(iii) the operation of a system by which identifying information is stored; and
(b) the person intends to cause the impairment; and
(c) the person knows that the impairment is unauthorised.
Penalty: Imprisonment for 2 years, or 120 penalty units, or both.
336J Meanings of unauthorised modification and unauthorised impairment etc.
(1) In this Part:
(a) modification of identifying information; or
(b) impairment of the reliability of identifying information; or
(c) impairment of the security of the storage of identifying information; or
(d) impairment of the operation of a system by which identifying information is stored;
by a person is unauthorised if the person is not entitled to cause that modification or impairment.
(2) Any such modification or impairment caused by the person is not unauthorised merely because he or she has an ulterior purpose for causing it.
(3) For the purposes of an offence under this Part, a person causes any such unauthorised modification or impairment if the person’s conduct substantially contributes to it.
(4) For the purposes of subsection (1), if:
(a) a person causes any modification or impairment of a kind mentioned in that subsection; and
(b) the person does so under a warrant issued under the law of the Commonwealth, a State or a Territory;
the person is entitled to cause that modification or impairment.
Division 5—Destroying identifying information
336K Destroying identifying information
(1) A person commits an offence if:
(a) the person is the responsible person for identifying information; and
(b) the identifying information is not of a kind that may, under section 336L, be indefinitely retained; and
(c) the person fails to destroy the identifying information as soon as practicable after the person is no longer required under the Archives Act 1983 to keep the identifying information.
Penalty: Imprisonment for 2 years, or 120 penalty units, or both.
Note: See section 24 of the Archives Act 1983 (particularly paragraphs 24(2)(b) and (c)) on the obligation to keep the identifying information.
(2) This section does not apply if the identifying information is:
(a) a personal identifier that is any of the following:
(i) a measurement of a person’s height and weight;
(ii) a photograph or other image of a person’s face;
(iii) a person’s signature; or
(b) identifying information derived from or relating to such a personal identifier.
Note: A defendant bears an evidential burden in relation to the matters in subsection (2) (see subsection 13.3(3) of the Criminal Code).
(3) For the purposes of this section, the responsible person for identifying information is:
(a) if the identifying information is stored on a database—the person who has day‑to‑day control of the database; or
(b) otherwise—the person who has day‑to‑day responsibility for the system under which the identifying information is stored.
(4) Identifying information is destroyed if:
(a) in the case of identifying information that is a personal identifier—it is physically destroyed; and
(b) in any other case—any means of identifying it with the person to whom it relates is destroyed.
336L Identifying information that may be indefinitely retained
(1) Identifying information may be indefinitely retained if the non‑citizen to whom it relates:
(a) is, or has ever been, in immigration detention; or
(b) has ever had an application for a visa refused, or has ever had a visa cancelled; or
(c) has ever:
(i) entered Australia on a temporary visa; and
(ii) since its expiry, remained in Australia as an unlawful non‑citizen; or
(d) has ever been convicted of an offence against this Act or the regulations; or
(e) has ever been subject to action taken under this Act or the regulations for the purpose of:
(i) deporting the non‑citizen; or
(ii) removing the non‑citizen from Australia; or
(f) is a person in respect of whom the Minister has issued a conclusive certificate under subsection (4).
(2) Paragraph (1)(a) does not apply in relation to detention that occurs only because the non‑citizen is, or was, detained for questioning detention (see section 192). However, this subsection does not apply if the detention leads to detention under section 189 because of the application of subsection 190(2).
(3) Paragraph (1)(b) does not apply if the decision to refuse the application for the visa, or to cancel the visa, was set aside on a review.
(4) The Minister may issue a conclusive certificate in respect of a non‑citizen if the Minister is satisfied that:
(a) the non‑citizen is a threat to the security of the Commonwealth or of a State or Territory; or
(b) it is in the public interest to do so.
(5) The power under subsection (4) may only be exercised by the Minister personally.
Part 5—Reviewable migration decisions and reviewable protection decisions
Division 1—Preliminary
336M Simplified outline of this Part
This Part provides for the review of reviewable migration decision and reviewable protection decisions by the ART (short for the Administrative Review Tribunal).
Such decisions relate to the grant or cancellation of visas in some circumstances and to decisions under subsection 197D(2) (decision that protection finding would no longer be made). They do not include decisions in relation to which the Minister has given a conclusive certificate.
336N Scope of this Part
This Part applies in relation to the review by the ART of reviewable migration decisions and reviewable protection decisions.
Note: ART stands for Administrative Review Tribunal (see subsection 5(1)).
336P Interaction with the ART Act
(1) Subject to section 357A of this Act, the ART Act applies in relation to a review by the ART of reviewable migration decisions and reviewable protection decisions unless this Part expressly provides otherwise.
(2) The following provisions of the ART Act do not apply in relation to the review by the ART of reviewable migration decisions or reviewable protection decisions:
(a) paragraph 21(2)(b) (notice of application to decision‑maker);
(b) paragraph 21(2)(c) (notice of application to other persons made a party to the proceedings);
(c) subsection 21(3) (notice of application and right to apply to become a party);
(d) section 23 (decision‑maker must give Tribunal reasons and documents—general rule);
(e) section 24 (decision‑maker must give Tribunal additional statement if Tribunal requires—general rule);
(f) section 25 (decision‑maker must give Tribunal additional documents within 28 days—general rule);
(g) section 27 (decision‑maker must give copies of reasons and documents to other parties—general rule);
(i) section 85 (tribunal may remit decision to decision‑maker for reconsideration);
(ia) section 97 (Tribunal must dismiss application if decision is not reviewable decision);
(ib) section 98 (Tribunal may dismiss application if fee is not paid);
(j) section 103 (if parties reach agreement—review of decisions only);
(k) section 107 (when Tribunal’s decision on review comes into operation);
(l) section 294 (legal or financial assistance), unless the review is of a decision referred to the guidance and appeals panel by the President of the ART under section 122 of the ART Act.
Note: Other provisions of this Part turn off or otherwise modify the operation of other provisions of the ART Act.
337 Interpretation
In this Part:
Australian permanent resident means an Australian permanent resident within the meaning of the regulations.
company includes any body or association (whether or not it is incorporated), but does not include a partnership.
decision on a review means any of the following decisions of the ART in relation to an application for review of a reviewable migration decision or a reviewable protection decision:
(a) a decision under section 105 of the ART Act to affirm the decision;
(b) a decision under section 105 of the ART Act to vary the decision;
(c) a decision under subsection 349(2) of this Act to remit a matter in relation to the decision for reconsideration;
(d) a decision under section 105 of the ART Act to set the decision aside and substitute a new decision;
(e) a decision under paragraph 368C(3)(b) or subsection 368C(5) of this Act to confirm a decision to dismiss the application.
nominated has the same meaning as in the regulations.
sponsored has the same meaning as in the regulations.
338 Meaning of reviewable migration decision
(1) A decision is a reviewable migration decision if this section so provides, unless:
(a) the Minister has issued a conclusive certificate under section 339 in relation to the decision; or
(b) the decision is a reviewable protection decision; or
(c) the decision is to refuse to grant, or to cancel, a temporary safe haven visa.
(2) A decision (other than a decision covered by subsection (4) or made under section 501) to refuse to grant a non‑citizen a visa is a reviewable migration decision if:
(a) the visa could be granted while the non‑citizen is in the migration zone; and
(b) the non‑citizen made the application for the visa while in the migration zone; and
(c) the decision was not made when the non‑citizen:
(i) was in immigration clearance; or
(ii) had been refused immigration clearance and had not subsequently been immigration cleared; and
(d) if the visa is a temporary visa of a kind (however described) prescribed for the purposes of this paragraph:
(i) the non‑citizen is, at the time the decision to refuse to grant the visa is made, identified in an approved nomination that has not ceased under the regulations; or
(ii) a review of a decision under section 140E not to approve the sponsor of the non‑citizen is pending at the time the decision to refuse to grant the visa is made; or
(iii) a review of a decision under section 140GB not to approve the nomination of the non‑citizen is pending at the time the decision to refuse to grant the visa is made; or
(iv) except if it is a criterion for the grant of the visa that the non‑citizen is identified in an approved nomination that has not ceased under the regulations—the non‑citizen is, at the time the decision to refuse to grant the visa is made, sponsored by an approved sponsor.
(3) A decision to cancel a visa held by a non‑citizen who is in the migration zone at the time of the cancellation is a reviewable migration decision unless the decision:
(a) is covered by subsection (4); or
(b) is made at a time when the non‑citizen was in immigration clearance; or
(c) was made under section 133A or 133C, subsection 134(1), (3A) or (4) or section 501; or
(d) was made personally by the Minister under section 109 or 116 or subsection 140(2).
(3A) A decision under section 137L not to revoke the cancellation of a non‑citizen’s visa is a reviewable migration decision if the non‑citizen was in the migration zone when the decision was made.
(4) The following decisions are reviewable migration decisions:
(a) a decision to refuse to grant a bridging visa to a non‑citizen who is in immigration detention because of that refusal;
(b) a decision of a delegate of the Minister to cancel a bridging visa held by a non‑citizen who is in immigration detention because of that cancellation;
(c) a decision to not grant a non‑citizen a Subclass 070 (Bridging (Removal Pending)) visa under a provision of the regulations prescribed for the purposes of subsection 76E(4) that is not subject to any one or more of the conditions prescribed for the purposes of paragraph 76E(1)(a).
(5) A decision to refuse to grant a non‑citizen a visa is a reviewable migration decision if:
(a) the visa is a visa that could not be granted while the non‑citizen is in the migration zone; and
(b) the non‑citizen, as required by a criterion for the grant of the visa, was sponsored or nominated by:
(i) an Australian citizen; or
(ii) a company that operates in the migration zone; or
(iii) a partnership that operates in the migration zone; or
(iv) the holder of a permanent visa; or
(v) a New Zealand citizen who holds a special category visa.
(6) A decision to refuse to grant a non‑citizen a visa is a reviewable migration decision if:
(a) the visa is a visa that could not be granted while the non‑citizen is in the migration zone; and
(b) a criterion for the grant of the visa is that the non‑citizen has been an Australian permanent resident; and
(c) a parent, spouse, de facto partner, child, brother or sister of the non‑citizen is an Australian citizen or an Australian permanent resident.
Note: Section 5G may be relevant for determining family relationships for the purposes of this subsection.
(7) A decision to refuse to grant a non‑citizen a visa is a reviewable migration decision if:
(a) the visa is a visa that could not be granted while the non‑citizen is in the migration zone; and
(b) a criterion for the grant of the visa is that the non‑citizen intends to visit an Australian citizen, or an Australian permanent resident, who is a parent, spouse, de facto partner, child, brother or sister of the non‑citizen; and
(c) particulars of the relative concerned are included in the application.
Note: Section 5G may be relevant for determining family relationships for the purposes of this subsection.
(7A) A decision to refuse to grant a non‑citizen a permanent visa is a reviewable migration decision if:
(a) the non‑citizen made the application for the visa at a time when the non‑citizen was outside the migration zone; and
(b) the visa is a visa that could be granted while the non‑citizen is either in or outside the migration zone.
(8) A decision, under section 93, as to the assessed score of an applicant for a visa is a reviewable migration decision if:
(a) the visa is a visa that could not be granted while the applicant is in the migration zone; and
(b) the applicant, as required by a criterion for the grant of the visa, was sponsored or nominated by:
(i) an Australian citizen; or
(ii) the holder of a permanent visa; or
(iii) a New Zealand citizen who holds a special category visa; and
(c) the Minister has not refused to grant the visa.
(9) A decision that is prescribed for the purposes of this subsection is a reviewable migration decision.
338A Meaning of reviewable protection decision
(1) Subject to subsection (2), the following decisions are reviewable protection decisions:
(a) a decision, made before 1 September 1994, that a non‑citizen is not a refugee under the Refugees Convention as amended by the Refugees Protocol (other than such a decision made after a review by the Minister of an earlier decision that the person was not such a refugee);
(b) a decision, made before 1 September 1994, to refuse to grant, or to cancel, a visa, or entry permit (within the meaning of this Act as in force immediately before that date), a criterion for which is that the applicant for it is a non‑citizen who has been determined to be a refugee under the Refugees Convention as amended by the Refugees Protocol (other than such a decision made under the Migration (Review) (1993) Regulations or under the repealed Part 2A of the Migration (Review) Regulations);
(c) a decision to refuse to grant a protection visa, other than a decision that was made relying on:
(i) subsection 5H(2), or 36(1B) or (1C); or
(ii) paragraph 36(2C)(a) or (b);
(d) a decision to cancel a protection visa, other than a decision that was made because of:
(i) subsection 5H(2) or 36(1C); or
(ii) an assessment by the Australian Security Intelligence Organisation that the holder of the visa is directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979); or
(iii) paragraph 36(2C)(a) or (b);
(e) a decision under subsection 197D(2) that a non‑citizen is no longer a person in respect of whom a protection finding within the meaning of subsection 197C(4), (5), (6) or (7) would be made.
(2) The following decisions are not reviewable protection decisions:
(a) decisions in relation to which the Minister has issued a conclusive certificate under section 339;
(b) any decision to cancel a protection visa that is made personally by the Minister;
(c) decisions made in relation to a non‑citizen who is not physically present in the migration zone when the decision is made.
339 Conclusive certificates
The Minister may issue a conclusive certificate in relation to a decision if the Minister believes that:
(a) it would be contrary to the national interest to change the decision; or
(b) it would be contrary to the national interest for the decision to be reviewed.
Note: If the Minister issues a conclusive certificate in relation to a decision, the decision is not a reviewable migration decision (see paragraph 338(1)(a)) or a reviewable protection decision (see paragraph 338A(2)(a)).
Division 2—ART review
347 Application for ART review
Making an application
(1) An application may be made to the ART for review of a reviewable migration decision or a reviewable protection decision.
(2) The application must:
(a) include the prescribed information (if any); and
(b) be accompanied by the prescribed documents (if any); and
(c) be accompanied by the prescribed fee (if any).
Time for making an application
(3) An application must be made:
(a) if the applicant is in immigration detention on the day the applicant is notified of the decision—within 14 days after the day the applicant is notified of the decision; or
(b) otherwise—within 28 days after the day the applicant is notified of the decision.
Certain provisions of the ART Act do not apply
(4) Subsection (3) applies despite section 18 (when to apply—general rule) of the ART Act.
(5) Section 19 (ART may extend period) of the ART Act does not apply in relation to reviewable migration decisions or reviewable protection decisions.