Immigration Amendment Act 2015

73 Sections 287 to 290 replaced

Replace sections 287 to 290 with:

287 Special biometric information

For the purposes of sections 288 to 290A, special biometric information means, in relation to any person, any of the following that are or may be required in order to meet the entry or transit requirements of any country to which or through which the person is to travel:

(a)

the person’s palm-prints:

(b)

the person’s footprints:

(c)

measurements of the whole person:

(d)

photographs of the whole person.

288 Requirement to allow collection of biometric information and special biometric information

(1)

If a person is liable for deportation or turnaround, an immigration officer may require the person to allow biometric information, special biometric information, or both to be collected from him or her.

(2)

An immigration officer may require a person to allow biometric information to be collected from him or her if the immigration officer has good cause to suspect any of the following matters, and the immigration officer requires the biometric information in order to determine any of those matters:

(a)

that the person is liable for deportation or turnaround:

(b)

that the person is not complying with, or is materially breaching, the conditions of the person’s visa:

(c)

that the person is undertaking work or a course of study but is not entitled to undertake that work or study under this Act:

(d)

that the person has obtained a visa under a fraudulent identity.

(3)

Any biometric information or special biometric information obtained from a person under subsection (1), or under a compulsion order made under section 290 on an application under section 289(1) after this subsection comes into force, must be destroyed if the person’s liability for deportation is cancelled or suspended, or if the person is granted a visa and entry permission.

289 Application for order authorising collection of biometric information

(1)

An immigration officer may apply, in writing and on oath, to a District Court Judge for a compulsion order in any case where a person has refused to allow biometric information, special biometric information, or both to be collected from him or her in response to a requirement by an immigration officer under section 288(1), in which case the application must set out the following:

(a)

the facts relied on to show that the person is liable for deportation or turnaround; and

(b)

evidence that the person has refused to allow biometric information or special biometric information to be collected from him or her in accordance with a requirement under section 288(1); and

(c)

if special biometric information was required, the facts relied on for believing that any of the things referred to in section 287 are necessary in order to meet the entry or transit requirements of any country to which or through which the person is to travel.

(2)

An immigration officer may apply, in writing and on oath, to a District Court Judge for a compulsion order in any case where a person has refused to allow biometric information to be collected from him or her in response to a requirement by an immigration officer under section 288(2), in which case the application must set out the following:

(a)

the facts relied on to show that there is good cause to suspect that any matter in section 288(2) applies to the person; and

(b)

evidence that the person has refused to allow biometric information to be collected from him or her in accordance with a requirement under section 288(2); and

(c)

the reasons why it is considered necessary to obtain a compulsion order in relation to the person, including the facts relied on to show that there are reasonable grounds to believe that biometric information collected from the person would tend to confirm whether or not any matter in section 288(2) applies to him or her.

(3)

For the purposes of subsection (1)(a), it is sufficient if (but not essential that) an immigration officer includes a copy of a deportation liability notice or deportation order with the application.

(4)

If an application is made under this section,—

(a)

an immigration officer must serve a copy of the application on the respondent; and

(b)

both the immigration officer and the respondent may appear and may offer evidence at the hearing of the application.

(5)

In considering an application made under this section, the Judge may take into account any oral or documentary material that the Judge considers relevant, whether or not it would be otherwise admissible in a court of law.

290 Judge may authorise biometric information and special biometric information to be collected

(1)

On the hearing of an application for a compulsion order, a District Court Judge may make a compulsion order requiring the respondent to allow specified biometric information, special biometric information, or both to be collected from him or her if the Judge is satisfied that,—

(a)

in the case of an application relating to a refusal of a requirement under section 288(1),—

(i)

the respondent is liable for deportation or turnaround; and

(ii)

the respondent has refused to allow the biometric information, special biometric information, or both to be collected from him or her following a requirement under section 288(1); and

(iii)

if special biometric information was required, there are reasonable grounds to believe that any of the things referred to in section 287 are necessary in order to meet the entry or transit requirements of any country to which or through which the respondent is to travel; and

(iv)

in all the circumstances, it is reasonable to make the order:

(b)

in the case of an application relating to a refusal of a requirement under section 288(2),—

(i)

there is good cause to suspect that any matter in section 288(2) applies to the respondent; and

(ii)

there are reasonable grounds to believe that biometric information collected from the respondent would tend to confirm or disprove that any matter in section 288(2) applies to the respondent; and

(iii)

the respondent has refused to allow biometric information to be collected from him or her following a requirement under section 288(2); and

(iv)

in all the circumstances, it is reasonable to make the order.

(2)

In considering whether to make a compulsion order, the Judge must have regard to any matter the Judge considers relevant, including—

(a)

any reasons given by the respondent for opposing the making of the order; and

(b)

in relation to an application under section 289(1), where special biometric information is sought, any evidence regarding the necessity of obtaining from the respondent any of the things referred to in section 287 that are required in order to meet the entry or transit requirements of any country to which or through which the person is to travel; and

(c)

in relation to an application under section 289(2), any evidence regarding the importance, to the investigation of the relevant matter, of obtaining biometric information from the respondent.

(3)

A person served with a compulsion order must allow the biometric information or special biometric information specified in the order to be collected from him or her.

290A Obtaining biometric information by compulsion

(1)

If, after a compulsion order is served on a person, the person refuses to allow the biometric information or special biometric information specified in the order (the required biometric information) to be collected from him or her, a constable may—

(a)

arrest the person; and

(b)

remove the person to, and detain him or her in, a suitable place where the required biometric information can be collected; and

(c)

collect, as soon as practicable, the required biometric information from the person, by force if necessary.

(2)

If force is used under subsection (1)(c), it must be reasonable and no more than is necessary to collect the required biometric information from the person.

(3)

The person must be released from detention as soon as the required biometric information has been collected, unless the person’s continued detention is authorised under any other provision of this or any other Act.