Immigration clearance is the process of checking a person’s travel documents and visa to determine if they can enter Australia. It is important for several reasons, including:
- To protect Australia’s borders. Immigration clearance helps to ensure that only people who are authorised to enter Australia can do so. This helps to protect Australia from security threats, such as terrorism and organised crime.
- To ensure that people who enter Australia have the correct visa. The type of visa a person has determines what they are allowed to do in Australia. Specifically, immigration clearance helps to ensure that people who enter Australia have the correct visa for their intended purpose.
- To collect information about people who enter Australia. When a person undergoes immigration clearance, they have to provide information about themselves, such as their name, date of birth, and nationality.
The Australian government collects this information for a number of purposes, such as border security, immigration planning, and law enforcement. Sections 165 to 168 of the Migration Act 1958 sets out the rules for immigration clearance in Australia.
Section 165: Definition of Terms in Relation to Immigration Clearance
This section defines terms commonly used under Division 5: Immigration Clearance of the Migration Act 1958. This ensures that everyone who uses or reads this legislation interprets and understands the terminologies used accurately.
These are the terms with their corresponding definitions:
- Clearance authority – can either be a clearance officer or an authorised system.
- Clearance officer – is an officer, or other person, authorised by the Minister to perform duties for the purposes of this Division.
- Eligible passport – is a passport of a kind specified in a determination under section 175A.
- On-port (in relation to a person) – means a port in Australia to which the person will travel after entering Australia at another port.
- Overseas vessel – means:
- a vessel on which persons travel from outside Australia to a port and then to an on-port or ports; or
- a vessel on which persons travel from a port to another port or ports and then to a place outside Australia.
Section 166: Persons Entering to Present Certain Evidence of Identity Etc.
What are the requirements to be immigration cleared? Section 166 enumerates the requirements. A person, regardless if one is a citizen or a non-citizen, who enters Australia must comply with the following requirements without unreasonable delay:
- A person must present the following evidence, including a personal identifier to a clearance authority:
- Australian passport or other prescribed evidence of the person’s identity and Australian citizenship – if the person is an Australian citizen or a national of another country.
This requirement is complied with if the clearance officer knows or reasonably believes the person is an Australian citizen.
- Evidence of the person’s identity and his visa – if the person is a non-citizen.
Note that if the person presents evidence to an authorised system, one must provide to the authorised system a photograph or other image of the person’s face and shoulders.
- 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.
- 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
to provide one or more personal identifiers to a clearance authority.
Who May Use An Authorised System?
Not all persons can present evidence to an authorised system. This section specifies who may do so:
- If the person holds an eligible passport
- A clearance officer does not require the person to present evidence, information or personal identifiers, other than a passenger card, to a clearance officer, before such person:
- Leaves the port with permission of a clearance authority
- Leaves the prescribed place with the permission of a clearance authority.
Section 167: When and Where Evidence to Be Presented
The Migration Act specifies where the evidence for immigration clearance must be presented. Section 167 provides that a person who intends to enter Australia at a port must comply:
- If an officer requires the person to comply at a particular on-port — at that on-port.
- If the person is allowed by an officer to comply at the port or a particular on-port — at either of them.
Moreover, this section also provides that a person required to comply with section 166 who enters Australia otherwise than at a port must comply at a prescribed place within a prescribed period after entering.
Additionally, the person is deemed to have complied with section 166 if a person proposes to enter Australia with the permission of a clearance officer:
- Presented the required evidence under section 166
- Provided information, including the person’s signature, but not any other personal identifier to a clearance authority.
Another rule under this section concerns a person travelling to Australia on a pre-cleared flight. If so, one must also present their passport or any other evidence of the person’s identity and his visa before the flight. Compliance with this requirement deems compliance with section 166.
Section 168: Section 166 Not to Apply
Under this provision, section 166 does not apply to the following individuals:
- An allowed inhabitant of the Protected Zone who enters a protected area in connection with the performance of traditional activities is not required to comply with section 166.
- If an allowed inhabitant of the Protected Zone does the following actions, they must comply with section 166 at a prescribed place within a prescribed period:
- enters a protected area in connection with the performance of traditional activities; and
- goes from the protected area to a part of the migration zone outside that area.
- A person in a prescribed class is not required to comply with section 166.
Note: “Protected Zone” means the zone established under Article 10 of the Torres Strait Treaty, being the area bounded by the line described in Annex 9 to that treaty.
Send an Enquiry About Immigration Clearance to Migration Lawyers
Migration lawyers have an important job when it comes to migration issues and visa applications. JB Solicitors’ migration lawyers can:
- Advise clients on their visa options.
- Prepare visa documents and lodge applications.
- Represent clients at immigration interviews
- Appeal immigration decisions if required.
Contact us today for more information.