(1) A person shall not, in connexion with the entry, proposed entry or immigration clearance, of a non‑citizen (including that person himself or herself) into Australia or with an application for a visa or a further visa permitting a non‑citizen (including that person himself or herself) to remain in Australia:
(a) present, or cause to be presented, to an officer or a person exercising powers or performing functions under this Act a document which is forged or false;
(b) make, or cause to be made, to an officer or a person exercising powers or performing functions under this Act a statement that, to the person’s knowledge, is false or misleading in a material particular; or
(c) deliver, or cause to be delivered, to an officer or a person exercising powers or performing functions under this Act, or otherwise furnish, or cause to be furnished for official purposes of the Commonwealth, a document containing a statement or information that is false or misleading in a material particular.
(2) A person shall not transfer or part with possession of a document:
(a) with intent that the document be used to help a person, being a person not entitled to use it, to gain entry, or to remain in, Australia or to be immigration cleared; or
(b) where the person has reason to suspect that the document may be so used.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.
234A Aggravated offence of false documents and false or misleading information etc. relating to non‑citizens (at least 5 people)
(1) A person must not, in connection with:
(a) the entry or proposed entry into Australia, or the immigration clearance, of a group of 5 or more non‑citizens (which may include that person), or of any member of such a group; or
(b) an application for a visa or a further visa permitting a group of 5 or more non‑citizens (which may include that person), or any member of such a group, to remain in Australia;
do any of the following:
(c) present, or cause to be presented, to an officer or a person exercising powers or performing functions under this Act a document that the person knows is forged or false;
(d) make, or cause to be made, to an officer or a person exercising powers or performing functions under this Act a statement that the person knows is false or misleading in a material particular;
(e) deliver, or cause to be delivered, to an officer or a person exercising powers or performing functions under this Act, or otherwise give, or cause to be given, for official purposes of the Commonwealth, a document containing a statement or information that the person knows is false or misleading in a material particular.
Penalty: Imprisonment for 20 years or 2,000 penalty units, or both.
Note: Sections 236A and 236B limit conviction and sentencing options for offences against this section.
(2) A person must not transfer or part with possession of a document or documents:
(a) with the intention that the document or documents be used to help a group of 5 or more people, none of whom are entitled to use the document or documents, or any member of such a group, to gain entry into or remain in Australia, or to be immigration cleared; or
(b) if the person has reason to suspect that the document or documents may be so used.
Penalty: Imprisonment for 20 years or 2,000 penalty units, or both.
Note: Sections 236A and 236B limit conviction and sentencing options for offences against this section.
236 Offences relating to visas
(1) A person commits an offence if:
(a) the person uses a visa with the intention of:
(i) travelling to Australia; or
(ii) remaining in Australia; or
(iii) identifying himself or herself; and
(b) the visa is a visa that was granted to another person.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.
(2) A person commits an offence if:
(a) the person has a visa in his or her possession or under his or her control; and
(b) the visa is a visa that was not granted to the person.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.
(3) Subsection (2) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in subsection (3) (see subsection 13.3(3) of the Criminal Code).
(4) The fault element for paragraph (2)(a) is intention.
Note: Section 5.2 of the Criminal Code defines intention.
236A No discharge without conviction for certain offences
The court may only make an order under section 19B of the Crimes Act 1914 (discharge of offenders without conviction) in respect of a charge for an offence against section 233B, 233C or 234A if the person charged was aged under 18 when the offence was alleged to have been committed.
Note: See also section 236D, which relates to age.
236B Mandatory minimum penalties for certain offences
(1) This section applies if a person is convicted of an offence against section 233B, 233C or 234A.
(2) This section does not apply if it is established on the balance of probabilities that the person was aged under 18 years when the offence was committed.
(3) The court must impose a sentence of imprisonment of at least:
(a) if the conviction is for an offence against section 233B—8 years; or
(b) if the conviction is for a repeat offence—8 years; or
(c) in any other case—5 years.
(4) The court must also set a non‑parole period of at least:
(a) if the conviction is for an offence to which paragraph (3)(a) or (b) applies—5 years; or
(b) in any other case—3 years.
(5) A person’s conviction for an offence is for a repeat offence if:
(a) in proceedings after the commencement of this section (whether in the same proceedings as the proceedings relating to the offence, or in previous proceedings), a court:
(i) has convicted the person of another offence, being an offence against section 233B, 233C or 234A of this Act; or
(ii) has found, without recording a conviction, that the person has committed another such offence; or
(b) in proceedings after the commencement of the Border Protection (Validation and Enforcement Powers) Act 2001 (whether in the same proceedings as the proceedings relating to the offence, or in previous proceedings), a court:
(i) has convicted the person of another offence, being an offence against section 232A or 233A of this Act as in force before the commencement of this section; or
(ii) has found, without recording a conviction, that the person has committed another such offence.
(6) In this section:
non‑parole period has the same meaning as it has in Part IB of the Crimes Act 1914.
236C Time in immigration detention counts for sentencing etc.
(1) This section applies to the court when imposing a sentence on, or setting a non‑parole period for, a person convicted of an offence against this Subdivision.
(2) The court must take into account any period that the person has spent in immigration detention during the period:
(a) starting when the offence was committed; and
(b) ending when the person is sentenced for the offence.
Note: This enables the court to take into account time spent while not in punitive detention.
(3) Neither section 236B nor this section prevents section 16E of the Crimes Act 1914 from applying to the imposition of the sentence or the setting of the non‑parole period.
Note: Section 16E of the Crimes Act 1914 applies State law to aspects of sentencing for federal offences, subject to specified exceptions.
236D Burden and standard of proof in relation to age
If, in proceedings relating to an offence against this Subdivision:
(a) the defendant claims to have been aged under 18 at the time the offence was alleged to have been, or was, committed, and
(b) the prosecution disputes this claim;
the prosecution bears the burden of proving, on the balance of probabilities, that the defendant was aged 18 or over at that time.
236E Evidentiary certificates in proceedings for offences
Issuing a certificate
(1) A written certificate may be issued under this subsection if an authorisation authorises the exercise of maritime powers in relation to a vessel or aircraft (the target vessel or aircraft). The certificate may be issued by:
(a) the authorising officer who gave the authorisation; or
(b) a maritime officer who boards the target vessel or aircraft in accordance with the authorisation.
Note: For definitions for this section, see subsection (6).
Certificate is prima facie evidence of the matters in it
(2) The certificate is to be received in proceedings for an offence against this Subdivision as prima facie evidence of the matters stated in the certificate.
Matters that can be specified in a certificate
(3) The certificate may specify one or more of the following:
(a) the location of the target vessel or aircraft during the exercise of those maritime powers;
(b) the location, during the exercise of those maritime powers, of a Commonwealth ship or Commonwealth aircraft from which the exercise of those maritime powers was directed or coordinated;
(c) the contents of any list of passengers on board the target vessel or aircraft, or passenger cards relating to passengers on board the target vessel or aircraft;
(d) the number of passengers on board the target vessel or aircraft;
(e) the number of crew on board the target vessel or aircraft;
(f) details about anything a maritime officer did under subsection 64(1), or section 66, of the Maritime Powers Act 2013 (about securing things) in the exercise of those maritime powers;
(j) any other matter prescribed under subsection (5).
(4) Subsection (2) does not apply to so much of the certificate as specifies whether a person is the master, owner, agent or charterer of the target vessel or aircraft.
(5) The Minister may, by legislative instrument, prescribe other matters that may be specified in a certificate issued under subsection (1).
Definitions
(6) In this section:
authorisation has the same meaning as in the Maritime Powers Act 2013.
authorising officer has the same meaning as in the Maritime Powers Act 2013.
Commonwealth aircraft has the same meaning as in the Maritime Powers Act 2013.
Commonwealth ship has the same meaning as in the Maritime Powers Act 2013.
maritime powers has the same meaning as in the Maritime Powers Act 2013.
236F Evidentiary certificates—procedural matters
(1) A certificate issued under subsection 236E(1) must not be admitted in evidence in proceedings for an offence unless:
(a) the person charged with the offence; or
(b) a lawyer who has appeared for the person in those proceedings;
has, at least 28 days before the certificate is sought to be so admitted, been given a copy of the certificate together with notice of the intention to produce the certificate as evidence in the proceedings.
(2) If, under section 236E, a certificate is admitted in evidence in proceedings for an offence, the person charged with the offence may require the person who signed the certificate to be:
(a) called as a witness for the prosecution; and
(b) cross‑examined as if the person who signed the certificate had given evidence of the matters stated in the certificate.
(3) However, subsection (2) does not entitle the person charged to require the person who signed the certificate to be called as a witness for the prosecution unless:
(a) the prosecutor has been given at least 21 days’ notice of the person’s intention to require the person who signed the certificate to be so called; and
(b) the court, by order, allows the person charged to require the person who signed the certificate to be so called.
(4) Any evidence given in support, or in rebuttal, of a matter stated in a certificate issued under subsection 236E(1) must be considered on its merits, and the credibility and probative value of such evidence must be neither increased nor diminished by reason of this section.
Subdivision B—Offences relating to abuse of laws allowing spouses etc. of Australian citizens or of permanent residents to become permanent residents
237 Reason for Subdivision
This Subdivision was enacted because:
(a) under the regulations, a person satisfies a criterion for certain visas that give, or might lead to, authorisation for the person’s permanent residence in Australia if the person is the spouse or de facto partner of, and has a genuine and continuing relationship, involving a shared life to the exclusion of all others with, either an Australian citizen or a permanent resident of Australia; and
(c) some persons attempt to get permanent residence under the regulations by:
(i) entering into a married relationship that is not intended to be a genuine and continuing relationship involving a shared life to the exclusion of all others; or
(ii) pretending to be a de facto partner of another person.
238 Interpretation
In this Subdivision:
criterion includes part of a criterion.
preliminary visa, means a visa that is usually applied for by persons applying, or intending to apply, for a permanent visa.
stay visa means:
(a) a permanent visa; or
(b) a preliminary visa.
239 Application of Subdivision
(1) This Subdivision applies in and outside Australia.
(2) This Subdivision applies to marriages solemnized outside Australia as well as those solemnized in Australia.
240 Offence to arrange marriage to obtain permanent residence
(1) A person must not arrange a marriage between other persons with the intention of assisting one of those other persons to get a stay visa by satisfying a criterion for the visa because of the marriage.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.
(2) Subsection (1) applies whether or not the intention is achieved.
(3) It is a defence to an offence against subsection (1) if the defendant proves that, although one purpose of the marriage was to assist a person to get a stay visa, the defendant believed on reasonable grounds that the marriage would result in a genuine and continuing marital relationship.
Note: A defendant bears a legal burden in relation to the matter in subsection (3) (see section 13.4 of the Criminal Code).
241 Offence to arrange pretended de facto relationship to obtain permanent residence
(1) If a person knows or believes on reasonable grounds that 2 other persons are not de facto partners of each other, the person must not make arrangements that make, or help to make, it look as if those other persons are such de facto partners with the intention of assisting one of those other persons to get a stay visa by appearing to satisfy a criterion for the visa because of being such de facto partners.
Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.
(2) Subsection (1) applies whether or not the intention is achieved.
243 Offences relating to application for permanent residence because of marriage or de facto relationship
(1) A person must not apply for a stay visa on the basis of satisfying a criterion for the visa because of being the spouse or de facto partner of another person if, at the time of the application, the applicant does not intend to live permanently with the other person in a married relationship (within the meaning of subsection 5F(2)) or de facto relationship (within the meaning of subsection 5CB(2)), as appropriate.
(2) A non‑citizen in Australia convicted of an offence under subsection (1) becomes an unlawful non‑citizen.
(3) A person must not nominate an applicant for a stay visa on the basis of the applicant satisfying a criterion for the visa because of being the spouse or de facto partner of the person if, at the time of the application, the person does not intend to live permanently with the applicant in a married relationship (within the meaning of subsection 5F(2)) or de facto relationship (within the meaning of subsection 5CB(2)), as appropriate.
Penalty: Imprisonment for 2 years.
245 Offences of making false or unsupported statements
(1) A person must not make a statement, or give information, in writing, to an officer in relation to the consideration for the purposes of this Act or the regulations of any of the following questions:
(a) whether or not other persons are in a married relationship (within the meaning of subsection 5F(2));
(b) whether or not other persons are in a de facto relationship (within the meaning of subsection 5CB(2)) with one another;
if:
(d) the person knows that the statement or information is false or misleading in a material particular; and
(e) the statement is made, or the information is given, in a document that describes, and shows the penalty for, an offence against this subsection.
Penalty: Imprisonment for 12 months.
(3) A person must not make a statement, or give information, in writing, to an officer in relation to the consideration for the purposes of this Act or the regulations of any of the following questions:
(a) whether or not other persons are in a married relationship (within the meaning of subsection 5F(2));
(b) whether or not other persons are in a de facto relationship (within the meaning of subsection 5CB(2)) with one another;
if:
(d) the statement or information is false or misleading in a material particular; and
(e) the person making the statement, or giving the information, did not make appropriate inquiries to satisfy himself or herself that the statement or information was neither false nor misleading; and
(f) the statement is made, or the information is given, in a document that describes, and shows the penalty for, an offence against this subsection.
Penalty for a contravention of this subsection: 120 penalty units.
Subdivision C—Offences and civil penalties in relation to work by non‑citizens
245AA Overview
(1) This Subdivision creates offences, and provides for civil penalties, to deal with the following situations:
(aa) where a person coerces, or exerts undue influence or undue pressure on, a lawful non‑citizen to accept or agree to an arrangement in relation to work: