Please note that the information we provide in this article about carrying out identification tests is current as of the date of publication, and the DHA regularly updates rules and regulations. Kindly ensure that you check the official updates before making any decisions, or speak with an immigration lawyer for the most up-to-date information, as laws and conditions are subject to change.
The Migration Act 1958, specifically sections 258B to 258G, provides for the rules for carrying out identification tests under Division 13 (examination, search, detention, and identification). This Act allows Australian immigration authorities to conduct “identification tests” to verify a person’s identity.
Reasons for Carrying Out Identification Tests
Section 5(1) of the Act defines an identification test as a test carried out (by authorised officers) to collect a personal identifier, which involves the collection of ten fingerprints and a facial image. The process may involve the removal or adjustment of clothing that obscures the face. The Department retains biometric information collected through an identification test.
There’s a two-fold reason for allowing the conduct of identification tests to persons specified in section 257 (persons may be required to answer questions):
- Identity verification purposes. Australia, like many countries, wants to know who is entering and staying in the country. Identification tests help verify that someone is who they claim to be, and that they are eligible to enter or remain in Australia based on their visa status.
- Security and protection purposes. Identification tests can also help identify people who may pose a security risk or who are linked to criminal activity. Additionally, they can help identify victims of trafficking or exploitation, specifically minors and vulnerable people.
Section 257 establishes who are the persons subject to identification tests. Under this section, an officer may ask a person in immigration detention any questions they deem appropriate. This is to ascertain if the individual is an unlawful non-citizen, a removee, or a deportee.
READ: Investigations for People in Immigration Detention [insert this article: (SD) MA 255-258A (investigations for people in immigation detention) – not yet published]
To be able to have a foundation on the topics that this article will discuss, you may read the following articles first:
- Appointment of Boarding Stations
- Provisions about Searches
- Detention of Deportees and Removees
- Obligations Relating to Video Recordings of Identification Tests
Carrying Out Identification Tests: Information Required
Section 258B of the Migration Act provides for the type of information required by authorised officers in carrying out identification tests.
Before conducting an identification test, the authorised officer must inform the person subject of the test of such matters as are prescribed. Moreover, the officer must convey such information in a language, including sign language or braille, that the person understands or is able to communicate with reasonable fluency.
Information Required
The following is the information that must be provided in relation to carrying out identification tests:
- the reason why a personal identifier is required to be provided
- how a personal identifier may be collected
- how any personal identifier that is collected may be used
- the circumstances in which a personal identifier may be disclosed to a third party
- notification that a personal identifier may be produced in evidence in a court or tribunal in relation to the person who provided the personal identifier
- notification that the Privacy Act 1988 applies to a personal identifier, and that the person has a right to make a complaint to the Australian Information Commissioner about the handling of personal information
- 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 person 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
- if the person is a minor or incapable person — information concerning how a personal identifier is to be obtained from a minor or incapable person.
Forms Required
The officer may collect such information by making the person subject of the test fill up the specified forms. These forms must be provided to the person before the conduct of an identification test. Additionally, this information has to be given:
- verbally through guidance, (using an interpreter if required) or
- in writing in a language that they are at least somewhat proficient in.
The following are the forms:
- Form 1243i Your personal identifying information
- Form 1442i Privacy notice.
Note that section 258D of the Act states that the regulations may prescribe the manner, procedure, and requirements to carry out these identification tests.
General Rules for Carrying Out Identification Tests
Section 258E of the Act establishes the general rules for carrying out identification tests. An identification test that an authorised officer carries out under section 257A must:
- be carried out in circumstances affording reasonable privacy to the person; and
- not be carried out in the presence or view of a person whose presence is not necessary for the identification test or required or permitted by another provision of this Act; and
- not involve the removal of more clothing than is necessary for carrying out the test; and
- not involve more visual inspection than is necessary for carrying out the test.
Take note that the collection of information and conduct of the test must be done in a humane manner. Section 258F strictly prohibits the cruel, inhumane, or degrading manner of providing personal identifiers. The authorised officers must treat these persons with humanity and with respect for human dignity. Lastly, section 258G of the Act allows the authorised officer to get help in carrying out identification tests.
Talk to a Migration Lawyer
JB Solicitors’ competent migration lawyers can help you understand further the implications of the conduct of identification tests and their results. If you are concerned about identification tests in relation to Australian immigration, it is always best to consult with a migration lawyer for specific advice on your situation.
Contact us today for a consultation.