MIGRATION REFORM ACT 1992 No. 184, 1992 - SECT 12
MIGRATION REFORM ACT 1992 No. 184, 1992 - SECT 12
12. Divisions 4 and 4A of Part 2 of the Principal Act are repealed and the following headings, sections and Divisions are substituted: "Subdivision H-General provisions on cancellation Way visa cancelled or cancellation revoked "50E.(1) A visa is cancelled by the Minister causing a record of it to be made. "(2) The cancellation of a visa is revoked under section 50AQ by the Minister causing a record of the revocation to be made. Visas held by 2 or more "50F. If a visa is held by 2 or more non-citizens: (a) Subdivisions C, D, E and F and this Subdivision apply as if each of them were the holder of the visa; and (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. Cancellation of visa results in other cancellation "50G.(1) If a person's visa is cancelled under section 45 (incorrect information) or 50AB, a visa held by another person because of being a member of the family unit of the person (within the meaning of the regulations) is also cancelled. "(2) If: (a) a person's visa is cancelled under section 45 (incorrect information) or 50AB; and (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. "(3) If: (a) a visa is cancelled under subsection (1) or (2) because another visa is cancelled; and (b) the cancellation of the other visa is revoked under section 50AQ; the cancellation under subsection (1) or (2) is revoked. "Division 3-Criminal justice visitors "Subdivision A-Preliminary Object of Division "51. This Division is enacted so that, if the administration of criminal justice requires the presence in Australia of a non-citizen whose presence would otherwise not be in the national interest, that non-citizen may be brought to, or allowed to stay in, Australia for the purposes of that administration. Interpretation "52. 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 54 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 54A; or (b) a certificate given under subsection 54B(1) and endorsed under subsection 54B(2); 'criminal justice entry visa' has the meaning given by section 54HB; 'criminal justice stay certificate' means a certificate given under section 54C or 54D; 'criminal justice stay visa' has the meaning given by section 54HB; 'criminal justice stay warrant' means a warrant described in section 54G; 'criminal justice visa' has the meaning given by section 26D; 'State' includes Territory. Delegation by Attorney-General "53. The Attorney-General may, in writing, delegate any of his or her powers under this Division to: (a) the Secretary to the Attorney-General's Department; or (b) an officer of that Department who is a member of the Senior Executive Service. Authorised officials "54. 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. "Subdivision B-Criminal justice certificates for entry Commonwealth criminal justice entry certificate "54A. 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 (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 (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. State criminal justice entry certificate "54B.(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 thenon-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. "Subdivision C-Criminal justice certificates etc. staying removal or deportation Commonwealth criminal justice stay certificate "54C. If: (a) an unlawful non-citizen is to be, or is likely to be, removed or deported; and (b) the Attorney-General considers that the non-citizen should remain in Australia temporarily for the purposes of: (i) the Extradition Act 1988; 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. State criminal justice stay certificate "54D. 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. Application for visa not to prevent certificate "54E. 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. Criminal justice stay certificates stay removal or deportation "54F. If a criminal justice stay certificate about a non-citizen is in force, the non-citizen is not to be removed or deported. Certain warrants stay removal or deportation "54G.(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, accommodation or immigration detention of the non-citizen while the warrant is in force. Certain subjects of stay certificates and stay warrants may be detained etc. "54H. 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. Removal or deportation not contempt etc. if no stay "54HA. 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. "Subdivision D-Criminal justice visas Criminal justice visas "54HB.(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. Criterion for criminal justice entry visas "54HC. 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. Criterion for criminal justice stay visas "54HD. 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. Criteria for criminal justice visas "54HE. The criteria for a criminal justice visa for a non-citizen are, and only are: (a) the criterion required by section 54HC or 54HD; 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. Procedure for obtaining criminal justice visa "54HF.(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) approve its grant; and (b) grant it by causing a record of it to be made; and (c) give such evidence of it as the Minister considers appropriate. Conditions of criminal justice visa "54HG.(1) The regulations may provide that criminal justice visas are subject to specified conditions. "(2) It is a condition of a criminal justice visa for a non-citizen that the non-citizen must not do any work in Australia, whether for reward or otherwise. "(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. Effect of criminal justice visas "54HH.(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 force. "(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 force; and (b) if the non-citizen is in immigration detention, entitles the non-citizen to be released from that detention. "(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. "Subdivision E-Cancellation etc. of criminal justice certificates and criminal justice visas Criminal justice certificates to be cancelled "54HI.(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 54A or 54C, the Attorney-General; or (b) if it was given under section 54B or 54D-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. Stay warrant to be cancelled "54HJ.(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 (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. Effect of cancellation etc. on criminal justice visa "54HK. 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. "Division 4-Immigration clearance Interpretation "54HL. In this Subdivision: 'clearance officer' means an officer, or other person, authorised by the Minister to perform duties for the purposes of this Division; '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 (b) a vessel on which persons travel from a port to another port or ports and then to a place outside Australia. Arriving person to give certain evidence of identity etc. "54HM.(1) Subject to subsections 54HN(3) and (4) and sections 54HO and 54HP, a person, whether a citizen or a non-citizen, who enters Australia must, without unreasonable delay: (a) show a clearance officer: (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; and (ii) if the person is a non-citizen, evidence of the person's identity and of any visas held by the person; and (b) give the clearance officer any information required to be given by this Act or the regulations. "(2) Subject to section 54HN, a person is to comply with paragraphs (1)(a) and (b) in a prescribed way. When and where evidence to be given "54HN.(1) Subject to this section, a person required to comply with section 54HM 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 54HM 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 54HM(1)(a) and (b) on the vessel on which the person travels to Australia and before entering Australia; the person is taken to have complied with section 54HM. "(4) A person who travels to Australia on a pre-cleared flight: (a) must comply with paragraphs 54HM(1)(a) and (b) before beginning the flight; and (b) if he or she so complies, is taken to have complied with section 54HM. Section 54HM not to apply "54HO.(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 54HM. "(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 54HM at a prescribed place within a prescribed period. "(3) A person in a prescribed class is not required to comply with section 54HM. Section 54HM not usually apply "54HP. If: (a) a person goes outside the migration zone; and (b) under section 26ZU is not taken to leave Australia (fishermen and others); the person is not, on re-entering the migration zone, taken to enter Australia for the purposes of section 54HM but may be directed by a clearance officer to comply with that section. Certain persons to give evidence of identity "54HQ. 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 show the officer prescribed evidence of the person's identity; and (b) give the officer any information required to be given by this Act or the regulations. Assistance with evidence "54HR. If a person: (a) cannot comply with section 54HM by showing evidence; and (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. Immigration clearance "54HS.(1) A person is immigration cleared if, and only if: (a) the person: (i) enters Australia at a port; and (ii) complies with section 54HM; and (iii) leaves the port at which the person complied and so leaves with the permission of a clearance officer and otherwise than in immigration detention; or (b) the person: (i) enters Australia otherwise than at a port; and (ii) complies with section 54HM; and (iii) leaves the prescribed place at which the person complied and so leaves with the permission of a clearance officer and otherwise than in immigration detention. "(2) A person is in immigration clearance if the person: (a) is with an officer to whom the person has gone for the purpose of complying with section 54HM; and (b) has not been refused immigration clearance while with that officer. "(3) A person is refused immigration clearance if the person complied with section 54HM and, on complying: (a) the person had his or her visa cancelled and: (i) did not make an application for another visa; or (ii) had an application for another visa refused; or (iii) made a valid application for another visa that, in the opinion of an officer, was one that it was impossible or impracticable to decide immediately; or (b) the person did not have a visa and: (i) did not make an application for a visa; or (ii) had an application for a visa refused; or (iii) made a valid application for a visa that, in the opinion of an officer, was one that it was impossible or impracticable to decide immediately. "(4) A person bypasses immigration clearance if: (a) the person: (i) enters Australia at a port; and (ii) is required to comply with section 54HM; 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 54HM; and (iii) does not comply within the prescribed period for doing so. Visa ceases if holder enters in way not permitted "54HT. If the holder of a visa enters Australia in a way that contravenes section 26J, the visa ceases to be in force. Visa ceases if holder remains without immigration clearance "54HU. If the holder of a visa: (a) is required to comply with section 54HM; and (b) does not comply; the visa ceases to be in force. Departing person to give certain evidence etc. "54HV. A clearance officer may require a person who is on board, or about to board, a vessel that is to leave Australia (whether or not after calling at places in Australia) to: (a) show the officer: (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; and (ii) if the person is a non-citizen, evidence of the person's identity and permission to remain in Australia; and (b) give any information required to be given by this Act or the regulations.".