Section 192 — Detention of visa holders whose visas liable to cancellation

192 Detention of visa holders whose visas liable to cancellation

(1) Subject to subsection (2), if an officer knows or reasonably suspects that a non-citizen holds a visa that may be cancelled under Subdivision C, D, FA or G of Division 3 or section 501, 501A or 501BA, the officer may detain the non-citizen.

(2) An officer must not detain an immigration cleared non-citizen under subsection (1) unless the officer reasonably suspects that if the non-citizen is not detained, the non-citizen would:

(a) attempt to evade the officer and other officers; or

(b) otherwise not co-operate with officers in their inquiries about the non-citizen’s visa and matters relating to the visa.

(3) An officer may question a non-citizen detained because of this section about the visa and matters relevant to the visa.

(4) A non-citizen detained under subsection (1) must be released from questioning detention if the officer becomes aware that the non-citizen’s visa is not one that may be cancelled under Subdivision C, D, FA or G of Division 3 or section 501, 501A or 501BA.

(5) A non-citizen detained under subsection (1) must be released from detention within 4 hours after being detained, unless the non-citizen is detained under section 189 because of subsection 190(2).

(6) If the non-citizen has been detained because of subsection (1) more than once in any period of 48 hours, the 4 hours provided for by

subsection (5) is reduced by so much of the earlier period of detention as occurred within that 48 hours.

(7) In finding out whether 4 hours have passed since a non-citizen was detained, the following times are to be disregarded:

(a) if the detainee is detained at a place that is inappropriate for questioning the detainee, the time that is reasonably required to take the detainee from that place to the nearest place that is appropriate;

(b) any time during which the questioning is suspended or delayed to allow the detainee, or someone else on the detainee’s behalf, to communicate with a legal practitioner, friend, relative, guardian, interpreter or consular representative of the country of which the detainee is a citizen;

(c) any time during which the questioning is suspended or delayed to allow a person so communicated with or an interpreter required by an officer to arrive at the place where the questioning is to take place;

(d) any time during which the questioning is suspended or delayed to allow the detainee to receive medical attention;

(e) any time during which the questioning is suspended or delayed because of the detainee’s intoxication;

(f) any reasonable time during which the questioning is suspended or delayed to allow the detainee to rest or recuperate.

Note: Section 5G may be relevant for determining relationships for the purposes of paragraph (7)(b).

(8) In paragraph (7)(b), guardian includes a person who is responsible, under a parenting order (within the meaning of the Family Law Act 1975), for the detainee’s long-term care, welfare and development.