Migration Reform Act 1992

After section 3 of the Principal Act the following section is inserted:

Object of Act

“3A.

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

“(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 requires persons entering Australia to identify themselves so that the Commonwealth government can know who are the non-citizens so entering.

“(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.”.

Section 4 of the Principal Act is amended:

by omitting from subsection (1) the definitions of “accompanying child”, “accompanying spouse”, “holder”, “port”, “score” and “visa” and substituting respectively the following definitions:

“ ‘holder’, in relation to a visa, means, subject to section 26ZR (visas only held if in force) the person to whom it was granted or a person included in it;

‘port’ means:

a proclaimed port; or

a proclaimed airport;

‘score’, in relation to a visa applicant, means the total number of points given to the applicant under section 30 in the most recent assessment or re-assessment under Subdivision B of Division 2 of Part 2;

‘Visa’ has the meaning given by section 24 and includes an ‘old visa’;”;

by omitting from subsection (1) the definitions of “entry permit”, “entry visa”, “exempt non-citizen”, “member”, “period of grace”, “permanent entry permit”, “presiding member”, “Principal Member”, “processing area”, “prohibited person”, “properly endorsed valid entry permit”, “properly endorsed valid entry visa”, “refugee”, “review authority”, “reviewable decision”, “review officer”, “review under Part 3”, “section 20 notice”, “Senior Member”, “statutory visitor”, “stowaway”, “temporary entry permit”, “travel only visa”, “Tribunal”, “unprocessed person”, “valid entry permit”, “valid temporary entry permit”, “valid permanent entry permit” and “valid visa”;

by inserting in subsection (1) the following definitions:

“ ‘allowed inhabitant of the Protected Zone’ means an inhabitant of the Protected Zone, other than such an inhabitant:

to whom a declaration under section 17 applies (presence declared undesirable); or

who is a behaviour concern non-citizen; or

who is a health concern non-citizen;

‘approve’, in relation to an application for a visa, means approve the grant of the visa;

‘behaviour concern non-citizen’ means a non-citizen who:

has been convicted of a crime and sentenced to death or to imprisonment, for at least one year; or

has been convicted of 2 or more crimes and sentenced to imprisonment, for periods that add up to at least one year if:

any period concurrent with part of a longer period is disregarded; and

any periods not disregarded that are concurrent with each other are treated as one period;

whether or not:

the crimes were of the same kind; or

the crimes were committed at the same time; or

the convictions were at the same time; or

the sentencings were at the same time; or

the periods were consecutive; or

has been charged with a crime and either:

found guilty of having committed the crime while of unsound mind; or

acquitted on the ground that the crime was committed while the person was of unsound mind;

has been removed or deported from Australia or removed or deported from another country; or

has been excluded from another country in prescribed circumstances;

where ‘sentenced to imprisonment’ includes ordered to be confined in a corrective institution;

‘bridging visa’ has the meaning given by section 26C;

‘bypass immigration clearance’ has the meaning given by subsection 54HS(4);

‘criminal justice visa’ has the meaning given by section 26D;

‘detain’ means:

take into immigration detention; or

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;

‘detainee’ means a person detained;

‘enter Australia’, in relation to a person, means enter the migration zone;

‘health concern non-citizen’ means a non-citizen who is suffering from a prescribed disease or a prescribed physical or mental condition;

‘health criterion’, in relation to a visa, means a prescribed criterion for the visa that is satisfied if the applicant for the visa:

does not have a specified disease; or

does not have a specified physical or mental condition; or

has a specified physical or mental condition; or

has had a specified examination; or

has had specified treatment to prevent disease;

‘immigration cleared’ has the meaning given by subsection 54HS(1);

‘immigration detention’ means:

being in the company of, and restrained by:

an officer; or

in relation to a particular detainee—another person directed by the Secretary to accompany and restrain the detainee; or

being held by, or on behalf of, an officer in:

a detention centre established under this Act; or

a prison or remand centre of the Commonwealth, a State or a Territory; or

a police station or watch house; or

another place approved by the Minister in writing;

‘Immigration Review Tribunal’ means the Immigration Review Tribunal established by section 151;

‘in immigration clearance’ has the meaning given by subsection 54HS(2);

‘internally-reviewable decision’ has the meaning given by section 115A;

‘IRT-reviewable decision’ has the meaning given by section 116;

‘judicially-reviewable decision’ has the meaning given by section 166LA;

‘lawful non-citizen’ has the meaning given by section 14;

‘leave Australia’, in relation to a person, means, subject to section 26ZU (leaving without going to other country), leave the migration zone;

‘migration zone’ means the area consisting of the States, the Territories, Australian resource installations and Australian sea installations and, to avoid doubt, includes:

land that is part of a State or Territory at mean low water; and

sea within the limits of both a State or a Territory and a port; and

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 a Territory but not in a port;

‘non-disclosable information’ means information or matter:

whose disclosure would, in the Minister’s opinion, be contrary to the national interest because it would:

prejudice the security, defence or international relations to Australia; or

involve the disclosure of deliberations or decisions of the Cabinet or of a committee of the Cabinet; or

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

that is information or matter that was given to the Minister or an officer in confidence;

and includes any document containing, or any record of, such information or matter;

‘old visa’ means a visa, document, or notation, that:

permits a person to travel to Australia; and

was issued before 1 November 1993; and

has not been cancelled or otherwise stopped being in force;

‘permanent visa’ has the meaning given by subsection 25(1);

‘protected area’ means an area that is:

part of the migration zone; and

in, or in an area in the vicinity of, the Protected Zone;

‘questioning detention’ means detention under section 54Z;

‘Refugee Review Tribunal’ means the Refugee Review Tribunal established by section 166J;

‘refused immigration clearance’ has the meaning given by subsection 54HS(3);

‘remain in Australia’, in relation to a person, means remain in the migration zone;

‘remove’ means remove from Australia;

‘removee’ means an unlawful non-citizen removed, or to be removed, under Division 4D of Part 2;

‘RRT-reviewable decision’ has the meaning given by section 166B;

‘special category visa’ has the meaning given by section 26A;

‘substantive visa’ means a visa other than a bridging visa or a criminal justice visa;

‘temporary visa’ has the meaning given by subsection 25(2);

‘unlawful non-citizen’ has the meaning given by section 15;

‘visa’ includes an old visa;

‘visa applicant’ means an applicant for a visa and, in relation to a visa, means the applicant for the visa;

‘visa holder’ means the holder of a visa and, in relation to a visa, means the holder of the visa;

‘visa tax’ means tax under the Migration (Delayed Visa Applications) Tax Act 1992;”;

by omitting subsections (5), (5A), (8), (9), (10) and (10A);

by omitting from paragraph (12)(a) “Part 3” and substituting “Part 3 or 4A”;

by omitting from paragraph (12)(b) “Part III” and substituting “Part 3 or 4A”;

by omitting subsections (26) and (28).”.

After section 4 of the Principal Act the following section is inserted:

Effect of limited meaning of enter Australia etc.

“4AA. To avoid doubt, although subsection 4(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:

that, for those purposes, the meaning of ‘in Australia’, ‘to Australia’ or any other phrase is limited; or

that this Act does not extend to parts of Australia outside the migration zone; or

that this Act does not apply to persons in those parts.”.

Section 13 of the Principal Act is amended:

by inserting after paragraph (b) of the definition of “excluded day” in subsection (2) the following paragraph:

“(ba) starting when the person applies to the Refugee Review Tribunal for a review of a decision refusing him or her an entry permit and ending when the person is notified of the decision on the review; or”;

by inserting “, a review by the Refugee Review Tribunal” after “Part 3” in paragraph (d) of the definition of “excluded day” in subsection (2);

by inserting “, (b)” after “(b)” in paragraph (d) of the definition of “excluded day” in subsection (2).

The headings to Part 2 and Division 1 of Part 2, and sections 14 to 18, of the Principal Act are repealed and the following headings and sections substituted:

“PART 2—CONTROL OF ARRIVAL AND PRESENCE OF NON-CITIZENS

“Division 1—Immigration status

Lawful non-citizens

“14.

A non-citizen in the migration zone who holds a visa is a lawful non-citizen.

“(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) A non-citizen in the migration zone who:

on 2 April 1984 was in Australia; and

before that date, had ceased to be an immigrant; and

on or after that date, has not left Australia, where left Australia has the meaning it had in this Act before 1 November 1993; and

immediately before 1 November 1993, was not a person to whom section 20 of this Act as in force then applied;

is a lawful non-citizen.

Unlawful non-citizens

“15.

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 November 1993, was an illegal entrant within the meaning of the Migration Act as in force then became, on that date, an unlawful non-citizen.

Effect of cancellation of visa on status

“16. To avoid doubt, subject to subsection 14(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.

Removal of immigration rights of inhabitant of Protected Zone

“17. 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.”.

Division 1AA of Part 2 of the Principal Act is repealed.

After Division 4B of Part 2 of the Principal Act the following Divisions are inserted:

“Division 4C—Detention of unlawful non-citizens

Lawful non-citizen to give evidence of being so

“54V.

An officer may require a person who the officer knows or reasonably suspects is a non-citizen to show the officer evidence of being a lawful non-citizen.

“(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:

when the requirement is oral; or

when the requirement is in writing.

Detention of unlawful non-citizens

“54W.

If an officer knows or reasonably suspects that a person in the migration zone is an unlawful non-citizen, the officer must detain the person.

“(2) If an officer reasonably suspects that a person in Australia but outside the migration zone:

is seeking to enter the migration zone; and

would, if in the migration zone, be an unlawful non-citizen;

the officer must detain the non-citizen.

Non-compliance with immigration clearance basis of detention

“54X. For the purposes of section 54W, 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:

was required to comply with section 54HM; and

did one or more of the following:

evaded, attempted to evade or appeared to attempt to evade going to a clearance officer;

went to a clearance officer but was not able to show, or otherwise did not show, evidence required by that section to be shown;

if a non-citizen, went to a clearance officer but was not able to give, or otherwise did not give, information required by that section to be given.

End of certain detention

“54Y. A person detained because of section 54X must be released from immigration detention if he or she:

gives evidence of his or her identity and Australian citizenship; or

complies with section 54HM and either:

shows an officer evidence of being a lawful non-citizen; or

is granted a visa.

Detention of visa holders whose visas liable to cancellation

“54Z.

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 or G of Division 2, the officer may detain the non-citizen.

“(2) An officer must not detain an immigration cleared non-citizen under subsection (1) unless the officer reasonably suspects that if the non-citizen is not detained, the non-citizen would:

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.

“(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 or G of Division 2.

“(5) A non-citizen detained under subsection (1) must be released from detention within 4 hours after being detained.

“(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 (2) is reduced by so much of the earlier period of detention as occurred within that 48 hours.

“(7) In finding out whether 4 hours have passed since a non-citizen was detained, the following times are to be disregarded:

if the detainee is detained at a place that is inappropriate for questioning the person, the time that is reasonably required to take the detainee from that place to the nearest place that is appropriate;

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 person is a citizen;

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;

any time during which the questioning is suspended or delayed to allow the detainee to receive medical attention;

any time during which the questioning is suspended or delayed because of the detainee’s intoxication;

(0 any reasonable time during which the questioning is suspended or delayed to allow the detainee to rest or recuperate.

Sections not apply

“54ZA. Section 54ZB does not apply to a person detained under section 54W on being refused immigration clearance or detained under section 54Z.

Detainee to be told consequences of detention

“54ZB. As soon as reasonably practicable after an officer detains a person under section 54W, the officer must ensure that the person is made aware of the provisions of sections 54ZC and 54ZD.

Detainee may apply for visa

“54ZC.

A detainee may apply for a visa:

within 2 days after the day on which section 54ZB was complied with in relation to his or her detention; or

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 days after those 2 days.

“(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.

Period of detention

“54ZD.

An unlawful non-citizen detained under section 54W must be kept in immigration detention until he or she is:

removed from Australia under section 54ZF or 54ZG; or

deported under section 55A; or

granted a visa.

“(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 for removal or deportation) unless the non-citizen has made a valid application for a visa and he or she has satisfied all of the criteria for the visa.

Effect of escape from immigration detention

“54ZE. If a non-citizen:

was in immigration detention; and

escaped from that detention; and

was taken back into that detention;

then, for the purposes of sections 54ZB and 54ZC, the non-citizen is taken not to have ceased to be in immigration detention.

“Division 4D—Removal of unlawful non-citizens

Removal from Australia of uncleared unlawful non-citizens

“54ZF.

An officer must remove as soon as reasonably practicable an unlawful non-citizen who asks the Minister, in writing, to be so removed.

“(2) An officer must remove as soon as reasonably practicable an unlawful non-citizen:

who has been refused immigration clearance; and

either:

has not made a valid application for a substantive visa; or

has made a valid application for a substantive visa that has been finally determined.

“(3) The fact than an unlawful non-citizen is eligible to apply for a substantive visa but has not done so does not prevent the application of subsection (2) to him or her.

“(4) An officer must remove as soon as reasonably practicable an unlawful non-citizen if the non-citizen:

is a detainee; and

was entitled to apply for a visa in accordance with section 54ZC but did not do so.

“(5) An officer must remove as soon as reasonably practicable an unlawful non-citizen if:

the non-citizen is a detainee; and

the non-citizen made a valid application for a substantive visa; and

one of the following applies:

the application has been refused and finally determined;

the application cannot be approved;

the visa cannot be granted; and

the non-citizen has not made another valid application for a substantive visa.

Dependants of removed non-citizens

“54ZG.

If:

an officer removes, or is about to remove, an unlawful non-citizen; and

the spouse of that non-citizen requests an officer to also be removed from Australia;

an officer may remove the spouse as soon as reasonably practicable.

“(2) If:

an officer removes, or is about to remove an unlawful non-citizen; and

the spouse 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 and dependent child or children as soon as reasonably practicable.

“(3) If:

an officer removes, or is about to remove, an unlawful non-citizen; and

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.”.

Before section 55 of the Principal Act the following section is inserted in Division 5 of Part 2:

Deportation of certain non-citizens

“55A. The Minister may order the deportation of a non-citizen to whom this Division applies.”.

Section 63 of the Principal Act is amended:

by omitting from subsection (1) “, after considering the prescribed matters and no other matters,”;

by omitting subsection (3).