This article will outline offences relating to immigration detention under Division 7A of the Migration Act 1958. Before we outline the different provisions, let’s first define “immigration detention” under the Act. According to the Act:
1. “Immigration detention” refers to the state of being in the presence of an officer who has the authority to restrain an individual. This can either be:
- The officer directly; or
- Another person that the Secretary or Australian Border Force Commissioner authorised to accompany and restrain a specific detainee.
2. “Immigration detention” also includes if an officer holds someone in various locations:
- A detention centre established under the relevant Act.
- A prison or remand centre that the Commonwealth, a State, or a Territory operates.
- A police station or watch house.
- In the case of a non-citizen who cannot as per Section 249 leave a vessel, it includes being held on that vessel.
- Any other place approved in writing by the Minister.
However, “immigration detention” does not include being restrained as described in 245F(8A) or being dealt with 245F(9)(b). Note: Subsection 198AD(11) clarifies that being dealt with under subsection 198AD(3) does not qualify as “immigration detention.”
Note 2: This definition also applies to individuals covered by residence determinations as outlined in section 197AC. Read on to learn about the relevant provisions for offences relating to immigration detention.
Section 197A: Detainees Must Not Escape From Detention
Section 197A of offences relating to immigration detention state that detainees must not escape from immigration detention. The penalty for this offence is imprisonment for 5 years. According to Australian law, immigration officials are required to detain individuals who arrive in Australia:
- Without a visa (unauthorised arrivals): or
- With a visa but subsequently, become unlawful due to visa expiration or cancellation (authorised arrivals).
It’s important to note that there is no differentiation in Australian law between detaining adults and children in these circumstances. Detention for a short period could be a legitimate part of immigration controls with the purpose of gathering essential information related to:
- Health
- Identity
- Security; and
- Visa claims.
Note: This detention must be subject to effective review by a court.
Offences Relating to Immigration Detention: Children Detention
What about children who arrive without a visa and seek asylum? If this is the case, they need to remain in detention for a prolonged period. This period goes beyond the time necessary to collect basic information about their asylum claims, health, identity, or security issues.
Both adults and children must remain in detention until finalisation of their asylum claim, or until government issues a bridging visa. As a result, these children are often detained for months or even years, often in remote detention centres across Australia.
Note: There is no specific time limit for this detention under the Migration Act 1958. Additionally, the scope of review available through the courts is very limited. Click here to read more about Australia’s detention policy and practice on children.
Section 197B: Manufacture, Possession Etc. Of Weapons by Detainees
Section 197B of offences relating to immigration detention pertains to manufacturing, possessing, using, or distributing weapons by detainees. Here’s a breakdown of its meaning:
(1) If a detainee (someone who is in detention) engages in the manufacturing, possession, use, or distribution of a weapon, they commit an offence. The penalty for this offence is imprisonment for a period of 5 years.
(2) A “weapon” includes:
- Any object that is either made or adapted for the purpose of inflicting bodily injury.
- Any object that the detainee possesses with the intention or threat to use it, or intends for it to be used, for inflicting bodily injury.
Let’s use an example for Section 197B on offences relating to immigration detention. For instance, there is a detainee, Linus, who is in an immigration detention centre. Linus, despite being aware of the rules and regulations, is found to be in possession of a makeshift knife.
The knife is a weapon under the definition that this section provides. This is because it can inflict bodily injury. In this scenario, Linus would be in violation of the law outlined in the section. He has committed the offence of possessing a weapon as a detainee. If convicted, he could face a penalty of up to 5 years of imprisonment, as specified in the section.
Offences Relating to Immigration Detention: Immigration Detention News
Click here to read the original story from The Guardian.
During the Christmas period in 2022, authorities released approximately 100 individuals from Australian immigration detention centres. Advocates encouraged the Labour Party to expedite the release of low-risk detainees.
Lawyers representing asylum seekers and individuals whose visas face cancellation reported that daily releases took place since December 23, 2022. Some of the releases may have been influenced by a recent federal court ruling that aggregate sentences should not automatically trigger visa cancellation. However, the court’s judgement still allows for discretionary visa cancellation by the minister.
Many have described the release process as “bizarre”, with detainees receiving paperwork announcing their release. However, the detainees were not informed of the specific visas granted. The government is considering the implications of the court ruling and identifying other affected visa cancellation decisions. While some releases were triggered by the ruling, others seem unrelated.
The government has been exploring alternatives to immigration detention to address the substantial number of people held in detention centres. The recent releases are a more humane and cost-effective approach. Advocates emphasise the need to rectify:
- Potentially unlawful decisions;
- Address family separation; and
- Reverse deportations based on the relevant section of the Migration Act.
Importance of Seeking Legal Advice
Seeking legal advice about offences relating to immigration detention is important. This is because many answers are based on general knowledge and understanding of the law. But you cannot consider these general answers as a substitute for professional legal advice. We at JB Solicitors can provide migration law guidance and explain how it applies to your case. Our lawyers can:
- Analyse the facts of your migration law matter;
- Consider any relevant immigration laws, regulations, and precedents; and
- Provide strategies that are specific to your circumstances.
Contact our friendly team of migration lawyers today for more information about offences relating to immigration detention.
