Residence determination under the Migration Act 1958 refers to the process of determining an individual’s immigration status and eligibility for permanent residency or citizenship in the country. It involves assessing various factors such as:
- Visa applications
- Immigration policies; and
- The fulfilment of specific criteria to determine an individual’s right to live and work in Australia on a long-term basis.
The Australian government has specific rules and regulations in place to determine an individual’s residence status, including factors such as their:
- Visa category
- Family relationships; and
- Humanitarian considerations
Section 197AA: Persons to Whom Subdivision Applies
The Section 197AA states that the Subdivision on residence determination applies to individuals who are either required or allowed to be detained under:
- Section 189; or
- Those who are currently in detention under Section 189.
Section 189 outlines the conditions under which an officer is required or permitted to detain individuals in Australia under the migration law.
Section 197AB: Minister May Determine That Person Is to Reside at a Specified Place Rather Than Being Held in Detention Centre
The Section 197AB outlines the authority of the Minister to make a “residence determination” for individuals to reside at a specified place instead of being detained in a facility covered by the definition of immigration detention. Here’s a breakdown of each subsection:
- If the Minister believes that it is in the public interest, they have the power to make a “residence determination.” This determination specifies that one or more individuals to whom this Subdivision applies should reside at a particular place rather than being detained in a facility that falls under the definition of immigration detention in subsection 5(1).
A determination of residence must include the following:
- It should specifically name the person or persons covered by the determination, rather than describing them as a class of persons.
- It should outline the conditions that the person or persons covered by the determination must comply with.
- A determination of residence must be communicated to the person or persons covered by the determination through a written notice.
Section 197AC: Effect of Residence Determination
Section 197AC of residence determination explains the application of the Act. It also explains regulations to individuals covered by:
- A determination or residence
- The temporary stays at other places
- Provisions that do not apply
- Release from immigration detention
- Notification of release; and
- The responsibilities of the Secretary
Here’s a concise breakdown of the other provisions in Section 197AC:
- While a determination or residence is in force, the Act and regulations apply to the person covered by the determination. This applies as if they were in immigration detention at the specified place under Section 189. This does not apply to certain sections specified in the Act and regulations.
- If the person covered by a determination or residence temporarily stays elsewhere without breaching conditions, they are still considered to be residing at the specified place for the purposes of number 1.
- When a determination or residence is in force, but a provision of the Act requires the person’s release from detention or the Act no longer permits their detention, the determination is:
- Automatically revoked;
- The person is released from immigration detention; and
- The person is no longer subject to the specified conditions.
If a person is released from immigration detention, the Secretary must promptly notify them. The Secretary must ensure that a person covered by a determination or residence receives the necessary forms and facilities as required by Section 256.
Section 197AD: Revocation or Variation of Residence Determination
Section 197AD explains the Minister’s authority to revoke or modify a determination or residence if it is deemed to be in the public interest. The section states that:
1. The Minister can revoke or modify a determination or residence at any time if they believe it is in the public interest to do so. If a person covered by the determination fails to comply with a specified condition, the Minister may decide to:
- Revoke the determination; or
- Modify it by changing the conditions, either by altering existing ones or adding new ones.
Note 1: The authorities can revoke or modify the determination if the person fails to comply with the specified conditions, subject to the public interest test.
Note 2: If the Minister revokes a determination or residence without issuing a replacement determination, and the person covered by the determination is required to be detained under Section 189, the person will be taken into detention at a facility covered by the definition of immigration detention.
2. Any variation made to a determination or residence must ensure that the determination, as modified, complies with subsections 197AB(1) and (2).
3. The authorities must communicate the revocation or modification of a residence determination to the person or persons covered by the determination through a written notice.
Section 197AE and 197AF: Powers of the Minister
Section 197AE states that the Minister does not have the obligation to assess or consider whether to exercise their power to:
- Vary; or
- revoke a determination of residence
This applies regardless of whether any person requests them to do so or any other circumstances require it. According to Section 197AF, only the Minister can personally exercise the power to make, vary, or revoke a residence determination.
Section 197AG: Tabling of Information Relating to the Making of Residence Determinations
Section 197AG outlines the requirements for the Minister to provide a statement to the Parliament when making a determination of residence. Here is a breakdown of the key points:
1. If the Minister makes a determination of residence, they must prepare a statement and present it to each House of Parliament. This statement should include:
- A declaration that the Minister has made a determination under this section.
- The Minister’s reasons for making the determination, specifically addressing why they believe it is in the public interest.
However, the statement should not include certain information related to the determination of residence:
- The name of any person covered by the determination.
- Any information that may identify any person covered by the determination.
- The address, name, or location of the place specified in the determination.
- Any information that may identify the address, name, or location of the specified place.
- If the Minister believes that publishing the name or information of another person connected to the determination would not be in the public interest, it should be excluded.
2. The Minister must lay the statement before each House of the Parliament within 15 sitting days of that House:
- By 1 January of the following year. This is if the Minister makes the determination of residence between 1 July and 31 December (inclusive) in a year.
- Before the House by 1 July of that year. This is if the Minister makes the determination between 1 January and 30 June (inclusive) in a year.
Importance of Seeking Legal Advice
We recommend you seek legal advice about the determination of residence. This is because it involves complex legal principles and processes. We at JB Solicitors can explore alternative options and strategies that individuals may not be aware of. Our team of migration lawyers can identify potential alternatives such as:
- Other visa categories
- Immigration programs; or
- Legal remedies that may better suit the individual’s circumstances and objectives.
Contact our team of expert migration lawyers today.