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Detention and Search
(s.252 Migration Act)
Procedural Instruction
This instruction applies to the searching of a non-citizen and any belongings in their immediate possession in
immigration clearance under the
Migration Act 1958.
Approval Date
10 December 2018
Date of Review
10 December 2019
Contact
ts. 47E(d)
Document ID (PPN)
[BC-2438]
TRIM Reference
OPD2017/171960
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s. 22(1)(a)(ii)
Detention and Search (s.252 Migration Act)
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1.
Introduction
1.1.
Background
The power to conduct searches is provided under section 252 of the
Migration Act 1958 (the Migration Act)
and does not apply to Australian citizens. The person searched must be a non-citizen who:
has been detained in Australia; or
has not been immigration cleared and an authorised officer suspects there are
reasonable grounds for considering cancellation of the person's visa.
For procedures relating to the detention and search of persons, including the frisk search, external search,
internal non-medical scan and internal search of persons under the
Customs Act 1901 (the Customs Act)
, see
Procedural Instruction: Detention and Search (s.219 Customs Act).
Australian Border Force (ABF) officers may seek assistance in performing the search from other government
agencies present at the port, such as the Australian Federal Police (AFP).
ABF officers are authorised to search a person, their clothing and any property under their immediate control
without a warrant for one of the purposes set out in section 252(2), which are:
a) to find out whether there is hidden on the person, in the clothing or in the property, a weapon or
other thing capable of being used to inflict bodily injury or to help the person to escape from
immigration detention
b) to find out whether there is hidden on the person, in the clothing or in the property, a document or
other thing that is, or may be, evidence for grounds for cancelling the person's visa
Care should be taken to ensure the person is subjected to the least amount of indignity and force required
while performing the search. Special authorisation under section 252A(3) of the Migration Act is required to
conduct a strip search. Unless conducting an authorised strip search, the person cannot be required to
remove clothing.
Searches must be conducted under the Migration Act when considering the cancellation of a visa. Searches
cannot be conducted under section 219L of the Customs Act. Detention under 219L is to be used only when
an ABF officer suspects on reasonable grounds that a person is unlawfully carrying prohibited goods.
2.
Scope
2.1.
In Scope
This procedural instruction applies to officers in the Aviation and Maritime environments providing
immigration clearance under the Migration Act 1958.
A search conducted on a non-citizen under section 252 (Searches of persons) of the Migration Act.
A search conducted on a non-citizen under section 252A (Power to conduct a strip search) of the Migration
Act.
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2.2.
Out of Scope
Clearance of persons and/or goods under the Customs Act 1901.
Detention and search of Australian Citizens.
A search conducted under section 219 of the Customs Act.
A screening procedure conducted under section 252AA (Power to conduct a screening procedure) of the
Migration Act.
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4. Procedural Instruction
The Migration Act confers on certain persons the powers to conduct three types of searches of non-citizens
under sections 252, 252A and 252AA, namely:
search of persons and their immediate property (section 252)
strip search (section 252A)
screening procedure (section 252AA) – out of scope of this instruction.
PART A:
SECTION 252 SEARCH
4.1. Circumstances for conducting a search
Section 252 of the Migration Act specifies the circumstances in which an authorised officer (as defined under
the Migration Act) may conduct a search. In accordance with section 252(1), a search may be conducted of
a person, the person's clothing, and any property under the immediate control of the person without warrant
for one of the purposes set out in section 252(2).
is detained in Australia (in accordance with the definition of 'detain' in section 5(1) of
the Migration Act, (this means the person is in 'immigration detention' in Australia)
has not been immigration cleared and an authorised officer suspects there are
reasonable grounds for considering cancellation of the person's visa.
4.2. Reason for conducting a search
The purposes for conducting a search under section 252(1) are set out in section 252(2) of the Migration Act.
The two purposes are:
to find out whether there is hidden on the person, in the clothing or in the property, a
weapon or other thing capable of being used to inflict bodily injury or to help the
person to escape from immigration detention
to find out whether there is hidden on the person, in the clothing or in the property, a
document or other thing that is, or may be, evidence for grounds for cancelling the
person's visa.
Where an ABF officer has suspicions the non-citizen (who is not a detainee) is concealing a weapon, but has
no belief there may be grounds for cancelling the non-citizen’s visa, the officer may request a fellow ABF
officer who is an Authorised Search Officer (ASO) to perform a search under section Division 1B of the
Customs Act. The ASO should ensure prerequisite conditions under the Customs Act to conduct the search
have been met. See Procedural Instruction:
Detention and Search (s.219 Customs Act).
The AFP may also undertake a search of the non-citizen. In such cases, ABF officers must record in their
official notebooks they are ceasing the exercise of their power under section 252 of the Migration Act and
include the details of the action taken.
Failure to comply with the scope of the specified power as set out in the Migration Act may expose officers
and/or the ABF to civil or criminal proceedings and sanctions and negatively impact the image of the ABF.
Property in the immediate control of the person is considered to be the items which the person has with them
at the time they are to be searched. This may include:
baggage and suitcases
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outer clothing/apparel
unworn clothing
packages (sealed or unsealed)
sporting equipment
musical instruments
electrical equipment.
An Authourised Officer cannot exercise their search powers under section 252 of the Migration Act to search
for items that do not fall within the scope of section 252(2). Section 252 can be used to search for illicit drugs
and chemicals in limited circumstances where the relevant item may be capable of inflicting bodily injury or
be evidence for grounds for cancelling the person’s visa.
The following are examples of items that may be located during a search and fall within the scope of section
252 of the Migration Act. This list is not exhaustive.
Documents or other items that are, or may be, evidence for cancelling a person’s visa
counterfeit travel documents
employment records
pay slips
resumes
laptop/notebook or personal internet enabled devices (PIED)
tools of trade.
Weapons
guns (including replicas), knives, machetes, clubs or ammunition
items capable of being used to inflict bodily injury include pocket knives, razor
blades, syringes, fireworks, lighters or matches, disabling sprays, scissors and other
cutting implements.
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4.3. Restrictions on searches
There are restrictions placed on searches of a person, a person's clothing and their property under
section 252 of the Migration Act.
The Authourised Officer
must not:
require the person to remove items of clothing (section 252(5))
use more force than is reasonably necessary to conduct the search (section 252(8))
subject the person to greater indignity than is reasonably necessary required to
perform the search (section 252(8))
conduct a search for any reason other than to find out whether there is hidden on
the person, in the clothing or in the property under the immediate control of the
person items within scope of section 252(2) of the Migration Act.
An Authourised Officer may take possession of a weapon or any other item capable of being used to inflict
bodily injury, or document or other thing that is, or may be, evidence for grounds for cancelling the person's
visa, found in the course of a search. The Authourised Officer may retain any such item for such time as he
or she thinks necessary for the purpose of the Migration Act (section 252(4)).
In accordance with section 252(6) of the Migration Act, a search under section 252 of the Migration Act of a
person and the person's clothing shall be conducted by:
an Authourised Officer of the same sex as the person
in a case where an Authourised Officer of the same sex as the person is not
available to conduct the search - any other person who is of the same sex and:
•
is requested by an authorised officer
•
agrees to conduct the search.
It is Departmental policy that the person requested to do the search pursuant to section 252(6)(b) of the
Migration Act is:
another ABF officer
a police officer who is readily available or involved in the operation.
Under these circumstances, the search must be conducted in the presence of the ABF officer.
4.4. Searching minors
The “best interests of the child” principle is a primary consideration for minors (persons under 18 years of
age). ABF Officers should ensure the treatment and conditions of the search procedure for minors are
humane and have as little adverse impact on the individual as possible.
Under policy, a search of a minor is to be conducted only where there is the belief that there is on their
person a weapon or other thing capable of being used to inflict bodily injury or to help the minor to escape
from immigration detention. Approval by an ABF Superintendent must be sought before a search is
conducted on a minor who is under 12 years of age.
Any search of a minor should be conducted in the presence of a parent or guardian. If the minor does not
want to have their parent or guardian present, another adult must be present who is capable of representing
the minor’s best interests and who, as far as is practicable in the circumstances, is acceptable to the minor.
Every opportunity, including a reasonable timeframe, must be given to the minor to comply with the request
to progress with a search request.
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4.5. Conducting the search
Preparation
In preparation for conducting the search, the ABF officer who is an Authourised Officer should consider
conducting the search in an interview room or private area
the person’s privacy, avoiding wherever possible the indignity of a public search
having another Departmental/ABF employee present where possible as a witness
during the search.
Where the person is of indeterminate sex the ABF officer should:
check the person’s passport and official records to determine the person’s sex
discuss the case with a supervisor
Searching
4.5.1.
When conducting the search, the ABF officer should:
be of the same sex
use an interpreter if required
ensure a witness of the same sex is present during the search
identify themselves
identify the witness(es) who will be present during the search
explain the purpose of, and legislative authority for the search
if searching a minor, ensure a parent or guardian is present if at all possible, or
alternatively an independent observer. See
Procedural Instruction: Managing Minors
in Immigration Clearance
provide the person an opportunity to relinquish any items of interest or to empty
pockets/bags prior to the search
only ask persons to remove jackets, hats etc., as persons are not required to
remove clothing unless an authorised strip search is being performed
conduct the search wearing gloves
pat the person’s clothing with open hands to determine if the person has anything of
interest in their clothes or on their body
not use more force or subject a person to greater indignity than is reasonably
necessary in order to conduct the search
search property in a way that will not be offensive to the person or damage the
person’s property
cease the search as soon as it is evident the search will not yield any items that
provided the reasons for the search under section 252(2) of the Migration Act
cease the search if the person’s clothing becomes dislodged
recommence the search only once the person has secured their clothing
issue property receipts for any items seized, using Form 41 Property receipt (see
appendix A).
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