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MIGRATION AMENDMENT REGULATIONS 2007 (NO. 13) (SLI NO 315 OF 2007)

EXPLANATORY STATEMENT

 

Select Legislative Instrument 2007 No. 315

 

Issued by the Authority of the Minister

for Immigration and Citizenship

 

 

Migration Act 1958

 

Migration Amendment Regulations 2007 (No. 13)

 

Subsection 504(1) of the Migration Act 1958 (the Act) provides, in part, that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters which by the Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act.

In addition, regulations may be made pursuant to the provisions listed in Attachment A.

The purpose of the Regulations is to amend the Migration Regulations 1994 (the Principal Regulations) to make changes necessary to ensure the intended operation of immigration policy.

In particular, the Regulations:

·        Schedule 1: Update terms and definitions in domestic violence provisions to reflect the Family Law Act 1975 (the FLA).

·        Schedule 2: Insert a public interest waiver into certain Subclass 866 (Protection) visa provisions that require applicants not to have been convicted of certain offences within the previous four years.

·        Schedule 3: Provide for discretionary evidencing of the grant of a Subclass 834 (Permanent Resident of Norfolk Island) visa.

·        Schedule 4: Allow a Subclass 771 (Transit) visa to be refused where an applicant is determined to be a person whose presence in Australia is, or would be, contrary to Australia's foreign policy interests; or who may be directly or indirectly associated with the proliferation of weapons of mass destruction.

·        Schedule 5: Ensure that personal identifiers collected from a person in fisheries or environment detention do not need to be collected again if that person becomes an unlawful non-citizen immediately after a period of fisheries or environment detention, provided an authorised officer is satisfied as to the usability and integrity of the personal identifiers, and is satisfied that no further personal identifiers are required.

Details of the Regulations are set out in Attachment B.

 

All schedules to the Regulations commence on 15 October 2007. This commencement date is a consequence of various systems changes necessary to allow for the implementation of the Regulations.

 

The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

 

For all schedules the Office of Best Practice Regulation’s Business Compliance Cost and Competition Assessment was used to determine that there was no compliance cost to business.

 

No other consultations were conducted in relation to the Schedules to these Regulations as the amendments were considered not to have relevant implications for any external agencies or other bodies.

 


ATTACHMENT A

 

Subsection 504(1) of the Migration Act 1958 (the Act) provides, in part, that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters which by the Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act. Subsection 5(1) of the Act provides, amongst other things, that ‘prescribed’ means prescribed by the Regulations.

In addition to subsection 504(1) of the Act, the following provisions may apply:

·        Subsection 31(3) of the Act, which provides that the Regulations may prescribe criteria for a visa or visas of a specified class.

 

·        Subsection 71(1) of the Act, which provides that evidence of a visa is to be given in a way prescribed in the Regulations.

·        Subsection 261AA(1) of the Act, which provides that a non-citizen who is in immigration detention must (other than in circumstances prescribed by the regulations) provide to an authorised officer one or more personal identifiers.


ATTACHMENT B

 

Details of the Migration Amendment Regulations 2007 (No. 13)

 

Regulation 1 – Name of Regulations

 

This regulation provides that these Regulations are the Migration Amendment Regulations 2007 (No. 13).

 

Regulation 2 – Commencement

 

This regulation provides that these Regulations commence on 15 October 2007.

 

Regulation 3 – Amendment of Migration Regulations 1994 – Schedule 1

 

Subregulation 3(1) provides for the Migration Regulations 1994 (the Principal Regulations) to be amended by Schedule 1 to these Regulations.

 

Subregulation 3(2) provides that the amendments made by Schedule 1 to these Regulations apply in relation to an application for a visa made on or after 15 October 2007.

 

Regulation 4 – Amendment of Migration Regulations 1994 – Schedule 2

 

Subregulation 4(1) provides for the Principal Regulations to be amended by Schedule 2 to these Regulations.

 

Paragraph 4(2)(a) provides that the amendments made by Schedule 2 to these Regulations apply in relation to an application for a Protection (Class XA) visa made on or after 15 October 2007.

 

Paragraph 4(2)(b) provides that the amendments made by Schedule 2 to these Regulations also apply in relation to an application for a Protection (Class XA) visa made but not finally determined (within the meaning of subsection 5 (9) of the Migration Act 1958 [the Act]) before 15 October 2007. Under subsection 5 (9) of the Act, an application is finally determined when either:

 

Regulation 5 – Amendment of Migration Regulations 1994 – Schedule 3

 

Subregulation 5(1) provides for the Principal Regulations to be amended by Schedule 3 to these Regulations.

 

Subregulation 5(2) provides that the amendments made by Schedule 3 to these Regulations apply in relation to an application for a visa made on or after 15 October 2007.

 

Regulation 6 – Amendment of Migration Regulations 1994 – Schedule 4

 

Subregulation 6(1) provides for the Principal Regulations to be amended by Schedule 4 to these Regulations.

 

Subregulation 6(2) provides that the amendments made by Schedule 4 to these Regulations apply in relation to an application for a visa made on or after 15 October 2007.

 

Regulation 7 – Amendment of Migration Regulations 1994 – Schedule 5

 

Subregulation 7(1) provides for the Principal Regulations to be amended by Schedule 5 to these Regulations.

 

Subregulation 7(2) provides that the amendments made by Schedule 5 to these Regulations apply to all persons who are in detention under the provisions of the Environment Protection and Biodiversity Conservation Act 1999, the Fisheries Management Act 1991 or the Torres Strait Fisheries Act 1984 on or after 15 October 2007.

 

Schedule 1 – Amendments relating to family violence

Item [1] – Division 1.5, heading

This item changes the heading to Division 1.5 of Part 1 of the Principal Regulations from ‘Special Provisions relating to domestic violence’ to ‘Special Provisions relating to family violence’.

This amendment makes the heading to Division 1.5 consistent with the Family Law Act 1975 (the FLA) which uses the term ‘family violence’ instead of ‘domestic violence’.

Item [2] – Subregulation 1.21(1), definition of competent person, subparagraph (a)(v)

This item amends subparagraph (a)(v) of the definition of competent person in subregulation 1.21(1) of Division 1.5 of Part 1 of the Principal Regulations by replacing the term ‘court counsellor’ with the term ‘family consultant’.

Prior to this amendment, subparagraph (a)(v) of the definition of competent person in subregulation 1.21(1) provided that a person who is a court counsellor under the FLA is a competent person for the purposes of Division 1.5 of the Principal Regulations.

By replacing the term ‘court counsellor’ with the term ‘family consultant’ this amendment makes the definition of competent person in subregulation 1.21(1) consistent with the FLA. The Family Law Amendment (Shared Parental Responsibility) Act 2006 (commencement 1 July 2006) replaced the term ‘court counsellor’ in the FLA with the new term ‘family consultant’.


Item [3] – Subregulation 1.21(1), definition of non-judicially determined claim of domestic violence

This item amends the term non-judicially determined claim of domestic violence in subregulation 1.21(1) of Division 1.5 of Part 1 of the Principal Regulations by replacing the words ‘domestic violence’ with the words ‘family violence’.

This amendment makes the term non-judicially determined claim of domestic violence in subregulation 1.21(1) consistent with the FLA which uses the term ‘family violence’ instead of ‘domestic violence’.

Item [4] – Subregulation 1.21(1), definition of relevant domestic violence

This item replaces the term relevant domestic violence with ‘relevant family violence’ in subregulation 1.21(1) of Division 1.5 of Part 1 of the Principal Regulations.

This amendment makes the term relevant domestic violence in subregulation 1.21(1) consistent with the FLA which uses the term ‘family violence’ instead of ‘domestic violence’.

The definition of relevant domestic violence in subregulation 1.21(1) provides that relevant domestic violence has the meaning given by paragraph 1.23(2)(b). Item [7] replaces the term and meaning of ‘relevant domestic violence’ at paragraph 1.23(2)(b) with the new term and meaning of ‘relevant family violence’.

Item [5] – Regulation 1.22, heading

This item changes the heading to regulation 1.22 of Division 1.5 of Part 1 of the Principal Regulations from ‘References to person having suffered or committed domestic violence’ to ‘References to person having suffered or committed family violence’.

This amendment makes the heading to regulation 1.22 consistent with the FLA which uses the term ‘family violence’ instead of ‘domestic violence’.

Item [6] – Regulation 1.23, heading

This item changes the heading to regulation 1.23 of Division 1.5 of Part 1 of the Principal Regulations from ‘When is a person taken to have suffered or committed domestic violence’ to ‘When is a person taken to have suffered or committed family violence’.

This amendment makes the heading to regulation 1.23 consistent with the FLA which uses the term ‘family violence’ instead of ‘domestic violence’.

Item [7] – Paragraph 1.23(2)(b)

This item amends paragraph 1.23(2)(b) of Division 1.5 of Part 1 of the Principal Regulations by replacing the term and meaning of ‘relevant domestic violence’ with the new term and meaning of ‘relevant family violence’.

Prior to this amendment, paragraph 1.23(2)(b) required two circumstances to exist for there to be ‘relevant domestic violence’: firstly, there needed to be violence by the alleged perpetrator against the alleged victim or the alleged victim’s property; and secondly, the violence by the alleged perpetrator needed to cause the alleged victim, or a member of the alleged victim’s family, to fear for, or to be apprehensive about the alleged victim’s personal wellbeing or safety. This concept of ‘relevant domestic violence’ is not consistent with the definition of family violence at subsection 4(1) of the FLA.

The purpose of this amendment to paragraph 1.23(2)(b) is to make the meaning of the new term ‘relevant family violence’ consistent with the definition of family violence at subsection 4(1) of the FLA. The meaning of ‘relevant family violence’ provided by new paragraph 1.23(2)(b) differs to the meaning of the old term ‘relevant domestic violence’, and achieves consistency with the FLA definition of family violence, by:

·    using the term ‘conduct’ instead of ‘violence’ to refer to the action of the alleged perpetrator;

·    clarifying that the conduct of the alleged perpetrator may be actual or threatened;

·    using the term ‘towards’ instead of ‘against’;

·    expanding the type of persons whom the conduct can be towards, from the alleged victim and the alleged victim’s property to:

o       a member of the family unit of the alleged victim,

o       a member of the family unit of the alleged perpetrator,

o       the property of a member of the family unit of the alleged victim, or

o       the property of a member of the family unit of the alleged perpetrator;

·    restricting who can fear for the alleged victim’s personal wellbeing and safety, from the alleged victim and a member of the alleged victim’s family to only the alleged victim; and

·    introducing the objective test that the alleged victim’s fear for, or apprehension about, his or own personal wellbeing or safety must be reasonable.

The term ‘alleged victim’ is used throughout Division 1.5 of the Principal Regulations to refer to a person who has allegedly suffered family violence. The term ‘alleged perpetrator’ is used throughout Division 1.5 to refer to a person who has allegedly committed family violence. The term member of the family unit is defined in regulation 1.12 of the Principal Regulations.

The expansion of whom the conduct of the alleged perpetrator can be towards does not affect who is considered to be the alleged victim. A person can still have suffered family violence, and therefore be the alleged victim, even if the conduct of the alleged perpetrator is not towards them. The broadening of whom the conduct of the alleged perpetrator can be towards removes the anomalous situation of, for example, an alleged victim being taken to have suffered relevant family violence if the alleged perpetrator applies force to the alleged victim’s property, but not if the force is applied to a member of the family unit of the alleged victim.

Item [8] – Subparagraph 1.24(1)(a)(ii)

 

This item broadens subparagraph 1.24(1)(a)(ii) of Division 1.5 of Part 1 of the Principal Regulations by providing that, in addition to police records of assault on alleged victims, police records of assault on members of the family unit of the alleged victim or alleged perpetrator can also be acceptable evidence to support a non-judicially determined claim of family violence (as defined in subregulation 1.21(1) and amended by item [3]) under subparagraph 1.23(1A)(b)(ii)

 

The purpose of this amendment is to support the amendment made by item [7] to paragraph 1.23(2)(b). Item [7] broadens ‘relevant family violence’ to include conduct of the alleged perpetrator not only towards the alleged victim, but also conduct towards a member of the family unit of the alleged victim or alleged perpetrator. The amendment made by item [7] to paragraph 1.23(2)(b) also provides that ‘relevant family violence’ includes conduct of the alleged perpetrator directed towards the property of the alleged victim or of a member of the family unit of the alleged victim or alleged perpetrator. Property has not been included in paragraph 1.24(1)(a)(ii) because property cannot be ‘assaulted’ (it can only be trespassed upon).

Before this amendment subparagraph 1.24(1)(a)(ii) provided that a copy of a police record of assault for the purposes of the subparagraph could not include a statement by the alleged victim. This amendment extends this proscription by providing that a police record of assault for the purposes of the subparagraph also cannot include a statement by the person who was allegedly assaulted (that is, a member of the family unit of either the alleged victim or the alleged perpetrator).

The purpose of this amendment to subparagraph 1.24(1)(a)(ii) is to support the amendment made by item [7] to paragraph 1.23(2)(b) which broadens ‘relevant family violence’ to include situations where the alleged victim and the person who was allegedly assaulted are different.

Item [9] – Subregulation 1.25(2)

This item amends subregulation 1.25(2) of Division 1.5 of Part 1 of the Principal Regulations.

Subregulation 1.25(2) sets out the information that must be provided in a statutory declaration made under regulation 1.25 by a person who alleges that he or she is the victim of relevant domestic violence. This amendment changes the words ‘domestic violence’ to ‘family violence’ for the purpose of providing consistency with the FLA.

 

This amendment inserts into subregulation 1.25(2) a reference to subregulation 1.25(1),to remind readers that under subregulation 1.25(1) only spouses or interdependent partners of the alleged perpetrator can make a statutory declaration under regulation 1.25.

This amendment also inserts new paragraph 1.25(2)(c) for situations where the conduct of the person alleged to have committed the relevant family violence was not towards the alleged victim. In these cases the statutory declaration must:

·       name the person whom the conduct of the alleged perpetrator was towards; and

·       identify the relationship between the maker of the statutory declaration and the person whom the conduct was towards.

 

The purpose of this additional information required in the statutory declaration under new paragraph 1.25(2)(c) is to support the amendment made by item [7] to paragraph 1.23(2)(b). Item [7] broadens the concept of ‘relevant family violence’ to include conduct of the alleged perpetrator not only towards the alleged victim but also conduct towards a member of the family unit of the alleged victim or alleged perpetrator.

Item [10] – Subregulation 1.25(3)

 

This item amends subregulation 1.25(3) of Division 1.5 of Part 1 of the Principal Regulations by inserting the words ‘mentioned in subregulation 1.25(1)’ after the words ‘made by a person’.

 

Subregulation 1.25(3) sets out the information that must be provided in a statutory declaration made under regulation 1.25 by a person who alleges that another person is the victim of relevant family violence.

 

This amendment explicitly refers to subregulation 1.25(1) to remind readers that under subregulation 1.25(1) only spouses or interdependent partners of the alleged perpetrator can make a statutory declaration under regulation 1.25. The effect of subregulations 1.25(1) and (3) is that statutory declarations made under subregulation 1.25(3) must be made by a spouse or interdependent partner of the alleged perpetrator in situations where the spouse or partner alleges that another person is the victim of the relevant family violence.

 

Item [11] – Paragraph 1.25(3)(e)

 

This item replaces paragraph 1.25(3)(e) of Division 1.5 of Part 1 of the Principal Regulations with new paragraphs 1.25(3)(e) and (f).

 

Subregulation 1.25(3) (as amended by items [10] and [12]) sets out the information that must be provided in a statutory declaration made under regulation 1.25 by the alleged perpetrator’s spouse or interdependent partner who alleges that another person is the victim of relevant family violence. New paragraph 1.25(3)(e) provides that if the conduct of the alleged perpetrator was towards a person other than the alleged victim then the statutory declaration must:

·        name the person whom the conduct of the alleged perpetrator was towards; and

·        identify the relationship between the alleged victim and person whom the conduct was towards; and

·        identify the relationship between the maker of the statutory declaration (being the spouse or interdependent partner of the alleged perpetrator) and the person whom the conduct was towards.

 

The purpose of the additional information required in the statutory declaration under new paragraph 1.25(3)(e) is to support the amendment made by item [7] to paragraph 1.23(2)(b). Item [7] broadens the concept of ‘relevant family violence’ to include conduct of the alleged perpetrator not only towards the alleged victim, but also conduct towards a member of the family unit of the alleged victim or alleged perpetrator.

 

New paragraph 1.25(3)(f) is a consequential amendment. Prior to this amendment new paragraph 1.25(3)(f) was paragraph 1.25(3)(e).

 

Item [12] – Paragraph 1.26(f)

 

This item replaces paragraph 1.26(f) of Division 1.5 of Part 1 of the Principal Regulations with new paragraphs 1.26(f) and 1.26(g).

 

Regulation 1.26 sets out the information that must be included in a statutory declaration made by a competent person to support a non-judicially determined claim of family violence under subparagraph 1.23(1A)(b)(ii) (as amended by item [13]). Under new paragraph 1.26(f), where the conduct of the person alleged to have committed the relevant family violence was not towards the alleged victim, the statutory declaration must:

·        name the person whom the conduct of the alleged perpetrator was towards; and

·        identify the relationship between the alleged victim and person whom the conduct was towards.

 

The purpose of the additional information required in the statutory declaration under new paragraph 1.26(f) is to support the amendment made by item [7] to paragraph 1.23(2)(b). Item [7] broadens the concept of ‘relevant family violence’ to include conduct of the alleged perpetrator not only towards the alleged victim, but also conduct towards a member of the family unit of the alleged victim or alleged perpetrator.

 

New paragraph 1.26(g) is a consequential amendment. Prior to this amendment new paragraph 1.26(g) was paragraph 1.26(f).

 

Item [13] - Further amendments – ‘family violence’

 

This item replaces the words ‘domestic violence’ with the words ‘family violence’ in most cases where the words are used in the Principal Regulations (and not elsewhere amended by Schedule 1).

 

The purpose of this amendment is to make the Principal Regulations consistent with the FLA which uses the term ‘family violence’ rather than ‘domestic violence’.

 

This item amends one provision in Division 1.4B of Part 1 of the Principal Regulations, 27 provisions in Division 1.5 of Part 1 of the Principal Regulations, and 14 visa subclasses in Schedule 2 of the Principal Regulations.

 

The only exception to this general amendment is paragraph 1.23(1)(d) of Division 1.5 of Part 1 of the Principal Regulations. The term ‘domestic violence’ in paragraph 1.23(1)(d) is not amended because the provision is about claims of domestic violence made before 1 January 1998. It is necessary to use the term ‘domestic violence’ rather than ‘family violence’ because the term ‘family violence’ was not in use before 1 January 1998 in the migration context.

 

Schedule 2 – Amendment relating to waiver of criteria in clauses 866.222A and 866.22B

Item [1] – Clauses 866.222A and 866.222B

This item amends clauses 866.222A and 866.222B of Schedule 2 to the Principal Regulations.

Clause 866.222A imposes a requirement, at time of decision, on applicants referred to in paragraph 866.211(a). This paragraph refers to an applicant who claims to be a person to whom Australia has protection obligations under the Refugees Convention and who makes specific claims under the Convention. Such a person is referred to below as ‘the claimant’.

Clause 866.222A requires that the claimant has not, in the last four years, been convicted of an offence against a law of the Commonwealth, a State or Territory for which the maximum penalty is imprisonment for at least 12 months.

Clause 866.222A is amended by inserting a new subclause 866.222A(2) to provide that the Minister may waive this requirement if the Minister believes that it is in the public interest to do so.

Clause 866.222B imposes a requirement, at time of decision, on applicants referred to in paragraph 866.211(b). This refers to an applicant who claims to be a member of the family unit of a claimant. Such a person is referred to below as ‘the family member’.

 

Clause 866.222B requires that neither the claimant nor the family member has, in the last four years, been convicted of an offence against a law of the Commonwealth, a State or Territory for which the maximum penalty is imprisonment for at least 12 months.

 

Clause 866.222B is amended by inserting a new subclause 866.222B(2) to provide that the Minister may waive this requirement if the Minister believes that it is in the public interest to do so.

 

The effect of these amendments is to provide the Minister with the discretion to waive, where the Minister believes that it is in the public interest to do so, the requirement that an applicant has not, in the last four years, been convicted of an offence for which the maximum penalty is at least 12 months imprisonment.

 

The effect of these amendments is that:

·         The Minister may decide that it is in the public interest to waive the requirement in clause 866.222A in respect of a claimant who has been convicted of a relatively minor offence.

·         The Minister may decide that it is in the public interest to waive the requirement in clause 866.222B in respect of some or all of the applicants, where either the claimant or a family member has been convicted of a relatively minor offence.

The discretion to waive ensures that more serious offenders will continue to be ineligible for the grant of a Permanent Protection visa. Such offenders will, however, continue to be eligible for the grant of a Subclass 785 (Temporary Protection) visa.

Schedule 3 – Amendment relating to Subclass 834 (Permanent Resident of Norfolk Island) visas

Item [1] – Schedule 2, clause 834.711

This item replaces clause 834.711 of Schedule 2 to the Principal Regulations with new clauses 834.711 and 834.712.

New clause 834.711 provides that no evidence need be given. The effect of new clause 834.711 is that the grant of a Subclass 834 (Permanent Resident of Norfolk Island) visa no longer needs to be evidenced. The new clause allows decision-makers to decide whether or not to evidence the grant of a Subclass 834 visa.

New clause 834.712 provides that if evidence is given, it is to be given by a port and date stamp placed in the passport of the holder of the visa. A decision-maker may decide to evidence a Subclass 834 visa if, for example, a visa holder asks for evidence to be given. The visa would be evidenced using a port and date stamp, as such stamps are the most convenient way of evidencing visas in immigration clearance, which is where Subclass 834 visas are applied for and granted.

Prior to this amendment the Subclass 834 visa was the only visa subclass for which evidence of grant was mandatory. This amendment makes the evidencing requirements for Subclass 834 visas consistent with the discretionary evidencing requirement for all other visas.

 

 

Schedule 4 – Amendment relating to Subclass 771 (Transit) visas

 

Item [1] – Schedule 2, clause 771.222

This item amends clause 771.222 of Schedule 2 to the Principal Regulations by inserting public interest criterion 4003 as a time-of-decision criterion that must be satisfied before a Subclass 771 (Transit) visa can be granted.

Public interest criterion 4003 is set out in Schedule 4 to the Principal Regulations and provides that the Foreign Minister, or a person authorised by the Foreign Minister, must not have determined the applicant to be a person whose presence in Australia:

 

·                is, or would be, contrary to Australia's foreign policy interests; or

·                may be directly or indirectly associated with the proliferation of weapons of mass destruction.

 

This amendment would allow an application for a Subclass 771 visa to be refused if, for example, the applicant is subject to travel sanctions.

 

 

 

Schedule 5 – Amendment relating to the collection of personal identifiers

Item [1] – Regulation 3.30, including the note

Subsection 261AA(1) of the Act provides that a non-citizen who is in immigration detention must provide to an authorised officer one or more personal identifiers, except in prescribed circumstances. Such circumstances are set out in regulation 3.30.

 

Regulation 3.30 of Division 3.4 of Part 3 of the Principal Regulations was amended by item [2] of Schedule 4 to the Migration Amendment Regulations 2007 (No. 4) which commenced on 1 July 2007. That amendment provided that where a person becomes an unlawful non-citizen immediately after a period of fisheries or environment detention, personal identifiers collected during that detention, if usable and of satisfactory integrity, do not need to be collected again.

 

This item amends regulation 3.30 by omitting current regulation 3.30 and inserting new regulation 3.30. New regulation 3.30 continues the current prescribed circumstances relating to non-citizens in the company of, and restrained by, officers or other persons. It amends the current circumstances relating to non-citizens who, immediately before being in immigration detention, were in fisheries or environment detention.

 

Currently, regulation 3.30 provides that such persons do not need to provide personal identifiers under section 261AA of the Act if they provided one or more personal identifiers while in fisheries or environment detention, provided an authorised officer is satisfied as to the usability and integrity of the identifiers.

 

New regulation 3.30 refines this by stipulating that the usability of the identifiers relates to a purpose set out in subsection 5A(3) of the Act. It also adds the further proviso that the authorised officer is satisfied that no further personal identifiers need to be collected from the non-citizen to satisfy the purpose.

 

For example, a photograph may have been collected from a non-citizen while he or she was in fisheries detention. Once the non-citizen comes into immigration detention, an authorised officer may be satisfied the photograph is usable to identify the non-citizen, and be satisfied about the integrity of the photograph.

 

Under current regulation 3.30 the above scenario would be sufficient to remove the non-citizen from the requirement in section 261AA of the Act to provide personal identifiers. Therefore, even if the authorised officer required other personal identifiers, such as a signature, to aid in identifying the non-citizen (one of the purposes set out in subsection 5A(3) of the Act), the authorised officer could not require the non-citizen to provide those other personal identifiers. Under this amendment to regulation 3.30, however, the authorised officer could require the non-citizen to provide those other personal identifiers.

 

New subregulation 3.30(1) replicates the provisions of current paragraph 3.30(1)(a). New subregulation 3.30(2) substantially reproduces the provisions of current paragraph 3.30(1)(b).

 

New subregulation 3.30(3) provides that subregulation 3.30(2) only applies to the provision of a personal identifier if the criteria set out in paragraphs 3.30(3)(a), (b) and (c) are met.

 

Paragraph 3.30(3)(a) provides that subregulation 3.30(2) only applies to the provision of each of the personal identifiers if an authorised officer is satisfied that each of the personal identifiers provided is usable for a particular purpose set out in subsection 5A (3) of the Act.

 

Paragraph 3.30(3)(b) replicates the provisions of current paragraph 3.30(1A)(b). It provides that subregulation 3.30(2) only applies to the provision each of the personal identifiers if the authorised officer is satisfied about the integrity of each of the personal identifiers.

 

New paragraph 3.30(3)(c) is inserted to provide that subregulation 3.30(2) only applies to the provision of a personal identifier if the authorised officer is satisfied that no further personal identifiers are needed to satisfy the purpose referred to in paragraph 3.30(3)(a).

 

For example, a photograph and signature may have been provided by a non-citizen while he or she was in fisheries detention. Once the non-citizen comes into immigration detention, an authorised officer may be satisfied about the integrity of the photograph and signature, but find that the photograph is blurred and only the signature is usable to identify the non-citizen. As the authorised officer would not be satisfied that no further personal identifiers are required, the authorised officer could require the non-citizen to provide another personal identifier, such as another photograph.

 

Subregulation 3.30(4) replicates current subregulation 3.30(2).

 

The note following subregulation 3.30(4) replicates the current note following subregulation 3.30(2).

 

 


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