What are identification tests for immigration detainees?
Since 1992, it is necessary under Australia’s migration law that anyone who enters the country without a valid visa face detention until they either get a visa or authorities expel them. Both adults and kids must abide by this law.
Due to their unauthorised entry into Australia (unauthorised arrivals), some immigrants are held in immigration detention. Officers can also hold them in immigration detention for overstaying and violating of the terms of their visa.
Statistics as of June 30, 2023 show that authorities held 177 individuals who entered the country illegally by boat or airplane were in immigration detention centres. This number represents 15.9% of all immigrants in immigration detention as of June 30, 2023.
Additionally, 937 individuals (84.1% of the entire immigrant detention population) entered Australia legally and authorities later placed them in immigration detention. Reasons for such detention include:
- overstaying or violating their visas revoked for a variety of reasons,
- failing the character assessment,
- violating the terms of their visa,
- posing a threat to the community’s safety, health, or peace.
Immigration detainees often undergo various identification tests. Conducting identification tests helps ensure the security of immigration detention facilities. Moreover, this test for immigration detainees in Australia are relevant for maintaining security, verifying identities, protecting human rights, assessing protection claims, and monitoring detention facilities.
This article will discuss sections 261AD to 261AK of the Migration Act 1958 that outline important rules on identification tests for immigration detainees.
Section 261AD: General Rules for Carrying Out Identification Tests
What are the general rules for carrying out these tests? Section 261AD provides the following rules:
- Authorities must carry out the tests in circumstances affording reasonable privacy to the non-citizen.
- If the non-citizen so requests and it is practicable to comply with the request, the authorities must not carry it out in the presence or view of a person who is of the opposite sex to the non-citizen.
- Authorities must not carry it out in the presence or view of a person whose presence is not necessary for the purposes of the identification test.
- The identification test must not involve the removal of more clothing than is necessary for carrying out the test.
- It must not involve more visual inspection than is necessary for carrying out the test
- If the test is one of 2 or more identification tests to be carried out on the non-citizen–must be carried out at the same time as the other identification tests, if it is practicable to do so.
Section 261AE and 261AF: Manner Required and Use of Force in Carrying Out Identification Tests
Use of force in carrying out the identification tests may or may not be permissible, depending on the rules provided by section 261AE. According to this section, the use of force by the officer is permissible in the following circumstances:
- To enable them to carry out the identification test.
- To prevent the loss, destruction or contamination of any personal identifier or any meaningful identifier derived from the personal identifier.
- When the non-citizen who has to provide the personal identifier in question does not allow the officer to carry out the identification test.
- When all reasonable measures to carry out the identification test without the use of force have been exhausted.
However, this section does not authorise the use of force against a minor or an incapable person, or if the personal identifier in question is a person’s signature.
Moreover, section 261AF firmly prohibits the carrying out of identification tests in a cruel, inhuman or degrading manner, or in a manner that fails to treat a person with humanity and with respect for human dignity.
Sections 261AG, 261AH, 261AI, 261AJ
Other provisions about identification tests are laid out in these provisions.
- Section 261AG – states that authorised officers may ask another authorised officer or an officer to help him or her to carry out the identification test, and the other person may give that help.
- Section 261AH – provides that if the non-citizen requests that the identification test be carried out by an authorised officer of the same sex as the non-citizen, the test must only be carried out by an authorised officer of the same sex as the non-citizen.
- 3. Section 261AI – This rule requires that an independent person should be present during the testing procedure. The presence of such person is required when force is used in:
- carrying out the identification test
- the non-citizen requests that an independent person be present while the identification test is being carried out
- an independent person is readily available at the same place as the non-citizen and is willing to attend the test within a reasonable time.
- Section 261AJ – establishes the rule on recording identification tests. An authorised officer may video record the carrying out of the identification test. If the carrying out of the identification test is not video recorded, the authorised officer may decide that the identification test must be carried out in the presence of an independent person.
Section 261AK: Retesting
This section outlines the circumstances under which retesting of a non-citizen’s identification may be permissible. Specifically:
- Retesting is permissible if the initial identification test yielded an unusable or questioned personal identifier, and this requirement is made during or immediately after the initial test or authorised under subsection (4).
- If retesting is required under subsection (1), the personal identifier provided during the initial test is considered not provided for the purposes of this Division.
- An officer can apply for authorisation to retest to the appropriate authority depending on whether the officer authorised the initial test under subsection (4).
- The authority (senior authorising officer, Secretary, Australian Border Force Commissioner, or SES Band 3 employee) may grant authorisation to retest if they are reasonably unsatisfied with the personal identifier’s usability or integrity.
- They can give authorisations electronically and they must record it in writing within one business day.
- The power to grant authorisation under subsection (4) cannot be delegated to others.
- The authorisation does not permit the use of force during the identification test.
- If they deny the authorisation application, they consider that the non-citizen has complied with the requirement to provide the personal identifier.
Lastly, the section provides definitions, including “senior authorising officer” and “SES Band 3 employee.” Click here to read the definitions.
How Can Legal Advice Impact the Outcome of an Immigration Detention Case in Australia?
The consequences of not seeking legal advice for immigration detainees in Australia can be significant and may include:
- Limited understanding of rights under Australian law and international human rights standards.
- Difficulty in presenting a strong case for protection or release from detention. Without legal guidance, detainees may struggle to gather the necessary evidence and present their case effectively.
- Increased risk of prolonged detention. Without legal representation, detainees may face challenges in challenging the legality of their detention or seeking release.
- Lawyers can play a crucial role in monitoring the conditions of detention facilities and advocating for the rights of immigration detainees
- Potential violation of human rights. Immigration detainees may not be aware of their rights to due process, fair treatment, and protection from arbitrary detention. Legal advice can help ensure the protection of their rights.
Expert Advice from Immigration Lawyers
Immigration lawyers can provide legal representation. This can help ensure that we protect the rights of all parties throughout the immigration process.
Moreover, in the case of immigration detainees, they may seek protection in Australia due to persecution or other forms of harm in their home country. Legal advice from our expert migration lawyers at JB Solicitors can help them prepare and present their protection claims. This can be a complex and challenging process
Contact us today.