Commonwealth Consolidated Acts

[Index] [Table] [Search] [Search this Act] [Notes] [Noteup] [Previous] [Next] [Download] [Help]

MIGRATION ACT 1958 - SECT 232

Penalty on master, owner, agent and charterer of vessel

             (1)  Where:

                     (a)  a non-citizen:

                              (i)  enters Australia on a vessel; and

                             (ii)  because he or she is not the holder of a visa that is in effect, or because of section 173, becomes upon entry an unlawful non-citizen; and

                            (iii)  is a person to whom subsection 42(1) applies; or

                     (b)  a removee or deportee who has been placed on board a vessel for removal or deportation leaves the vessel in Australia otherwise than in immigration detention under this Act;

the master, owner, agent and charterer of the vessel are each taken to commit an offence against this Act punishable by a fine not exceeding 100 penalty units.

          (1A)  An offence against subsection (1) is an offence of absolute liability.

Note:          For absolute liability , see section 6.2 of the Criminal Code .

          (1B)  For the purposes of paragraph (1)(a), the defendant bears an evidential burden in relation to establishing that subsection 42(1) does not apply to a person because of subsection 42(2) or (2A) or regulations made under subsection 42(3).

Note:          For evidential burden , see section 13.3 of the Criminal Code .

             (2)  It is a defence to a prosecution for an offence against subsection (1) in relation to the entry of a non-citizen to Australia on a vessel if it is established:

                     (a)  that the non-citizen was, when he or she boarded or last boarded the vessel for travel to Australia, in possession of evidence of a visa that was in effect and that permitted him or her to travel to and enter Australia, being a visa that:

                              (i)  did not appear to have been cancelled; and

                             (ii)  was expressed to continue in effect until, or at least until, the date of the non-citizen's expected entry into Australia; or

                     (b)  that the master of the vessel had reasonable grounds for believing that, when the non-citizen boarded or last boarded the vessel for travelling to and entering Australia, the non-citizen:

                              (i)  was eligible for a special category visa; or

                             (ii)  was the holder of a special purpose visa; or

                            (iii)  would, when entering Australia, be the holder of a special purpose visa; or

                            (iv)  was the holder of an enforcement visa; or

                             (v)  would, when entering Australia, be the holder of an enforcement visa; or

                     (c)  that the vessel entered Australia from overseas only because of:

                              (i)  the illness of a person on board the vessel; or

                             (ii)  stress of weather; or

                            (iii)  other circumstances beyond the control of the master.

             (3)  A defendant bears a legal burden in relation to the matters in subsection (2).



AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback