What does it mean to be ‘Immigration Cleared’, and why is this important?
The phrase ‘immigration cleared’ appears throughout the Migration Act 1958. It relates to the legal status of a person once they have arrived in Australia.
As the act of entering Australia impacts how a person is treated under the law (i.e. once you enter on a visa, certain conditions become activated, the time limit for that visa begins to count down, etc), it is important to understand what is meant by being ‘immigration cleared’.
The Act provides at s172 that (with the exception of a child born in Australia) a person must arrive in Australia and be given permission to enter with the permission of a relevant “clearance authority” (this will usually mean the Department of Immigration and Border Protection.
For the vast majority of arrivals, this will involve the person arriving at an airport or seaport, displaying their passport and valid visa to an immigration officer and then exiting the terminal.
Why does this matter?
It is of critical importance to note that the ‘terminal’, in this instance, includes not only the airport building but also the surrounding precinct (carparks, etc, which form part of the airport complex.
Unless a person departs the airport complex entirely, they have NOT been immigration cleared. This is an important distinction for some people, especially those arriving on a valid visa and wishing to seek asylum.
Consider these two scenarios:
Rahul arrives at Sydney airport on a valid student visa. He is allowed to pass through immigration clearance, collect his bag and depart the airport. He takes a taxi to the Department of Immigration in the city, where he lodges an application for a protection visa on the grounds of political persecution. Despite having been in the country only a matter of hours, he will be granted a Bridging Visa and allowed to stay in Australia until his application is determined.
Ying arrives on the next flight and on the same visa type. Before she passes through immigration clearance, she indicates to a member of staff that she wishes to seek protection in Australia. As she has not yet been immigration cleared, she is not eligible for the same treatment as Rahul. She is interviewed for five minutes by the case officer, who determines that she is not eligible for protection as her claims are not strong enough.
Ying is placed on the same aircraft and immediately sent home. Her student visa is cancelled and she will not be eligible to apply for another visa to travel to Australia for three years.
Even if Ying had physical passed through immigration clearance, but not departed the grounds of the airport before requesting protection, she would not be considered to have been immigration cleared.