Please note that the information we provide in this article on other provisions on immigration detention 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.
This article will discuss the other provisions on immigration detention. This is the continuation of our previous blog article “Immigration Detention of Non-citizens.” Sections 182 to 187 of the Migration Act covers the following topics:
- Immigration detention or removal after certain period
- Release designated persons by the courts
- Effect of “Division 6: Certain non-citizens to be kept in immigration detention” on status
- Division 6 applies despite other laws
Other Provisions on Immigration Detention: Immigration Detention or Removal After Certain Period
To better understand the succeeding sections, we recommend that you read the previous blog article on immigration detention.
Section 178 sets the rules as to the designated persons to be in immigration detention. Section 181, on the other hand, provides for a guideline as to the removal of such designated persons.
S182 states that Sections 178 and 181 cease to apply to a designated person who was:
- in Australia on 27 April 1992 if the person has been in application immigration detention after commencement for a continuous period of, or periods whose sum is, 273 days.
- not in Australia on 27 April 1992, if:
- there has been an entry application for the person; and
- the person has been in application immigration detention, after the making of the application, for a continuous period of, or periods whose sum is, 273 days.
Who Is Considered to Be in Application Immigration Detention?
This section states that such person is:
- the person is in immigration detention; and
- an entry application for the person is being dealt with;
However, a person is not considered as one who is in application if one of the following is happening:
- the Department is waiting for information relating to the application to be given by a person who is not under the control of the Department;
- the dealing with the application is at a stage whose duration is under the control of the person or of an adviser or representative of the person;
- court or tribunal proceedings relating to the application have been begun and not finalised;
- continued dealing with the application is otherwise beyond the control of the Department.
Two Rules to Remember Under This Section
- If an entry application for a designated person has been refused because of a direction or decision of a court or tribunal, the application is required to be considered further.
- an entry application for a designated person has been refused,
- section 178 would cease to apply to the person
- the person begins court or tribunal proceedings in relation to the refusal,
that section applies to the person during both these proceedings and the period of 90 days after they end, whether or not this subsection has applied to that entry application before.
Other Provisions on Immigration Detention: Release of Designated Persons
Section 183 of the Act which states that “Courts must not release designated persons,” essentially prevents courts from ordering the release of someone from immigration detention if they have been designated as a “designated person” under the Act.
What does this mean? If someone is identified as a designated person and is already in immigration detention, a court cannot order their release from that detention, regardless of any other legal proceedings or orders they may have.
This means that even if the person wins a case challenging their detention in court, or if they are granted bail in another matter, they cannot be released if they are a designated person.
Other Provisions on Immigration Detention: Effect of Division on Status Etc.
Section 185 of the Act addresses the effect of the division on the status of a designated person under the Act.
The section stipulates that Division 6 does not affect the other status that a designated person has under the Act, except insofar as the application or success of the application is inconsistent with specific sections of the Act.
It also does not affect the rights of a designated person under the Act, except insofar as their exercise is inconsistent with the relevant sections. Furthermore, it does not affect any application made by a designated person under the Act, except when the application or the success of the application is inconsistent with the specified sections.
Other Provisions on Immigration Detention: Division Applies Despite Other Laws
What happens if the rules under Division 6 is inconsistent with another provision? Section 186 provides that if this Division is inconsistent with another provision of this Act or with another law in force in Australia, whether written or unwritten, other than the Constitution:
- this Division applies; and
- the other law only applies so far as it is capable of operating concurrently with this Division.
Other Provisions on Immigration Detention: Evidence
The last item of the other provisions on immigration detention tackles evidence.
Section 187 provides that a statement by an officer, on oath or affirmation, that the Department has given a particular person a designation described in paragraph (e) of the definition of designated person in section 177 is conclusive evidence that the Department has given that person that designation.
S177 states that a “designated person” means a non-citizen who:
- has been on a boat in the territorial sea of Australia after 19 November 1989 and before 1 September 1994; and
- has not presented a visa; and
- is in the migration zone; and
- has not been granted a visa; and
- is a person to whom the Department has given a designation by:
- determining and recording which boat he or she was on; and
- giving him or her an identifier that is not the same as an identifier given to another non-citizen who was on that boat; [par. (e)]
- is a non-citizen born in Australia whose mother is a designated person.
Talk to Trusted Migration Experts
Uncertain about your visa status? Facing deportation? Confused by complex regulations? Talk to one of our migration lawyers at JB Solicitors if you want to know more about the other provisions on immigration detention. Our lawyers are trained in the intricacies of immigration law and understanding regulations and clauses.
Contact us today if you want to know more.