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25 March 2024

Migration Law: Appointment of boarding stations

JS
JB Solicitors

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Boarding stations in Australia serve as important checkpoints for both border control and customs checks.
Australia Immigration
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Please note that the information we provide in this article about boarding stations is current as of the date of publication. The DHA regularly updates rules and regulations. Kindly ensure that you check the official updates before making any decisions. Speak with an immigration lawyer for the most up-to-date information, as laws and conditions are subject to change.

Boarding stations in Australia serve as important checkpoints for both border control and customs checks. It has the primary objective of protecting the country's borders and enforcing relevant laws.

Boarding stations in Australia is a key topic under Division 13 of the Migration Act 1958. This article will discuss the relevant topics relating to boarding stations under sections 246 to 250 of the Act:

  • Appointment of boarding stations
  • Vessels to enter ports and be brought to boarding stations
  • Exemption
  • Certain persons do not have permission for entering or landing
  • Detention of suspected offenders

Appointment of Boarding Stations

According to Section 246 of the Act, the Governor-General may designate a location inside a port as the boarding station for such port for this Act by proclamation.

For this Act, a boarding station for a port that is:

  • currently appointed, or maintained under the Customs Act 1901-1957

will be considered to be appointed under this section as the boarding station for that port.

Vessels to Enter Ports and be Brought to Boarding Stations

Section 247 talks about vessels entering Australian ports.

Rule 1: Requirement to Enter Australian Ports

The rule under this section provides that the master of a vessel that enters Australia from overseas must make sure that the vessel enters the port and not any other place. (Penalty: 200 penalty units.)

Rule 2: Requirement to Bring the Vessel to the Boarding Stations

Furthermore, the master of a vessel (other than an aircraft) from overseas bound to or calling at a port:

  • must bring the ship (other than an airplane) to the boarding station set up for that port if the Secretary or Australian Border Force Commissioner commands them to.
  • must not move the vessel (other than an aircraft) from that boarding station until permitted to do so by the Secretary or Australian Border Force Commissioner. (Penalty: 200 penalty units)

Rule 3: Requirement to Land the Plane at the Designated Port

Additionally, once an international flight arrives in Australia, the pilot of that flight must not let the plane land at any other designated airport until it has landed:

  • at the designated airport with the closest boarding station to where the flight arrived; or
  • at an airport that has a boarding station approved in writing by the Secretary or Australian Border Force Commissioner as an airport where that aircraft or a class of aircraft that includes that aircraft can land when they arrive in Australia from another country. (Penalty: 200 penalty units)

Rule 4: Requirement to Bring the Ship to the Boarding Stations

The pilot of a plane that is taking people from outside of Australia to Australia as part of an air service or flight:

  1. shall not allow the plane to land at a declared airport where there isn't a boarding station;
  2. as soon as possible after landing at a designated airport, bring the plane to the designated boarding station for that airport so that people can get on; and
  3. must not move the plane from that boarding point until told to do so by the Secretary or the Commissioner of the Australian Border Force. (Penalty: 200 penalty units.)

Note that under this section, if the accused persons can demonstrate that they were prevented from complying with these rules due to inclement weather or another legitimate reason, they will have a defence against punishment for violating the aforementioned requirements.

Finally, a vessel's master must take all reasonable steps requested by an officer to enable the officer to carry out their obligations under this Act and board the vessel under this section. (Penalty: 100 penalty units)

Exception to the Requirements under Section 247

Section 248 of the Act provides that if the Minister thinks that a part of section 247 doesn't need apply to a vessel anymore, he or she must write to the master of that vessel and release them from having to follow that part.

Certain Persons May Be Prevented from Entering or Landing

Under section 249, an officer may:

  • prevent a person whom the officer reasonably suspects to be an unlawful non-citizen from leaving a vessel on which the person arrived in Australia; or
  • prevent a removee or deportee from leaving a vessel on which he or she has been placed;

Moreover, he may take such action and use such force as are necessary for that purpose.

What are the elements that would justify these actions by an officer? This provision also states that an officer may prevent a person from leaving a vessel on which the person arrived in Australia if the officer reasonably suspects that the person:

  • is seeking to enter the migration zone; and
  • would, if in the migration zone, be an unlawful non-citizen.

Thus, to avoid doubt, and without limiting the generality of the previous rules, if such person is on board a vessel (other than an aircraft), the actions that may be taken by an officer under include:

  • requiring the vessel to travel to a port; and
  • requiring the person to remain on the vessel until it arrives at the port.

Know that the master of a vessel may, in relation to persons on board the vessel, do all things which an officer has authority to do.

Detention of Suspected Offenders

How does section 250 defines the word "suspect"? In this section "suspect" means a non-citizen who:

  • travelled, or was brought, to the migration zone; and
  • is believed by an authorised officer on reasonable grounds to have been on board a vessel (not being an aircraft). Such vessel was used in connection with the commission of an offence against a law in force in the whole or any part of Australia.

A non-citizen that an officer chooses to detain on the basis of these rules may stay in the immigration detention for such period that they need to:

  • the making of a decision whether to prosecute the suspect in connection with the offence concerned; or
  • instituting such a prosecution.

Additionally, if an officer decides to hold a non-citizen because of these rules, that person can stay in immigration detention for as long as they need to in order to be prosecuted within that time frame.

The period that is required for the purposes of a prosecution includes any period required for:

  1. any proceedings in connection with the prosecution; and
  2. the serving of any custodial sentence imposed because of the prosecution; and
  3. the institution of, and any proceedings in connection with, any appeal from any decision in relation to the prosecution.

What Happens If Such Period Ends?

When a person's detention time frame in immigration custody expires, he or she:

  1. must leave Australia as soon as possible in accordance with section 198. This is unless they have obtained a visa that allows them to stay there; and
  2. may be kept under detention (section 189) until directed by an authorised authority.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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