MIGRATION REFORM ACT 1992 No. 184, 1992 - SECT 13

MIGRATION REFORM ACT 1992 No. 184, 1992 - SECT 13

13. 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.(1) 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:

   (a)  when the requirement is oral; or

   (b)  when the requirement is in writing. Detention of unlawful non-citizens

"54W.(1) 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:

   (a)  is seeking to enter the migration zone; and

   (b)  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:

   (a)  was required to comply with section 54HM; and

   (b)  did one or more of the following:

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

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

        (iii)  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:

   (a)  gives evidence of his or her identity and Australian citizenship; or

   (b)  complies with section 54HM and either:

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

        (ii)   is granted a visa. Detention of visa holders whose visas liable
               to cancellation

"54Z.(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 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:

   (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.

"(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:

   (a)  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;

   (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 person 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. 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.(1) A detainee may apply for a visa:

   (a)  within 2 days after the day on which section 54ZB 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 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.(1) An unlawful non-citizen detained under section 54W must be kept in
immigration detention until he or she is:

   (a)  removed from Australia under section 54ZF or 54ZG; or

   (b)  deported under section 55A; or

   (c)  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:

   (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
        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.(1) 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:

   (a)  who has been refused immigration clearance; and

   (b)  either:

        (i)    has not made a valid application for a substantive visa; or

        (ii)   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:

   (a)  is a detainee; and

   (b)  was entitled to apply for a visa in accordance withsection 54ZC but
        did not do so.

"(5) 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; and

   (c)  one of the following applies:

        (i)    the application has been refused and finally determined;

        (ii)   the application cannot be approved;

        (iii)  the visa cannot be granted; and

   (d)  the non-citizen has not made another valid application for a
        substantive visa. Dependants of removed non-citizens

"54ZG.(1) If:

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

   (b)  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:

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

   (b)  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:

   (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.".