We have been receiving a number of questions regarding the Migration Act 1958 and in particular the Australian Border Force Officer powers.
Section 189 of the Migration Act 1958 states:
“(1) If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person.”
Some believe the wording of “reasonably suspects” may allow an ABF Officer to lawfully detain an Australian citizen who may have been reasonably suspected to be a non-citizen.
Case law may impose an undefined duty upon the invoking officer to make “serious efforts of search and inquiry that are reasonable in all circumstances” to support a decision under Section 189.
In saying the above, there have been cases of wrongful detention as a result of the exercise of Section 189 and in these cases the “different ethnicity” of the Australian citizens “were apparent”. We intend to cover this issue in our following publications
So can Victoria Police or the Australian Border Force request evidence of your visa status from you? We answer through the following questions and answers:
What powers do the Australian Border Force Officers (ABF) have?
ABF officers have a number of powers available to them relating to passenger entry, exit and visa checks.
Can the ABF ask for my visa status?
ABF officers may, in certain circumstances, be allowed to request your visa status from you. The Migration Act 1958 states that anyone an officer “knows or reasonably suspects” to be a non-citizen can be required to provide evidence of their visa status.
Can police ask for my visa status?
No! There is no specific power allowing a police officer to request you to provide your visa status.
What kind of information are Victoria Police allowed to ask you?
Victoria Police can only ask for your name and address if conducting an identity check.
Do I need to hand over identifications if Victoria Police asks for it?
Yes if there are reasonable grounds to believe you have committed an offence or are suspected of committing an offence or if asking for your identification may assist in a police investigation.
By RSG Lawyers
505 Sydney Road Coburg
Migration – Commercial – Dispute Resolution – Compensation