Most people would feel that if a Department of Home Affairs officer lands on their door step they should let them in if they request to do so. If they were as cute and cuddly as these two you would definitely let them in and offer a bowl of milk. However most likely they will not be and if you do let them in it may not be the smartest move you will ever make.
You see a department officers are extremely busy people with an enormous stack of files on their desk. They are not going to turn up on your door unless they really feel they need to. No doubt they are thinking something is a little odd about you and they want a closer look. This means they are not there not to partake in polite conversation or doing so called “random checking”, they are there on a fishing expedition and you will be the catch of the day. If you let them in they then have all sorts of power that police officers can only dream about.
However they can only enter if the occupier of those premises has consented, otherwise they they need to present a search warrant which in reality is problematic to obtain (more work). They know that visa applicants are usually not hardened criminals so they rely on the fear card to get in the door, the fear that if you don’t let them in they will refuse your visa or just make your life difficult.
They regularly visit homes to conduct investigations of many visa applications, but more commonly heard when the DOHA is looking to test the genuinity of a partner visa application. We have met with cases where, upon a search of premises, the DOHA discovered that the applicant had no belongings with at the premises of their claimed de facto partner which can cast a shadow on your relationship.
They also visit business premises but we will talk about those types of visits in a later newsletter.
Now those of you reading this have an extremely small chance of ever meeting a department officer at your door step but if you do its important to know what your rights are just in case you do.
General Search and Entry Powers
Section 487D of the Migration Act outlines the general search and entry powers department officers must follow;
Authorised officer may enter premises by consent or under a search warrant
(1) If an authorised officer reasonably suspects that there may be evidential material on any premises, the authorised officer may:
(a) enter the premises; and
(b) exercise the search powers.
(2) However, an authorised officer is not authorised to enter the premises unless:
(a) the occupier of the premises has consented to the entry and the authorised officer has shown his or her identity card if required by the occupier; or
(b) the entry is made under a search warrant.
Note: If entry to the premises is with the occupier’s consent, the authorised officer must leave the premises if the consent ceases to have effect .
This means that if you do make a mistake in letting them in you can change your find quickly and kick them out.
Search warrants
With regard to search warrants, usually the department will not be able to obtain one unless they have some evidence of an offence has been committed. The majority of site visits are just fishing expeditions and they will not have a warrant. Don’t be bluffed either by and officer saying if you don’t let me in we can come back with a warrant.
But if they do have a search warrant shoved under your nose you had better let them in and just let them do their thing while you watch helplessly on. And BTW if they bring along a truck load of “assistants”, well hate to say it but you have to let them in also.
Request for documents
If an officer is granted consent to enter the premises whether based on cooperation or by search warrant, the officer may ask the occupier to:
- Answer any questions related to the reasons the officer is conducting the search
- Produce any document relating to the reasons the officer is conducting the search
Failure to comply (obstruction) with the search officer’s request is tantamount to an offence and the occupier will be penalised.
There you go, if you haven’t let them in the first place they can’t ask for anything so that is why it’s always safer not to let them in. But if you have let them in and don’t feel confident in kicking them out again, or if they have a search warrant (meaning you can’t kick them out), having a poor recollection of where you may have placed something or a poor memory because you drank too much that day does not really paramount to obstruction. I mean its not really deliberate is it?
Search powers
Should an occupier grant consent to the DOHA to enter their premises, they may search the premises and anything on the premises for any material that would be evidence that would count in the applicant’s visa application. So yes once they start digging through your underware its time to kick them out.
Should the DOHA officer be granted access on the basis of a search warrant, they may search the premises an anything on the premises for the kind of evidential material that is specified in the warrant, an have the power to seize the material if they find it on the premise.
What does ‘search’ mean? Authorised officers are able to:
- Inspect, examine, take measurements of, conduct tests on or take samples of evidential material
- Take still and/or record moving images of the premises or evidential material
- Bring onto the premises any equipment or material that is required for them to carry out their search
- Operate or seize any electronic equipment on the premises or any disk, tape or storage device that is suspected to carry evidential material
Electronic equipment, disks, tapes or other storage devices may only be seized if:
- It is not practicable to transfer the evidential material onto another documentary form/electronic form to remove from the premises
- Possession of the equipment, disk, tape or other storage device by the occupier could constitute an offence against the law of the Commonwealth.
Electronics can be finicky things. Do you know that if damage is caused to (the data or programs on) any electronic equipment, disk tape or other storage device due to insufficient care by the search officer(s), the occupier is entitled to compensation.
Keep in mind that this is subject to how they are granted consent and in the case of a search warrant, their search powers are to only include that which is specified in the search warrant. However if they find evidential material that is not related to the kind specific in the search warrant, but would be evidence as to contravention of a related provision (contravention of another immigration law), they are entitled to seize the item.
Should an item be seized, the officer(s) must provide the occupier with a receipt of the item. Seized items must be returned to the occupier as soon as the reason for its seizure no longer exists or in the period of 60 days after the seizure ends.
Officers are allowed to have persons assisting them in executing their search powers and are by law, able to use force if deemed necessary under circumstances.
Yes that means that it’s better just to bite your tongue and leave them alone do their thing.
Occupier’s rights and responsibilities
The occupier is entitled to observe the execution of a search warrant unless they impede the search. If the search happens in two or more areas of the premises at the same time, the search will continue even if the occupier may only observe one of the areas.
The occupant is to provide the officer(s) with all reasonable facilities and assistance for the effective exercise of their powers. A reminder that failure to do so (obstruction) will result in the occupier having committed an offence and is subject to penalty.
So this means if a door is locked it’s better just to give them the key or they may break it down anyway.
What can you do?
Want my advice if they turn up to your door without a search warrant? Offer them a takeaway cup of tea and tell them with a smile on your face that you are happy to help with their enquiries. Then give them the number of your migration agent to call in the morning who will be happy to arrange a time where you can all sit down together and have a nice long chat.
But what if they won’t take no for an answer and they stand on your doorstep like a pair (yes they come in pairs) of garden gnomes? Then quickly look up this newsletter on your mobile phone and ask them to have a read. I’m sure they will soon shuffle along. But if you cant find this newsletter fast enough, just tell them you will call the police to remove them. That will really get them going. Who says garden gnomes can’t run?
Don’t be alarmed. It’s unlikely you’ll get a visit but it’s always good to be prepared! If you think you may be on their list then come and see us for a preparation chat. If you have reasons to worry about our visa, speak to our migration specialists who have depth with a multitude of complex cases in all types of visas. Call +61 2 8054 2537, 0434 890 199 or book online.
