Commonwealth Consolidated Acts

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MIGRATION ACT 1958 - SECT 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.


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