Commonwealth Consolidated Acts

MIGRATION ACT 1958 - SECT 192

             (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 or G of Division 3 or section 501 or 501A, 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:

                     (a)  attempt to evade the officer and other officers; or

                     (b)  otherwise not co‑operate with officers in their inquiries about the non‑citizen's visa and matters relating to the visa.

          (2A)  If a non‑citizen is detained under subsection (1) and prescribed circumstances exist, the non‑citizen must be required by an officer to provide one or more personal identifiers.

       (2AA)  An officer must not require, for the purposes of subsection (2A), a person to provide a personal identifier other than any of the following (including any of the following in digital form):

                     (a)  a photograph or other image of the person's face and shoulders;

                     (b)  the person's signature;

                     (c)  any other personal identifier contained in the person's passport or other travel document;

                     (d)  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.

          (2B)  A non‑citizen is taken not to have complied with a requirement referred to in subsection (2A) unless the one or more personal identifiers are provided by way of one or more identification tests carried out by an authorised officer.

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.

          (2C)  However, subsection (2B) does not apply, in circumstances prescribed for the purposes of this subsection, if the personal identifier is of a prescribed type and the non‑citizen:

                     (a)  provides a personal identifier otherwise than by way of an identification test carried out by an authorised officer; and

                     (b)  complies with any further requirements that are prescribed relating to the provision of the personal identifier.

             (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 3 or section 501 or 501A.

             (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).

             (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.

             (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).

             (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.