Why do you need to present evidence of identity when entering Australia? For many people seeking to immigrate to Australia, providing evidence of identity can be a challenge. The Migration Act 1958 (Cth) places the onus of proof on applicants to provide documentary evidence of their:
- identity,
- nationality,
- and/or citizenship.
Officers can use this evidence to assess an applicant’s eligibility for a visa. Moreover, they can use that information to ensure protection of Australia’s borders and national security. In this article, we will discuss the rules under Sections 169 to 172 of the Act. These sections provide the rules on the evidence of identity that Australian immigration authorities require.
So, if you’re ready to start the journey to a new life in Australia, read on. We’ll help you unlock the door to your future.
Section 169: Non-applicability of the Section 166 Rule
What is the Section 166 rule? The rule provides that applicants must meet certain requirements. It provides that a person, regardless if one is a citizen or a non-citizen, who enters Australia must present:
- A personal identifier to a clearance authority such as a person’s Australian passport. Or other prescribed evidence of identity and Australian citizenship.
- Evidence of the person’s visa if the person is a non-citizen.
- Any information, including the person’s signature, but not any other personal identifier, required by this Act or the regulations.
- Comply with the section 257A requirement made by a clearance officer before the following events occur:
- The person leaves the port at which the person complied and so leaves with the permission of a clearance authority and otherwise than in immigration detention
- The person leaves the prescribed place at which the person complied and so leaves with the permission of a clearance authority and otherwise than in immigration detention
Under Section 169, this requirement will not apply if a person goes outside the migration zone and if such a person is not considered to have left Australia. The rules for the second circumstance are provided under Section 80 of the Act.
Section 80 of the Act specifies the situations when a person is considered not to have left Australia. The Section states that authorities do not regard the person to have left the country when they go outside the migration zone on a vessel and:
- The person does not go to a foreign country other than for transit purposes;
- The person remains a passenger or a member of the crew of that vessel while outside the migration; and
- The person is outside the migration zone for no longer than the prescribed period.
International Passenger Cruise Ships
The rule under Section 169 has an exception. People must comply with the requirements under Section 166 if the person goes outside the migration zone on an international passenger cruise ship.
Hence, the effect of this rule is that people on international passenger cruise ships must be immigration cleared under Section 166, unless the Minister or Secretary determines otherwise. However, the Minister or Secretary may, in writing, determine that, the person need not comply the Section 166 requirements and other evidence of identity documents.
When Is a Ship Considered an International Passenger Cruise Ship?
A ship is an international passenger cruise ship if:
- the ship has sleeping facilities for at least 100 persons (other than crew members); and
- the ship is being used to provide a service of sea transportation of persons from a place outside Australia to a port in Australia; and
- that service is provided in return for a fee payable by persons using the service and is available to the general public.
Section 170: Persons Required to Present Evidence of Identity
Persons on overseas vessels may need to present evidence as Section 170 outlines. A clearance officer at either port, or officers at both ports, may require a person—citizen or non-citizen—who travels, or appears to travel, aboard an overseas vessel from one port to another port to accomplish the following:
- present to a clearance authority prescribed evidence, which might include a personal identifier, of the person’s identity; and
- provide to a clearance authority any information, including the person’s signature, but not any other personal identifier, required by this Act or the regulations; and
- comply with any requirement made by a clearance officer under section 257A to provide one or more personal identifiers to a clearance authority; and
- provide to the authorised system a photograph or other image of the person’s face and shoulders, if the person presents evidence to an authorised system.
Who May Use an Authorised System?
A person may comply with the requirements to present or provide evidence, information or personal identifiers to an authorised system only if the person holds an eligible passport.
Section 171: Assistance with Evidence
This Section states that the Department may provide assistance to a person who cannot comply with Section 166 requirements by presenting evidence of identity. The Department will provide this assistance only on payment, or an agreement to pay a prescribed fee for such assistance.
Section 172: Immigration Clearance
When is a person considered immigration cleared? Section 172 states that a person is immigration cleared if the person
- enters Australia at a port or through another entrance; and
- complies with section 166 requirements; and
- leaves the port at which the person complied and so leaves with the permission of a clearance authority and otherwise than in immigration detention; or
- leaves the prescribed place at which the person complied and so leaves with the permission of a clearance authority and otherwise than in immigration detention; or
- enters Australia by virtue of the operation of section 10 and at the time of the person’s birth, had at least one parent who was immigration cleared on his or her last entry into Australia; or
- is refused immigration clearance, or bypasses immigration clearance, and is subsequently granted a substantive visa; or
- is in a prescribed class of persons.
When Is a Person Considered to be in Immigration Clearance?
A person is in immigration clearance if the person is with an officer or at an authorised system for the purposes of section 166 and he or she has not been refused immigration clearance.
When do Authorities Refuse Immigration Clearance of a Person?
A person gets refusal for immigration clearance if the person is with a clearance officer for the purposes of Section 166 and one or more of the following subparagraphs applies to the person:
- the person has his or her visa cancelled;
- the person refuses, or is unable, to present to a clearance officer evidence referred to in paragraph 166(1)(a);
- the person refuses, or is unable, to provide to a clearance officer information referred to in paragraph 166(1)(b);
- the person refuses or is unable, to comply with any requirement referred to in paragraph 166(1)(c) to provide one or more personal identifiers to a clearance officer.
When Does a Person Bypass Immigration Clearance?
A person, other than a person who is refused immigration clearance, bypasses immigration clearance if the person:
- enters Australia at a port or through another entrance; and
- needs to comply with section 166; and
- leaves that port without complying or does not comply within the prescribed period for doing so.
Call a Migration Expert
Migration laws are constantly changing, and it can be difficult to keep up with the latest requirements. A migration lawyer has the expertise and experience to guide you through the process and ensure that your application is complete, accurate, and includes valid evidence of identity.
JB Solicitors’ expert migration lawyers can help you with all aspects of the migration process, from understanding your eligibility and preparing your application to representing you in court if necessary. With a qualified migration lawyer, you can be confident that you are doing everything you can to achieve your migration goals.
Contact us today.
