(2) For the purposes of paragraph 349(2)(b) of the Act, it is a permissible order that the applicant must be taken to have satisfied the criteria for the visa that are specified in the order.
(3) For the purposes of paragraph 349(2)(b) of the Act:
(a) it is a permissible order that the applicant is a refugee within the meaning of subsection 5H(1) of the Act; and
(aa) it is a permissible order that subsection 36(3) of the Act does not apply to the applicant; and
(b) it is not a permissible order that:
(i) subsection 5H(1) of the Act applies to the applicant; or
(ii) subsection 5H(1) does not apply to the applicant because of subsection 5H(2); or
(iii) the applicant satisfies, or does not satisfy, the criterion in subsection 36(1C) of the Act.
(4) For the purposes of paragraph 349(2)(b) of the Act:
(a) it is a permissible order that the applicant satisfies each matter, specified in the order, that relates to establishing whether the applicant is a person to whom Australia has protection obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm; and
(b) it is not a permissible order that the applicant satisfies a matter that relates to establishing whether there are serious reasons for considering that:
(i) the applicant has committed a crime against peace, a war crime or a crime against humanity, as defined by an international instrument mentioned in regulation 2.03B; or
(ii) the applicant committed a serious non‑political crime before entering Australia; or
(iii) the applicant has been guilty of acts contrary to the purposes and principles of the United Nations; and
(c) it is not a permissible order that the applicant satisfies a matter that relates to establishing whether there are reasonable grounds that:
(i) the applicant is a danger to Australia’s security; or
(ii) the applicant, having been convicted by a final judgment of a particularly serious crime, including a crime that consists of the commission of a serious Australian offence or serious foreign offence, is a danger to the Australian community.
(5) For the purposes of paragraph 349(2)(b) of the Act, it is a permissible order that the grant of the visa is not prevented by section 91W, 91WA or 91WB of the Act.
4.34 Statement about decision under review—number of copies
For the purposes of subsection 352(2) of the Act, the prescribed number of copies of a statement of the kind mentioned in that subsection is 1.
Division 4.3—Service of documents
4.39 Address for service
(1) In this regulation:
lodge an address for service, in relation to an applicant for review, means give the ART notice in writing of an address at which documents relating to a review may be sent to the applicant.
(2) An applicant for review of a reviewable migration decision or a reviewable protection decision may:
(a) lodge an address for service in a review; and
(b) at any time after lodging an address for service, lodge a new address for service in that review.
(3) If an applicant for review lodges with the ART a new address for service under paragraph (2)(b):
(a) that new address becomes the applicant for review’s address for service in the review; and
(b) he or she must, immediately after doing so, serve on the Minister a notice of that new address for service.
(4) An address for service may be, but need not be, the applicant’s residential address.
Part 4A—Review of decisions—assessing authority approvals
Division 4A.1—Preliminary
4.40 Definitions
In this Part:
revocation decision means a decision of the Skills Assessment Minister under subregulation 2.26B(1BG) to revoke an approval of a person or body as an assessing authority for an occupation and one or more countries.
Division 4A.2—Reconsideration and review of decisions revoking assessing authority approval
4.41 Reconsideration of revocation decision
(1) A person or body (the aggrieved entity) whose interests are affected by a revocation decision may request the Skills Assessment Minister to reconsider the decision.
Form and timing of request
(2) The request must:
(a) be in writing; and
(b) set out the reasons for the request; and
(c) be made within:
(i) 30 days after the day the aggrieved entity is notified of the revocation decision; or
(ii) if the Skills Assessment Minister allows a longer period (whether before or after the end of the 30‑day period referred to in subparagraph (i))—that longer period.
Reconsideration of decision
(3) On receiving a request made in accordance with subregulation (2), the Skills Assessment Minister:
(a) must review the revocation decision; and
(b) must affirm, vary or set aside the revocation decision; and
(c) if the Skills Assessment Minister sets aside the revocation decision—may make such other decision as the Skills Assessment Minister thinks appropriate.
(4) The Skills Assessment Minister must do so before the end of:
(a) the period of 30 days beginning on the day the Skills Assessment Minister receives the request, unless paragraph (b) applies; or
(b) if the aggrieved entity and the Skills Assessment Minister agree on a longer period—that longer period.
Notice of decision on reconsideration
(5) The Skills Assessment Minister must give the aggrieved entity written notice of the Skills Assessment Minister’s decision on reconsideration and of the reasons for that decision.
(6) The Skills Assessment Minister must give the Minister a copy of the notice.
When decision on reconsideration takes effect
(7) The Skills Assessment Minister’s decision on reconsideration takes effect:
(a) on the day specified in the notice; or
(b) if a day is not specified—on the day on which that decision is made.
Skills Assessment Minister may be taken to have affirmed decision
(8) The Skills Assessment Minister is taken to have made a decision affirming the revocation decision under reconsideration if the Skills Assessment Minister has not notified the aggrieved entity of the Skills Assessment Minister’s decision on reconsideration before the end of the period applicable under subregulation (4).
4.42 Reconsideration of revocation decision on own initiative
(1) The Skills Assessment Minister may reconsider a revocation decision if satisfied that there is sufficient reason to do so.
(2) If the Skills Assessment Minister decides under subsection (1) to reconsider a revocation decision, the Skills Assessment Minister must, within 14 days after commencing reconsideration of the revocation decision, give the person or body (the interested entity) whose interests are affected by the decision written notice that:
(a) states that the decision is being reconsidered; and
(b) specifies the day the reconsideration commenced.
(3) After reconsidering the revocation decision, the Skills Assessment Minister:
(a) must affirm, vary or set aside the revocation decision; and
(b) if the Skills Assessment Minister sets aside the revocation decision—may make such other decision as the Skills Assessment Minister thinks appropriate.
(4) The Skills Assessment Minister must, as soon as practicable after making the reconsideration decision:
(a) give the interested entity written notice of the Skills Assessment Minister’s decision; and
(b) give the Minister a copy of the notice.
4.43 ART review of decisions
Applications may be made to the ART for review of the following decisions:
(a) a decision under subregulation 4.41(3) that is made by the Skills Assessment Minister;
(b) a decision under subregulation 4.41(8) that is taken to have been made by the Skills Assessment Minister;
(c) a decision under subregulation 4.42(3) that is made by the Skills Assessment Minister.
Part 5—Miscellaneous
Division 5.1—Service of documents
5.01 Definition for Division 5.1
In this Division:
document includes:
(a) a letter; and
(b) an invitation, notice, notification, statement or summons, if it is in writing.
5.02 Service of document on person in immigration detention
For the purposes of the Act and these Regulations, a document to be served on a person in immigration detention may be served by giving it to the person himself or herself, or to another person authorised by him or her to receive documents on his or her behalf.
Division 5.2—Procedure of commissioners and prescribed authorities
Note: If a person is proposed to be deported because he or she was convicted of certain serious offences (set out in section 203 of the Act), he or she may ask the Minister to appoint a Commissioner to inquire into whether the grounds for the deportation have been made out.
Section 253 of the Act provides that if a person arrested as a deportee asserts that he or she is not the person named in the deportation order, and makes a statutory declaration saying so, the person must be taken before a prescribed authority, who must inquire into whether there are reasonable grounds for supposing the person to be a deportee. The persons who may be prescribed authorities are set out in section 255 and include a judge or former judge, a legal practitioner of at least 5 years’ standing, and a magistrate.
5.04 Power of Commissioner to send for witnesses and documents
A Commissioner appointed under subsection 203(4) of the Act (which deals with the appointment of commissioners) may, by writing signed by the Commissioner, summon any person:
(a) to attend before the Commissioner at a time and place specified in the summons; and
(b) to give evidence; and
(c) to produce any books or documents in the person’s custody or control which the person is required by the summons to produce.
5.05 Duty of witness to continue in attendance
(1) A person who has been summoned to attend before a Commissioner as a witness must appear and report from day to day, unless excused by the Commissioner.
Penalty: 10 penalty units.
(2) Strict liability applies to subregulation (1).
5.06 Arrest of witness failing to appear
(1) If a person who has been summoned to attend before a Commissioner fails:
(a) to attend before the Commissioner as required by the summons; or
(b) to appear and report in accordance with regulation 5.05;
the Commissioner may, on being satisfied that the summons has been duly served and that reasonable expenses have been paid or tendered to the person, issue a warrant for the person’s arrest.
(2) A warrant authorises:
(a) the arrest and bringing before the Commissioner of the person; and
(b) the detention of the person in custody for the purposes specified in the warrant until the person is released by order of the Commissioner.
(3) A warrant may be executed by a member of the police force of the Commonwealth or of a State or Territory or by any person to whom it is addressed, and the person executing it has power to break and enter any place, building or vessel, using any force that is necessary and reasonable, for the purpose of executing the warrant.
(4) The arrest of a person under this regulation does not relieve that person from any liability incurred by the person because of the failure of that person to attend before the Commissioner.
5.07 Witnesses’ fees
(1) A person who attends to give evidence before a Commissioner is, in respect of that attendance, to be paid such fees and travelling expenses as the Commissioner allows in accordance with the scale in Part 4 of the Public Works Committee Regulation 2016.
(2) The fees and travelling expenses are payable:
(a) in the case of a witness summoned at the request of the person to whom the investigation relates—by that person; and
(b) in any other case—by the Commonwealth.
5.08 Power to examine on oath or affirmation
(1) A Commissioner may administer an oath to a person appearing as a witness before the Commissioner, whether the witness has been summoned or appears without being summoned, and may examine the witness on oath.
(2) If a witness conscientiously objects to swear an oath, the witness may make an affirmation that the witness conscientiously objects to swear an oath and that the witness will state the truth, the whole truth, and nothing but the truth to all questions the witness is asked.
(3) An affirmation so made is of the same force and effect, and entails the same liabilities, as an oath.
5.09 Offences by witnesses
(1) A person summoned to attend before a Commissioner as a witness must not:
(a) fail to attend, after payment or tender to the person of a reasonable sum for expenses of attendance; or
(b) refuse to be sworn or to make an affirmation as a witness; or
(c) refuse to answer any question when required to do so by the Commissioner; or
(d) refuse or fail to produce a book or document which the person was required by the summons to produce.
Penalty: 10 penalty units.
(2) Paragraphs (1)(a) and (d) do not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in subregulation (2) (see subsection 13.3(3) of the Criminal Code).
(3) Strict liability applies to paragraph (1)(a).
5.10 Statements of person not admissible in evidence against the person
A statement or disclosure made by a person in answer to a question put to the person during an investigation by a Commissioner is not admissible in evidence against the person in any civil or criminal proceedings other than:
(a) proceedings in respect of a false answer; or
(b) proceedings relating to the deportation of the person.
5.11 Representation by counsel etc
(1) In an investigation before a Commissioner, the person summoned to appear and the Minister are each entitled to be represented by a barrister or solicitor or by an agent approved by the Commissioner.
(2) A barrister, solicitor or agent appearing before a Commissioner may examine or cross‑examine witnesses and address the Commissioner.
5.12 Offences in relation to Commissioners
A person must not:
(a) intentionally insult or disturb a Commissioner when exercising powers and functions under the Act; or
(b) interrupt the proceedings of a Commissioner; or
(c) use insulting language towards a Commissioner; or
(d) by writing or speech use words calculated to influence dishonestly a Commissioner or a witness before a Commissioner.
Penalty: 10 penalty units.
5.13 Protection of Commissioners, barristers and witnesses
(1) A Commissioner has, in the performance of the duties of a Commissioner, the same protection and immunity as a Justice of the High Court.
(2) A barrister, solicitor or approved agent appearing before a Commissioner has the same protection and immunity as a barrister has in appearing for a party in proceedings in the High Court.
(3) A witness summoned to attend, or appearing, before a Commissioner has the same protection as a witness in proceedings in the High Court.
5.14 Procedure of prescribed authorities
This Part applies to:
(a) prescribed authorities referred to in section 255 of the Act; and
(b) proceedings before those prescribed authorities under section 253 of the Act;
in the same manner as it applies to Commissioners and proceedings before Commissioners and as if references in those provisions to a Commissioner were references to a prescribed authority.
Division 5.3—General
5.15 Behaviour concern non‑citizen
For the purposes of paragraph (e) of the definition of behaviour concern non‑citizen in subsection 5(1) of the Act, each of the following circumstances is prescribed in relation to the exclusion of a person from a country other than Australia:
(a) that the person refused or failed to present a passport on request by the competent authorities in that country in circumstances in which it would be unreasonable to refuse or fail to do so;
(b) that the person presented to those authorities a passport that was a bogus document;
(c) that the person was reasonably refused entry to that country on the ground that the person was not a genuine visitor;
(d) that the authorities of that country considered the person to be a threat to the national security of the country.
5.15A Special category visas—declared classes of New Zealand citizens
(1) For paragraph 32(2)(c) of the Act, a person is in a class of persons for whom a visa of a class other than a special category visa would be inappropriate if the person:
(a) is a New Zealand citizen who holds, and has presented to an officer, a New Zealand passport that is in force; and
(b) is not a health concern non‑citizen; and
(c) is covered by subregulation (2) or (3).
(2) A person is covered by this subregulation if the person is a behaviour concern non‑citizen only because of having been excluded from a country other than Australia in circumstances that, in the opinion of the Minister, do not warrant the exclusion of the person from Australia.
(3) A person is covered by this subregulation if:
(a) the Minister has, under subsection 501(3A) of the Act (person serving sentence of imprisonment), cancelled a visa held by the person; and
(b) the person has made representations to the Minister in accordance with the invitation given by the Minister under subsection 501CA(3) of the Act; and
(c) the decision to cancel the visa is revoked under subsection 501CA(4) of the Act; and
(d) the Minister has not, under subsection 501BA(2) of the Act, set aside the decision to revoke the cancellation of the visa; and
(e) since the person made the representations to the Minister mentioned in paragraph (b), no new grounds have arisen for the person to fall within the definition of behaviour concern non‑citizen in subsection 5(1) of the Act, unless the only new ground that has arisen is the person’s removal or deportation from Australia because of the decision to cancel the visa.