Migration Amendment Regulations 2004 (No. 7) (Cth)

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Migration Amendment Regulations 2004 (No. 7)1

Statutory Rules 2004 No. 2702

I, PHILIP MICHAEL JEFFERY, Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Regulations under the Migration Act 1958.

Dated 19 August 2004

P. M. JEFFERY

Governor-General

By His Excellency’s Command

AMANDA VANSTONE

Minister for Immigration and Multicultural and Indigenous Affairs

1Name of Regulations

These Regulations are the Migration Amendment Regulations 2004 (No. 7).

2Commencement

These Regulations commence on 27 August 2004.

3Amendment of Migration Regulations 1994

Schedule 1 amends the Migration Regulations 1994.

Schedule 1Amendments

(regulation 3)

[1]After regulation 2.08AA

insert

2.08ABApplication for visa — prescribed circumstances

For paragraph 46 (2A) (a) of the Act, the circumstance is that the application is for a visa that is not:

  1. (a)

    a bridging visa; or

  2. (b)

    a Witness Protection (Trafficking) (Permanent) (Class DH) visa; or

  3. (c)

    a Witness Protection (Trafficking) (Temporary) (Class UM) visa.

Note Section 46 of the Act sets out the conditions for a valid visa application. Subsection 46 (2A) provides that a visa application is invalid in prescribed circumstances, if the other conditions mentioned in that subsection also apply.

2.08ACApplication for visa — personal identifiers

For subsection 46 (2C) of the Act:

  1. (a)

    the circumstance is that the application is for a visa that is not:

    1. (i)

      a bridging visa; or

    2. (ii)

      a Witness Protection (Trafficking) (Permanent) (Class DH) visa; or

    3. (iii)

      a Witness Protection (Trafficking) (Temporary) (Class UM) visa; and

  2. (b)

    a personal identifier is one of the following types:

    1. (i)

      a photograph or other image of the applicant’s face and shoulders;

    2. (ii)

      the applicant’s signature.

Note Section 46 of the Act sets out the conditions for a valid visa application. Subsection 46 (2C) provides that, in prescribed circumstances, prescribed types of personal identifiers may be provided by an applicant otherwise than by way of an identification test carried out by an authorised officer (in accordance with subsection 46 (2B)), if the applicant complies with any requirements that are prescribed relating to the provision of the personal identifier.

[2]After subregulation 3.03 (1)

insert

  1. (1A)

    For paragraph 166 (1) (aa) of the Act, the circumstance is that the person is in immigration clearance.

  2. (1B)

    For subsection 166 (1C) of the Act:

    1. (a)

      the circumstance is that an automated identification processing system is available for the immigration clearance of non-citizens who:

      1. (i)

        are airline crew members or airline positioning crew members; and

      2. (ii)

        have been registered for the system; and

    2. (b)

      a personal identifier is one of the following types:

      1. (i)

        a photograph or other image of the non-citizen’s face and shoulders;

      2. (ii)

        the non-citizen’s signature;

      3. (iii)

        any other personal identifier contained in the

        non-citizen’s passport or other travel document.

Note Subsection 166 (1C) provides that, in prescribed circumstances, prescribed types of personal identifiers may be provided by an applicant otherwise than by way of an identification test carried out by an authorised officer (in accordance with subsection 166 (1B)), if the applicant complies with any requirements that are prescribed relating to the provision of the personal identifier.

[3]Paragraph 3.03 (3) (a)

substitute

  1. (a)

    if the non-citizen is taken to hold a special purpose visa:

    1. (i)

      give a clearance officer a completed passenger card where required by Part 1 of Schedule 9; and

    2. (ii)

      show the clearance officer:

      1. (A)

        if the non-citizen is a person who is registered for an automated identification processing system — evidence of his or her identity using the system; or

      2. (B)

        evidence of the person’s identity, as specified in Part 1 of Schedule 9; and

[4]After Part 3, Division 3.2

insert

Division 3.3Examination, search and detention

3.20Information to be provided — authorised officers carrying out identification tests

  1. (1)

    For paragraph 258B (1) (b) of the Act, the matters are:

    1. (a)

      the reason why a personal identifier is required to be provided; and

    2. (b)

      how a personal identifier may be collected; and

    3. (c)

      how any personal identifier that is collected may be used; and

    4. (d)

      the circumstances in which a personal identifier may be disclosed to a third party; and

    5. (e)

      notification that a personal identifier may be produced in evidence in a court or tribunal in relation to the non-citizen who provided the personal identifier; and

    6. (f)

      notification that the Privacy Act 1988 applies to a personal identifier, and that the non-citizen has a right to make a complaint to the Privacy Commissioner about the handling of personal information; and

    7. (g)

      notification that the Freedom of Information Act 1982 gives a person access to certain information and documents in the possession of the Government of the Commonwealth and of its agencies, and that the

      non-citizen has a right under that Act to seek access to that information or those documents under that Act, and to seek amendment of records containing personal information that is incomplete, incorrect, out of date or misleading; and

    8. (h)

      if the non-citizen is a minor or incapable person — information concerning how a personal identifier is to be obtained from a minor or incapable person.

Note Subsections 261AL (4) and 261AM (3) require a parent, guardian or independent person to be informed, before giving consent for a minor or an incapable person to provide a personal identifier, of the matters of which a minor or incapable person must be informed under section 258B.

  1. (2)

    For subsection 258B (3) of the Act, if a form is to be given to a non-citizen, it must be given to the non-citizen at a time that gives the non-citizen enough time to read and understand the form before the identification test is conducted.

3.21Information to be provided — authorised officers not carrying out identification tests

  1. (1)

    For subsection 258C (1) of the Act, the matters are:

    1. (a)

      the reason why a personal identifier is required to be provided; and

    2. (b)

      how a personal identifier may be collected; and

    3. (c)

      how any personal identifier that is collected may be used; and

    4. (d)

      the circumstances in which a personal identifier may be disclosed to a third party; and

    5. (e)

      notification that a personal identifier may be produced in evidence in a court or tribunal in relation to the non-citizen who provided the personal identifier; and

    6. (f)

      notification that the Privacy Act 1988 applies to a personal identifier, and that the non-citizen has a right to make a complaint to the Privacy Commissioner about the handling of personal information; and

    7. (g)

      notification that the Freedom of Information Act 1982 gives a person access to certain information and documents in the possession of the Government of the Commonwealth and of its agencies, and that the

      non-citizen has a right under that Act to seek access to that information or those documents under that Act, and to seek amendment of records containing personal information that is incomplete, incorrect, out of date or misleading; and

    8. (h)

      information concerning how a personal identifier is to be obtained from a minor or incapable person.

  2. (2)

    For subsection 258C (1) of the Act, the manner of informing a non-citizen is in writing.

    Division 3.4Identification of immigration detainees

3.30Immigration detainees must provide personal identifiers

For subsection 261AA (1) of the Act, the circumstances are that the non-citizen is in the company of and restrained by:

  1. (a)

    an officer; or

  2. (b)

    in the case of a particular non-citizen — another person directed by the Secretary to accompany and restrain the non-citizen.

3.31Authorised officers must require and carry out identification tests

For paragraph 261AB (1) (a) of the Act, the types of personal identifiers are as follows:

  1. (a)

    fingerprints or handprints of the non-citizen (including those taken using paper and ink or digital livescanning technologies);

  2. (b)

    a measurement of the non-citizen’s height and weight;

  3. (c)

    a photograph or other image of the non-citizen’s face and shoulders;

  4. (d)

    the non-citizen’s signature.

Notes

1. These Regulations amend Statutory Rules 1994 No. 268, as amended by 1994 Nos. 280, 322, 376 and 452; 1995 Nos. 3, 38, 117, 134, 268, 302 and 411; 1996 Nos. 12, 75 (regulations 7 and 8 were disallowed by the Senate on 11 September 1996), 76, 108, 121, 135, 198, 211 (regulations 4, 10, 11, 13.3, 14-37, 47-49, 51, 53-55, 74, 77.16, 77.19, 78, 85, 119 and 114 were disallowed by the Senate on 7 November 1996) and 276; 1997 Nos. 17, 64, 91, 92, 109, 137, 184, 185, 216, 263, 279, 288, 301 and 354; 1998 Nos. 36, 37, 104 (regulation 15 was disallowed by the Senate on 2 July 1998), 139, 210, 214, 284, 285 (disallowed by the Senate on 31 March 1999), 304, 305, 306 and 322; 1999 Nos. 8, 58, 64, 68 (as amended by 1999 Nos. 81 and 132), 76 (as amended by 1999 Nos. 81 and 132), 81 (as amended by 1999 No. 132), 82, 132, 155, 198, 220 (as amended by 1999 Nos. 259 and 321), 243, 259 (as amended by 2000 No. 259 and 2002 No. 213), 260 (as amended by 1999 No. 321), 321 and 325; 2000 Nos. 52, 62, 108, 192, 259 (as amended by 2000 No. 284) (item [4108] of Schedule 4 was disallowed by the Senate on 1 November 2000), 284 and 335; 2001 Nos. 27, 47, 86, 142, 162, 206, 239, 246, 283, 284, 285 and 291; Act No. 128, 2001; Statutory Rules 2001 No. 344; 2002 Nos. 10, 86, 121, 129 (disallowed by the Senate on 19 June 2002), 213, 230, 299, 323, 347, 348 and 354; Act No. 5, 2003; Statutory Rules 2003 Nos. 57, 94, 106, 122, 154, 224 (disallowed by the Senate on 9 October 2003), 239, 283 (disallowed by the Senate on 24 November 2003), 296 (as amended by 2003 No. 363), 362 and 363; 2004 Nos. 21, 93, 131, 191, 192, 223 and 269.

2. Notified in the Commonwealth of Australia Gazette

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