(5) In subsections (3), (3A) and (4) and any other provisions of this Act that relate to those subsections, officer means an officer within the meaning of section 5, and includes a member of the Australian Defence Force.
Note: See Subdivision B for the Minister’s power to determine that people who are required or permitted by this section to be detained may reside at places not covered by the definition of immigration detention in subsection 5(1).
190 Non‑compliance with immigration clearance or requirement to provide personal identifier
(1) For the purposes of section 189, 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 166; and
(b) did one or more of the following:
(i) bypassed, attempted to bypass, or appeared to attempt to bypass, immigration clearance;
(ii) went to a clearance authority but was not able to present, or otherwise did not present, evidence required by section 166 to be presented;
(iii) if a non‑citizen—went to a clearance authority but was not able to provide, or otherwise did not provide, information required by section 166 to be provided;
(iv) if a non‑citizen—went to a clearance officer but was not able to comply with, or did not otherwise comply with, any requirement referred to in section 166 to provide one or more personal identifiers to the clearance officer.
(2) For the purposes of section 189, an officer suspects on reasonable grounds that a person in Australia is an unlawful non‑citizen if, but not only if:
(a) that person fails to provide a personal identifier, under section 257A, of a type or types prescribed; and
(b) prescribed circumstances exist.
191 End of certain detention
(1) A person detained because of section 190 must be released from immigration detention if:
(a) the person gives evidence of his or her identity and Australian citizenship; or
(b) an officer knows or reasonably believes that the person is an Australian citizen; or
(c) the person complies with section 166 and either:
(i) presents to a clearance officer evidence of being a lawful non‑citizen; or
(ii) is granted a visa.
(2) A person detained because of subsection 190(2) must be released from immigration detention if:
(a) the person provides to an authorised officer one or more personal identifiers of the type or types prescribed, and the officer is satisfied that the person is not an unlawful non‑citizen; or
(b) the person gives evidence of his or her identity and Australian citizenship; or
(c) an officer knows or reasonably believes that the person is an Australian citizen; or
(d) the officer becomes aware that the non‑citizen’s visa is not one that may be cancelled under Subdivision C, D, FA or G of Division 3 or section 501, 501A or 501BA.
192 Detention of visa holders whose visas liable to cancellation
(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, FA or G of Division 3 or section 501, 501A or 501BA, 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, FA or G of Division 3 or section 501, 501A or 501BA.
(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.
193 Application of law to certain non‑citizens while they remain in immigration detention
(1) Sections 194 and 195 do not apply to a person:
(a) detained under subsection 189(1):
(i) on being refused immigration clearance; or
(ii) after bypassing immigration clearance; or
(iii) after being prevented from leaving a vessel under section 249; or
(iv) because of a decision the Minister has made personally under section 501, 501A, 501B or 501BA to refuse to grant a visa to the person or to cancel a visa that has been granted to the person; or
(b) detained under subsection 189(1) who:
(i) has entered Australia after 30 August 1994; and
(ii) has not been immigration cleared since last entering; or
(c) detained under subsection 189(2), (3), (3A) or (4); or
(d) detained under section 189 who:
(i) held an enforcement visa that has ceased to be in effect; and
(ii) has not been granted a substantive visa since the enforcement visa ceased to be in effect.
(2) Apart from section 256, nothing in this Act or in any other law (whether written or unwritten) requires the Minister or any officer to:
(aa) give a person covered by subsection (1) an application form for a visa; or
(a) advise a person covered by subsection (1) as to whether the person may apply for a visa; or
(b) give a person covered by subsection (1) any opportunity to apply for a visa; or
(c) allow a person covered by subsection (1) access to advice (whether legal or otherwise) in connection with applications for visas.
(3) If:
(a) a person covered by subsection (1) has not made a complaint in writing to the Australian Human Rights Commission, paragraph 20(6)(b) of the Australian Human Rights Commission Act 1986 does not apply to the person; and
(c) a person covered by subsection (1) has not made a complaint to the Postal Industry Ombudsman, paragraph 7(3)(b) of the Ombudsman Act 1976 (as that paragraph applies because of section 19R of that Act) does not apply to the person.
(4) This section applies to a person covered by subsection (1) for as long as the person remains in immigration detention.
194 Detainee to be told of consequences of detention
As soon as reasonably practicable after an officer detains a person under section 189, the officer must ensure that the person is made aware of:
(a) the provisions of sections 195 and 196; and
(b) if a visa held by the person has been cancelled under section 137J—the provisions of section 137K.
195 Detainee may apply for visa
(1) A detainee may apply for a visa:
(a) within 2 working days after the day on which section 194 was complied with in relation to his or her detention; or
(b) if he or she informs an officer in writing within those 2 working days of his or her intention to so apply—within the next 5 working days after those 2 working 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.
195A Minister may grant detainee visa (whether or not on application)
Persons to whom section applies
(1) This section applies to a person who is in detention under section 189.
Minister may grant visa
(2) If the Minister thinks that it is in the public interest to do so, the Minister may grant a person to whom this section applies a visa of a particular class (whether or not the person has applied for the visa).
(3) In exercising the power under subsection (2), the Minister is not bound by Subdivision AA, AC or AF of Division 3 of this Part or by the regulations, but is bound by all other provisions of this Act.
Minister not under duty to consider whether to exercise power
(4) The Minister does not have a duty to consider whether to exercise the power under subsection (2), whether he or she is requested to do so by any person, or in any other circumstances.
Minister to exercise power personally
(5) The power under subsection (2) may only be exercised by the Minister personally.
Tabling of information relating to the granting of visas
(6) If the Minister grants a visa under subsection (2), he or she must cause to be laid before each House of the Parliament a statement that (subject to subsection (7)):
(a) states that the Minister has granted a visa under this section; and
(b) sets out the Minister’s reasons for granting the visa, referring in particular to the Minister’s reasons for thinking that the grant is in the public interest.
(7) A statement under subsection (6) in relation to a decision to grant a visa is not to include:
(a) the name of the person to whom the visa is granted; or
(b) any information that may identify the person to whom the visa is granted; or
(c) if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the grant of the visa—the name of that other person or any information that may identify that other person.
(8) A statement under subsection (6) is to be laid before each House of the Parliament within 15 sitting days of that House after:
(a) if the decision to grant the visa is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or
(b) if the decision to grant the visa is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.
196 Duration of detention
(1) An unlawful non‑citizen detained under section 189 must be kept in immigration detention until:
(a) he or she is removed from Australia under section 198 or 199; or
(aa) an officer begins to deal with the non‑citizen under subsection 198AD(3); or
(b) he or she is deported under section 200; or
(c) he or she is 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 as referred to in paragraph (1)(a), (aa) or (b)) unless the non‑citizen has been granted a visa.
(4) Subject to paragraphs (1)(a), (b) and (c), if the person is detained as a result of the cancellation of his or her visa under section 501, 501A, 501B, 501BA or 501F, the detention is to continue unless a court finally determines that the detention is unlawful, or that the person detained is not an unlawful non‑citizen.
(4A) Subject to paragraphs (1)(a), (b) and (c), if the person is detained pending his or her deportation under section 200, the detention is to continue unless a court finally determines that the detention is unlawful.
(5) To avoid doubt, subsection (4) or (4A) applies:
(a) whether or not there is a real likelihood of the person detained being removed from Australia under section 198 or 199, or deported under section 200, in the reasonably foreseeable future; and
(b) whether or not a visa decision relating to the person detained is, or may be, unlawful.
(5A) Subsections (4) and (4A) do not affect by implication the continuation of the detention of a person to whom those subsections do not apply.
(6) This section has effect despite any other law.
(7) In this section:
visa decision means a decision relating to a visa (including a decision not to grant the visa, to cancel the visa or not to reinstate the visa).
197 Effect of escape from immigration detention
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 194 and 195, the non‑citizen is taken not to have ceased to be in immigration detention.
Subdivision B—Residence determinations
197AA Persons to whom Subdivision applies
This Subdivision applies to a person who is required or permitted by section 189 to be detained, or who is in detention under that section.
197AB Minister may determine that person is to reside at a specified place rather than being held in detention centre etc.
(1) If the Minister thinks that it is in the public interest to do so, the Minister may make a determination (a residence determination) to the effect that one or more specified persons to whom this Subdivision applies are to reside at a specified place, instead of being detained at a place covered by the definition of immigration detention in subsection 5(1).
(2) A residence determination must:
(a) specify the person or persons covered by the determination by name, not by description of a class of persons; and
(b) specify the conditions to be complied with by the person or persons covered by the determination.
(3) A residence determination must be made by notice in writing to the person or persons covered by the determination.
197AC Effect of residence determination
Act and regulations apply as if person were in detention in accordance with section 189
(1) While a residence determination is in force, this Act and the regulations apply (subject to subsection (3)) to a person who is covered by the determination and who is residing at the place specified in the determination as if the person were being kept in immigration detention at that place in accordance with section 189.
(2) If:
(a) a person covered by a residence determination is temporarily staying at a place other than the place specified in the determination; and
(b) the person is not breaching any condition specified in the determination by staying there;
then, for the purposes of subsection (1), the person is taken still to be residing at the place specified in the determination.
Certain provisions do not apply to people covered by residence determinations
(3) Subsection (1):
(a) does not apply for the purposes of section 197 or 197A, or any of sections 252AA to 252E; and
(b) does not apply for the purposes of any other provisions of this Act or the regulations that are specified in regulations made for the purposes of this paragraph.
What constitutes release from immigration detention?
(4) If:
(a) a residence determination is in force in relation to a person; and
(b) a provision of this Act requires the person to be released from immigration detention, or this Act no longer requires or permits the person to be detained;
then, at the time when paragraph (b) becomes satisfied, the residence determination, so far as it covers the person, is revoked by force of this subsection and the person is, by that revocation, released from immigration detention.
Note: Because the residence determination is revoked, the person is no longer subject to the conditions specified in the determination.
(5) If a person is released from immigration detention by operation of subsection (4), the Secretary must, as soon as possible, notify the person that he or she has been so released.
Secretary must ensure section 256 complied with
(6) The Secretary must ensure that a person covered by a residence determination is given forms and facilities as and when required by section 256.
197AD Revocation or variation of residence determination
(1) If the Minister thinks that it is in the public interest to do so, the Minister may, at any time, revoke or vary a residence determination in any respect (subject to subsection (2)).
Note 1: If a person covered by a residence determination does not comply with a condition specified in the determination, the Minister may (subject to the public interest test) decide to revoke the determination, or to vary the determination by altering the conditions, whether by omitting or amending one or more existing conditions or by adding one or more additional conditions.
Note 2: If the Minister revokes a residence determination (without making a replacement determination) and a person covered by the determination is a person whom section 189 requires to be detained, the person will then have to be taken into detention at a place that is covered by the definition of immigration detention in subsection 5(1).