The Migration Act contains certain provision of personal identifiers for migration to Australia. Division 13AA, Subdivision A consists of 3 Sections in relation to provision of personal identifiers. These include:
What Are Personal Identifiers?
According to the Migration Act, personal identifiers could be any of the following (including in digital form):
- fingerprints or handprints of a person (including those taken using paper and ink or digital livescanning technologies);
- a measurement of a person’s height and weight;
- a photograph or other image of a person’s face and shoulders;
- an audio or a video recording of a person (other than a video recording under section 261AJ);
- an iris scan;
- a person’s signature;
- any other identifier prescribed by the regulations, other than an identifier the obtaining of which would involve the carrying out of an intimate forensic procedure within the meaning of section 23WA of the Crimes Act 1914 .
Section 261AA: Immigration Detainees must Provide Personal Identifiers
This Sections relates to immigration detention and the requirement for non-citizens in immigration detention to provide personal identifiers.
Subsection (1) states that non-citizens who are in immigration detention must provide one or more personal identifiers to an authorised officer, except in specific situations as defined by the regulations.
Moreover, the authorised officer responsible for collecting personal identifiers cannot demand any personal identifier other than the following (which can also be in digital form):
- Fingerprints or handprints of the individual (collected using traditional methods like ink and paper or digital technologies like livescanning).
- Measurement of the person’s height and weight.
- A photograph or image of the person’s face and shoulders.
- The person’s signature.
- Any other personal identifier type specified in the regulations.
The rules outlined in Division 13AB place additional limitations on the collection of personal identifiers from minors and individuals incapable of providing consent.
Secondly, an authorised officer must conduct identification tests to obtain the personal identifiers under section (1). These identification tests must follow the guidelines specified in this division.
Note: While section 261AE imposes certain restrictions, reasonable force is allowed to be used for carrying out identification tests under this division.
However, the rules outlined in this division do not apply to non-citizens who meet the following criteria:
- They are in immigration detention solely due to provision of personal identifiers to being detained under section 192.
- They have already provided a personal identifier in compliance with the requirement under section 257A.
Section 261AB: Authorised Officers must Require and Carry out Identification Tests
This Section on provision of personal identifiers outlines the procedures an authorised officer must follow when requiring a non-citizen to provide personal identifiers through identification tests.
It states that the authorised officer must request, either in written or oral form, that a non-citizen provide one or more personal identifiers, as specified by regulations, using one or more identification tests. The officer is responsible for conducting these identification tests on the non-citizen, with the exception of situations specified in subsection 261AA(1).
However, certain conditions must be met:
- If the specific types of identification tests are outlined in section 5D, the officer must adhere to those specified types for each test.
- Each identification test must be conducted following the guidelines in Subdivision B.
- Unless the officer has reasonable grounds to believe the non-citizen is not a minor or incapable, each identification test must also follow the additional requirements of Division 13AB.
Section 261AC: Information to be Provided before Carrying out Identification tests
This Section on provision of personal identifiers outlines the steps an authorised officer must take before conducting an identification test on a non-citizen.
It states that, prior to conducting an identification test, the authorised officer must:
- Notify the non-citizen that they have the right to request the presence of an independent person during the test, as well as the right to have the test performed by a person of the same sex as the non-citizen.
- Provide the non-citizen with additional information as prescribed by the regulations.
Moreover, to fulfil the requirements of subsection (1), the officer must communicate this information to the non-citizen in a language (which can include sign language or braille) that the non-citizen can understand and communicate fluently, even if an interpreter is needed.
Lastly, the authorised officer can meet the obligations of this section by giving the non-citizen a form that contains the information specified in the regulations. However, the information on the form must be presented in a language (including braille) in which the non-citizen can communicate with reasonable fluency.
Seeking Advice from Migration Lawyers
We have explored the provision of personal identifiers as per the Migration Act (1958) in this article. For all immigration matters, we advise you to speak with leading Sydney migration lawyers.
Whether you need legal assistance with applying for visas, or for appealing decisions, our lawyers can help you with all matters.
Our lawyers can:
- Assess your eligibly for visas;
- Advise you on which visas to apply for;
- Help you lodge visa applications;
- Assist you with gathering all required documents;
- Appeal DHA’s decisions at the Tribunal if required.
You can meet with our leading team of migration lawyers in Sydney CBD, Western Sydney or Melbourne CBD. Contact our friendly and experienced team of lawyers today.