(1) A person is immigration cleared if, and only if:
(a) the person:
(i) enters Australia at a port; and
(ii) complies with section 166; and
(iii) leaves the port at which the person complied and so leaves with the permission of a clearance authority and otherwise than in immigration detention; or
(b) the person:
(i) enters Australia otherwise than at a port; and
(ii) complies with section 166; and
(iii) leaves the prescribed place at which the person complied and so leaves with the permission of a clearance authority and otherwise than in immigration detention; or
(ba) the person:
(i) enters Australia by virtue of the operation of section 10; and
(ii) at the time of the person’s birth, had at least one parent who was immigration cleared on his or her last entry into Australia; or
(c) the person is refused immigration clearance, or bypasses immigration clearance, and is subsequently granted a substantive visa; or
(d) the person is in a prescribed class of persons.
When a person is in immigration clearance
(2) A person is in immigration clearance if the person:
(a) is with an officer or at an authorised system for the purposes of section 166; and
(b) has not been refused immigration clearance.
When a person is refused immigration clearance
(3) A person is refused immigration clearance if the person:
(a) is with a clearance officer for the purposes of section 166; and
(b) satisfies one or more of the following subparagraphs:
(i) the person has his or her visa cancelled;
(ii) the person refuses, or is unable, to present to a clearance officer evidence referred to in paragraph 166(1)(a);
(iii) the person refuses, or is unable, to provide to a clearance officer information referred to in paragraph 166(1)(b);
(iv) the person refuses, or is unable, to comply with any requirement referred to in paragraph 166(1)(c) to provide one or more personal identifiers to a clearance officer.
When a person bypasses immigration clearance
(4) A person, other than a person who is refused immigration clearance, bypasses immigration clearance if:
(a) the person:
(i) enters Australia at a port; and
(ii) is required to comply with section 166; 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 166; and
(iii) does not comply within the prescribed period for doing so.
173 Visa ceases if holder enters in way not permitted
(1) If the holder of a visa enters Australia in a way that contravenes section 43, or regulations to which that section is subject, the visa ceases to be in effect.
(1A) A maritime crew visa held by a non‑citizen does not cease to be in effect under subsection (1) if:
(a) the non‑citizen travels to and enters Australia by air; and
(b) at the time the non‑citizen travels to and enters Australia, the non‑citizen holds another class of visa that is in effect.
(2) To avoid doubt, a non‑citizen child who is taken to have been granted a visa or visas, at the time of the child’s birth, by virtue of the operation of section 78, is not to be taken, by virtue of that birth, to have entered Australia in a way that contravenes section 43 or regulations to which that section is subject.
174 Visa ceases if holder remains without immigration clearance
If the holder of a visa:
(a) is required to comply with section 166; and
(b) does not comply;
the visa ceases to be in effect.
175 Departing person to present certain evidence etc.
Departing persons may be required to present evidence etc.
(1) A clearance officer may require a person who is on board, or about to board, a vessel that is due to depart from a place in Australia to a place outside Australia (whether or not after calling at other places in Australia) to:
(a) present the following evidence (which might include a personal identifier) to a clearance authority:
(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;
(ii) if the person is a non‑citizen—evidence of the person’s identity and permission to remain in Australia; and
(b) provide to a clearance authority any information (including the person’s signature, but not any other personal identifier) required by this Act or the regulations; and
(c) comply with any requirement made by a clearance officer under section 257A to provide one or more personal identifiers to a clearance authority; and
(d) if under paragraph (a) the person presents evidence to an authorised system—provide to the authorised system a photograph or other image of the person’s face.
(2) A person is to comply with paragraphs (1)(a) and (b) in a prescribed way.
Who may use an authorised system
(2AA) A person may comply with a requirement referred to in subsection (1) to present or provide evidence, information or personal identifiers to an authorised system only if:
(a) the person holds an eligible passport; and
(c) either:
(i) before the vessel leaves Australia, a clearance officer does not require the person to present or provide evidence, information or personal identifiers referred to in subsection (1) (other than a passenger card) to a clearance officer; or
(ii) if subparagraph (i) applies—a clearance officer determines that the person has complied with the requirement referred to in subsection (1).
175A Determinations relating to kinds of passports
For the purposes of this Division, the Minister or the Secretary may, by legislative instrument, determine that a specified kind of passport is an eligible passport.
175B Collection, access and disclosure of information
Collection of information
(1) If a person presents or provides a document to a clearance authority under this Division, the clearance authority may collect information (including personal identifiers) in the document.
Access to, and disclosure of, personal information
(2) The following provisions:
(a) section 336D (which authorises access to identifying information);
(b) section 336E (other than subsection 336E(1)) and section 336F (which authorise disclosure of identifying information);
(c) a provision of an instrument made under section 336D or 336F;
apply to personal information (other than personal identifiers) collected under this Division in the same way as they apply to identifying information.
Effect on interpretation
(3) This section does not, by implication, affect the interpretation of any other provision of this Act or an instrument made under this Act.
Division 6—Certain non‑citizens to be kept in immigration detention
176 Reason for Division
This Division is enacted because the Parliament considers that it is in the national interest that each non‑citizen who is a designated person should be kept in immigration detention until he or she:
(a) leaves Australia; or
(b) is given a visa.
177 Interpretation
In this Division:
boat means a vessel of any description, but does not include an aircraft.
commencement means the commencement of this Division.
designated person means a non‑citizen who:
(a) has been on a boat in the territorial sea of Australia after 19 November 1989 and before 1 September 1994; and
(b) has not presented a visa; and
(c) is in the migration zone; and
(d) has not been granted a visa; and
(e) is a person to whom the Department has given a designation by:
(i) determining and recording which boat he or she was on; and
(ii) giving him or her an identifier that is not the same as an identifier given to another non‑citizen who was on that boat;
and includes a non‑citizen born in Australia whose mother is a designated person.
entry application, in relation to a person, means an application for:
(a) a determination by the Minister that the person is a refugee; or
(b) a visa for the person.
178 Designated persons to be in immigration detention
(1) Subject to subsection (2), after commencement, a designated person must be kept in immigration detention.
(2) A designated person is to be released from immigration detention if, and only if, he or she is:
(a) removed from Australia under section 181; or
(b) granted a visa under section 65 or 351.
(3) This section is subject to section 182.
(4) To avoid doubt and despite section 182, if subsection 181(3) applies to a designated person, the person must be kept in immigration detention until the person is removed from Australia under that subsection.
179 Beginning of immigration detention of certain designated persons
(1) If, immediately after commencement, a designated person is in a place described in paragraph 11(a) (as in force at that time) or a processing area, he or she then begins to be in immigration detention for the purposes of section 178.
(2) If, immediately after commencement, a designated person is in the company of, and restrained by, a person described in paragraph 11(b) (as in force at that time), the designated person then begins to be in immigration detention for the purposes of section 178.
180 Detention of designated person
(1) If a designated person is not in immigration detention immediately after commencement, an officer may, without warrant:
(a) detain the person; and
(b) take reasonable action to ensure that the person is kept in immigration detention for the purposes of section 178.
(2) Without limiting the generality of subsection (1), that subsection even applies to a designated person who was held in a place described in paragraph 11(a) (as in force at that time) or a processing area before commencement and whose release was ordered by a court.
(3) If a designated person escapes from immigration detention after commencement, an officer may, without warrant:
(a) detain the person; and
(b) take reasonable action to ensure that the person is kept in immigration detention for the purposes of section 178.
181 Removal from Australia of designated persons
(1) An officer must remove a designated person from Australia as soon as practicable if the designated person asks the Minister, in writing, to be removed.
(2) An officer must remove a designated person from Australia as soon as practicable if:
(a) the person has been in Australia for at least 2 months or, if a longer period is prescribed, at least that prescribed period; and
(b) there has not been an entry application for the person.
(3) An officer must remove a designated person from Australia as soon as practicable if:
(a) there has been an entry application for the person; and
(b) the grant of the visa has been refused; and
(c) all appeals against, or reviews of, the refusal (if any) have been finalised.
(4) If:
(a) 2 designated persons are liable to be removed from Australia under this section; and
(b) they are the parents of another designated person in Australia who is under 18;
the other designated person is to be removed from Australia.
(5) If:
(a) a designated person is liable to be removed from Australia under this section; and
(b) he or she is the only parent in Australia of another designated person in Australia who is under 18;
the other designated person is to be removed from Australia.
(6) If:
(a) 2 designated persons are liable to be removed from Australia under this section; and
(b) they have the care and control of another designated person in Australia who:
(i) is under 18; and
(ii) does not have a parent who is a designated person;
the other designated person is to be removed from Australia.
(7) If:
(a) a designated person is liable to be removed from Australia under this section; and
(b) he or she is the only person who has the care and control of another designated person in Australia who:
(i) is under 18; and
(ii) does not have a parent who is a designated person;
the other designated person is to be removed from Australia.
(8) This section is subject to section 182.
182 No immigration detention or removal after certain period
(1) Sections 178 and 181 cease to apply to a designated person who was in Australia on 27 April 1992 if the person has been in application immigration detention after commencement for a continuous period of, or periods whose sum is, 273 days.
(2) Sections 178 and 181 cease to apply to a designated person who was not in Australia on 27 April 1992, if:
(a) there has been an entry application for the person; and
(b) the person has been in application immigration detention, after the making of the application, for a continuous period of, or periods whose sum is, 273 days.
(3) For the purposes of this section, a person is in application immigration detention if:
(a) the person is in immigration detention; and
(b) an entry application for the person is being dealt with;
unless one of the following is happening:
(c) the Department is waiting for information relating to the application to be given by a person who is not under the control of the Department;
(d) the dealing with the application is at a stage whose duration is under the control of the person or of an adviser or representative of the person;
(e) court or tribunal proceedings relating to the application have been begun and not finalised;
(f) continued dealing with the application is otherwise beyond the control of the Department.
(4) To avoid doubt, an entry application that has been refused is not being dealt with within the meaning of paragraph (3)(b) because only there could be an appeal against, or an application for the review of, the refusal.
(5) If:
(a) an entry application for a designated person has been refused; and
(b) because of a direction or decision of a court or tribunal, the application is required to be considered further;
whichever of subsection (1) or (2) applies to the designated person so applies as if the reference in it to 273 days were a reference to that number of days increased by 90 as well as by any number by which it has been increased under this subsection in relation to that entry application before.
(6) If:
(a) an entry application for a designated person has been refused; and
(b) apart from this subsection, section 178 would cease to apply to the person; and
(c) the person begins court or tribunal proceedings in relation to the refusal;
that section applies to the person during both these proceedings and the period of 90 days after they end, whether or not this subsection has applied to that entry application before.
183 Courts must not release designated persons
A court is not to order the release from immigration detention of a designated person.
185 Effect of Division on status etc.
(1) This Division does not affect the other status that a designated person has under this Act except so far as the status is inconsistent with section 178, 179, 180, 181 or 183.
(2) This Division does not affect the rights of a designated person under this Act except so far as they, or their exercise, are inconsistent with section 178, 179, 180, 181 or 183.
(3) This Division does not affect any application made by a designated person under this Act except so far as the application, or the success of the application, is inconsistent with section 178, 179, 180, 181 or 183.
186 Division applies despite other laws
If this Division is inconsistent with another provision of this Act or with another law in force in Australia, whether written or unwritten, other than the Constitution:
(a) this Division applies; and
(b) the other law only applies so far as it is capable of operating concurrently with this Division.
187 Evidence
A statement by an officer, on oath or affirmation, that the Department has given a particular person a designation described in paragraph (e) of the definition of designated person in section 177 is conclusive evidence that the Department has given that person that designation.
Division 7—Detention of unlawful non‑citizens
Subdivision A—General provisions
188 Lawful non‑citizen to give evidence of being so
Officer may require evidence
(1) An officer may require a person whom the officer knows or reasonably suspects is a non‑citizen to:
(a) present to the officer evidence (which might include a personal identifier) of being a lawful non‑citizen; or
(b) present to the officer evidence (which might include a personal identifier) of the person’s identity.
(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.
189 Detention of unlawful non‑citizens
(1) If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) 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 (other than an excised offshore place); and
(b) would, if in the migration zone, be an unlawful non‑citizen;
the officer may detain the person.
(3) If an officer knows or reasonably suspects that a person (other than a person referred to in subsection (3A)) in an excised offshore place is an unlawful non‑citizen, the officer must detain the person.
(3A) If an officer knows or reasonably suspects that a person in a protected area:
(a) is a citizen of Papua New Guinea; and
(b) is an unlawful non‑citizen;
the officer may detain the person.
(4) If an officer reasonably suspects that a person in Australia but outside the migration zone:
(a) is seeking to enter an excised offshore place; and
(b) would, if in the migration zone, be an unlawful non‑citizen;