Migration Reform Act 1992

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.”.