(e) proceedings relating to the performance or exercise of a function, duty or power under Subdivision B of Division 8 of Part 2 in relation to an unauthorised maritime arrival.
(2) This section has effect despite anything else in this Act or any other law.
(3) Nothing in this section is intended to affect the jurisdiction of the High Court under section 75 of the Constitution.
(4) In this section:
Commonwealth includes:
(a) an officer of the Commonwealth; and
(b) any other person acting on behalf of the Commonwealth.
ineligibility period means the period from the time of the unauthorised entry until the time when the person next ceases to be an unlawful non‑citizen.
unauthorised entry means an entry into Australia that occurs:
(a) at an excised offshore place after the excision time for that place; or
(b) at any other place on or after the commencement of section 5AA.
494AB Bar on certain legal proceedings relating to transitory persons
(1) The following proceedings against the Commonwealth may not be instituted or continued in any court:
(a) proceedings relating to the exercise of powers under section 198B;
(b) proceedings relating to the status of a transitory person as an unlawful non‑citizen during any part of the ineligibility period;
(c) proceedings relating to the detention of a transitory person who is brought to Australia under section 198B, being a detention based on the status of the person as an unlawful non‑citizen;
(ca) proceedings relating to the performance or exercise of a function, duty or power under Subdivision B of Division 8 of Part 2 in relation to a transitory person;
(d) proceedings relating to the removal of a transitory person from Australia under this Act.
(2) This section has effect despite anything else in this Act or any other law.
(3) Nothing in this section is intended to affect the jurisdiction of the High Court under section 75 of the Constitution.
(4) In this section:
Commonwealth includes:
(a) an officer of the Commonwealth; and
(b) any other person acting on behalf of the Commonwealth.
ineligibility period means the period from the time when the transitory person was brought to Australia under section 198B until the time when the person next ceases to be an unlawful non‑citizen.
494A Giving documents by Minister where no requirement to do so by section 494B method
(1) If:
(a) a provision of this Act or the regulations requires or permits the Minister to give a document to a person; and
(b) the provision does not state that the document must be given:
(i) by one of the methods specified in section 494B; or
(ii) by a method prescribed for the purposes of giving documents to a person in immigration detention;
the Minister may give the document to the person by any method that he or she considers appropriate (which may be one of the methods mentioned in subparagraph (b)(i) or (ii) of this section).
Note: Section 494D deals with giving documents to a person’s authorised recipient.
(2) If a person is a minor, the Minister may give a document to an individual who is at least 18 years of age if the Minister reasonably believes that:
(a) the individual has day‑to‑day care and responsibility for the minor; or
(b) the individual works in or for an organisation that has day‑to‑day care and responsibility for the minor and the individual’s duties, whether alone or jointly with another person, involve care and responsibility for the minor.
(3) However, subsection (2) does not apply if subsection 52(3C) (which relates to giving notifications in the case of combined applications) applies in relation to the minor.
(4) If the Minister gives a document to an individual, as mentioned in subsection (2), the Minister is taken to have given the document to the minor. However, this does not prevent the Minister giving the minor a copy of the document.
(5) This section does not apply to the giving of any of the following documents:
(a) a document relating to the proposed cancellation of a visa;
(b) a document relating to the cancellation of a visa;
(c) a document relating to the revocation of the cancellation of a visa;
(d) a document relating to a decision not to revoke the cancellation of a visa.
Note 1: The Minister must give a person a document mentioned in this subsection in the way prescribed by the regulations for the document (see, for example, subsections 119(2), 127(2A) and 501G(3) and paragraph 504(1)(e)).
Note 2: For the giving of such a document to the person’s authorised recipient, see section 494D.
494B Methods by which Minister gives documents to a person
Coverage of section
(1) For the purposes of provisions of this Act or the regulations that:
(a) require or permit the Minister to give a document to a person (the recipient); and
(b) state that the Minister must do so by one of the methods specified in this section;
the methods are as follows.
(1A) If a person is a minor, the Minister may use the method mentioned in subsection (4), (5) or (5A) to dispatch, transmit or make available a document to an individual (a carer of the minor):
(a) who is at least 18 years of age; and
(b) who the Minister reasonably believes:
(i) has day‑to‑day care and responsibility for the minor; or
(ii) works in or for an organisation that has day‑to‑day care and responsibility for the minor and whose duties, whether alone or jointly with another person, involve care and responsibility for the minor.
Note: If the Minister gives an individual a document by the method mentioned in subsection (4), (5) or (5A), the individual is taken to have received the document at the time specified in section 494C in respect of that method.
(1B) However, subsection (1A) does not apply if subsection 52(3C) (which relates to giving notifications in the case of combined applications) applies in relation to the minor.
Giving by hand
(2) One method consists of the Minister (including by way of an authorised officer) handing the document to the recipient.
Handing to a person at last residential or business address
(3) Another method consists of the Minister (including by way of an authorised officer) handing the document to another person who:
(a) is at the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents; and
(b) appears to live there (in the case of a residential address) or work there (in the case of a business address); and
(c) appears to be at least 16 years of age.
Dispatch by prepaid post or by other prepaid means
(4) Another method consists of the Minister dating the document, and then dispatching it:
(a) within 3 working days (in the place of dispatch) of the date of the document; and
(b) by prepaid post or by other prepaid means; and
(c) to:
(i) the last address for service provided to the Minister by the recipient for the purposes of receiving documents; or
(ii) the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents; or
(iii) if the recipient is a minor—the last address for a carer of the minor that is known by the Minister.
Transmission by fax, email or other electronic means
(5) Another method consists of the Minister transmitting the document by:
(a) fax; or
(b) email; or
(c) other electronic means;
to:
(d) the last fax number, email address or other electronic address, as the case may be, provided to the Minister by the recipient for the purposes of receiving documents; or
(e) if the recipient is a minor—the last fax number, email address or other electronic address, as the case may be, for a carer of the minor that is known by the Minister.
Making document available by way of online account
(5A) Another method consists of the Minister making the document available by way of an online account of the recipient established for purposes relating to this Act or the regulations.
When the Minister hands a document by way of an authorised officer
(6) For the purposes of sections 494C and 494D, a reference in those sections to an act of the Minister includes, if the act is of a kind referred to in subsection (2) or (3) of this section, a reference to an act of the Minister by way of an authorised officer.
Documents given to a carer
(7) If the Minister gives a document to a carer of a minor, the Minister is taken to have given the document to the minor. However, this does not prevent the Minister giving the minor a copy of the document.
494C When a person is taken to have received a document from the Minister
(1) This section applies if the Minister gives a document to a person by one of the methods specified in section 494B (including in a case covered by section 494A).
Giving by hand
(2) If the Minister gives a document to a person by the method in subsection 494B(2) (which involves handing the document to the person), the person is taken to have received the document when it is handed to the person.
Handing to a person at last residential or business address
(3) If the Minister gives a document to a person by the method in subsection 494B(3) (which involves handing the document to another person at a residential or business address), the person is taken to have received the document when it is handed to the other person.
Dispatch by prepaid post or by other prepaid means
(4) If the Minister gives a document to a person by the method in subsection 494B(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document:
(a) if the document was dispatched from a place in Australia to an address in Australia—7 working days (in the place of that address) after the date of the document; or
(b) in any other case—21 days after the date of the document.
Transmission by fax, email or other electronic means
(5) If the Minister gives a document to a person by the method in subsection 494B(5) (which involves transmitting the document by fax, email or other electronic means), the person is taken to have received the document at the end of the day on which the document is transmitted.
Making document available by way of online account
(6) If the Minister gives a document to a person by the method in subsection 494B(5A) (which involves making the document available by way of an online account), the person is taken to have received the document at the end of the day on which it is made available.
Document not given effectively
(7) If:
(a) the Minister purports to give a document to a person in accordance with a method (the relevant method) specified in section 494B (including in a case covered by section 494A) but makes an error in doing so; and
(b) the person nonetheless receives the document or a copy of it;
then, despite the error:
(c) the document is taken to have been given in accordance with the relevant method; and
(d) the person is taken to have received the document:
(i) at the time mentioned in this section for the relevant method; or
(ii) if the person can show that the person received the document at a later time—at that later time.
494D Authorised recipient
(1) If a person (the first person) gives the Minister written notice of the name and address of another person (the authorised recipient) authorised by the first person to receive documents in connection with specified matters arising under this Act or the regulations, the Minister must give the authorised recipient, instead of the first person, any documents in connection with those matters that the Minister would otherwise have given to the first person.
Note: If the Minister gives a person a document by a method specified in section 494B, the person is taken to have received the document at the time specified in section 494C in respect of that method.
(2) If the Minister gives a document to the authorised recipient, the Minister is taken to have given the document to the first person. However, this does not prevent the Minister giving the first person a copy of the document.
(3) Subject to subsection (3A), the first person (but not the authorised recipient) may vary or withdraw the notice under subsection (1) at any time, but must not (unless the regulations provide otherwise) vary the notice so that any more than one person becomes the first person’s authorised recipient.
(3A) In addition to the first person being able to vary the notice under subsection (1) by varying the address of the authorised recipient, that recipient may also vary that notice by varying that address.
(5) The Minister need not comply with subsection (1) if:
(a) the authorised recipient is not a registered migration agent (within the meaning of Part 3); and
(b) the Minister reasonably suspects that the authorised recipient is giving immigration assistance (within the meaning of that Part); and
(c) the Minister has given the first person a notice, by one of the methods specified in section 494B, stating that he or she does not intend to give the authorised recipient documents as mentioned in subsection (1).
494E When documents are taken to comply with content requirements
(1) This section applies in relation to a document if:
(a) a provision of this Act or the regulations requires or permits the Minister to give the document to a person; and
(b) a provision of this Act or the regulations requires (the content requirements) the document to include particular information.
(2) For the purposes of this Act or the regulations, the document is taken to comply with the content requirements if:
(a) there is substantial compliance with those requirements; and
(b) the failure to strictly comply with those requirements does not, or is not likely to, cause substantial prejudice to the person’s rights (including, but not limited to, rights to seek review in connection with the matter to which the document relates).
(3) Subsection (2) applies despite any other provision of this Act or the regulations.
(4) Without limiting paragraph (2)(a), there may be substantial compliance with the content requirements even if there is an error, omission, misstatement or misdescription in the document.
(5) Without limiting paragraph (2)(b), a failure by the person to:
(a) exercise any rights (including, but not limited to, rights to seek review) in connection with the matter to which the document relates; or
(b) take any other action (including, but not limited to, the making of representations) in connection with the matter to which the document relates;
is not on its own to be taken to imply that the failure to strictly comply with the content requirements has caused substantial prejudice to the person’s rights (including, but not limited to, rights to seek review in connection with the matter to which the document relates).
Example 1: Andrew, George and Daniel each make an application for the grant of a visa. The Minister refuses to grant each applicant the visa and gives notice of the refusal decision to each applicant. The notice states that the applicant may make an application for review of the refusal decision within 30 days after the notice is received by the applicant.
While the notice substantially complies with the requirement in the Act to state the period within which an application for review must be made, the notice misstates the period. The correct period is 28 days after the notice is received by the applicant.
Andrew makes an application for review of the refusal decision 25 days after receiving the notice. As the misstatement in the notice does not cause substantial prejudice to Andrew’s right to seek review, it is intended that subsection (2) would apply in relation to the notice given to Andrew.
George makes an application for review of the refusal decision 29 days after receiving the notice. The misstatement in the notice causes substantial prejudice to George’s right to seek review as the application for review is not made within the required period but is made within the misstated period specified in the notice. It is intended that subsection (2) would not apply in relation to the notice given to George.
Daniel makes an application for review of the refusal decision 40 days after receiving the notice. The misstatement in the notice does not cause substantial prejudice to Daniel’s right to seek review as the application for review is made well after the required period. It is intended that subsection (2) would apply in relation to the notice given to Daniel.
Example 2: Anne applies for a visa and has an authorised recipient under section 494D. The Minister refuses to grant Anne the visa and gives notice of the refusal decision by sending an email to the authorised recipient. The authorised recipient receives the notice and 2 days later forwards it on to Anne.
The notice states that Anne may make an application for review of the refusal decision within 21 days after the day Anne receives the notice. The notice does not explain that the effect of sections 494C and 494D is that the period of 21 days begins to run on the day after the day the notice is received by the authorised recipient, rather than by Anne.
While the notice substantially complies with the requirement in the Act to state the period within which an application for review must be made, the notice misdescribes when that period begins to run.
Anne makes an application for review of the refusal decision 35 days after receiving the notice. The misdescription in the notice does not cause substantial prejudice to Anne’s right to seek review as the application for review is made well after the required period. It is intended that subsection (2) would apply in relation to the notice given to the authorised recipient.
495 Minister may approve forms
The Minister may, in writing, approve a form for the purposes of a provision of this Act in which the expression “approved form” is used.