 Dec 1992]

1140

Migration Law

Part 9 - Miscellaneous (ss 487ZI-507) Division 2 – Other (ss 487–507)

s 503A

503A Protection of information supplied by law enforcement agencies or intelligence agencies (1) If information is communicated to an authorised migration officer by a gazetted agency on condition that it be treated as confidential information and the information is relevant to the exercise of a power under section 501, 501A, 501B or 501C: (a) the officer must not divulge or communicate the information to another person, except where: (i) the other person is the Minister or an authorised migration officer; and (ii) the information is divulged or communicated for the purposes of the exercise of a power under section 501, 501A, 501B or 501C; and (b) an authorised migration officer to whom information has been communicated in accordance with paragraph (a) or this paragraph must not divulge or communicate the information to another person, except where: (i) the other person is the Minister or an authorised migration officer; and (ii) the information is divulged or communicated for the purposes of the exercise of a power under section 501, 501A, 501B or 501C. Note: Authorised migration officer and gazetted agency are defined by subsection (9).

(2) If: (a) information is communicated to an authorised migration officer by a gazetted agency on condition that it be treated as confidential information and the information is relevant to the exercise of a power under section 501, 501A, 501B or 501C; or (b) information is communicated to the Minister or an authorised migration officer in accordance with paragraph (1)(a) or (b); then: (c) the Minister or officer must not be required to divulge or communicate the information to a court, a tribunal, a parliament or parliamentary committee or any other body or person; and (d) if the information was communicated to an authorised migration officer—the officer must not give the information in evidence before a court, a tribunal, a parliament or parliamentary committee or any other body or person. (3) The Minister may, by writing, declare that subsection (1) or (2) does not prevent the disclosure of specified information in specified circumstances to a specified Minister, a specified Commonwealth officer, a specified court or a specified tribunal. However, before making the declaration, the Minister must consult the gazetted agency from which the information originated. Note: Commonwealth officer is defined by subsection (9).

(3A) The Minister does not have a duty to consider whether to exercise the Minister’s power under subsection (3). [Subs (3A) insrt Act 75 of 2003, s 3 and Sch 1 item 2, with effect from 15 Jul 2003]

(4) If a person divulges or communicates particular information to a Commonwealth officer in accordance with a declaration under subsection (3), the officer must comply with such conditions relating to the disclosure by the officer of the information as are specified in the declaration. (4A) If a person divulges or communicates particular information to a Commonwealth officer in accordance with a declaration under subsection (3):

© 2016 THOMSON REUTERS

1141

s 503A

Migration Act 1958

(a)

the officer must not be required to divulge or communicate the information to the Federal Court or the Federal Circuit Court; and (b) the officer must not give the information in evidence before the Federal Court or the Federal Circuit Court. The information may only be considered by the Federal Court or the Federal Circuit Court if a fresh disclosure of the information is made in accordance with: (c) a declaration under subsection (3); or (d) subsection 503B(6). [Subs (4A) am Act 13 of 2013, s 3 and Sch 2 item 1, with effect from 12 Apr 2013; insrt Act 75 of 2003, s 3 and Sch 1 item 3, with effect from 15 Jul 2003]

(5) If a person divulges or communicates particular information to a tribunal in accordance with a declaration under subsection (3), the member or members of the tribunal must not divulge or communicate the information to any person (other than the Minister or a Commonwealth officer). (5A) If a person divulges or communicates particular information to a tribunal in accordance with a declaration under subsection (3): (a) the member or members of the tribunal must not be required to divulge or communicate the information to the Federal Court or the Federal Circuit Court; and (b) the member or members of the tribunal must not give the information in evidence before the Federal Court or the Federal Circuit Court. The information may only be considered by the Federal Court or the Federal Circuit Court if a fresh disclosure of the information is made in accordance with: (c) a declaration under subsection (3); or (d) subsection 503B(6). [Subs (5A) am Act 13 of 2013, s 3 and Sch 2 item 1, with effect from 12 Apr 2013; insrt Act 75 of 2003, s 3 and Sch 1 item 4, with effect from 15 Jul 2003]

(6) This section has effect despite anything in: (a) any other provision of this Act (other than sections 503B and 503C); and (b) any law (whether written or unwritten) of a State or a Territory. [Subs (6) am Act 75 of 2003, s 3 and Sch 1 item 5, with effect from 15 Jul 2003]

(7) To avoid doubt, if information is divulged or communicated: (a) in accordance with paragraph (1)(a) or (b); or (b) in accordance with a declaration under subsection (3); the divulging or communication, as the case may be, is taken, for the purposes of the Australian Privacy Principles, to be authorised by this Act. [Subs (7) am Act 197 of 2012, s 3 and Sch 5 item 55, with effect from 12 Mar 2014]

(8) If any Act (whether passed before or after the commencement of this section) provides for information to be given, that Act has effect subject to this section unless that Act expressly provides otherwise. Note: This section is specified in Schedule 3 to the Freedom of Information Act 1982 with the effect that documents containing information protected from disclosure by this section are exempt documents under that Act. [Subs (8) am Act 75 of 2003, s 3 and Sch 1 item 5A, with effect from 16 Jul 2003]

(9) In this section:

1142

Migration Law

[503A.20]

Part 9 - Miscellaneous (ss 487ZI-507) Division 2 – Other (ss 487–507)

s 503A

Australian law enforcement or intelligence body means a body, agency or organisation that is responsible for, or deals with, law enforcement, criminal intelligence, criminal investigation, fraud or security intelligence in, or in a part of, Australia. [Def insrt Act 75 of 2003, s 3 and Sch 1 item 5B, with effect from 16 Jul 2003]

authorised migration officer means a Commonwealth officer whose duties consist of, or include, the performance of functions, or the exercise of powers, under this Act. Commonwealth officer has the same meaning as in section 70 of the Crimes Act 1914. Note: A Minister is not a Commonwealth officer.

foreign law enforcement body means a body, agency or organisation that is responsible for, or deals with, law enforcement, criminal intelligence, criminal investigation, fraud or security intelligence in a foreign country or a part of a foreign country. [Def insrt Act 75 of 2003, s 3 and Sch 1 item 5C, with effect from 16 Jul 2003]

gazetted agency means: (a) in the case of an Australian law enforcement or intelligence body—a body specified in a notice published by the Minister in the Gazette; or (b) in the case of a foreign law enforcement body—a body in a foreign country, or a part of a foreign country, that is a foreign country, or part of a foreign country, specified in a notice published by the Minister in the Gazette; or (c) a war crimes tribunal established by or under international arrangements or international law. Note: For specification by class, see subsection 33(3AB) of the Acts Interpretation Act 1901. [Def am Act 46 of 2011, s 3 and Sch 2 item 767, with effect from 27 Dec 2011; Act 141 of 2005, s 3 and Sch 4 item 16, with effect from 12 Dec 2005; subst Act 75 of 2003, s 3 and Sch 1 item 5D, with effect from 16 Jul 2003] [S 503A am Act 13 of 2013; Act 197 of 2012; Act 46 of 2011; Act 141 of 2005; Act 75 of 2003; insrt Act 114 of 1998, s 3 and Sch 1 item 26 Cross-reference: Legislative Instruments: Migration Act 1958 – Notice under section 503A of the Migration Act 1958 as amended by the Migration Legislation Amendment (Protected Information) Act 2003: This Notice provides for the specification of Australian law enforcement or intelligence bodies, and foreign countries or parts of foreign countries, for the purposes of s 503A(9) as amended by the Migration Legislation Amendment (Protected Information) Act 2003.]

SECTION 503A COMMENTARY Scope ................................................................................................................................................. [503A.20] CONCEPTS

Information ....................................................................................................................................... [503A.40] Gazetted agency ............................................................................................................................... [503A.60] Specified ........................................................................................................................................... [503A.80] KEY CASES

Gazetted agency information is not protected information within s 503A .................................. [503A.100]

[503A.20] Scope Under this section, information provided by certain agencies is to be treated as confidential. Relevantly, where information is communicated to an authorised migration officer (as defined in s 503A(9)) by a gazetted agency (as defined in s 503A(9)) on the condition that it be treated as confidential information, and the information is relevant to the exercise of the power under ss 501, 501A, 501B and 501C: • the officer and/or the authorised migration officer must not divulge or communicate that information to another person; © 2016 THOMSON REUTERS

1143

s 503A

Migration Act 1958

[503A.40]

• except, if: – the other person is the Minister or an authorised migration officer; or – the information is divulged or communicated for the purposes of the exercise of a power under ss 501, 501A, 501B and 501C: s 503A(1). Where the information is communicated under s 503A(1), neither the Minister, officer or the authorised migration officer must be required to divulge or communicate that information to a court, tribunal, Parliament or parliamentary committee, or any other body or person: s 503A(2); Eshchenko v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2005) 147 FCR 545; [2005] FCA 1772 at [45] per Graham J. In relation to the purpose of s 503A, Gray J in Evans v Minister for Immigration and Indigenous Affairs (2003) 135 FCR 306; 203 ALR 320; [2003] FCAFC 276 stated at [13]: The purpose of s 503A of the Migration Act is to remove what would otherwise be an entitlement to natural justice, or procedural fairness, for a person who is subject to the application of the character test in relation to an application for a visa or the consideration of the cancellation of an existing visa.

It is to be noted that ss 503A(2)(c) and 503A(6):

CONCEPTS [503A.40] Information In relation to the meaning of the term “information” in s 503A(1), in NAAO v Secretary, Department of Immigration and Multicultural Affairs (2002) 117 FCR 401; 34 AAR 508; [2002] FCA 292; [2002] FCAFC 64, Spender, Gyles and Conti JJ stated at [24]: [T]he source of information communicated to an authorised migration officer and the condition on which that information is communicated is not itself the “information” which is protected from disclosure by s 503A(1). The information which is protected by s 503A(1) is information which is: (i) communicated to an authorised migration officer; (ii) by a gazetted agency; (iii) on condition that it be treated as confidential information; and (iv) relevant to the exercise of a power under s 501, 501A, 501B or 501C.

[503A.60] Gazetted agency Section 503A(9) defines the expression “gazetted agency”. Under this section, the Minister is to specify the body, agency or organisation that is to be a gazetted agency in the Gazette: Evans v Minister for Immigration and Indigenous Affairs (2003) 135 FCR 306; 203 ALR 320; [2003] FCAFC 276 at [28] per Gray J. [503A.80] Specified In relation to the term “gazetted agency”, s 503A(9) requires the Minister to “specify” in the Gazette the body, agency or organisation that is to be a gazetted agency. In s 503A(9), “[t]he word ‘specified’ is normally used in the sense of stating in detail or with specificity”: NAAO v Secretary, Department of Immigration and Multicultural Affairs (2002) 117 FCR 401; 34 AAR 508; [2002] FCA 292; [2002] FCAFC 64 at [32] per Spender, Gyles and Conti JJ. [503A.90] Any other body or person se of the words “or any other body or person” in s 503A(2)(c) does not refer only to bodies or persons who have coercive powers. In Vella v Minister for Immigration and Border Protection [2015] FCAFC 53, Buchanan, Flick and Wigney JJ held at [63] that the words are not to be read ejusdem generis with the words “court” and “tribunal” and “parliament” and “parliamentary committee”. 1144

Migration Law

[503A.100]

Part 9 - Miscellaneous (ss 487ZI-507) Division 2 – Other (ss 487–507)

s 503B

KEY CASES [503A.100] Gazetted agency information is not protected information within s 503A In NAAO v Secretary, Department of Immigration and Multicultural Affairs (2002) 117 FCR 401; 34 AAR 508; [2002] FCA 292; [2002] FCAFC 64, the Department had information from the People’s Republic of China, which it would not release to the applicant on the basis that it was protected information under s 503A. The applicant requested that the name of the organisation and/or the source of the information be provided, but the Department claimed that this was also protected information. Spender, Gyles and Conti JJ held at [25]: The identity of the agency which provided “protected information” to the respondent is not itself protected information within s 503A of the Act. Not only is the source of the information not itself information which is protected, any condition upon which the information is communicated is also not “protected information”. In our judgment, neither the name of the agency which communicated information to an authorised migration officer, nor the condition upon which that communication occurred, is itself information which is protected from being divulged pursuant to s 503A(1).

503B Protection of confidential information disclosed to Federal Court or Federal Circuit Court—permanent non-disclosure orders Court may make non-disclosure orders (1) If: (a) either: (i) information is communicated to an authorised migration officer by a gazetted agency on condition that it be treated as confidential information and the information is relevant to the exercise of a power under section 501, 501A, 501B or 501C; or (ii) information is communicated to the Minister or an authorised migration officer in accordance with paragraph 503A(1)(a) or (b); and (b) the information is relevant to proceedings (the substantive proceedings) before the Federal Court or the Federal Circuit Court that relate to section 501, 501A, 501B or 501C; and (c) no declaration is in force under subsection 503A(3) authorising the disclosure of the information to the Federal Court or the Federal Circuit Court for the purposes of the substantive proceedings; the Federal Court or the Federal Circuit Court may, on application by the Minister, make such orders as the Federal Court or the Federal Circuit Court considers appropriate for the purpose of ensuring that, in the event that such a declaration comes into force and the information is disclosed to the Federal Court or the Federal Circuit Court, the information is not divulged or communicated to: (d) the applicant in relation to the substantive proceedings; or (e) the legal representative of the applicant in relation to the substantive proceedings; or (f) any other member of the public. [Subs (1) am Act 13 of 2013, s 3 and Sch 2 item 1, with effect from 12 Apr 2013]

(2) The Federal Court’s or Federal Circuit Court’s orders under subsection (1) include: (a) an order that some or all of the members of the public are to be excluded during the whole or a part of the hearing of the substantive proceedings; or

© 2016 THOMSON REUTERS

1145

s 503B

Migration Act 1958

(b) an order that no report of the whole of, or a specified part of, or relating to, the substantive proceedings is to be published; or (c) an order for ensuring that no person, without the consent of the Federal Court or the Federal Circuit Court, has access to a file or a record of the Federal Court or the Federal Circuit Court that contains the information. [Subs (2) am Act 13 of 2013, s 3 and Sch 2 item 1, with effect from 12 Apr 2013; Act 13 of 2013, s 3 and Sch 1 item 342, with effect from 12 Apr 2013]

(3) Subsection (2) does not limit subsection (1). (4) The powers of the Federal Court under this section are to be exercised by a single Judge of that Court, and the powers of the Federal Circuit Court under this section are to be exercised by a single Judge of that Court. [Subs (4) am Act 13 of 2013, s 3 and Sch 2 item 1, with effect from 12 Apr 2013; Act 13 of 2013, s 3 and Sch 1 items 343 and 344, with effect from 12 Apr 2013]

Criteria for making non-disclosure order (5) In exercising its powers under subsection (1), the Federal Court or the Federal Circuit Court must have regard to all of the following matters: (a) the fact that the information was communicated, or originally communicated, to an authorised migration officer by a gazetted agency on condition that it be treated as confidential information; (b) Australia’s relations with other countries; (c) the need to avoid disruption to national and international efforts relating to law enforcement, criminal intelligence, criminal investigation and security intelligence; (d) in a case where the information was derived from an informant—the protection and safety of informants and of persons associated with informants; (e) the protection of the technologies and methods used (whether in or out of Australia) to collect, analyse, secure or otherwise deal with, criminal intelligence or security intelligence; (f) Australia’s national security; (g) the fact that the disclosure of information may discourage gazetted agencies and informants from giving information in the future; (h) the effectiveness of the investigations of official inquiries and Royal Commissions; (i) the interests of the administration of justice; (j) such other matters (if any) as are specified in the regulations; and must not have regard to any other matters. [Subs (5) am Act 13 of 2013, s 3 and Sch 2 item 1, with effect from 12 Apr 2013]

Disclosure of information for the purposes of deciding whether or not to make a non-disclosure order (6) If an application is made under subsection (1) in relation to particular information, subsections 503A(1) and (2) do not prevent the disclosure of the information to the Federal Court or the Federal Circuit Court for the purposes of enabling the Federal Court or the Federal Circuit Court to make a decision on the application. [Subs (6) am Act 13 of 2013, s 3 and Sch 2 item 1, with effect from 12 Apr 2013]

(7) If information is disclosed to the Federal Court or the Federal Circuit Court under subsection (6): (a) the information is not to be treated as having been disclosed to the Federal Court or the Federal Circuit Court for the purposes of the substantive proceedings; and

1146

Migration Law

Part 9 - Miscellaneous (ss 487ZI-507) Division 2 – Other (ss 487–507)

s 503B

(b) the information may only be considered by the Federal Court or the Federal Circuit Court for the purposes of the substantive proceedings if a fresh disclosure of the information is made in accordance with a declaration under subsection 503A(3). [Subs (7) am Act 13 of 2013, s 3 and Sch 2 item 1, with effect from 12 Apr 2013]

Variation or revocation of non-disclosure order (8) The Federal Court or the Federal Circuit Court may, by order, vary or revoke an order made by it under subsection (1) if both: (a) the Minister; and (b) the applicant in relation to the substantive proceedings; consent to the variation or revocation. [Subs (8) am Act 13 of 2013, s 3 and Sch 2 item 1, with effect from 12 Apr 2013]

Withdrawal of application for non-disclosure order (9) The Minister may withdraw an application under subsection (1) at any time. Declarations under subsection 503A(3) (10) This section does not prevent the Minister from making a declaration at any time under subsection 503A(3) authorising the disclosure of the information to the Federal Court or the Federal Circuit Court for the purposes of the substantive proceedings, even if that time occurs while the Federal Court or the Federal Circuit Court is considering whether to make an order under subsection (1). [Subs (10) am Act 13 of 2013, s 3 and Sch 2 item 1, with effect from 12 Apr 2013]

(11) To avoid doubt, the Minister may refuse to make a declaration under subsection 503A(3) even if the Federal Court or the Federal Circuit Court has made an order under subsection (1) of this section in relation to the information concerned. [Subs (11) am Act 13 of 2013, s 3 and Sch 2 item 1, with effect from 12 Apr 2013]

Offence (12) A person commits an offence if: (a) an order is in force under subsection (1); and (b) the person engages in conduct; and (c) the person’s conduct contravenes the order. Penalty: Imprisonment for 2 years. [Subs (12) am Act 4 of 2016, s 3 and Sch 4 item 211, with effect from 10 Mar 2016]

Relationship to other laws (13) This section has effect despite anything in: (a) any other provision of this Act; or (b) any other law of the Commonwealth.

© 2016 THOMSON REUTERS

1147

s 503B

Migration Act 1958

Applicant (14) For the purposes of this section, the table has effect: Applicant Item In the case of these proceedings... 1 Proceedings within the Federal Circuit Court’s jurisdiction under section 476 of this Act, including proceedings arising from: (a) a remittal under section 44 of the Judiciary Act 1903; or (b) a transfer under section 32AB of the Federal Court of Australia Act 1976. 2 Proceedings within the Federal Court’s jurisdiction under section 476A of this Act, including proceedings arising from a remittal under section 44 of the Judiciary Act 1903. 3 Proceedings within the Federal Court’s appellate jurisdiction arising from proceedings (the original proceedings) mentioned in item 1 or 2. 4 (a) proceedings by way of a referral of a question of law arising before the Administrative Appeals Tribunal; (b) proceedings by way of an appeal in relation to proceedings mentioned in paragraph (a).

the applicant is... the person seeking the remedy to be granted in exercise of that jurisdiction.

the person seeking the remedy to be granted in exercise of that jurisdiction. the person who was the applicant for the original proceedings.

the person who applied to the Administrative Appeals Tribunal for a review of the decision concerned.

[Subs (14) am Act 13 of 2013, s 3 and Sch 1 item 345, with effect from 12 Apr 2013; Act 137 of 2005, s 3 and Sch 1 item 39, with effect from 1 Dec 2005]

Definitions (15) In this section: authorised migration officer has the same meaning as in section 503A. engage in conduct means: (a) do an act; or (b) omit to perform an act. gazetted agency has the same meaning as in section 503A. proceeding means a proceeding in a court, whether between parties or not, and includes an incidental proceeding in the course of, or in connection with, a proceeding, and also includes an appeal. Royal Commission means a Royal Commission (however described) under a law of the Commonwealth, a State or a Territory. [S 503B am Act 4 of 2016; Act 13 of 2013, s 3 and Sch 1 item 341, with effect from 12 Apr 2013; Act 137 of 2005; insrt Act 75 of 2003, s 3 and Sch 1 item 6, with effect from 15 Jul 2003]

1148

Migration Law

Part 9 - Miscellaneous (ss 487ZI-507) Division 2 – Other (ss 487–507)

s 503C

503C Protection of confidential information disclosed to Federal Court or Federal Circuit Court—interim non-disclosure orders Notice of intention to apply for a permanent non-disclosure order (1) At least 7 days before making an application for an order under subsection 503B(1) in relation to particular information, the Minister must give the Federal Court or the Federal Circuit Court written notice of the Minister’s intention to make the application. [Subs (1) am Act 13 of 2013, s 3 and Sch 2 item 1, with effect from 12 Apr 2013]

(2) A notice under subsection (1) need not identify any of the attributes of the information. Interim non-disclosure order (3) If: (a) a notice is given under subsection (1); and (b) the notice relates to the Minister’s intention to make an application for an order under subsection 503B(1) in relation to particular information; the Federal Court or the Federal Circuit Court may, on application by the Minister, make such orders as the Federal Court or the Federal Circuit Court considers appropriate for the purpose of ensuring that, in the event that the subsection 503B(1) application is made and the information is disclosed to the Federal Court or the Federal Circuit Court in accordance with subsection 503B(6), the information is not divulged or communicated in circumstances that might, to any extent, undermine, prejudice or pre-empt: (c) the Federal Court’s or the Federal Circuit Court’s consideration of the subsection 503B(1) application; or (d) the Minister’s consideration of whether to make a declaration under subsection 503A(3) authorising the disclosure of the information to the Federal Court or the Federal Circuit Court. [Subs (3) am Act 13 of 2013, s 3 and Sch 2 item 1, with effect from 12 Apr 2013; Act 13 of 2013, s 3 and Sch 1 item 347, with effect from 12 Apr 2013]

(4) The Federal Court’s or the Federal Circuit Court’s orders under subsection (3) include: (a) an order that some or all of the members of the public are to be excluded during the whole or a part of the hearing of the subsection 503B(1) application; or (b) an order that no report of the whole of, or a specified part of, or relating to, the subsection 503B(1) application is to be published; or (c) an order for ensuring that no person, without the consent of the Federal Court or the Federal Circuit Court, has access to a file or a record of the Federal Court or the Federal Circuit Court that contains the information. [Subs (4) am Act 13 of 2013, s 3 and Sch 2 item 1, with effect from 12 Apr 2013; Act 13 of 2013, s 3 and Sch 1 item 348, with effect from 12 Apr 2013]

(5) Subsection (4) does not limit subsection (3). (6) The powers of the Federal Court under this section are to be exercised by a single Judge of that Court, and the powers of the Federal Circuit Court under this section are to be exercised by a single Judge of that Court. [Subs (6) am Act 13 of 2013, s 3 and Sch 2 item 1, with effect from 12 Apr 2013; Act 13 of 2013, s 3 and Sch 1 items 349 and 350, with effect from 12 Apr 2013]

Variation or revocation of non-disclosure order (7) The Federal Court or the Federal Circuit Court may, by order, vary or revoke an order made by it under subsection (3) if both: (a) the Minister; and

© 2016 THOMSON REUTERS

1149

s 503C

Migration Act 1958

(b) the applicant in relation to the substantive proceedings concerned; consent to the variation or revocation. [Subs (7) am Act 13 of 2013, s 3 and Sch 2 item 1, with effect from 12 Apr 2013]

Offence (8) A person commits an offence if: (a) an order is in force under subsection (3); and (b) the person engages in conduct; and (c) the person’s conduct contravenes the order. Penalty: Imprisonment for 2 years. [Subs (8) am Act 4 of 2016, s 3 and Sch 4 item 211, with effect from 10 Mar 2016]

Relationship to other laws (9) This section has effect despite anything in: (a) any other provision of this Act; or (b) any other law of the Commonwealth. Definition (10) In this section: engage in conduct means: (a) do an act; or (b) omit to perform an act. [S 503C am Act 4 of 2016; Act 13 of 2013, s 3 and Sch 1 item 346, with effect from 12 Apr 2013; insrt Act 75 of 2003, s 3 and Sch 1 item 6, with effect from 15 Jul 2003]

503D Details of gazetted agency to be treated as protected information (1) If section 503A or 503B applies to information communicated by a gazetted agency to an authorised migration officer so that the information cannot be divulged or communicated except as provided for in sections 503A, 503B and 503C, then sections 503A, 503B and 503C apply to similarly protect the agency’s details from being divulged or communicated as if the details were the information communicated by the agency. (2) A reference in subsection (1) to agency’s details is a reference to any information in relation to the gazetted agency including the agency’s name and the conditions on which the communication of information by the agency occurred. (3) In this section: gazetted agency has the same meaning as in section 503A. [S 503D insrt Act 75 of 2003, s 3 and Sch 1 item 6A, with effect from 16 Jul 2003]

504 Regulations (1) The Governor-General may make regulations, not inconsistent with this Act, prescribing all matters which by this Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to this Act and, without limiting the generality of the foregoing, may make regulations: (a) making provision for and in relation to: (i) the charging and recovery of fees in respect of any matter under this Act or the regulations, including the fees payable in connection with the review of decisions made under this Act or the regulations, whether or not such review is provided for by or under this Act; or (ii) the charging and recovery of fees in respect of English language tests conducted by or on behalf of the Department;

1150

Migration Law

Part 9 - Miscellaneous (ss 487ZI-507) Division 2 – Other (ss 487–507)

(b) (c)

(d)

(e)

(f)

(g)

(h) (i)

(j)

(jaa)

s 504

(iii) the way, including the currency, in which fees are to be paid; or (iv) the persons who may be paid fees on behalf of the Commonwealth; making provision for the remission, refund or waiver of fees of a kind referred to in paragraph (a) or for exempting persons from the payment of such fees; making provision for or in relation to the furnishing or obtaining of information with respect to: (i) persons on board a vessel arriving at a port in Australia in the course of, or at the conclusion of, a voyage or flight that commenced at, or during which the vessel called at, a place outside Australia; and (ii) persons on board a vessel leaving a port in Australia and bound for, or calling at, a place outside Australia; and (iii) persons on board an aircraft arriving at or departing from an airport in Australia, being an aircraft operated by an international air carrier; making provision for and in relation to the use that may be made by persons or bodies other than officers of the Department of information collected pursuant to regulations made under paragraph (c); making provision for and in relation to: (i) the giving of documents to; (ii) the lodging of documents with; or (iii) the service of documents on; the Minister, the Secretary or any other person or body, for the purposes of this Act; prescribing the practice and procedure in relation to proceedings before a Commissioner or a prescribed authority under this Act, including the summoning of witnesses, the production of documents, the taking of evidence on oath or affirmation, the administering of oaths or affirmations and the payment of expenses of witnesses; requiring assurances of support to be given, in such circumstances as are prescribed or as the Minister thinks fit, in relation to persons seeking to enter, or remain in, Australia and providing for the enforcement of assurances of support and the imposition on persons who give assurances of support of liabilities in respect of the maintenance of, and other expenditure in connexion with, the persons in respect of whom the assurances of support are given; making provision for the remission, refund or waiver of charges under the Migration (Health Services) Charge Act 1991; enabling a person who is alleged to have contravened section 137 to pay to the Commonwealth, as an alternative to prosecution, a prescribed penalty, not exceeding $1,000; enabling a person who is alleged to have contravened section 229 or 230 to pay to the Commonwealth, as an alternative to prosecution, a prescribed penalty, not exceeding: (i) in the case of a natural person—30 penalty units; and (ii) in the case of a body corporate—100 penalty units; and enabling a person who is alleged to have committed an offence against subsection 245N(2) to pay to the Commonwealth, as an alternative to prosecution, a prescribed penalty, not exceeding 10 penalty units; and

© 2016 THOMSON REUTERS

1151

s 504

Migration Act 1958

(ja) enabling a person who is alleged to have committed an offence against subsection 280(1) to pay to the Commonwealth, as an alternative to prosecution, a penalty of 12 penalty units; and (k) prescribing penalties not exceeding a fine of $1,000 or imprisonment for 6 months in respect of offences against the regulations; and (l) making provision for matters that, under the Education Services for Overseas Students Act 2000, are required or permitted to be prescribed in regulations made under this Act. [Subs (1) am Act 85 of 2008, s 3 and Sch 2 item 17, with effect from 15 Mar 2009; Act 48 of 2004, s 3 and Sch 1 item 171, with effect from 1 Jul 2004; Act 166 of 2000, s 3 and Sch 3 item 4, with effect from 4 Jun 2001; Act 160 of 1999, s 3 and Sch 1 item 62, with effect from 16 Dec 1999; Act 27 of 1997, s 3 and Sch 1 items 26 and 27, with effect from 1 May 1997; Act 184 of 1992, s 36, with effect from 1 Sep 1994; Act 84 of 1992, s 15, with effect from 30 Jun 1992; Act 198 of 1991, s 5, with effect from 18 Dec 1991; Act 86 of 1991, s 25, with effect from 26 Jun 1991; Act 59 of 1989, s 33, with effect from 19 Dec 1989 (am Act 159 of 1989); Act 49 of 1988, s 6, with effect from 1 Jul 1988; Act 141 of 1987, s 3 and Sch 1, with effect from 1 Jan 1988; Act 133 of 1987, s 9, with effect from 1 Jan 1988; Act 72 of 1984, s 3 and Sch, with effect from 19 Dec 1989; Act 112 of 1983, s 37 and Sch, with effect from 2 Apr 1984; Act 61 of 1981, s 115 and Sch 1, with effect from 12 Jun 1981; Act 118 of 1979, s 5, with effect from 1 Nov 1979; Act 117 of 1979, s 28, with effect from 29 Oct 1979; Act 10 of 1966, s 11 and Sch, with effect from 6 May 1966; Act 87 of 1964, s 5, with effect from 5 Nov 1964]

(2) Section 14 of the Legislation Act 2003 does not prevent, and has not prevented, regulations whose operation depends on a country or other matter being specified or certified by the Minister in an instrument in writing made under the regulations after the commencement of the regulations. [Subs (2) subst Act 126 of 2015, s 3 and Sch 1 item 385, with effect from 5 Mar 2016; am Act 141 of 2005, s 3 and Sch 4 items 17 and 18, with effect from 12 Dec 2005; former subs (1A) insrt Act 196 of 1991, s 9, with effect from 15 Jan 1992]

(3) The regulations that may be made under paragraph (1)(e) include, but are not limited to, regulations providing that a document given to, or served on, a person in a specified way shall be taken for all purposes of this Act and the regulations to have been received by the person at a specified or ascertainable time. (3A) The Evidence Act 1995 does not affect the operation of regulations made for the purposes of paragraph (1)(e). [Subs (3A) insrt Act 114 of 1998, s 3 and Sch 1 item 27, with effect from 1 Jun 1999]

(4) Regulations in respect of a matter referred to in paragraph (1)(g) may apply in relation to maintenance guarantees given before the commencement of this Part in accordance with the regulations that were in force under any of the Acts repealed by this Act. (5) An assurance of support given, after the commencement of this subsection, in accordance with regulations under paragraph (1)(g) continues to have effect, and may be enforced, in accordance with such regulations in spite of any change in circumstances whatsoever. (5A) The following have effect only in relation to assurances of support that were given before 1 July 2004 and are not assurances of support in relation to which Chapter 2C of the Social Security Act 1991 applies or applied: (a) subsection (5) of this section; (b) regulations made under paragraph (1)(g) (whether before, on or after the commencement of this subsection) providing for: (i) the enforcement of assurances of support; or

1152

Migration Law

Part 9 - Miscellaneous (ss 487ZI-507) Division 2 – Other (ss 487–507)

[504.20]

(ii)

s 504

the imposition on persons who give assurances of support of liabilities in respect of the maintenance of, and other expenditure in connection with, the persons in respect of whom the assurances of support are given.

[Subs (5A) insrt Act 122 of 2003, s 3 and Sch 3 item 2, with effect from 1 Jul 2004]

(6) In this section: international air carrier means an air transport enterprise that operates an air service between Australia and a place outside Australia. [S 504 am Act 126 of 2015; Act 85 of 2008; Act 141 of 2005; Act 48 of 2004; Act 122 of 2003; Act 116 of 2000; Act 160 of 1999; Act 114 of 1998; Act 27 of 1997; Act 184 of 1992; Act 84 of 1992; Act 198 of 1991; Act 196 of 1991; Act 86 of 1991; Act 59 of 1989; Act 49 of 1988; Act 141 of 1987; Act 133 of 1987; Act 168 of 1986; Act 72 of 1984; Act 112 of 1983; Act 61 of 1981; Act 118 of 1979; Act 117 of 1979; Act 10 of 1966; Act 87 of 1964]

SECTION 504 COMMENTARY Scope ................................................................................................................................................... [504.20] KEY CASES

Plaintiff M47-2012 v Director General of Security ........................................................................... [504.40]

[504.20] Scope Section 504(1) is the source of the regulation-making power. It authorises the Governor-General to make regulations, “not inconsistent” with the Act. However, as French CJ noted in Plaintiff M47-2012 v Director General of Security (2012) 292 ALR 243; 86 ALJR 1372; [2012] HCA 46 (Plaintiff M47) at [53], “[s]ection 504 does not in terms provide that the regulations may prescribe criteria for visas. Section 31(4) does that.” This statement reflects the fact that many separate sources of regulation-making power are to be found in the Act, each of which is directed to a specific purpose. Section 504, on the other hand, is the provision which qualifies each of those powers, requiring always that any regulation not be inconsistent with the Act. It is beyond the scope of this work to enter into an exegesis of the permissible scope and limits of subordinate legislation. Nevertheless, the following general principles regarding the relationship between the Act and the Regulations may be gleaned from Plaintiff M47, the leading authority on this subject: • “An important consideration in judging inconsistency is ‘the degree to which the legislature has disclosed an intention of dealing with the subject with which the statute is concerned.’ A grant of power to make regulations in terms conferred by s 504 does not authorise regulations which will ‘extend the scope or general operation of the enactment but [are] strictly ancillary.’ In considering whether there has been a valid exercise of the regulation-making power, ‘[t]he true nature and purpose of the power must be determined’”: at [54] per French CJ, citing with approval the comments of Dixon CJ, McTiernan, Williams, Webb, Fullager and Kitto JJ in Morton v Union Steamship Co of New Zealand Ltd (1951) 83 CLR 402; [1951] HCA 42 at 410 (CLR); Dixon CJ, Williams, Webb and Fullagar JJ in Shanahan v Scott (1957) 96 CLR 245; [1957] HCA 4 at 250 (CLR); Dixon J in Williams v City of Melbourne (1933) 49 CLR 142; [1933] HCA 56 at 155 (CLR). • “[I]t is the strong term ‘inconsistent’ in s 504(1) which controls the relationship between the statute and the delegated legislation, not the need, if possible, to give a harmonious operation to a statute as a whole”: at [86] per Gummow J. • “[T]he ambit of [the regulation making] power must be ascertained by the character of the statute and the nature of the provisions it contains. An important consideration is © 2016 THOMSON REUTERS

1153

s 504

Migration Act 1958

[504.40]

the degree to which the legislature has disclosed an intention” to deal completely and exclusively with the subject matter of the regulation in question. In this regard, “[t]he character of the Act, as indicated by s 4, includes the regulation, in the national interest, of the presence in Australia of aliens. The pursuit of that object is supported by heads of power including, but not with mutual exclusion, the aliens power, the external affairs power and the defence power”: at [133]–[144] per Gummow J, citing with approval the comments of Dixon CJ, McTiernan, Williams, Webb, Fullager and Kitto JJ in Morton v Union Steamship Co of New Zealand Ltd (1951) 83 CLR 402; [1951] HCA 42 at 410 (CLR). • “Section 504 is characteristic of regulation-making powers conferred at the end of long and complex legislation. It deals with many matters which, though no doubt of day-to-day importance, are mechanical in character. That is not the character of the regulations that s 31(3) contemplates. Section 31(3) appears in the middle of a provision dealing with visas, a topic central to the entire scheme of the Act.” … “The position of s 31(3) in the Act suggests that the power it grants to make regulations about visa criteria is of equal significance to provisions that prescribe visa criteria in the Act itself”: at [316] per Heydon J. [Note: Heydon J was in the minority in relation to the question of whether a visa criterion contained in the Regulations was invalid as a result of inconsistency with provisions of the Act.] • “Section 504 … requires that any regulations made under that provision carry out and give effect to the Act, and not be inconsistent with [it]”: at [434] per Kiefel J.

KEY CASES [504.40] Plaintiff M47-2012 v Director General of Security In Plaintiff M47-2012 v Director General of Security (2012) 292 ALR 243; 86 ALJR 1372; [2012] HCA 46, the plaintiff, a Sri Lankan national, arrived in Australia as the holder of a special purpose visa which expired at midnight on the day of his arrival. He then became an unlawful non-citizen and was detained under s 189. The plaintiff subsequently applied for a protection visa, and a delegate of the Minister found him to be a person to whom Australia has protection obligations under the Refugees Convention. However, prior to the delegate’s finding, ASIO had provided the Department of Immigration and Citizenship with an adverse security assessment for the purposes of public interest criterion 4002 (PIC 4002). The delegate therefore found that, due to this assessment, the plaintiff did not meet the requirements of Sch 2 cl 866.225 of the Regulations (which prescribed that an applicant must not receive an adverse security assessment under PIC 4002). Relevantly, PIC 4002 reposed power in the hands of an officer of ASIO alone to determine whether or not the plaintiff presented a security risk. Any such assessment was not subject to merits review. The plaintiff was therefore refused the grant of a protection visa. The Refugee Review Tribunal subsequently affirmed this decision. Due to the plaintiff’s unlawful status, he was held in immigration detention. However, in light of the delegate’s finding that the plaintiff was owed protection obligations under the Refugees Convention (notwithstanding his ineligibility for a protection visa), the Department did not propose to remove the plaintiff to Sri Lanka, but were also unable, as at the time of the High Court’s decision, to identify any other country to which the plaintiff could be sent. The plaintiff therefore faced the prospect of indefinite detention. Various questions were reserved to the High Court for hearing in a Special Case. The principal basis on which the plaintiff issued proceedings in the High Court was to challenge ASIO’s adverse security assessment of him, arguing that PIC 4002 was invalid by reason of its inconsistency with ss 500(1)(c) and 501(6)(d)(v) of the Act (which is prohibited by s 504(1)). 1154

Migration Law

[504.40]

Part 9 - Miscellaneous (ss 487ZI-507) Division 2 – Other (ss 487–507)

s 506

By a majority of 4 to 3, French CJ, Hayne, Crennan and Kiefel JJ held, in separate judgments, that PIC 4002 was beyond the power conferred by s 31(3) (which allows the Regulations to prescribe criteria for the grant of a visa) and was therefore invalid. In particular, the court held the following: • The Regulations cannot be inconsistent with the Act and therefore cannot extend the scope or general operation of the Act. Relevantly, s 500(1)(c) suggests a protection visa can be refused by reliance on Arts 32 and 33(2) of the Refugees Convention. Alternatively, s 501(6)(d)(v) provides that a protection visa can be refused on character grounds where a person represents a danger to the Australian community (and, in this way, subsumes Arts 32 and 33(2)). However, PIC 4002 was wider in scope than, and subsumes the criteria in, ss 500(1)(c) and 501(6)(d)(v). Further, PIC 4002 set no threshold to enliven its application. PIC 4002 was therefore invalid for being inconsistent with the Act: at [54], [71] per French CJ, at [221] per Hayne J. • The process created by PIC 4002 required that refusal of a protection visa would be based solely upon the opinion formed by an officer of ASIO. This would have the effect of bringing the consideration of an application for a protection visa to a premature end, and would preclude any merits review. This is inconsistent with the scheme provided for in ss 500(1)(c) and 501(6)(d)(v), which reposed power in the Minister personally, or the Minister’s delegate, to refuse an application relying on Arts 32 and 33(2). This was also inconsistent with the scheme of merits review created by the Act. In effect, PIC 4002 purported to shift power from the Minister to an ASIO officer. PIC 4002 was therefore inconsistent with the scheme under the Act relating to decisions concerning protection visas, and the review of such decisions: at [71] per French CJ, at [386], [396] and [298] per Crennan J, at [181] and [206] per Hayne J, at [457]–[459] per Kiefel J. 505 Regulations about visa criteria To avoid doubt, regulations for the purpose of prescribing a criterion for visas of a class may provide that the Minister, when required to decide whether an applicant for a visa of the class satisfies the criterion: (a) is to get a specified person or organisation, or a person or organisation in a specified class, to: (i) give an opinion on a specified matter; or (ii) make an assessment of a specified matter; or (iii) make a finding about a specified matter; or (iv) make a decision about a specified matter; and (b) is: (i) to have regard to that opinion, assessment, finding or decision in; or (ii) to take that opinion, assessment, finding or decision to be correct for the purposes of; deciding whether the applicant satisfies the criterion. [Former s 182 renum Act 60 of 1994, s 83; am Act 60 of 1994, s 82 and Sch 1 item 115; insrt Act 176 of 1992, s 15]

506 Regulations about passenger cards (1) Regulations under paragraph 504(1)(c) may provide for the giving of different information about different classes of people. (2) The regulations are to provide for the giving of information, in the form of answers to questions on a form, to be known as a passenger card, by non-citizens travelling to Australia, other than non-citizens exempted by the regulations.

© 2016 THOMSON REUTERS

1155

s 506

Migration Act 1958

(3) The questions for a non-citizen required by subsection (2) may include, but are not limited to, questions about any or all of the following: (a) the non-citizen’s health; (b) any criminal convictions in Australia or a foreign country of the non-citizen; (c) the purpose of the new arrival’s going to Australia; (d) any unpaid debts to the Commonwealth of the non-citizen; (e) any removal or deportation from, or refusal of admission into, Australia or a foreign country of the non-citizen. [Subs (3) am Act 100 of 1995, s 3 and Sch 1 items 14–16] [S 506 am Act 100 of 1995; former s 183 renum Act 60 of 1994, s 83; insrt Act 184 of 1992, s 37]

506A Regulations may provide for infringement notices (1) The regulations may provide for a person who is alleged to have contravened a civil penalty provision to pay a penalty to the Commonwealth as an alternative to proceedings for a civil penalty order against the person. (2) The penalty must not exceed one-fifth of the maximum penalty that a court could impose on the person for a contravention of the civil penalty provision. [S 506A insrt Act 10 of 2013, s 3 and Sch 1 item 29]

507 Marital or relationship status (1) The Sex Discrimination Act 1984, to the extent that it applies to the status or condition of being the spouse or de facto partner of another person, does not operate in relation to: (a) regulations, or the making of regulations, that, for the purposes of dealing with an application for a visa, specify: (i) the nature and incidents of the relationship between a person and another person; or (ii) the period for which a relationship of a specified kind must have existed between a person and another person; before the person is taken to be the de facto partner of the other person; or (b) the performance of any function, the exercise of any power or the fulfilment of any responsibility, in connection with the administration of any such regulation. [Subs (1) am Act 144 of 2008, s 3 and Sch 10 items 74 and 75]

(2) To avoid doubt, subsection (1) does not prevent the Sex Discrimination Act 1984 from applying in relation to the marital or relationship status of persons making or administering regulations covered by subsection (1). [Subs (2) am Act 98 of 2013, s 3 and Sch 1 item 63] [S 507 am Act 98 of 2013, s 3 and Sch 1 item 62; Act 144 of 2008; insrt Act 27 of 1997, s 3 and Sch 3 item 1]

1156

Migration Law

THE SCHEDULE – ACTS RELATING TO IMMIGRATION AND DEPORTATION Section 3 Immigration Restriction Act 1901 Immigration Restriction Amendment Act 1905 Immigration Restriction Act 1908 Immigration Restriction Act 1910 Immigration Act 1912 Immigration Act 1920 Immigration Act 1924 Immigration Act 1925 Immigration Act 1930 Immigration Act 1932 Immigration Act 1933 Immigration Act 1935 Immigration Act 1940 Immigration Act 1948 Immigration Act 1949 Pacific Island Labourers Act 1901 Pacific Island Labourers Act 1906 Aliens Deportation Act 1948

© 2016 THOMSON REUTERS

1157

Migration Regulations 1994

TABLE OF PROVISIONS Part 1 - Preliminary Division 1.1 - Introductory 1.01 Name of Regulations.......................................................................................................... 1223 1.02 Commencement................................................................................................................. 1223 Division 1.2 - Interpretation 1.03 Definitions........................................................................................................................... 1223 1.04 Adoption..............................................................................................................................1251 1.04A Foreign Affairs recipients and Foreign Affairs students......................................................1252 1.04AA References to AusAID [Repealed]......................................................................................1253 1.04B Defence student................................................................................................................. 1253 1.05 Balance of family test......................................................................................................... 1253 1.05A Dependent.......................................................................................................................... 1254 1.06 References to classes of visas...........................................................................................1255 1.07 References to subclasses of visas.....................................................................................1255 1.08 Compelling need to work....................................................................................................1256 1.09 Criminal detention...............................................................................................................1256 1.09A De facto partner and de facto relationship.........................................................................1256 1.10 Labour market requirements [Repealed]............................................................................1257 1.11 Main business.....................................................................................................................1257 1.11A Ownership for the purposes of certain Parts of Schedule 2..............................................1258 ETA-eligible passport.......................................................................................................... 1259 1.11B eVisitor eligible passport.....................................................................................................1259 1.11C 1.12 Member of the family unit...................................................................................................1259 1.12AA Member of the immediate family........................................................................................ 1264 1.12A Net employment benefit [Repealed]................................................................................... 1264 1.13 Meaning of nominator.........................................................................................................1265 1.13A Meaning of adverse information......................................................................................... 1265 1.13B Meaning of associated with................................................................................................ 1265 1.14 Orphan relative................................................................................................................... 1266 1.14A Parent and child................................................................................................................. 1266 1.15 Remaining relative.............................................................................................................. 1267 1.15AA Carer................................................................................................................................... 1267 1.15A Spouse................................................................................................................................1268 1.15B Vocational English.............................................................................................................. 1269 1.15C Competent English............................................................................................................. 1270 1.15D Proficient English................................................................................................................ 1270 1.15E Concessional competent English [Repealed].....................................................................1271 1.15EA Superior English................................................................................................................. 1271 1.15F Australian study requirement..............................................................................................1271 1.15G Superyachts........................................................................................................................ 1271 1.15H Migration occupation in demand [Repealed]......................................................................1272 1.15I Skilled occupation...............................................................................................................1272 1.15J Excluded maritime arrival................................................................................................... 1273 Division 1.3 - Administration 1.16 Delegation...........................................................................................................................1273 1.16AA Appointment of Medical Officer of the Commonwealth......................................................1273 1.16A Regional headquarters agreements [Repealed].................................................................1273 © 2016 THOMSON REUTERS

1161

Migration Regulations 1994 1.16B 1.17 1.18 1.19

Invest Australia Supported Skills agreements [Repealed]................................................. 1273 Specification of matters by Gazette Notice [Repealed]..................................................... 1273 Approved forms.................................................................................................................. 1273 Occupations requiring English list [Repealed]....................................................................1274

Division 1.4 - Sponsorship not applicable to Division 3A of Part 2 of the Act 1.20 Sponsorship undertakings.................................................................................................. 1274 1.20AA Approval of sponsor — specified temporary visa applicants [Repealed].......................... 1276 Division 1.4A - Temporary business entry: sponsorship and nomination [Repealed] Division 1.4B - Limitation on certain sponsorships under Division 1.4 1.20J Limitation on approval of sponsorships—spouse, partner, prospective marriage and interdependency visas........................................................................................................ 1276 1.20K Limitation on sponsorships—remaining relative visas....................................................... 1277 1.20KA Limitation on approval of sponsorship—partner (provisional or temporary) or prospective marriage (temporary) visas.................................................................................................1279 1.20KB Limitation on approval of sponsorship—child, partner and prospective marriage visas... 1280 1.20L Limitation on approval of sponsorship—Subclass 600 (Visitor) visas............................... 1282 1.20LAA Limitation on sponsorships—parent, aged dependent relative, contributory parent, aged parent and contributory aged parent visas.........................................................................1283 Division 1.4C - Sponsorship: professional development [Repealed] Division 1.4D - Special student sponsorship [Repealed] Division 1.4E - Sponsorship: trade skills training [Repealed] Division 1.5 - Special provisions relating to family violence 1.21 Interpretation.......................................................................................................................1285 1.22 References to person having suffered or committed family violence................................ 1286 1.23 When is a person taken to have suffered or committed family violence?......................... 1286 1.24 Evidence............................................................................................................................. 1288 1.25 Statutory declaration by alleged victim etc.........................................................................1288 1.26 Statutory declaration by competent person [Repealed]..................................................... 1289 1.27 Documents not admissible in evidence..............................................................................1289 Division 1.6 - Immigration Minister’s suspension certificate under Education Services for Overseas Students Act 2000 1.30 Prescribed non-citizen........................................................................................................ 1290 Division 1.8 - Special provisions for student visas 1.40 Eligible passport and principal course................................................................................1290 1.40A Courses to be specified by Minister................................................................................... 1291 1.41 Assessment levels to be specified by Minister.................................................................. 1291 1.42 Assessment level of applicant............................................................................................ 1293 1.43 Notification of assessment level......................................................................................... 1295 1.44 Evidence required...............................................................................................................1295

Part 2 - Visas Division 2.1 - Classes, criteria, conditions etc 2.01 Classes of visas................................................................................................................. 1297 2.02 Subclasses......................................................................................................................... 1298 2.03 Criteria applicable to classes of visas................................................................................ 1299 2.03A Criteria applicable to de facto partners.............................................................................. 1300 2.03AA Criteria applicable to character tests and security assessments.......................................1301 2.03B Protection visas—international instruments....................................................................... 1301 2.04 Circumstances in which a visa may be granted................................................................ 1302 2.05 Conditions applicable to visas............................................................................................ 1302 2.06 Non-citizens who do not require visas to travel to Australia..............................................1304 2.06AAA Entry to Australia—Maritime Crew (Temporary) (Class ZM) visas.................................... 1304

1162

Migration Law

Table of Provisions 2.06AAB 2.06AAC 2.06AA

Visa ............................................................................................................................................1305 applications by holders and certain former holders of safe haven enterprise visas. Entry to Australia—persons entering to participate in, or support, offshore resources activities.............................................................................................................................. 1306 Decision periods—decisions on protection visas [Repealed]............................................ 1307

Division 2.2 - Applications 2.06A Definition............................................................................................................................. 1307 2.07 Application for visa—general..............................................................................................1307 2.07A Certain applications not valid bridging visa applications....................................................1308 2.07AA Applications for certain visitor visas................................................................................... 1309 2.07AB Applications for Electronic Travel Authority visas...............................................................1310 2.07AC Applications for Temporary Safe Haven and Temporary (Humanitarian Concern) visas...1310 2.07AD Applications for Olympic (Support) (Temporary) visas [Repealed].................................... 1311 2.07AE Applications for Designated Parent visas [Repealed]........................................................ 1311 2.07AF Certain applications for Student (Temporary) (Class TU) visas......................................... 1311 2.07AG Applications for certain substantive visas by persons for whom condition 8503 or 8534 has been waived under subregulation 2.05(4AA), (5) or (5A)........................................... 1312 2.07AH Applications for certain substantive visas by persons for whom condition 8534 has been waived under subregulation 2.05(6)................................................................................... 1312 2.07AI Applications ............................................................................................................................................1313 for certain substantive visas by persons holding Subclass 173 or 884 visas 2.07AJ Applications for Witness Protection (Trafficking) (Temporary) (Class UM) visas [Repealed].......................................................................................................................... 1313 2.07AK Applications for Referred Stay (Permanent) (Class DH) visas.......................................... 1313 2.07AL Applications for certain visas by contributory parent newborn children.............................1314 2.07AM Applications for Refugee and Humanitarian (Class XB) visas...........................................1315 2.07AN Applications for Return Pending (Temporary) (Class VA) visas [Repealed]...................... 1315 2.07AO Applications for certain substantive visas by specified persons [Repealed]..................... 1315 2.07AP Applications for Maritime Crew (Temporary) (Class ZM) visas..........................................1315 2.07AQ Applications for Resolution of Status (Class CD) visas..................................................... 1316 2.07AR Applications for Superyacht Crew (Temporary) (Class UW) visas.................................... 1318 2.08 Application by newborn child..............................................................................................1318 2.08AA Application by contributory parent newborn child.............................................................. 1318 2.08A Addition of certain applicants to certain applications for permanent visas........................1319 2.08B Addition of certain dependent children to certain applications for temporary visas.......... 1320 2.08BA Certain holders of Subclass 450 visas taken to have applied for Resolution of Status (Reisdence) (Class BL) visas [Repelaed].......................................................................... 1322 2.08E Certain applicants taken to have applied for Partner (Migrant) (Class BC) visas and Partner (Provisional) (Class UF) visas............................................................................... 1322 2.08F Certain applications for Protection (Class XA) visas taken to be applications for Temporary Protection (Class XD) visas............................................................................. 1323 2.08G Certain ............................................................................................................................................1324 persons taken to have applied for Partner (Migrant) (Class BC) visas [Repealed] 2.08H Certain persons taken to have applied for Subclass 785 (Temporary Protection) visas [Disallowed]........................................................................................................................ 1324 2.09 Oral applications for visas.................................................................................................. 1325 2.10 Where application must be made.......................................................................................1325 2.10AA Where application must be made for certain visas............................................................1326 2.10A Notice of lodgment of application—person in immigration detention (Bridging E (Class WE) visa)............................................................................................................................ 1327 2.10B Notice of lodgment of application—person in immigration detention (Bridging F (Class WF) visa)............................................................................................................................ 1327 2.10C Time of making Internet application................................................................................... 1327 2.11 Special provisions for certain visa applications that are refused.......................................1327 2.11A Visa applications by unauthorised maritime arrivals.......................................................... 1328 2.11B Visa applications by transitory persons..............................................................................1329 2.12 Certain non-citizens whose applications refused in Australia (Act, s 48).......................... 1329 2.12AA Refusal or cancellation of visa—prohibition on applying for other visa (Act, s 501E).......1330 2.12A Safe third countries and prescribed connection.................................................................1330

© 2016 THOMSON REUTERS

1163

Migration Regulations 1994 2.12B

Safe third country, prescribed connection and cut off day (subsection 91D(1) and paragraph 91G(10(6) of the Act) [Repealed]......................................................................1331

Division 2.2AA - Special provisions relating to persons designated under regulation 2.07AO [Repealed] ............................................................................................................................................... 1331 Division 2.2A - Visa application charge 2.12BA Safe third country and prescribed connection (Act, s 91D(1)) [Repealed]........................ 1331 2.12C Amount of visa application charge..................................................................................... 1331 2.12D Prescribed period for payment of unpaid amount of visa application charge (Act, subsection 64(2))................................................................................................................ 1333 2.12E Payment of first instalment of visa application charge not required for certain combined applications [Repealed]...................................................................................................... 1334 2.12F Refund of first instalment of visa application charge......................................................... 1334 2.12G When payment of second instalment of visa application charge not required.................. 1337 2.12H Refund of second instalment of visa application charge................................................... 1337 2.12I Partial refund of second instalment of visa application charge [Repealed].......................1339 2.12J Refund of first and second instalments of visa application charge for Resolution of Status (Temporary) (Class UH) visas [Repealed].............................................................. 1339 2.12JA Payment of visa application charge for Internet application.............................................. 1339 2.12K Who is the person who pays an instalment of visa application charge.............................1339 2.12L Legal personal representative............................................................................................ 1339 Division 2.2B - Priority consideration of certain visa applications on request 2.12M Priority consideration of certain visa applications on request............................................1340 2.12N Fee for request for priority consideration of visa applications........................................... 1341 2.12P Refund of fee for request for priority consideration of visa applications........................... 1341 Division 2.3 - Communication between applicant and Minister 2.13 Communication with Minister..............................................................................................1341 2.14 Where written communication must be sent...................................................................... 1343 2.15 Response ............................................................................................................................................1343 to invitation to give additional information or comments—prescribed periods 2.16 Notification of decision on visa application........................................................................ 1344 2.16A Time of receipt of electronic communication [Repealed]................................................... 1345 Division 2.4 - Prescribed evidence of visa [Repealed] .................................................................................. 1345 Division 2.5 - Bridging visas 2.20 Eligible non-citizen (Act, s 72)............................................................................................1346 2.20A Applications for Bridging R (Class WR) visas....................................................................1350 2.20B Applications for Bridging F (Class WF) visas.....................................................................1350 2.21 Most beneficial bridging visas (Act, s 68(4)(b)(ii))..............................................................1351 2.21A Grant of Bridging A (Class WA) visas without application................................................. 1351 2.21B Grant of Bridging A (Class WA), Bridging C (Class WC) and Bridging E (Class WE) visas without application.............................................................................................................. 1353 2.22 Invalid application for substantive visa...............................................................................1353 2.23 Further application for bridging visa (Act, s 74)................................................................. 1354 2.24 Eligible non-citizen in immigration detention...................................................................... 1354 2.25 Grant of Bridging E (Class WE) visas without application.................................................1355 2.25AA Grant of Bridging R (Class WR) visa without application.................................................. 1356 Division 2.5A - Special provisions relating to certain health criteria 2.25A Referral to Medical Officers of the Commonwealth........................................................... 1356 Division 2.6 - Prescribed qualifications—application of points system 2.26AC Prescribed qualifications and number of points for Subclass 189, 190 and 489 visas.....1357 2.26B Relevant assessing authorities...........................................................................................1359 2.27B Skills assessment for skilled occupations [Repealed]........................................................1360 2.27C Skilled occupation in Australia............................................................................................1360 2.27D Study in Australia................................................................................................................1361

1164

Migration Law

Table of Provisions 2.28 2.29

Notice of putting application aside..................................................................................... 1361 Interpretation — Schedule 7 [Repealed]............................................................................ 1361

Division 2.7 - Assurances of support [Repealed] .......................................................................................... 1361 Division 2.8 - Special purpose visas 2.40 Persons having a prescribed status—special purpose visas (Act, s 33(2)(a))..................1361 2.40A Conditions applicable to special purpose visas................................................................. 1365 Division 2.9 - Cancellation or refusal to grant visas Subdivision 2.9.1 - Cancellation under Subdivision C of Division 3 of Part 2 of the Act 2.41 Whether to cancel visa—incorrect information or bogus document (Act, s 109(1)(c))......1365 2.42 Notice of decision to cancel visa under s 109................................................................... 1366 Subdivision 2.9.2 - Cancellation generally 2.43 Grounds for cancellation of visa (Act, s 116)..................................................................... 1366 2.44 Invitation to comment—response....................................................................................... 1373 2.45 Notification of decision (Act, s 127)....................................................................................1374 2.46 Time to respond to notice of cancellation (Act, s 129(1)(c))..............................................1374 2.47 Notice of cancellation (Act, s 129)..................................................................................... 1374 2.48 Revocation of cancellation (Act, s 131(2))......................................................................... 1375 2.49 Notice of decision whether to revoke cancellation (Act, s 132).........................................1375 2.49A Additional personal powers for Minister to cancel visas—period to submit information, material and representations.............................................................................................. 1375 2.50 Cancellation of business visas........................................................................................... 1375 2.50AA Cancellation of regional sponsored employment visas......................................................1376 Subdivision 2.9.2A - Automatic cancellation of student visas 2.50A Meaning of office of Immigration........................................................................................ 1376 Subdivision 2.9.3 - Refusal or cancellation on character grounds 2.51 Notification by Administrative Appeals Tribunal (Act, s 500) [Repealed]........................... 1376 2.52 Refusal or cancellation of visa—representations in respect of revocation of decision by Minister (Act, s 501C and 501CA)..................................................................................... 1377 2.53 Submission of information or material (Act, s 501D)......................................................... 1378 Division 2.10 - Documents relating to cancellation of visas 2.54 Definitions for Division 2.10................................................................................................1379 2.55 Giving of documents relating to proposed cancellation, cancellation or revocation of cancellation......................................................................................................................... 1379

Part 2A - Sponsorship applicable to Division 3A of Part 2 of the Act Division 2.11 - Introductory 2.56 Application.......................................................................................................................... 1383 2.57 Interpretation.......................................................................................................................1383 2.57A Meaning of earnings...........................................................................................................1389 Division 2.12 - Classes of sponsor 2.58 Classes of sponsor............................................................................................................. 1390 Division 2.13 - Criteria for approval of sponsor 2.59 Criteria for approval as a standard business sponsor....................................................... 1391 2.60 Criterion for approval as a professional development sponsor......................................... 1392 2.60A Criterion for approval as a temporary work sponsor..........................................................1393 2.60D Criterion for approval as a special program sponsor.........................................................1394 2.60E Criterion for approval as a visiting academic sponsor [Repealed].................................... 1394 2.60F Criterion for approval as an entertainment sponsor...........................................................1395 2.60K Criterion for approval as a superyacht crew sponsor........................................................ 1395 2.60L Criterion for approval as a long stay activity sponsor........................................................1395 2.60M Criteria for approval as a training and research sponsor.................................................. 1396 2.60S Additional criteria for all classes of sponsor—transfer, recovery and payment of costs... 1396

© 2016 THOMSON REUTERS

1165

Migration Regulations 1994

Division 2.14 - Application for approval as a sponsor 2.61 Application for approval as a sponsor................................................................................1398 2.62 Notice of decision............................................................................................................... 1400 Division 2.15 - Terms of approval of sponsorship 2.63 Standard business sponsor or temporary work sponsor................................................... 1400 2.64 Professional development sponsor.................................................................................... 1401 2.64A Special program sponsor....................................................................................................1401 Division 2.16 - Variation of terms of approval of sponsorship 2.65 Application.......................................................................................................................... 1401 2.66 Process to apply for variation of terms of approval—standard business sponsor............ 1402 2.66A Process ............................................................................................................................................1403 to apply for variation of terms of approval as certain temporary work sponsors 2.67 Terms of approval that may be varied................................................................................1404 2.68 Criteria for variation of terms of approval—standard business sponsor............................1404 2.68A Criteria for variation of terms of approval—temporary work sponsor................................ 1406 2.68J Additional criteria for variation of terms of approval for all classes of sponsor—transfer, recovery and payment of costs.......................................................................................... 1406 2.69 Notice of decision............................................................................................................... 1408 Division 2.17 - Nominations 2.70 Application.......................................................................................................................... 1408 2.71 Prescribed kind of visa [Repealed].....................................................................................1408 2.72 Criteria for approval of nomination—Subclass 457 (Temporary Work (Skilled)) visa........1408 2.72AA Labour market testing.........................................................................................................1414 2.72A Criteria for approval of nomination—various visas............................................................ 1415 2.72B Criteria for approval of nomination—Subclass 411 (Exchange) visa.................................1417 2.72C Criteria for approval of nomination—Subclass 419 (Visiting Academic) visa [Repealed]...1418 2.72D Criteria for approval of nomination—Subclass 420 (Temporary Work (Entertainment)) visa..................................................................................................................................... 1418 2.72E Criteria for approval of nomination—Subclass 421 (Sport) visa........................................1420 2.72H Criteria for approval of nomination—Subclass 428 (Religious Worker) visa..................... 1422 2.72I Criteria for approval of nomination—Subclass 442 (Occupational Trainee) visa and Subclass 402 (Training and Research) visa...................................................................... 1423 2.72J Criteria for approval of nomination—Subclass 401 (Temporary Work (Long Stay Activity)) visa...................................................................................................................... 1426 2.73 Process for nomination—Subclass 457 (Temporary Work (Skilled)) visa......................... 1428 2.73A Process for nomination—various visas.............................................................................. 1430 2.73B Process for nomination—Subclass 420 (Temporary Work (Entertainment)) visa..............1433 2.73C Process for nomination—Subclass 421 (Sport) visa..........................................................1434 2.74 Notice of decision............................................................................................................... 1435 2.75 Period of approval of nomination—Subclass 457 (Temporary Work (Skilled)) visa.......... 1435 2.75A Period of approval of nomination—other visas.................................................................. 1436 Division 2.18 - Work agreements 2.76 Requirements..................................................................................................................... 1437 2.76A Labour market testing and other work agreement requirements.......................................1437 Division 2.19 - Sponsorship obligations 2.77 Preliminary.......................................................................................................................... 1438 2.78 Obligation to cooperate with inspectors............................................................................. 1438 2.79 Obligation to ensure equivalent terms and conditions of employment.............................. 1439 2.80 Obligation to pay travel costs to enable sponsored persons to leave Australia................1442 2.80A Obligation to pay travel costs—domestic worker (executive)............................................ 1445 2.81 Obligation to pay costs incurred by the Commonwealth to locate and remove unlawful non-citizen.......................................................................................................................... 1447 2.82 Obligation to keep records................................................................................................. 1448 2.83 Obligation to provide records and information to the Minister........................................... 1450 2.84 Obligation to provide information to Immigration when certain events occur....................1451

1166

Migration Law

Table of Provisions 2.85 2.86 2.87 2.87A 2.87B 2.87C

Obligation to secure an offer of a reasonable standard of accommodation......................1458 Obligation to ensure primary sponsored person works or participates in nominated occupation, program or activity.......................................................................................... 1461 Obligation not to recover, transfer or take actions that would result in another person paying for certain costs...................................................................................................... 1464 Obligation to make same or equivalent position available to Australian exchange participants......................................................................................................................... 1467 Obligation to provide training..............................................................................................1467 Obligation not to engage in discriminatory recruitment practices...................................... 1468

Division 2.20 - Circumstances in which sponsor may be barred or sponsor’s approval may be cancelled 2.88 Preliminary.......................................................................................................................... 1468 2.89 Failure to satisfy sponsorship obligation............................................................................ 1469 2.90 Provision of false or misleading information...................................................................... 1469 2.91 Application or variation criteria no longer met....................................................................1470 2.92 Contravention of law...........................................................................................................1470 2.93 Unapproved change to professional development program or special program...............1472 2.94 Failure to pay additional security........................................................................................1472 2.94A Failure to comply with certain terms of special program agreement or professional development agreement..................................................................................................... 1473 2.94B Failure to pay medical and hospital expenses...................................................................1473 Division 2.21 - Process to bar sponsor or cancel sponsor’s approval 2.95 Preliminary.......................................................................................................................... 1474 2.96 Notice of intention to take action........................................................................................1474 2.97 Decision.............................................................................................................................. 1474 2.98 Notice of decision............................................................................................................... 1474 Division 2.22 - Waiving a bar on sponsor’s approval 2.99 Application.......................................................................................................................... 1475 2.100 Circumstances in which a bar may be waived...................................................................1475 2.101 Criteria for waiving a bar.................................................................................................... 1475 2.102 Process to waive a bar.......................................................................................................1475 Division 2.22A - Inspectors 2.102A Period of appointment........................................................................................................ 1476 2.102B Identity cards...................................................................................................................... 1476 2.102C Purposes for which powers of inspectors may be exercised.............................................1476 Division 2.23 - Disclosure of personal information 2.103 Disclosure of personal information by Minister.................................................................. 1476 2.104 Circumstances in which the Minister may disclose personal information..........................1478 2.105 Circumstances in which a recipient may use or disclose personal information................ 1479 2.106 Disclosure of personal information to Minister................................................................... 1479

Part 3 - Immigration clearance and collection of information Division 3.1 - Information to be given 3.01 Provision of information (general requirement).................................................................. 1481 3.02 Passenger cards for persons entering Australia................................................................ 1482 3.03 Evidence of identity and visa for persons entering Australia (Act s 166).......................... 1482 3.03AA Evidence of identity and providing information—non-military ships (Act s 166)................1485 3.03A Evidence of identity and visa for persons entering Australia—personal identifiers [Repealed].......................................................................................................................... 1486 3.04 Place and time for giving evidence (Act, s 167)................................................................ 1486 3.05 Allowed inhabitants of the Protected Zone (Act, s 168(2))................................................ 1486 3.06 Persons not required to comply with s 166 of the Act (Act, s 168(3))...............................1487 3.06A Designated foreign dignitaries............................................................................................ 1487 3.07 Persons taken not to leave Australia (Act, s 80(c))........................................................... 1487

© 2016 THOMSON REUTERS

1167

Migration Regulations 1994 3.08 3.09 3.10 3.10A 3.11 3.12

Offence—failure to complete a passenger card.................................................................1487 Evidence of identity—domestic travel on overseas vessels.............................................. 1487 Use of information.............................................................................................................. 1488 Access to movement records............................................................................................. 1489 Production of deportee or removee....................................................................................1490 Offences by master of vessel.............................................................................................1490

Division 3.2 - Information about passengers and crew on overseas vessels 3.13 Interpretation.......................................................................................................................1490 3.13A Information about passengers and crew to be given before arrival and departure of certain aircraft and ships.................................................................................................... 1492 3.13B Obligation to report on persons arriving on ships—reporting periods for journey from last port outside Australia.......................................................................................................... 1492 3.13C Report on departing person to relate to flight or voyage from the last place in Australia to a place outside Australia.................................................................................................... 1492 3.13D Obligation ............................................................................................................................................1493 to report on persons departing from Australia—deadline for providing report 3.14 Information ............................................................................................................................................1493 about overseas passengers to be given on arrival of inbound civilian vessel 3.15 Medical certificate............................................................................................................... 1494 3.16 Information about overseas passengers—outbound civilian vessel.................................. 1495 3.17 Information about crew....................................................................................................... 1495 Division 3.3 - Examination, search and detention 3.19 Periods within which evidence to be shown to officer....................................................... 1496 3.19A Circumstances in which an officer must require personal identifiers [Repealed].............. 1496 3.20 Information to be provided—authorised officers carrying out identification tests.............. 1496 3.21 Procedure and requirements—identification test not carried out.......................................1496 Division 3.4 - Identification of immigration detainees 3.30 Immigration detainees must provide personal identifiers...................................................1497 3.31 Authorised officers must require and carry out identification tests.................................... 1498

Part 4 - Review of decisions Division 4.1 - Review of decisions other than decisions relating to protection visas 4.01 Interpretation.......................................................................................................................1499 4.02 Part 5-reviewable decisions and who may apply for review..............................................1499 4.10 Time for lodgment of applications with Tribunal (Act, s 347).............................................1502 4.11 Giving the application to the Tribunal.................................................................................1503 4.12 Combined applications for Tribunal review........................................................................ 1504 4.13 Tribunal review—fees and waiver...................................................................................... 1505 4.13A Biennial increases in fees...................................................................................................1506 4.13B Calculation of increase....................................................................................................... 1506 4.14 Refund of fees by Tribunal................................................................................................. 1506 4.15 Tribunal’s power to give directions..................................................................................... 1508 4.16 Statement about decision under review............................................................................. 1508 4.17 Prescribed periods—invitation to comment or give additional information (Act, s 359B(2)) ..1508 4.18 Prescribed periods—invitation to comment or give additional information (Act, s 359B(3)) ..1509 4.18A Prescribed periods—invitation to comment or give additional information (Act, s 359B(4)) ..1510 4.18B Prescribed periods—invitation to comment or give additional information (Act, s 359B(5))..1511 4.19 Summons to attend before Tribunal................................................................................... 1512 4.20 Fees for persons giving evidence [Repealed]....................................................................1512 4.21 Prescribed periods—notice to appear before Tribunal.......................................................1512 4.22 Numbers of Senior Members and members of Tribunal (Act, s 395) [Repealed]............. 1513 4.23 Expedited review (close family visit visas)......................................................................... 1513 4.24 Expedited review (decisions to cancel visas).....................................................................1514 4.25 Expedited review (certain applicants in immigration detention).........................................1514 4.26 Prescribed periods—reconstitution of Tribunal (Act, s 355A) [Repealed]..........................1514 4.27 Prescribed period for making certain decisions (Act, s 367)............................................. 1514 4.27A [Repealed].......................................................................................................................... 1514

1168

Migration Law

Table of Provisions 4.27B

Prescribed period for requesting written statement........................................................... 1515

Division 4.2 - Review of Part 7-reviewable decisions Subdivision 4.2.1 - Introductory 4.28 Interpretation.......................................................................................................................1515 Subdivision 4.2.2 - Tribunal members [Repealed] Subdivision 4.2.3 - General 4.31 Time for lodgement of application with Tribunal................................................................ 1515 4.31AA Giving application to the Tribunal....................................................................................... 1515 4.31A Combined applications for review by the Tribunal............................................................. 1516 4.31B Review by the Tribunal—fee and waiver............................................................................1516 4.31BA Biennial increases in fees...................................................................................................1517 4.31BB Calculation of increase....................................................................................................... 1517 4.31C Refund (or waiver) of fee for review by the Tribunal......................................................... 1518 4.32 [Repealed].......................................................................................................................... 1518 4.33 Powers of Tribunal..............................................................................................................1518 4.34 Statement about decision under review—number of copies............................................. 1519 4.35 Prescribed periods—invitation to comment or give additional information........................ 1519 4.35A Prescribed ............................................................................................................................................1520 periods—invitation to comment or give additional information (Act, s 424B(3)) 4.35B Prescribed ............................................................................................................................................1520 periods—invitation to comment or give additional information (Act, s 424B(4)) 4.35C Prescribed ............................................................................................................................................1521 periods—invitation to comment or give additional information (Act, s 424B(5)) 4.35D Prescribed periods—notice to appear before Tribunal.......................................................1521 4.35E [Repealed].......................................................................................................................... 1522 4.35F Prescribed period for requesting written statement........................................................... 1522 4.36 Duties, powers and functions of officers of Tribunal.......................................................... 1522 4.37 Fees and allowances for persons giving evidence [Repealed]..........................................1522 Division 4.3 - Service of documents 4.38 Definition for Division 4.3 [Repealed]................................................................................. 1522 4.39 Address for service.............................................................................................................1522 4.40 Notice of decision of Tribunal [Repealed].......................................................................... 1523 Division 4.4 - Review of protection visa decisions by the Immigration Assessment Authority 4.41 New information not required to be given to referred applicant........................................ 1523 4.42 Periods for giving information or comments.......................................................................1523 4.43 Permissible directions on remittal.......................................................................................1523

Part 5 - Miscellaneous Division 5.1 - Service of documents 5.01 Definition for Division 5.1....................................................................................................1525 Division 5.2 - Procedure of commissioners and prescribed authorities 5.04 Power of Commissioner to send for witnesses and documents........................................1525 5.05 Duty of witness to continue in attendance......................................................................... 1525 5.06 Arrest of witness failing to appear......................................................................................1526 5.07 Witnesses’ fees.................................................................................................................. 1526 5.08 Power to examine on oath or affirmation........................................................................... 1526 5.09 Offences by witnesses........................................................................................................1526 5.10 Statements of person not admissible in evidence against the person.............................. 1527 5.11 Representation by counsel etc........................................................................................... 1527 5.12 Offences in relation to Commissioners.............................................................................. 1527 5.13 Protection of Commissioners, barristers and witnesses.................................................... 1527 5.14 Procedure of prescribed authorities................................................................................... 1527 Division 5.3 - General 5.15 Behaviour concern non-citizen........................................................................................... 1528 5.15A Special category visas—declared classes of New Zealand citizens................................. 1528 5.15B Excised offshore places [Disallowed]................................................................................. 1529

© 2016 THOMSON REUTERS

1169

Migration Regulations 1994 5.15C 5.16 5.17 5.18 5.19 5.19A 5.19B 5.19C 5.19D

Excised offshore places......................................................................................................1529 Prescribed diseases—health concern non-citizen (Act, s 5(1))......................................... 1529 Prescribed evidence of English language proficiency (Act, s 5(2)(b))...............................1529 Prescribed laws relating to control of fishing..................................................................... 1530 Approval of nominated positions (employer nomination)................................................... 1530 Designated investment....................................................................................................... 1535 Complying investment........................................................................................................ 1535 Complying significant investment....................................................................................... 1537 Complying premium investment......................................................................................... 1538

Division 5.3A - Offences and civil penalties in relation to work by non-citizens 5.19G Allowing an unlawful non-citizen to work........................................................................... 1539 5.19H Allowing a lawful non-citizen to work in breach of a work-related condition..................... 1540 5.19J Referring an unlawful non-citizen for work.........................................................................1541 5.19K Referring a lawful non-citizen for work in breach of a work-related condition...................1541 Division 5.3B - Offences and civil penalties in relation to sponsored visas 5.19L Classes of sponsor............................................................................................................. 1542 5.19M Kinds of sponsored visa..................................................................................................... 1543 5.19N Sponsorship-related events................................................................................................ 1543 Division 5.4 - Infringement notice penalties 5.20 Offences..............................................................................................................................1543 5.20A Civil penalty provisions....................................................................................................... 1544 Division 5.5 - Infringement notices 5.21 Interpretation.......................................................................................................................1545 5.22 When can an infringement notice be served?................................................................... 1546 5.23 What must an infringement notice contain?.......................................................................1546 5.24 Can the time for payment be extended?............................................................................1547 5.25 What happens if the infringement notice penalty is paid?................................................. 1547 5.26 Can an infringement notice be withdrawn?........................................................................1547 5.27 Refund of infringement notice penalty if notice withdrawn................................................ 1548 5.28 Evidence............................................................................................................................. 1548 5.29 Can there be more than one infringement notice for the same offence or contravention of a civil penalty provision?.................................................................................................... 1549 5.30 What if payment is made by cheque?................................................................................1549 5.31 Infringement notice not compulsory................................................................................... 1549 Division 5.6 - Miscellaneous 5.32 Search warrants (Act, ss 223(14) and 251(4))...................................................................1549 5.32A Work performed by unlawful non-citizen in detention centre.............................................1549 5.33 Document for purposes of s 274(3)(a) of Act.....................................................................1550 5.34 Application of Chapter 2 of the Criminal Code.................................................................. 1550 5.34D Disclosure of information to prescribed bodies.................................................................. 1550 5.34E Disclosure of information to prescribed international organisations.................................. 1550 5.34F Disclosure of information to police and CrimTrac.............................................................. 1550 5.35 Medical treatment of persons in detention under the Act.................................................. 1551 5.35AA Decisions that are not privative clause decisions.............................................................. 1552 Division 5.6A - Powers under an agreement or arrangement with a foreign country 5.35A Definitions........................................................................................................................... 1552 5.35B Exercise of power to restrain an individual........................................................................ 1552 5.35C Exercise of power to search an individual......................................................................... 1552 5.35D Protection of persons when acts done in good faith..........................................................1553 5.35E Powers when boarding certain foreign ships (Act s 245F(14))..........................................1553 5.35F Powers when boarding certain foreign ships on the high seas (Act s 245G(4))...............1554 Division 5.7 - Charges and fees 5.36 Payment of visa application charges, and fees, in foreign currencies.............................. 1554

1170

Migration Law

Table of Provisions 5.37 5.38 5.39 5.40 5.41 5.41A 5.42

Employer nomination fee....................................................................................................1555 Sponsorship fee..................................................................................................................1556 Refund of fees [Repealed]................................................................................................. 1556 Fees for assessment of a person’s work qualifications and experience etc..................... 1556 Fee for further opinion of Medical Officer of the Commonwealth in merits review........... 1557 Credit card surcharge......................................................................................................... 1557 Skill matching fee [Repealed].............................................................................................1558

Division 5.8 - Multiple parties in migration litigation 5.43 Meaning of family (Act s 486B).......................................................................................... 1558 5.44 Prescription of other persons (Act s 486B)........................................................................ 1559 Division 5.9 - Transitional arrangements 5.45 Operation of Schedule 13.................................................................................................. 1559

SCHEDULE 1 - CLASSES OF VISA Part 1 - Permanent visas 1104AA 1104A 1104BA 1104B 1107 1108 1108A 1111 1112 1113 1114B 1114C 1115 1118A 1119 1120 1123 1123A 1123B 1124 1124A 1124B 1127AA 1128 1129 1129A 1130 1130A 1131 1133 1136 1137 1138

Business Skills—Business Talent (Permanent) (Class EA)............................................... 1561 Business Skills — Established Business (Residence) (Class BH) [Repealed]................. 1563 Business Skills (Permanent) (Class EC)............................................................................1563 Business Skills (Residence) (Class DF).............................................................................1566 Change in Circumstance (Residence) (Class AG) [Repealed].......................................... 1569 Child (Migrant) (Class AH)..................................................................................................1569 Child (Residence) (Class BT).............................................................................................1570 Confirmatory (Residence) (Class AK)................................................................................ 1573 Distinguished Talent (Migrant) (Class AL).......................................................................... 1574 Distinguished Talent (Residence) (Class BX).................................................................... 1576 Employer Nomination (Permanent) (Class EN)................................................................. 1577 Regional Employer Nomination (Permanent) (Class RN)..................................................1579 Special Eligibility (Residence) (Class AO) [Repealed]....................................................... 1581 Special Eligibility (Class CB).............................................................................................. 1581 General (Residence) (Class AS) [Repealed]......................................................................1583 Independent (Migrant) (Class AT) [Repealed]....................................................................1583 Norfolk Island Permanent Resident (Residence) (Class AW)............................................1583 Other Family (Migrant) (Class BO).....................................................................................1584 Other Family (Residence) (Class BU)................................................................................1585 Parent (Migrant) (Class AX)............................................................................................... 1587 Aged Parent (Residence) (Class BP).................................................................................1588 Partner (Residence) (Class BS)......................................................................................... 1589 Resolution of Status (Class CD)........................................................................................ 1594 Return (Residence) (Class BB).......................................................................................... 1596 Partner (Migrant) (Class BC)..............................................................................................1597 Sri Lankan (Special Assistance) (Class BG) [Repealed]................................................... 1599 Contributory Parent (Migrant) (Class CA).......................................................................... 1599 Contributory Aged Parent (Residence) (Class DG)........................................................... 1604 Territorial Asylum (Residence) (Class BE)......................................................................... 1608 Referred Stay (Permanent) (Class DH)............................................................................. 1608 Skilled (Residence) (Class VB).......................................................................................... 1609 Skilled—Independent (Permanent) (Class SI)....................................................................1611 Skilled—Nominated (Permanent) (Class SN).................................................................... 1613

Part 2 - Temporary visas (other than bridging visas) 1201 1202A 1202B 1202 1204 1205

Border (Temporary) (Class TA).......................................................................................... 1616 Business Skills (Provisional) (Class UR)............................................................................1616 Business Skills (Provisional) (Class EB)............................................................................ 1618 Business (Temporary) (Class TB [Repealed]..................................................................... 1622 Confirmatory (Temporary) (Class TD) [Repealed]..............................................................1623 Special Program (Temporary) (Class TE).......................................................................... 1623

© 2016 THOMSON REUTERS

1171

Migration Regulations 1994 1206 1208A 1209 1210 1211 1212 1212A 1212B 1213A 1214 1214AA 1214A 1214BA 1214C 1215 1216 1216A 1217 1217AA 1217A 1218 1218AA 1218A 1219 1220A 1220B 1221 1221A 1222 1223 1223A 1223B 1223C 1224 1224AA 1224A 1225 1226 1227 1227A 1228 1229 1230 1231 1232 1233 1234 1235 1236

Diplomatic (Temporary) (Class TF).................................................................................... 1624 Electronic Travel Authority (Class UD)............................................................................... 1624 Emergency (Temporary) (Class TI) [Repealed]..................................................................1625 Expatriate (Temporary) (Class TJ) [Repealed]...................................................................1625 Extended Eligibility (Temporary) (Class TK).......................................................................1625 Family Relationship (Temporary) (Class TL) [Repealed]................................................... 1626 Graduate — Skilled (Temporary) (Class UQ) [Repealed].................................................. 1626 Investor Retirement (Class UY)..........................................................................................1627 Interdependency (Provisional) (Class UG) [Disallowed].................................................... 1628 Long Stay (Visitor) (Class TN) [Repealed]......................................................................... 1628 Medical Practitioner (Temporary) (Class UE) [Repealed].................................................. 1628 Medical Treatment (Visitor) (Class UB)..............................................................................1628 New Zealand Citizen Family Relationship (Temporary) (Class UP).................................. 1629 Partner (Temporary) (Class UK).........................................................................................1630 Prospective Marriage (Temporary) (Class TO).................................................................. 1631 Resident Return (Temporary) (Class TP)...........................................................................1632 Resolution of Status (Temporary) (Class UH) [Repealed]................................................. 1634 Retirement (Temporary) (Class TQ)................................................................................... 1634 Return Pending (Temporary) (Class VA) [Repealed]......................................................... 1635 Short Stay Sponsored (Visitor) (Class UL) [Repealed]......................................................1635 Tourist (Class TR)...............................................................................................................1635 Visitor (Class TV)................................................................................................................1637 Skilled — Independent Regional (Provisional) (Class UX) [Repealed]............................. 1638 Special Category (Temporary) (Class TY)......................................................................... 1638 Partner (Provisional) (Class UF)........................................................................................ 1639 Sponsored Training (Temporary) (Class UV) [Repealed]...................................................1640 Contributory Parent (Temporary) (Class UT)..................................................................... 1640 Contributory Aged Parent (Temporary) (Class UU)............................................................1642 Student (Temporary) (Class TU)........................................................................................ 1644 Supported Dependant (Temporary) (Class TW) [Repealed].............................................. 1650 Temporary Business Entry (Class UC)...............................................................................1650 Temporary Safe Haven (Class UJ).....................................................................................1652 Temporary (Humanitarian Concern) (Class UO)................................................................ 1652 Transit (Temporary) (Class TX).......................................................................................... 1653 Witness Protection (Trafficking) (Temporary) (Class UM) [Repealed]............................... 1653 Work and Holiday (Temporary) (Class US)........................................................................1653 Working Holiday (Temporary) (Class TZ)........................................................................... 1654 Skilled — Designated Area-sponsored (Provisional) (Class UZ) [Repealed].................... 1656 Maritime Crew (Temporary) (Class ZM)............................................................................. 1656 Superyacht Crew (Temporary) (Class UW)........................................................................1656 Skilled (Provisional) (Class VF)..........................................................................................1657 Skilled (Provisional) (Class VC)......................................................................................... 1658 Skilled—Regional Sponsored (Provisional) (Class SP)..................................................... 1661 Temporary Work (Short Stay Activity) (Class GA)............................................................. 1665 Temporary Work (Long Stay Activity) (Class GB).............................................................. 1667 Training and Research (Class GC).................................................................................... 1668 Temporary Work (International Relations) (Class GD).......................................................1671 Temporary Work (Entertainment) (Class GE).................................................................... 1672 Visitor (Class FA)................................................................................................................1675

Part 3 - Bridging visas 1301 1302 1303 1304 1305

Bridging A (Class WA)........................................................................................................ 1677 Bridging B (Class WB)........................................................................................................1678 Bridging C (Class WC)....................................................................................................... 1680 Bridging D (Class WD)....................................................................................................... 1681 Bridging E (Class WE)........................................................................................................1682

1172

Migration Law

Table of Provisions 1306 1307

Bridging F (Class WF)........................................................................................................ 1683 Bridging R (Class WR)....................................................................................................... 1685

Part 4 - Protection, Refugee and Humanitarian visas 1401 1402 1403 1404

Protection (Class XA)......................................................................................................... 1686 Refugee and Humanitarian (Class XB).............................................................................. 1687 Temporary Protection (Class XD).......................................................................................1689 Safe Haven Enterprise (Class XE).....................................................................................1690

SCHEDULE 2 - NOT REPRODUCED SCHEDULE 3 - ADDITIONAL CRITERIA APPLICABLE TO UNLAWFUL NON-CITIZENS AND CERTAIN BRIDGING VISA HOLDERS ................................................. 1695 SCHEDULE 4 - PUBLIC INTEREST CRITERIA AND RELATED PROVISIONS Part 1 - Public interest criteria ............................................................................................................ 1699 Part 2 - Conditions applicable to certain subclasses of visas for the purposes of subclause 4013(2) ............................................................................................................................. 1710 Part 3 - Requirements for public interest criterion 4019 ............................................................ 1711 Part 4 - Requirements for public interest criterion 4022 ............................................................ 1712 SCHEDULE 5 - SPECIAL RETURN CRITERIA ................................................................................ 1713 SCHEDULE 5A - EVIDENTIARY REQUIREMENTS FOR STUDENT VISAS Part 1 - Preliminary 5A101 5A102 5A103 5A104 5A105 5A106 5A107 5A108 5A109

Definitions........................................................................................................................... 1717 Alternatives to the IELTS test.............................................................................................1718 Meaning of fully funded...................................................................................................... 1718 Meaning of living costs and school costs...........................................................................1719 Assessing the value of an item of property [Repealed]..................................................... 1723 Satisfying a proposed education provider about English language proficiency................ 1723 Secondary exchange student must give AASES............................................................... 1723 Applicant must show enrolment or offer of place...............................................................1723 Requirement to give declaration.........................................................................................1723

Part 2 - Subclass 570 (Independent ELICOS Sector) Division 1 - Requirements for assessment level 5 [Repealed] ...................................................................... 1724 Division 2 - Requirements for assessment level 4 [Repealed] ...................................................................... 1724 Division 3 - Requirements for assessment level 3 5A207 English language proficiency..............................................................................................1724 5A208 Financial capacity............................................................................................................... 1724 5A209 Other requirements.............................................................................................................1726 Division 4 - Requirements for assessment level 2 5A210 English language proficiency..............................................................................................1726 5A211 Financial capacity............................................................................................................... 1726 5A212 Other requirements.............................................................................................................1727 Division 5 - Requirements for assessment level 1 5A213 English language proficiency..............................................................................................1727 5A214 Financial capacity............................................................................................................... 1727

Part 3 - Subclass 571 (Schools Sector) Division 1 - Requirements for assessment level 5 [Repealed] ...................................................................... 1727 Division 2 - Requirements for assessment level 4 [Repealed] ...................................................................... 1727 Division 3 - Requirements for assessment level 3 5A307 English language proficiency..............................................................................................1727 5A308 Financial capacity............................................................................................................... 1728 5A309 Other requirements.............................................................................................................1729

© 2016 THOMSON REUTERS

1173

Migration Regulations 1994

Division 4 - Requirements for assessment level 2 5A310 English language proficiency..............................................................................................1730 5A311 Financial capacity............................................................................................................... 1730 5A312 Other requirements.............................................................................................................1731 Division 5 - Requirements for assessment level 1 5A313 English language proficiency..............................................................................................1731 5A314 Financial capacity............................................................................................................... 1731 5A315 Other requirements.............................................................................................................1731

Part 4 - Subclass 572 (Vocational Education and Training Sector) Division 1 - Requirements for assessment level 5 [Repealed] ...................................................................... 1732 Division 2 - Requirements for assessment level 4 [Repealed] ...................................................................... 1732 Division 3 - Requirements for assessment level 3 5A407 English language proficiency..............................................................................................1732 5A408 Financial capacity............................................................................................................... 1733 5A409 Other requirements.............................................................................................................1735 Division 4 - Requirements for assessment level 2 5A410 English language proficiency..............................................................................................1736 5A411 Financial capacity............................................................................................................... 1736 Division 5 - Requirements for assessment level 1 5A412 English language proficiency..............................................................................................1736 5A413 Financial capacity............................................................................................................... 1736

Part 5 - Subclass 573 (Higher Education Sector) Division 1 - Requirements for assessment level 5 [Repealed] ...................................................................... 1737 Division 2 - Requirements for assessment level 4 [Repealed] ...................................................................... 1737 Division 3 - Requirements for assessment level 3 5A507 English language proficiency..............................................................................................1737 5A508 Financial capacity............................................................................................................... 1739 5A509 Other requirements.............................................................................................................1741 Division 4 - Requirements for assessment level 2 5A510 English language proficiency..............................................................................................1742 5A511 Financial capacity............................................................................................................... 1742 5A512 Other requirements.............................................................................................................1742 Division 5 - Requirements for assessment level 1 5A513 English language proficiency..............................................................................................1742 5A514 Financial capacity............................................................................................................... 1743 5A515 Other requirements.............................................................................................................1743

Part 6 - Subclass 574 (Postgraduate Research Sector) Division 1 - Requirements for assessment level 5 [Repealed] ...................................................................... 1743 Division 2 - Requirements for assessment level 4 [Repealed] ...................................................................... 1743 Division 3 - Requirements for assessment level 3 5A607 English language proficiency..............................................................................................1743 5A608 Financial capacity............................................................................................................... 1745 5A609 Other requirements.............................................................................................................1747 Division 4 - Requirements for assessment level 2 5A610 English language proficiency..............................................................................................1747 5A611 Financial capacity............................................................................................................... 1747 5A612 Other requirements.............................................................................................................1748

1174

Migration Law

Table of Provisions

Division 5 - Requirements for assessment level 1 5A613 English language proficiency..............................................................................................1748 5A614 Financial capacity............................................................................................................... 1748 5A615 Other requirements.............................................................................................................1748

Part 7 - Subclass 575 (Non-Award Sector) Division 1 - Requirements for assessment level 5 [Repealed] ...................................................................... 1748 Division 2 - Requirements for assessment level 4 [Repealed] ...................................................................... 1748 Division 3 - Requirements for assessment level 3 5A707 English language proficiency..............................................................................................1748 5A708 Financial capacity............................................................................................................... 1750 5A709 Other requirements.............................................................................................................1752 Division 4 - Requirements for assessment level 2 5A710 English language proficiency..............................................................................................1752 5A711 Financial capacity............................................................................................................... 1752 Division 5 - Requirements for assessment level 1 5A712 English language proficiency..............................................................................................1753 5A713 Financial capacity............................................................................................................... 1753

Part 8 - Subclass 576 (Foreign Affairs or Defence Sector) Division 1 - Requirements for assessment level 5 [Repealed] ...................................................................... 1753 Division 2 - Requirements for assessment level 2 5A804 English language proficiency..............................................................................................1753 5A805 Financial capacity............................................................................................................... 1753 5A806 Other requirements.............................................................................................................1754

SCHEDULE 5B - EVIDENTIARY REQUIREMENTS FOR STUDENT VISAS—SECONDARY APPLICANTS Part 1 - Preliminary 5B101 5B102 5B103

Definitions........................................................................................................................... 1755 Meaning of living costs and school costs...........................................................................1756 Declarations........................................................................................................................ 1757

Part 2 - Evidentiary requirements for assessment level 4 [Repealed] Part 3 - Evidentiary requirements for assessment level 3 5B301 5B302

Requirements for assessment level 3 (Subclass 570, 571, 572, 573 or 575 visa)...........1757 Requirements for assessment level 3 (Subclass 574 visa)............................................... 1758

Part 4 - Evidentiary requirements for assessment level 2 5B401

Requirements for assessment level 2................................................................................ 1759

SCHEDULE 6 - GENERAL POINTS TEST — QUALIFICATIONS AND POINTS [REPEALED] ........................................................................................................................................ 1761 SCHEDULE 6A - GENERAL POINTS TEST — QUALIFICATIONS AND POINTS [REPEALED] ........................................................................................................................................ 1761 SCHEDULE 6B - GENERAL POINTS TEST — QUALIFICATIONS AND POINTS (GENERAL SKILLED MIGRATION VISAS) [REPEALED]........................................................ 1761 SCHEDULE 6C - GENERAL POINTS TEST FOR GENERAL SKILLED MIGRATION VISAS — APPLICATIONS ON OR AFTER 1 JULY 2011 AND OTHER SPECIFIED APPLICATIONS [REPEALED] .................................................................................. 1761 SCHEDULE 6D - GENERAL POINTS TEST FOR GENERAL SKILLED MIGRATION VISAS MENTIONED IN SUBREGULATION 2.26AC(1) © 2016 THOMSON REUTERS

1175

Migration Regulations 1994

Part 6D.1 - Age qualifications ............................................................................................................. 1763 Part 6D.2 - English language qualifications ................................................................................... 1763 Part 6D.3 - Overseas employment experience qualifications ................................................... 1763 Part 6D.4 - Australian employment experience qualifications.................................................. 1765 Part 6D.5 - Aggregating points for employment experience qualifications ......................... 1765 Part 6D.6 - Australian professional year qualifications .............................................................. 1766 Part 6D.7 - Educational qualifications .............................................................................................. 1766 Part 6D.8 - Australian study qualifications ..................................................................................... 1767 Part 6D.9 - Credentialled community language qualifications ................................................. 1767 Part 6D.10 - Study in regional Australia or a low-population growth metropolitan area qualifications ............................................................................................................................. 1767 Part 6D.11 - Partner skill qualifications ............................................................................................ 1768 Part 6D.12 - State or Territory nomination qualifications ........................................................... 1768 Part 6D.13 - Designated area sponsorship qualifications .......................................................... 1768 SCHEDULE 7 - BUSINESS SKILLS POINTS TEST — ATTRIBUTES AND POINTS [REPEALED] ........................................................................................................................................ 1771 SCHEDULE 7A - BUSINESS INNOVATION AND INVESTMENT POINTS TEST—ATTRIBUTES AND POINTS (BUSINESS SKILLS (PROVISIONAL) (CLASS EB) VISAS) .......................................................................................................................... 1773 Part 7A.1 - Definitions............................................................................................................................ 1773 Part 7A.2 - Age qualifications ............................................................................................................. 1773 Part 7A.3 - English language qualifications ................................................................................... 1773 Part 7A.4 - Educational qualifications .............................................................................................. 1774 Part 7A.5 - Business experience qualifications—Business Innovation stream only ......... 1774 Part 7A.6 - Investor experience qualifications—Investor stream only ................................... 1774 Part 7A.7 - Financial asset qualifications ........................................................................................ 1775 Part 7A.8 - Business turnover qualifications ................................................................................. 1775 Part 7A.9 - Business innovation qualifications ............................................................................. 1776 Part 7A.10 - Special endorsement qualifications .......................................................................... 1777 SCHEDULE 8 - VISA CONDITIONS .................................................................................................... 1779 SCHEDULE 8A - AMOUNT OF PARTIAL REFUND [REPEALED] .............................................. 1795 SCHEDULE 9 - SPECIAL ENTRY AND CLEARANCE ARRANGEMENTS................................ 1797 Part 1 - Persons to whom special arrangements apply under section 166 of the Act .......................................................................................................................................................... 1797 Part 2 - Persons not required to comply with section 166 of the Act.................................... 1801 Part 3 - Countries whose citizens, when transit passengers, are not required to comply with section 166 of the Act [Repealed] ....................................................................... 1802 SCHEDULE 10 - PRESCRIBED FORMS ............................................................................................ 1803 SCHEDULE 11 - MEMORANDUM OF UNDERSTANDING ............................................................ 1809 SCHEDULE 12 - EXCHANGE OF LETTERS ..................................................................................... 1811 SCHEDULE 13 - TRANSITIONAL ARRANGEMENTS Part 1 - Amendments made by Migration Amendment Regulation 2012 (No. 2) 101 102

Operation of Schedule 1.................................................................................................... 1813 Operation of Schedule 2.................................................................................................... 1813

Part 2 - Amendments made by Migration Legislation Amendment Regulation 2012 (No. 2) 201

Operation of Schedule 1.................................................................................................... 1813

Part 3 - Amendments made by Migration Amendment Regulation 2012 (No. 3) 301

1176

Operation of Schedule 1.................................................................................................... 1814

Migration Law

Table of Provisions

Part 4 - Amendments made by Migration Legislation Amendment Regulation 2012 (No. 3) 401

Operation of amendments.................................................................................................. 1814

Part 5 - Amendments made by Migration Amendment Regulation 2012 (No. 5) 501

Operation of Schedule 1.................................................................................................... 1814

Part 6 - Amendments made by the Migration Legislation Amendment Regulation 2012 (No. 4) 601 602 603

Operation of Schedule 1.................................................................................................... 1814 Operation of Schedule 2.................................................................................................... 1815 Operation of Schedule 3.................................................................................................... 1815

Part 7 - Amendments made by Migration Legislation Amendment Regulation 2012 (No. 5) 701

Operation of amendments.................................................................................................. 1815

Part 8 - Amendments made by Migration Amendment Regulation 2012 (No. 7) 801

Operation of Schedule 1.................................................................................................... 1816

Part 10 - Amendments made by the Migration Amendment Regulation 2012 (No. 8) 1001

Operation of amendments.................................................................................................. 1816

Part 12 - Amendments made by the Migration Amendment Regulation 2013 (No. 1) 1201

Operation of Schedules 1 to 7........................................................................................... 1817

Part 13 - Amendments made by the Migration Legislation Amendment Regulation 2013 (No. 1) 1301 1302 1303 1304

Operation Operation Operation Operation

of of of of

Schedule Schedule Schedule Schedule

1.................................................................................................... 1817 2.................................................................................................... 1817 3.................................................................................................... 1818 4.................................................................................................... 1818

Part 14 - Amendments made by Migration Amendment Regulation 2013 (No. 2) 1401

Operation of Schedule 1.................................................................................................... 1818

Part 15 - Amendments made by the Migration Legislation Amendment Regulation 2013 (No. 2) 1501

Operation of Schedule 1.................................................................................................... 1818

Part 16 - Amendments made by the Migration Amendment (Permanent Protection Visas) Regulation 2013 1601

Operation of Schedule 1.................................................................................................... 1819

Part 16A - Amendments made by the Migration Amendment (Subclass 050 and Subclass 051 Visas) Regulation 2013 16A01

Operation of Schedule 1.................................................................................................... 1819

Part 17 - Amendments made by the Migration Amendment (Visa Application Charge and Related Matters) Regulation 2013 1701

Operation of Schedule 1.................................................................................................... 1819

Part 19 - Amendments made by the Migration Legislation Amendment Regulation 2013 (No. 3) 1901 1902 1903 1904 1905 1906 1907 1908

Operation Operation Operation Operation Operation Operation Operation Operation

© 2016 THOMSON REUTERS

of of of of of of of of

Schedule Schedule Schedule Schedule Schedule Schedule Schedule Schedule

1.................................................................................................... 1819 2.................................................................................................... 1820 3.................................................................................................... 1820 4.................................................................................................... 1821 5.................................................................................................... 1821 6.................................................................................................... 1821 7.................................................................................................... 1821 8.................................................................................................... 1821

1177

Migration Regulations 1994 1909

Operation of Schedule 9.................................................................................................... 1821

Part 20 - Amendments made by the Migration Amendment Regulation 2013 (No. 5) 2001

Operation of Schedule 1.................................................................................................... 1822

Part 21 - Amendments made by the Migration Amendment (Temporary Protection Visas) Regulation 2013 [Disallowed] Part 22 - Amendments made by the Migration Amendment (Skills Assessment) Regulation 2013 2201

Operation of Schedule 1.................................................................................................... 1823

Part 23 - Amendments made by the Migration Amendment (Visa Application Charge and Related Matters No. 2) Regulation 2013 2301

Operation of Schedule 1.................................................................................................... 1823

Part 24 - Amendments made by the Migration Amendment (Internet Applications and Related Matters) Regulation 2013 2401

Operation of Schedule 1.................................................................................................... 1823

Part 25 - Amendments made by the Migration Amendment (Bridging Visas—Code of Behaviour) Regulation 2013 2501

Operation of Schedule 1.................................................................................................... 1824

Part 26 - Amendments made by the Migration Amendment (Unauthorised Maritime Arrival) Regulation 2013 [Disallowed] Part 27 - Amendments made by the Migration Amendment (2014 Measures No. 1) Regulation 2014 2701 2702 2703

Operation of Schedules 1 to 3........................................................................................... 1824 Operation of Schedule 4.................................................................................................... 1824 Operation of Schedule 5.................................................................................................... 1824

Part 28 - Amendments made by the Migration Amendment (Redundant and Other Provisions) Regulation 2014 2801

Operation of Schedule 1.................................................................................................... 1825

Part 29 - Amendments made by the Migration Amendment (Credit Card Surcharge) Regulation 2014 2901

Operation of Schedule 1.................................................................................................... 1825

Part 30 - Amendments made by the Migration Amendment (Repeal of Certain Visa Classes) Regulation 2014 [Disallowed] Part 31 - Amendments made by the Migration Legislation Amendment (2014 Measures No. 1) Regulation 2014 3101 3102 3103 3104

Operation Operation Operation Operation

of of of of

Schedule 1.................................................................................................... 1826 Schedules 2 and 3........................................................................................ 1826 Schedule 5.................................................................................................... 1826 Schedule 7.................................................................................................... 1826

Part 32 - Amendments made by the Migration Amendment (Credit Card Surcharge Additional Measures) Regulation 2014 3201

Operation of Schedule 1.................................................................................................... 1826

Part 33 - Amendments made by the Migration Amendment (Temporary Graduate Visas) Regulation 2014 3301

Operation of Part 1 of Schedule 1..................................................................................... 1827

Part 34 - Amendments made by the Migration Amendment (Bridging Visas) Regulation 2014 3401

Operation of Part 1 of Schedule 1..................................................................................... 1827

Part 35 - Amendments made by the Migration Legislation Amendment (2014 Measures No. 2) Regulation 2014 3501

Operation of Schedule 1.................................................................................................... 1827

1178

Migration Law

Table of Provisions 3502 3503 3504 3505

Operation Operation Operation Operation

of of of of

Schedules 2 and 3........................................................................................ 1827 Schedule 4.................................................................................................... 1827 Schedule 5.................................................................................................... 1827 Schedule 7.................................................................................................... 1828

Part 37 - Amendments made by the Migration Amendment (Subclass 050 Visas) Regulation 2014 3701

Operation of Part 1 of Schedule 1..................................................................................... 1828

Part 38 - Amendments made by the Migration Amendment (2014 Measures No. 2) Regulation 2014 3801 3802 3803

Operation of Schedule 1.................................................................................................... 1828 Operation of Schedule 2.................................................................................................... 1828 Operation of Schedule 3.................................................................................................... 1828

Part 39 - Amendments made by the Migration Amendment (Partner Visas) Regulation 2014 3901

Operation of Part 1 of Schedule 1..................................................................................... 1829

Part 40 - Amendments made by the Migration Amendment (Resolving the Asylum Legacy Caseload) Regulation 2015 4001

Operation of Schedule 2.................................................................................................... 1829

Part 41 - Amendments made by the Migration Amendment (2015 Measures No. 1) Regulation 2015 4101 4102 4103 4104 4105 4106

Operation Operation Operation Operation Operation Operation

of of of of of of

Schedule Schedule Schedule Schedule Schedule Schedule

1.................................................................................................... 1829 2.................................................................................................... 1829 3.................................................................................................... 1830 4.................................................................................................... 1830 5.................................................................................................... 1830 6.................................................................................................... 1830

Part 42 - Amendments made by the Migration Amendment (Protection and Other Measures) Regulation 2015 4201

Operation of Schedule 1.................................................................................................... 1830

Part 43 - Amendments made by the Migration Legislation Amendment (2015 Measures No. 2) Regulation 2015 4301 4302 4303 4304

Operation Operation Operation Operation

of of of of

Schedule Schedule Schedule Schedule

1.................................................................................................... 1831 5.................................................................................................... 1831 7.................................................................................................... 1831 9.................................................................................................... 1831

Part 44 - Amendments made by the Migration Amendment (Investor Visas) Regulation 2015 4401

Operation of Schedule 1.................................................................................................... 1831

Part 45 - Amendments made by the Migration Amendment (Visa Labels) Regulation 2015 4501

Operation of Schedule 1.................................................................................................... 1831

Part 46 - Amendments made by the Migration Amendment (Conversion of Protection Visa Applications) Regulation 2015 4601

Operation of Schedule 1.................................................................................................... 1832

Part 47 - Amendments made by the Migration Amendment (Special Category Visas and Special Return Criterion 5001) Regulation 2015 4701

Operation of Schedule 1.................................................................................................... 1832

Part 48 - Amendments made by the Migration Legislation Amendment (2015 Measures No. 3) Regulation 2015 4801 4802 4803

Operation of Schedules 1 to 4........................................................................................... 1832 Operation of Schedule 5.................................................................................................... 1832 Operation of Schedule 6.................................................................................................... 1832

© 2016 THOMSON REUTERS

1179

Migration Regulations 1994

Part 49 - Amendments made by the Migration Amendment (Clarifying Subclass 457 Requirements) Regulation 2015 4901

Operation of amendments.................................................................................................. 1833

Part 50 - Amendments made by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 5000

Operation of Divisions 1 and 3 of Part 4 of Schedule 2.................................................... 1833

Part 51 - Amendments made by the Migration Amendment (Charging for a Migration Outcome and Other Measures) Regulation 2015 5101

Operation of Schedule 1.................................................................................................... 1833

Part 52 - Amendments made by the Migration Legislation Amendment (2015 Measures No. 4) Regulation 2015 5201 5202

Operation of Schedule 1.................................................................................................... 1834 Operation of Schedule 2.................................................................................................... 1834

Part 53 - Amendments made by the Migration Amendment (Priority Consideration of Certain Visa Applications) Regulation 2016 5301

Operation of Schedule 1.................................................................................................... 1835

Part 54 - Amendments made by the Migration Legislation Amendment (2016 Measures No. 1) Regulation 2016 5401 5402 5403

Operation of Schedule 1.................................................................................................... 1835 Operation of Schedule 2.................................................................................................... 1836 Operation of Schedule 3.................................................................................................... 1836

1180

Migration Law

TABLE OF AMENDING LEGISLATION Principal legislation

Migration Regulations 1994

Number

Date of Date of commencement gazettal/ assent/ registration 268 of 1994 28 Jul 1994 1 Sep 1994

This legislation has been amended as follows: Date of gazettal/ assent/ Amending legislation Number registration Date of commencement Migration Regulations Pt 2 (regs 3–34): 1 Sep 1994; Pt 3 280 of 1994 17 Aug (regs 35–39): 1 Oct 1994; remainder: (Amendment) 1994 17 Aug 1994 Migration Regulations 322 of 1994 19 Sep 19 Sep 1994 (Amendment) 1994 Migration Regulations Regs 39 and 40: 1 Dec 1994; 376 of 1994 16 Nov (Amendment) remainder: 12 Dec 1994 1994 Migration Regulations 452 of 1994 30 Dec 9 Jan 1995 (Amendment) 1994 Migration Regulations 3 of 1995 27 Jan 1995 27 Jan 1995 (Amendment) Regs 2, 4.1, 5.1, 6 and 7: 1 Sep 1994; Migration Regulations 38 of 1995 14 Mar reg 3: 9 Jan 1995; regs 4.2, 4.3, 5.2 (Amendment) 1995 and 5.3: 17 Mar 1995; reg 8: 12 Dec 1994; Pt 3 (regs 9–73): 3 Apr 1995; remainder: 14 Mar 1995 Migration Regulations 117 of 1995 6 Jun 1995 3 Jul 1995 (Amendment) Migration Regulations 134 of 1995 15 Jun 1995 3 Jul 1995 (Amendment) Migration Regulations Pt 3 (regs 5–39) and Pt 4 (regs 40 and 268 of 1995 12 Sep (Amendment) 41): 1 Nov 1995; remainder: 12 Sep 1995 1995 Migration Regulations 302 of 1995 26 Oct 1 Nov 1995 (Amendment) 1995

© 2016 THOMSON REUTERS

1181

Migration Regulations 1994

Principal legislation

Migration Regulations 1994

Number

Date of Date of commencement gazettal/ assent/ registration 268 of 1994 28 Jul 1994 1 Sep 1994

This legislation has been amended as follows: Date of gazettal/ assent/ Amending legislation Number registration Migration Regulations 411 of 1995 19 Dec (Amendment) 1995 Migration Regulations 12 of 1996 31 Jan 1996 (Amendment) Migration Regulations 75 of 1996 5 Jun 1996 (Amendment) (partially disallowed by the Senate 11 Sep 1996) Migration Regulations 76 of 1996 5 Jun 1996 (Amendment) Migration Regulations 108 of 1996 20 Jun 1996 (Amendment) Migration Regulations 121 of 1996 28 Jun 1996 (Amendment) Migration Regulations 135 of 1996 1 Jul 1996 (Amendment) Migration Regulations 198 of 1996 4 Sep 1996 (Amendment) Migration Regulations 211 of 1996 30 Sep (Amendment) (partially 1996 disallowed by the Senate 7 Nov 1996) Migration Regulations 276 of 1996 11 Dec (Amendment) 1996 Migration Regulations 17 of 1997 26 Feb (Amendment) 1997 Migration Regulations 64 of 1997 26 Mar (Amendment) 1997

1182

Date of commencement Reg 9: 1 Apr 1996; regs 10–12: 1 Feb 1996; remainder: 19 Dec 1995 1 Apr 1996 Regs 10, 12.1 and Sch 1 (Pt 1): 5 Jun 1996; reg 13.1 and Sch 2 (Pt 1): 1 Jul 1996; remainder: 1 Aug 1996

1 Aug 1996 1 Jul 1996 1 Jul 1996 1 Jul 1996 4 Sep 1996 Pt 1 (regs 1 and 2), Pt 2 (regs 3–62) and Pt 4 (Div 4.1 (regs 144 and 145)): 1 Oct 1996; remainder: 1 Nov 1996

11 Dec 1996 26 Feb 1997 26 Mar 1997

Migration Law

Table of Amending Legislation

Principal legislation

Migration Regulations 1994

Number

Date of Date of commencement gazettal/ assent/ registration 268 of 1994 28 Jul 1994 1 Sep 1994

This legislation has been amended as follows: Date of gazettal/ assent/ Amending legislation Number registration Migration Regulations 91 of 1997 1 May 1997 (Amendment) Migration Regulations 92 of 1997 1 May 1997 (Amendment) Migration Regulations 109 of 1997 21 May (Amendment) 1997 Migration Regulations 137 of 1997 23 Jun 1997 (Amendment) Migration Regulations 184 of 1997 1 Jul 1997 (Amendment) Migration Regulations 185 of 1997 1 Jul 1997 (Amendment) Migration Regulations 216 of 1997 27 Aug (Amendment) 1997 Migration Regulations 263 of 1997 24 Sep (Amendment) 1997

Migration Regulations (Amendment) Migration Regulations (Amendment) Migration Regulations (Amendment) Migration Regulations (Amendment) Migration Regulations (Amendment) Migration Regulations (Amendment)

© 2016 THOMSON REUTERS

Date of commencement 1 May 1997 1 May 1997 1 Jul 1997 1 Jul 1997 1 Jul 1997 1 Jul 1997

279 of 1997 1 Oct 1997

Regs 6 and 7: 1 Nov 1997; remainder: 1 Sep 1997 Pt 1 (regs 1 and 2) and Pt 2 (regs 3 and 4): 7 Jul 1997; Pt 3 (regs 5–32) and Pt 5 (reg 34): 1 Nov 1997; remainder: 1 Jan 1998 1 Oct 1997

288 of 1997 8 Oct 1997

1 Nov 1997

301 of 1997 31 Oct 1997 354 of 1997 15 Dec 1997 36 of 1998 20 Mar 1998 37 of 1998 20 Mar 1998

1 Nov 1997 1 Jan 1998 1 Oct 1997 21 Mar 1998

1183

Migration Regulations 1994

Principal legislation

Migration Regulations 1994

Number

Date of Date of commencement gazettal/ assent/ registration 268 of 1994 28 Jul 1994 1 Sep 1994

This legislation has been amended as follows: Date of gazettal/ assent/ Amending legislation Number registration Migration Regulations 104 of 1998 27 May (Amendment) (partially 1998 disallowed by the Senate 2 Jul 1998) Migration Regulations 139 of 1998 25 Jun 1998 (Amendment) Migration Regulations 210 of 1998 1 Jul 1998 (Amendment) Migration Regulations 214 of 1998 30 Jun 1998 (Amendment) Migration Amendment 284 of 1998 1 Sep 1998 Regulations 1998 (No 7) Migration Amendment 285 of 1998 1 Sep 1998 Regulations 1998 (No 8) (disallowed by the Senate 31 Mar 1999) Migration Amendment 304 of 1998 3 Nov 1998 Regulations 1998 (No 9) Migration Amendment 305 of 1998 3 Nov 1998 Regulations 1998 (No 10) Migration Amendment 306 of 1998 3 Nov 1998 Regulations 1998 (No 11) Migration Amendment 322 of 1998 10 Dec Regulations 1998 1998 (No 12) Migration Amendment 8 of 1999 11 Feb Regulations 1999 (No 1) 1999

1184

Date of commencement Pt 1 (regs 1 and 2) and Pt 2 (regs 3–21): 1 Jul 1998; remainder: 1 Aug 1998

1 Jul 1998 1 Jul 1998 1 Jul 1998 1 Sep 1998 1 Nov 1998

1 Dec 1998 1 Dec 1998

1 Dec 1998

10 Dec 1998

1 Mar 1999

Migration Law

Table of Amending Legislation

Principal legislation

Migration Regulations 1994

Number

Date of Date of commencement gazettal/ assent/ registration 268 of 1994 28 Jul 1994 1 Sep 1994

This legislation has been amended as follows: Date of gazettal/ assent/ Amending legislation Number registration Migration Amendment 58 of 1999 15 Apr Regulations 1999 (No 2) 1999 Migration Amendment 64 of 1999 22 Apr Regulations 1999 (No 3) 1999 Migration Amendment 68 of 1999 7 May 1999 Regulations 1999 (No 4) (am by Migration Amendment Regulations 1999 (No 6) and Migration Amendment Regulations 1999 (No 8)) Migration Amendment 76 of 1999 19 May Regulations 1999 (No 5) 1999 (am by Migration Amendment Regulations 1999 (No 6) and Migration Amendment Regulations 1999 (No 8)) Migration Amendment 81 of 1999 31 May Regulations 1999 (No 6) 1999 (am by Migration Amendment Regulations 1999 (No 8)) Migration Amendment 82 of 1999 31 May Regulations 1999 (No 7) 1999 Migration Amendment 132 of 1999 30 Jun 1999 Regulations 1999 (No 8) Migration Amendment Regulations 1999 (No 9)

© 2016 THOMSON REUTERS

Date of commencement 15 Apr 1999 1 Jun 1999 Regs 1–5 and Sch 1: 1 Jun 1999; remainder: 1 Jul 1999

1 Jul 1999

Regs 1–4 and Schs 1 and 2: 31 May 1999; regs 6(2) and (3) and Sch 4: 1 Jul 1999; Schs 5 and 6: 1 Sep 1999; remainder: 1 Jun 1999 1 Jun 1999

Reg 3(1) and Sch 1: 1 Jul 1999; reg 3(2) and Sch 5: 1 Sep 1999; remainder: 30 Jun 1999 155 of 1999 22 Jul 1999 22 Jul 1999

1185

Migration Regulations 1994

Principal legislation

Migration Regulations 1994

Number

Date of Date of commencement gazettal/ assent/ registration 268 of 1994 28 Jul 1994 1 Sep 1994

This legislation has been amended as follows: Date of gazettal/ assent/ Amending legislation Number registration Migration Amendment 198 of 1999 8 Sep 1999 Regulations 1999 (No 10) Migration Amendment 220 of 1999 23 Sep Regulations 1999 1999 (No 11) (am by Migration Amendment Regulations 1999 (No 13) and Migration Amendment Regulations 1999 (No 15)) Migration Amendment 243 of 1999 20 Oct Regulations 1999 1999 (No 12) Migration Amendment 259 of 1999 27 Oct Regulations 1999 1999 (No 13) (am by Migration Amendment Regulations 2000 (No 5) and Migration Amendment Regulations 2002 (No 5)) Migration Amendment 260 of 1999 27 Oct Regulations 1999 1999 (No 14) (am by Migration Amendment Regulations 1999 (No 15)) Migration Amendment 321 of 1999 15 Dec Regulations 1999 1999 (No 15)

1186

Date of commencement 8 Sep 1999

Regs 4(1), (2) and 5 and Sch 1: 1 Nov 1999; remainder: 23 Sep 1999

20 Oct 1999

Regs 1–3 and Sch 1: 31 Oct 1999; remainder: 1 Nov 1999

1 Nov 1999

Regs 3(1) and 6 and Sch 1: 20 Oct 1999; regs 4 and 5 and Schs 2 and 3: 31 Oct 1999; reg 3(2) and Sch 4: 1 Nov 1999; reg 3(3) and Sch 5: 16 Dec 1999; remainder: 15 Dec 1999

Migration Law

Table of Amending Legislation

Principal legislation

Migration Regulations 1994

Number

Date of Date of commencement gazettal/ assent/ registration 268 of 1994 28 Jul 1994 1 Sep 1994

This legislation has been amended as follows: Date of gazettal/ assent/ Amending legislation Number registration Migration Amendment 325 of 1999 16 Dec Regulations 1999 1999 (No 16) Migration Amendment 52 of 2000 13 Apr Regulations 2000 (No 1) 2000 Migration Amendment 62 of 2000 28 Apr Regulations 2000 (No 2) 2000

Date of commencement 16 Dec 1999

13 Apr 2000

Regs 1–3 and Sch 1: 1 Nov 1999; Sch 2: 28 Apr 2000; remainder: 1 Jul 2000 Migration Amendment 108 of 2000 15 Jun 2000 Sch 2: 1 Jul 2000; remainder: 28 Apr 2000 Regulations 2000 (No 3) Migration Amendment 192 of 2000 25 Jul 2000 25 Jul 2000 Regulations 2000 (No 4) Migration Amendment Regs 1, 2 and 5(1) and Sch 3: 1 Nov 259 of 2000 15 Sep Regulations 2000 (No 5) (partially 1999; remainder: 1 Nov 2000 2000 (am by Migration disallowed Amendment Regulations by the 2000 (No 6)) Senate 1 Nov 2000) Regs 1–3 and Sch 1: 31 Oct 2000; Migration Amendment 284 of 2000 26 Oct remainder: 1 Nov 2000 Regulations 2000 (No 6) 2000 Migration Amendment Regs 1–3 and Sch 1: 1 Nov 2000; 335 of 2000 14 Dec Regulations 2000 (No 7) remainder: 14 Dec 2000 2000 Migration Amendment Regs 1–3(1) and 4 and Sch 1: 27 Feb 27 of 2001 27 Feb 2001; remainder: 1 Mar 2001 Regulations 2001 (No 1) 2001 Migration Amendment 47 of 2001 16 Mar 1 Apr 2001 Regulations 2001 (No 2) 2001 Migration Amendment Regs 1–3(1) and Sch 1: 1 Sep 1994; 86 of 2001 10 May Regulations 2001 (No 3) remainder: 1 Jul 2001 2001 Migration Amendment Sch 2: 27 Sep 2001 Act 128 of 27 Sep (Excision from 2001 2001 Migration Zone) (Consequential Provisions) Act 2001

© 2016 THOMSON REUTERS

1187

Migration Regulations 1994

Principal legislation

Migration Regulations 1994

Number

Date of Date of commencement gazettal/ assent/ registration 268 of 1994 28 Jul 1994 1 Sep 1994

This legislation has been amended as follows: Date of gazettal/ assent/ Amending legislation Number registration Migration Amendment 142 of 2001 20 Jun 2001 Regulations 2001 (No 4) Migration Amendment 162 of 2001 29 Jun 2001 Regulations 2001 (No 5) Migration Amendment 206 of 2001 2 Aug 2001 Regulations 2001 (No 6) Migration Amendment 239 of 2001 5 Sep 2001 Regulations 2001 (No 7) Migration Amendment 246 of 2001 14 Sep Regulations 2001 (No 8) 2001 Migration Amendment 283 of 2001 5 Oct 2001 Regulations 2001 (No 9) Mi