An Act relating to the entry into, and presence in, Australia of aliens, and the departure or deportation from Australia of aliens and certain other persons
Part 1—Preliminary
1 Short title [see Note 1]
This Act may be cited as the Migration Act 1958.
2 Commencement [see Note 1]
The several Parts of this Act shall come into operation on such dates as are respectively fixed by Proclamation.
3 Repeal and savings
(1) The Acts specified in the Schedule to this Act are repealed.
(2) Section 9 of the War Precautions Act Repeal Act 1920‑1955 and the heading to that section, and the Schedule to that Act, are repealed.
(3) The War Precautions Act Repeal Act 1920‑1955, as amended by this section, may be cited as the War Precautions Act Repeal Act 1920‑1958.
(4) Notwithstanding the repeals effected by this section:
(a) a certificate of exemption in force under the Immigration Act 1901‑1949 immediately before the date of commencement of this Part shall, for all purposes of this Act, be deemed to be a temporary visa granted under this Act to the person specified in the certificate and authorizing that person to remain in Australia for a period ending on the date on which the certificate would have expired if this Act had not been passed.
(5) For the purposes of paragraph (4)(a), where, before the commencement of this Part, a person who had previously entered Australia re‑entered Australia and, upon or after the re‑entry, a certificate of exemption purported to be issued to the person, the certificate shall be deemed to have been as validly issued as if the person had not previously entered Australia.
3A Act not to apply so as to exceed Commonwealth power
(1) Unless the contrary intention appears, if a provision of this Act:
(a) would, apart from this section, have an invalid application; but
(b) also has at least one valid application;
it is the Parliament’s intention that the provision is not to have the invalid application, but is to have every valid application.
(2) Despite subsection (1), the provision is not to have a particular valid application if:
(a) apart from this section, it is clear, taking into account the provision’s context and the purpose or object underlying this Act, that the provision was intended to have that valid application only if every invalid application, or a particular invalid application, of the provision had also been within the Commonwealth’s legislative power; or
(b) the provision’s operation in relation to that valid application would be different in a substantial respect from what would have been its operation in relation to that valid application if every invalid application of the provision had been within the Commonwealth’s legislative power.
(3) Subsection (2) does not limit the cases where a contrary intention may be taken to appear for the purposes of subsection (1).
(4) This section applies to a provision of this Act, whether enacted before, at or after the commencement of this section.
(5) In this section:
application means an application in relation to:
(a) one or more particular persons, things, matters, places, circumstances or cases; or
(b) one or more classes (however defined or determined) of persons, things, matters, places, circumstances or cases.
invalid application, in relation to a provision, means an application because of which the provision exceeds the Commonwealth’s legislative power.
valid application, in relation to a provision, means an application that, if it were the provision’s only application, would be within the Commonwealth’s legislative power.
3B Compensation for acquisition of property
(1) If:
(a) this Act would result in an acquisition of property; and
(b) any provision of this Act would not be valid, apart from this section, because a particular person has not been compensated;
the Commonwealth must pay that person:
(c) a reasonable amount of compensation agreed on between the person and the Commonwealth; or
(d) failing agreement—a reasonable amount of compensation determined by a court of competent jurisdiction.
(2) Any damages or compensation recovered, or other remedy given, in a proceeding begun otherwise than under this section must be taken into account in assessing compensation payable in a proceeding begun under this section and arising out of the same event or transaction.
(3) In this section:
acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.
4 Object of Act
(1) The object of this Act is to regulate, in the national interest, the coming into, and presence in, Australia of non‑citizens.
(2) To advance its object, this Act provides for visas permitting non‑citizens to enter or remain in Australia and the Parliament intends that this Act be the only source of the right of non‑citizens to so enter or remain.
(3) To advance its object, this Act requires persons, whether citizens or non‑citizens, entering Australia to identify themselves so that the Commonwealth government can know who are the non‑citizens so entering.
(4) To advance its object, this Act provides for the removal or deportation from Australia of non‑citizens whose presence in Australia is not permitted by this Act.
4AA Detention of minors a last resort
(1) The Parliament affirms as a principle that a minor shall only be detained as a measure of last resort.
(2) For the purposes of subsection (1), the reference to a minor being detained does not include a reference to a minor residing at a place in accordance with a residence determination.
4A Application of the Criminal Code
Chapter 2 of the Criminal Code (except Part 2.5) applies to all offences against this Act.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
5 Interpretation
(1) In this Act, unless the contrary intention appears:
absorbed person visa has the meaning given by section 34.
adjacent area means an adjacent area in respect of a State, of the Northern Territory, of the Territory of Ashmore and Cartier Islands, of the Territory of Cocos (Keeling) Islands or of the Territory of Christmas Island, as determined in accordance with section 5 of the Sea Installations Act.
adoption has the same meaning as in the regulations.
allowed inhabitant of the Protected Zone means an inhabitant of the Protected Zone, other than an inhabitant to whom a declaration under section 16 (presence declared undesirable) applies.
applicable pass mark, in relation to a visa of a particular class, means the number of points specified as the pass mark for that class in a notice, under section 96, in force at the time concerned.
applicable pool mark, in relation to a visa of a particular class, means the number of points specified as the pool mark for that class in a notice under section 96 in force at the time concerned.
approved form, when used in a provision of this Act, means a form approved by the Minister in writing for the purposes of that provision.
approved sponsor means:
(a) a person:
(i) who has been approved by the Minister under section 140E in relation to a class prescribed by the regulations for the purpose of subsection 140E(2); and
(ii) whose approval has not been cancelled under section 140M, or otherwise ceased to have effect under section 140G, in relation to that class; or
(b) a person (other than a Minister) who is a party to a work agreement.
Note: A partnership or an unincorporated association may be an approved sponsor: see subsections 140ZB(1) and 140ZE(1) respectively.
area in the vicinity of the Protected Zone means an area in respect of which a notice is in force under subsection (8).
assessed score, in relation to an applicant for a visa, means the total number of points given to the applicant in an assessment under section 93.
Australian passport means a passport issued under the Australian Passports Act 2005.
Australian resources installation means a resources installation that is deemed to be part of Australia because of the operation of section 8.
Australian seabed means so much of the seabed adjacent to Australia (other than the seabed within the Joint Petroleum Development Area) as is:
(a) within the area comprising:
(i) the areas described in Schedule 1 to the Offshore Petroleum and Greenhouse Gas Storage Act 2006; and
(ii) the Coral Sea area; and
(b) part of:
(i) the continental shelf of Australia;
(ii) the seabed beneath the territorial sea of Australia (including the territorial sea adjacent to any island forming part of Australia); or
(iii) the seabed beneath waters of the sea that are on the landward side of the territorial sea of Australia and are not within the limits of a State or Territory.
Australian sea installation means a sea installation that is deemed to be part of Australia because of the operation of section 9.
Australian waters means:
(a) in relation to a resources installation—waters above the Australian seabed; and
(b) in relation to a sea installation—waters comprising all of the adjacent areas and the coastal area.
authorised officer, when used in a provision of this Act, means an officer authorised in writing by the Minister or the Secretary for the purposes of that provision.
Note: Section 5D can affect the meaning of this term for the purposes of carrying out identification tests.
authorised system, when used in a provision of this Act, means an automated system authorised in writing by the Minister or the Secretary for the purposes of that provision.
behaviour concern non‑citizen means a non‑citizen who:
(a) has been convicted of a crime and sentenced to death or to imprisonment, for at least one year; or
(b) has been convicted of 2 or more crimes and sentenced to imprisonment, for periods that add up to at least one year if:
(i) any period concurrent with part of a longer period is disregarded; and
(ii) any periods not disregarded that are concurrent with each other are treated as one period;
whether or not:
(iii) the crimes were of the same kind; or
(iv) the crimes were committed at the same time; or
(v) the convictions were at the same time; or
(vi) the sentencings were at the same time; or
(vii) the periods were consecutive; or
(c) has been charged with a crime and either:
(i) found guilty of having committed the crime while of unsound mind; or
(ii) acquitted on the ground that the crime was committed while the person was of unsound mind;
(d) has been removed or deported from Australia or removed or deported from another country; or
(e) has been excluded from another country in prescribed circumstances;
where sentenced to imprisonment includes ordered to be confined in a corrective institution.
bridging visa has the meaning given by section 37.
brought into physical contact has the same meaning as in the Sea Installations Act.
bypass immigration clearance has the meaning given by subsection 172(4).
certified printout means a printout certified by an authorised officer to be a printout of information kept in the movement records.
character concern has the meaning given by section 5C.
child of a person has a meaning affected by section 5CA.
civil penalty provision means a subsection, or a section that is not divided into subsections, that has set out at its foot the words “civil penalty” and one or more amounts in penalty units.
clearance authority has the meaning given by section 165.
clearance officer has the meaning given by section 165.
coastal area has the same meaning as in the Customs Act 1901.
committee of management of an unincorporated association means a body (however described) that governs, manages or conducts the affairs of the association.
continental shelf has the same meaning as in the Seas and Submerged Lands Act 1973.
Coral Sea area has the same meaning as in section 7 of the Offshore Petroleum and Greenhouse Gas Storage Act 2006.
crime includes any offence.
criminal justice visa has the meaning given by section 38.
data base (except in Part 4A) means a discrete body of information stored by means of a computer.
Note: Section 336A defines this term differently for the purposes of Part 4A.
de facto partner has the meaning given by section 5CB.
departure prohibition order means an order under subsection 14S(1) of the Taxation Administration Act 1953.
deportation means deportation from Australia.
deportation order means an order for the deportation of a person made under, or continued in force by, this Act.
deportee means a person in respect of whom a deportation order is in force.
detain means:
(a) take into immigration detention; or
(b) keep, or cause to be kept, in immigration detention;
and includes taking such action and using such force as are reasonably necessary to do so.
Note: This definition extends to persons covered by residence determinations (see section 197AC).
detainee means a person detained.
Note: This definition extends to persons covered by residence determinations (see section 197AC).
diplomatic or consular representative, in relation to a country other than Australia, means a person who has been appointed to, or is the holder of, a post or position in a diplomatic or consular mission of that country in Australia, not being a person who was ordinarily resident in Australia when he or she was appointed to be a member of the mission.
eligible court means:
(a) the Federal Court; or
(b) the Federal Magistrates Court; or
(c) a District, County or Local Court; or
(d) a magistrates court; or
(e) any other State or Territory court that is prescribed by the regulations.
enforcement visa has the meaning given by section 38A.
enter includes re‑enter.
enter Australia, in relation to a person, means enter the migration zone.
entered includes re‑entered.
entry includes re‑entry.
environment detention offence means:
(a) an offence against the Environment Protection and Biodiversity Conservation Act 1999, or against regulations made for the purposes of that Act; or
(b) an offence against section 6 of the Crimes Act 1914 relating to an offence described in paragraph (a).
environment officer means an authorised officer, within the meaning of the Environment Protection and Biodiversity Conservation Act 1999, but does not include a person who is an authorised officer because of subsection 397(3) of that Act.
environment related activity has the same meaning as in the Sea Installations Act.
excised offshore place means any of the following:
(a) the Territory of Christmas Island;
(b) the Territory of Ashmore and Cartier Islands;
(c) the Territory of Cocos (Keeling) Islands;
(d) any other external Territory that is prescribed by the regulations for the purposes of this paragraph;
(e) any island that forms part of a State or Territory and is prescribed for the purposes of this paragraph;
(f) an Australian sea installation;
(g) an Australian resources installation.
Note: The effect of this definition is to excise the listed places and installations from the migration zone for the purposes of limiting the ability of offshore entry persons to make valid visa applications.
excision time, for an excised offshore place, means:
(a) for the Territory of Christmas Island—2 pm on 8 September 2001 by legal time in the Australian Capital Territory; or
(b) for the Territory of Ashmore and Cartier Islands—2 pm on 8 September 2001 by legal time in the Australian Capital Territory; or
(c) for the Territory of Cocos (Keeling) Islands—12 noon on 17 September 2001 by legal time in the Australian Capital Territory; or
(d) for any other external Territory that is prescribed by the regulations for the purposes of the definition of excised offshore place—the time when the regulations commence; or
(e) for any island that forms part of a State or Territory and is prescribed by the regulations for the purposes of the definition of excised offshore place—the time when the regulations commence; or
(f) for an Australian sea installation—the commencement of the Migration Amendment (Excision from Migration Zone) Act 2001; or
(g) for an Australian resources installation—the commencement of the Migration Amendment (Excision from Migration Zone) Act 2001.
ex‑citizen visa has the meaning given by section 35.
Federal Court means the Federal Court of Australia.
fisheries detention offence means:
(a) an offence against section 99, 100, 100A, 100B, 101, 101A, 101AA, 101B, 105E, 105EA, 105H or 105I of the Fisheries Management Act 1991; or
(b) an offence against section 45, 46A, 46B, 46C, 46D, 48, 49, 49A, 51 or 51A of the Torres Strait Fisheries Act 1984; or
(c) an offence against section 6 of the Crimes Act 1914 relating to an offence described in paragraph (a) or (b).
fisheries officer means an officer as defined in the Fisheries Management Act 1991 or the Torres Strait Fisheries Act 1984.
foreign aircraft (environment matters) means an aircraft, within the meaning of the Environment Protection and Biodiversity Conservation Act 1999, that is not an Australian aircraft (within the meaning of that Act).
foreign boat has the same meaning as in the Fisheries Management Act 1991.
health concern non‑citizen means a non‑citizen who is suffering from a prescribed disease or a prescribed physical or mental condition.
health criterion, in relation to a visa, means a prescribed criterion for the visa that:
(a) relates to the applicant for the visa, or the members of the family unit of that applicant; and
(b) deals with:
(i) a prescribed disease; or
(ii) a prescribed kind of disease; or
(iii) a prescribed physical or mental condition; or
(iv) a prescribed kind of physical or mental condition; or
(v) a prescribed kind of examination; or
(vi) a prescribed kind of treatment.
holder, in relation to a visa, means, subject to section 77 (visas held during visa period) the person to whom it was granted or a person included in it.
identification test means a test carried out in order to obtain a personal identifier.
identity document, in relation to a member of the crew of a vessel, means:
(a) an identification card, in accordance with a form approved by the Minister, in respect of the member signed by the master of the vessel; or
(b) a document, of a kind approved by the Minister as an identity document for the purposes of this Act, in respect of the member.
immigration cleared has the meaning given by subsection 172(1).
immigration detention means:
(a) being in the company of, and restrained by:
(i) an officer; or
(ii) in relation to a particular detainee—another person directed by the Secretary to accompany and restrain the detainee; or
(b) being held by, or on behalf of, an officer:
(i) in a detention centre established under this Act; or
(ii) in a prison or remand centre of the Commonwealth, a State or a Territory; or
(iii) in a police station or watch house; or
(iv) in relation to a non‑citizen who is prevented, under section 249, from leaving a vessel—on that vessel; or
(v) in another place approved by the Minister in writing;
but does not include being restrained as described in subsection 245F(8A), or being dealt with under paragraph 245F(9)(b).
Note 1: See also section 198A, which provides that being dealt with under that section does not amount to immigration detention.
Note 2: This definition extends to persons covered by residence determinations (see section 197AC).
incapable person means a person who is incapable of understanding the general nature and effect of, and purposes of, a requirement to provide a personal identifier.
independent person means a person (other than an officer or an authorised officer) who:
(a) is capable of representing the interests of a non‑citizen who is providing, or is to provide, a personal identifier; and
(b) as far as practicable, is acceptable to the non‑citizen who is providing, or is to provide, the personal identifier; and
(c) if the non‑citizen is a minor—is capable of representing the minor’s best interests.
inhabitant of the Protected Zone means a person who is a citizen of Papua New Guinea and who is a traditional inhabitant.
in immigration clearance has the meaning given by subsection 172(2).
installation means:
(a) a resources installation; or
(b) a sea installation.
Joint Petroleum Development Area has the same meaning as in the Petroleum (Timor Sea Treaty) Act 2003.
lawful non‑citizen has the meaning given by section 13.
lawyer means:
(a) a barrister; or
(b) a solicitor; or
(c) a barrister and solicitor; or
(d) a legal practitioner;
of the High Court or of the Supreme Court of a State or Territory.
leave Australia, in relation to a person, means, subject to section 80 (leaving without going to other country), leave the migration zone.
maritime crew visa has the meaning given by section 38B.
master, in relation to a vessel, means the person in charge or command of the vessel.
member of the crew means:
(a) in relation to a vessel other than an aircraft—the master of the vessel, or a person whose name is on the articles of the vessel as a member of the crew; or
(b) in relation to an aircraft—the master of the aircraft, or a person employed by the operator of the aircraft and whose name is included in a list of members of the crew of the aircraft furnished by the master as prescribed.
member of the family unit of a person has the meaning given by the regulations made for the purposes of this definition.
member of the same family unit: one person is a member of the same family unit as another if either is a member of the family unit of the other or each is a member of the family unit of a third person.
migration decision means:
(a) a privative clause decision; or
(b) a purported privative clause decision; or
(c) a non‑privative clause decision.
Migration Review Tribunal means the Migration Review Tribunal established by section 394.
migration zone means the area consisting of the States, the Territories, Australian resource installations and Australian sea installations and, to avoid doubt, includes:
(a) land that is part of a State or Territory at mean low water; and
(b) sea within the limits of both a State or a Territory and a port; and
(c) piers, or similar structures, any part of which is connected to such land or to ground under such sea;
but does not include sea within the limits of a State or Territory but not in a port.
minor means a person who is less than 18 years old.
movement records means information stored in a notified data base.
natural resources means the mineral and other non‑living resources of the seabed and its subsoil.
non‑citizen means a person who is not an Australian citizen.
non‑disclosable information means information or matter:
(a) whose disclosure would, in the Minister’s opinion, be contrary to the national interest because it would:
(i) prejudice the security, defence or international relations of Australia; or
(ii) involve the disclosure of deliberations or decisions of the Cabinet or of a committee of the Cabinet; or
(b) whose disclosure would, in the Minister’s opinion, be contrary to the public interest for a reason which could form the basis of a claim by the Crown in right of the Commonwealth in judicial proceedings; or
(c) whose disclosure would found an action by a person, other than the Commonwealth, for breach of confidence;
and includes any document containing, or any record of, such information or matter.
non‑privative clause decision has the meaning given by subsection 474(6).
notified data base means a data base declared to be a notified data base under section 489.
offence against this Act includes:
(a) an offence against section 6 of the Crimes Act 1914 that relates to an offence against a provision of this Act; and
(b) an ancillary offence (within the meaning of the Criminal Code) that is, or relates to, an offence against a provision of this Act.
officer means:
(a) an officer of the Department, other than an officer specified by the Minister in writing for the purposes of this paragraph; or
(b) a person who is an officer for the purposes of the Customs Act 1901, other than such an officer specified by the Minister in writing for the purposes of this paragraph; or
(c) a person who is a protective service officer for the purposes of the Australian Federal Police Act 1979, other than such a person specified by the Minister in writing for the purposes of this paragraph; or
(d) a member of the Australian Federal Police or of the police force of a State or an internal Territory; or
(e) a member of the police force of an external Territory; or
(f) a person who is authorised in writing by the Minister to be an officer for the purposes of this Act; or
(g) any person who is included in a class of persons authorised in writing by the Minister to be officers for the purposes of this Act, including a person who becomes a member of the class after the authorisation is given.
offshore entry person means a person who:
(a) entered Australia at an excised offshore place after the excision time for that offshore place; and
(b) became an unlawful non‑citizen because of that entry.
old visa means a visa, document, or notation, that:
(a) permits a person to travel to Australia; and
(b) was issued before 1 September 1994; and
(c) has not been cancelled or otherwise stopped being in effect.
parent: without limiting who is a parent of a person for the purposes of this Act, someone is the parent of a person if the person is his or her child because of the definition of child in section 5CA.
passport includes a document of identity issued from official sources, whether in or outside Australia, and having the characteristics of a passport, but does not include a document, which may be a document called or purporting to be a passport, that the regulations declare is not to be taken to be a passport.
penalty unit has the meaning given by section 4AA of the Crimes Act 1914.
permanent visa has the meaning given by subsection 30(1).
personal identifier has the meaning given by section 5A.
personal information has the same meaning as in the Privacy Act 1988.
port means:
(a) a proclaimed port; or
(b) a proclaimed airport.
pre‑cleared flight means a flight declared under section 17 to be a pre‑cleared flight.
prescribed means prescribed by the regulations.
printout means a mechanically or electronically made reproduction of part or all of the movement records.
privative clause decision has the meaning given by subsection 474(2).
proclaimed airport means:
(a) an airport appointed under section 15 of the Customs Act 1901; or
(b) an airport appointed by the Minister under subsection (5).
proclaimed port means:
(a) a port appointed under section 15 of the Customs Act 1901; or
(b) a port appointed by the Minister under subsection (5).
protected area means an area that is:
(a) part of the migration zone; and
(b) in, or in an area in the vicinity of, the Protected Zone.
Protected Zone means the zone established under Article 10 of the Torres Strait Treaty, being the area bounded by the line described in Annex 9 to that treaty.
purported privative clause decision has the meaning given by section 5E.
questioning detention means detention under section 192.
Refugee Review Tribunal means the Refugee Review Tribunal established by section 457.
Refugees Convention means the Convention relating to the Status of Refugees done at Geneva on 28 July 1951.
Refugees Protocol means the Protocol relating to the Status of Refugees done at New York on 31 January 1967.
refused immigration clearance has the meaning given by subsection 172(3).
remain in Australia, in relation to a person, means remain in the migration zone.
remove means remove from Australia.
removee means an unlawful non‑citizen removed, or to be removed, under Division 8 of Part 2.
residence determination has the meaning given by subsection 197AB(1).
resources installation means:
(a) a resources industry fixed structure within the meaning of subsection (10); or
(b) a resources industry mobile unit within the meaning of subsection (11).
RRT‑reviewable decision has the meaning given by section 411.
score, in relation to a visa applicant, means the total number of points given to the applicant under section 93 in the most recent assessment or re‑assessment under Subdivision B of Division 3 of Part 2.
sea installation has the same meaning as in the Sea Installations Act.
Sea Installations Act means the Sea Installations Act 1987.
Secretary means the Secretary of the Department.
special category visa has the meaning given by section 32.
special purpose visa has the meaning given by section 33.
spouse has the meaning given by section 5F.
student visa has the meaning given by the regulations.
substantive visa means a visa other than:
(a) a bridging visa; or
(b) a criminal justice visa; or
(c) an enforcement visa.
temporary visa has the meaning given by subsection 30(2).
Territory means:
(a) an internal Territory; or
(b) an external Territory to which this Act extends.
ticket includes a travel document in respect of the conveyance of a person from one place to another place.
Torres Strait Treaty means the Treaty between Australia and the Independent State of Papua New Guinea that was signed at Sydney on 18 December 1978.
traditional activities has the same meaning as in the Torres Strait Treaty.
traditional inhabitants has the same meaning as in the Torres Strait Fisheries Act 1984.
transitory person means:
(a) an offshore entry person who was taken to another country under section 198A; or
(b) a person who was taken to a place outside Australia under paragraph 245F(9)(b); or
(c) a person who, while a non‑citizen and during the period from 27 August 2001 to 6 October 2001:
(i) was transferred to the ship HMAS Manoora from the ship Aceng or the ship MV Tampa; and
(ii) was then taken by HMAS Manoora to another country; and
(iii) disembarked in that other country;
but does not include a person who has been assessed to be a refugee for the purposes of the Refugees Convention as amended by the Refugees Protocol.
unlawful non‑citizen has the meaning given by section 14.
vessel includes an aircraft or an installation.
vessel (environment matters) means a vessel, within the meaning of the Environment Protection and Biodiversity Conservation Act 1999.
visa has the meaning given by section 29 and includes an old visa.
visa applicant means an applicant for a visa and, in relation to a visa, means the applicant for the visa.
visa application charge means the charge payable under section 45A.
visa application charge limit is the amount determined under the Migration (Visa Application) Charge Act 1997.
visa holder means the holder of a visa and, in relation to a visa, means the holder of the visa.
visa period, in relation to a visa, means the period:
(a) beginning when the visa is granted; and
(b) ending:
(i) in the case of a visa other than a bridging visa—when the visa ceases to be in effect; or
(ii) in the case of a bridging visa—when the visa ceases to be in effect otherwise than under subsection 82(3).
work agreement means an agreement that satisfies the requirements prescribed by the regulations for the purposes of this definition.
working day, in relation to a place, means any day that is not a Saturday, a Sunday or a public holiday in that place.
(1A) The Minister has power to give authorisations as provided by paragraphs (f) and (g) of the definition of officer in subsection (1) and, if such an authorisation is given:
(a) the Minister is to cause notice of the authorisation to be published in the Gazette; but
(b) without affecting the obligation of the Minister to cause a notice to be so published:
(i) the authorisation takes effect when it is given; and
(ii) the validity of the authorisation is not affected if such a notice is not published.
(1B) The Minister or the Secretary has the power to give authorisations as provided by the definition of authorised system.
(2) For the purposes of this Act, a person has functional English at a particular time if:
(a) the person passes a test that:
(i) is approved in writing by the Minister for the purposes of this subsection; and
(ii) is conducted by a person, or organisation, approved for the purposes of this subsection by the Minister by notice in the Gazette; or
(b) the person provides the Minister with prescribed evidence of the person’s English language proficiency.
(3) Any power that may be exercised by an authorized officer or by an officer under this Act may also be exercised by the Minister.
(4) Where, in any provision of this Act, reference is made to the exercise of a power by an authorized officer or by an officer and that power is a power which, by virtue of subsection (3), may also be exercised by the Minister, that reference shall be construed as including a reference to the exercise of that power by the Minister.
(4A) A reference in the definition of independent person in subsection (1) of this section, in sections 258 to 258G or in Division 13AB of Part 2 to a non‑citizen includes a reference to a person whom an officer, in the course of exercising or considering the exercising of his or her powers under section 188, reasonably suspects is a non‑citizen.
(5) The Minister may, by notice published in the Gazette:
(a) appoint ports in an external Territory to which this Act extends as proclaimed ports for the purposes of this Act and fix the limits of those ports; and
(b) appoint airports in an external Territory to which this Act extends as proclaimed airports for the purposes of this Act and fix the limits of those airports.
(6) For the purposes of this Act, where a resources installation that has been brought into Australian waters from a place outside the outer limits of Australian waters becomes attached to the Australian seabed:
(a) the installation shall be deemed to have entered Australia at the time when it becomes so attached;
(b) any person on board the installation at the time when it becomes so attached shall be deemed to have travelled to Australia on board that installation, to have entered Australia at that time and to have been brought into Australia at that time.
(7) For the purposes of this Act, where a sea installation that has been brought into Australian waters from a place outside the outer limits of Australian waters is installed in an adjacent area or in a coastal area:
(a) the installation shall be deemed to have entered Australia at the time that it becomes so installed; and
(b) any person on board the installation at the time that it becomes so installed shall be deemed to have travelled to Australia on board that installation, to have entered Australia at that time and to have been brought into Australia at that time.
(8) The Minister may, by notice published in the Gazette, declare an area adjacent to the Protected Zone and to the south of the line described in Annex 5 to the Torres Strait Treaty to be an area in the vicinity of the Protected Zone for the purposes of this Act.
(9) For the purposes of this Act, an application under this Act is finally determined when either:
(a) a decision that has been made in respect of the application is not, or is no longer, subject to any form of review under Part 5 or 7; or
(b) a decision that has been made in respect of the application was subject to some form of review under Part 5 or 7, but the period within which such a review could be instituted has ended without a review having been instituted as prescribed.
(10) A reference in this Act to a resources industry fixed structure shall be read as a reference to a structure (including a pipeline) that:
(a) is not able to move or be moved as an entity from one place to another; and
(b) is used or is to be used off‑shore in, or in any operations or activities associated with, or incidental to, exploring or exploiting natural resources.
(11) A reference in this Act to a resources industry mobile unit shall be read as a reference to:
(a) a vessel that is used or is to be used wholly or principally in:
(i) exploring or exploiting natural resources by drilling the seabed or its subsoil with equipment on or forming part of the vessel or by obtaining substantial quantities of material from the seabed or its subsoil with equipment of that kind; or
(ii) operations or activities associated with, or incidental to, activities of the kind referred to in subparagraph (i); or
(b) a structure (not being a vessel) that:
(i) is able to float or be floated;
(ii) is able to move or be moved as an entity from one place to another; and
(iii) is used or is to be used off‑shore wholly or principally in:
(A) exploring or exploiting natural resources by drilling the seabed or its subsoil with equipment on or forming part of the structure or by obtaining substantial quantities of material from the seabed or its subsoil with equipment of that kind; or
(B) operations or activities associated with, or incidental to, activities of the kind referred to in sub-subparagraph (A).
(12) A vessel of a kind referred to in paragraph (11)(a) or a structure of a kind referred to in paragraph (11)(b) shall not be taken not to be a resources industry mobile unit by reason only that the vessel or structure is also used or to be used in, or in any operations or activities associated with, or incidental to, exploring or exploiting resources other than natural resources.
(13) The reference in subparagraph (11)(a)(ii) to a vessel that is used or is to be used wholly or principally in operations or activities associated with, or incidental to, activities of the kind referred to in subparagraph (11)(a)(i) shall be read as not including a reference to a vessel that is used or is to be used wholly or principally in:
(a) transporting persons or goods to or from a resources installation; or
(b) manoeuvring a resources installation, or in operations relating to the attachment of a resources installation to the Australian seabed.
(14) A resources installation shall be taken to be attached to the Australian seabed if:
(a) the installation:
(i) is in physical contact with, or is brought into physical contact with, a part of the Australian seabed; and
(ii) is used or is to be used, at that part of the Australian seabed, wholly or principally in or in any operations or activities associated with, or incidental to, exploring or exploiting natural resources; or
(b) the installation:
(i) is in physical contact with, or is brought into physical contact with, another resources installation that is taken to be attached to the Australian seabed by virtue of the operation of paragraph (a); and
(ii) is used or is to be used, at the place where it is brought into physical contact with the other installation, wholly or principally in or in any operations or activities associated with, or incidental to, exploring or exploiting natural resources.
(15) Subject to subsection (17), for the purposes of this Act, a sea installation shall be taken to be installed in an adjacent area if:
(a) the installation is in, or is brought into, physical contact with a part of the seabed in the adjacent area; or
(b) the installation is in, or is brought into, physical contact with another sea installation that is to be taken to be installed in the adjacent area because of paragraph (a).
(16) For the purposes of this Act, a sea installation shall be taken to be installed in an adjacent area at a particular time if the whole or part of the installation:
(a) is in that adjacent area at that time; and
(b) has been in a particular locality:
(i) that is circular and has a radius of 20 nautical miles; and
(ii) the whole or part of which is in that adjacent area;
for:
(iii) a continuous period, of at least 30 days, that immediately precedes that time; or
(iv) one or more periods, during the 60 days that immediately precede that time, that in sum amount to at least 40 days.
(17) Where a sea installation, being a ship or an aircraft:
(a) is brought into physical contact with a part of the seabed in an adjacent area; or
(b) is in, or is brought into, physical contact with another sea installation that is to be taken to be installed in an adjacent area;
for less than:
(c) in the case of a ship, or an aircraft, registered under the law of a foreign country—30 days; or
(d) in any other case—5 days;
it shall not be taken to be installed in that adjacent area under subsection (15).
(18) A sea installation shall not be taken to be installed in an adjacent area for the purposes of this Act unless it is to be taken to be so installed under this section.
(19) Subject to subsection (21), for the purposes of this Act, a sea installation shall be taken to be installed in a coastal area if:
(a) the installation is in, or is brought into, physical contact with a part of the seabed in the coastal area; or
(b) the installation is in, or is brought into, physical contact with another sea installation that is to be taken to be installed in the coastal area because of paragraph (a).
(20) For the purposes of this Act, a sea installation (other than an installation installed in an adjacent area) shall be taken to be installed at a particular time in a coastal area if the whole or part of the installation:
(a) is in that coastal area at that time; and
(b) has been in a particular locality:
(i) that is circular and has a radius of 20 nautical miles; and
(ii) the whole or part of which is in that coastal area;
for:
(iii) a continuous period, of at least 30 days, that immediately precedes that time; or
(iv) one or more periods, during the 60 days that immediately precede that time, that in sum amount to at least 40 days.
(21) Where a sea installation, being a ship or an aircraft:
(a) is brought into physical contact with a part of the seabed in a coastal area; or
(b) is in, or is brought into, physical contact with another sea installation that is to be taken to be installed in a coastal area;
for less than:
(c) in the case of a ship, or an aircraft, registered under the law of a foreign country—30 days; or
(d) in any other case—5 days;
it shall not be taken to be installed in that coastal area under subsection (19).
(22) A sea installation shall not be taken to be installed in a coastal area for the purposes of this Act unless it is to be taken to be so installed under this section.
(23) To avoid doubt, in this Act is taken, when followed by the infinitive form of a verb, has the same force and effect as is deemed when followed by the infinitive form of that verb.
5A Meaning of personal identifier
(1) In this Act:
personal identifier means any of the following (including any of the following in digital form):
(a) fingerprints or handprints of a person (including those taken using paper and ink or digital livescanning technologies);
(b) a measurement of a person’s height and weight;
(c) a photograph or other image of a person’s face and shoulders;
(d) an audio or a video recording of a person (other than a video recording under section 261AJ);
(e) an iris scan;
(f) a person’s signature;
(g) any other identifier prescribed by the regulations, other than an identifier the obtaining of which would involve the carrying out of an intimate forensic procedure within the meaning of section 23WA of the Crimes Act 1914.
(2) Before the Governor‑General makes regulations for the purposes of paragraph (1)(g) prescribing an identifier, the Minister must be satisfied that:
(a) obtaining the identifier would not involve the carrying out of an intimate forensic procedure within the meaning of section 23WA of the Crimes Act 1914; and
(b) the identifier is an image of, or a measurement or recording of, an external part of the body; and
(c) obtaining the identifier will promote one or more of the purposes referred to in subsection (3).
(3) The purposes are:
(a) to assist in the identification of, and to authenticate the identity of, any person who can be required under this Act to provide a personal identifier; and
(b) to assist in identifying, in the future, any such person; and
(c) to improve the integrity of entry programs, including passenger processing at Australia’s border; and
(d) to facilitate a visa‑holder’s access to his or her rights under this Act or the regulations; and
(e) to improve the procedures for determining visa applications; and
(f) to improve the procedures for determining claims for protection under the Refugees Convention as amended by the Refugees Protocol; and
(g) to enhance the Department’s ability to identify non‑citizens who have a criminal history, who are of character concern or who are of national security concern; and
(h) to combat document and identity fraud in immigration matters; and
(i) to detect forum shopping by applicants for visas; and
(j) to ascertain whether:
(i) an applicant for a protection visa; or
(ii) an offshore entry person who makes a claim for protection under the Refugees Convention as amended by the Refugees Protocol;
had sufficient opportunity to avail himself or herself of protection before arriving in Australia; and
(k) to complement anti‑people smuggling measures; and
(l) to inform the governments of foreign countries of the identity of non‑citizens who are, or are to be, removed or deported from Australia.
5B When personal identifier taken not to have been provided
A person is taken, for the purposes of sections 40, 46, 166, 170, 175, 188 and 192, not to have provided a personal identifier if:
(a) the personal identifier that is provided is unusable; or
(b) an authorised officer or an officer is not satisfied:
(i) about the integrity of the personal identifier that is provided; or
(ii) about the procedure followed to obtain the personal identifier; or
(c) in a case to which subsection 40(5), 46(2C), 166(8), 170(5), 175(5), 188(7) or 192(2C) applies—the quality of the personal identifier that is provided does not satisfy an officer who uses the personal identifier for the purpose of making a decision under this Act or the regulations.
5C Meaning of character concern
(1) For the purposes of this Act, a non‑citizen is of character concern if:
(a) the non‑citizen has a substantial criminal record (as defined by subsection (2)); or
(b) the non‑citizen has or has had an association with someone else, or with a group or organisation, who is reasonably suspected of having been or being involved in criminal conduct; or
(c) having regard to either or both of the following:
(i) the non‑citizen’s past and present criminal conduct;
(ii) the non‑citizen’s past and present general conduct;
the non‑citizen is not of good character; or
(d) in the event that the non‑citizen were allowed to enter or to remain in Australia, there is a significant risk that the non‑citizen would:
(i) engage in criminal conduct in Australia; or
(ii) harass, molest, intimidate or stalk another person in Australia; or
(iii) vilify a segment of the Australian community; or
(iv) incite discord in the Australian community or in a segment of that community; or
(v) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.
(2) For the purposes of subsection (1), a non‑citizen has a substantial criminal record if:
(a) the non‑citizen has been sentenced to death; or
(b) the non‑citizen has been sentenced to imprisonment for life; or
(c) the non‑citizen has been sentenced to a term of imprisonment of 12 months or more; or
(d) the non‑citizen has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), and the total of those terms is 2 years or more; or
(e) the non‑citizen has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution.
5CA Child of a person
(1) Without limiting who is a child of a person for the purposes of this Act, each of the following is the child of a person:
(a) someone who is a child of the person within the meaning of the Family Law Act 1975 (other than someone who is an adopted child of the person within the meaning of that Act);
(b) someone who is an adopted child of the person within the meaning of this Act.
(2) The regulations may provide that, for the purposes of this Act, a person specified by the regulations is not a child of another person specified by the regulations in circumstances in which the person would, apart from this subsection, be the child of more than 2 persons for the purposes of this Act.
(3) Subsection (2), and regulations made for the purposes of that subsection, have effect whether the person specified as not being a child of another person would, apart from that subsection and those regulations, be the child of the other person because of subsection (1) or otherwise.
5CB De facto partner
De facto partners
(1) For the purposes of this Act, a person is the de facto partner of another person (whether of the same sex or a different sex) if, under subsection (2), the person is in a de facto relationship with the other person.
De facto relationship
(2) For the purposes of subsection (1), a person is in a de facto relationship with another person if they are not in a married relationship (for the purposes of section 5F) with each other but:
(a) they have a mutual commitment to a shared life to the exclusion of all others; and
(b) the relationship between them is genuine and continuing; and
(c) they:
(i) live together; or
(ii) do not live separately and apart on a permanent basis; and
(d) they are not related by family (see subsection (4)).
(3) The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.
Definition
(4) For the purposes of paragraph (2)(d), 2 persons are related by family if:
(a) one is the child (including an adopted child) of the other; or
(b) one is another descendant of the other (even if the relationship between them is traced through an adoptive parent); or
(c) they have a parent in common (who may be an adoptive parent of either or both of them).
For this purpose, disregard whether an adoption is declared void or has ceased to have effect.
5D Limiting the types of identification tests that authorised officers may carry out
(1) The Minister or Secretary may, in an instrument authorising an officer as an authorised officer for the purposes of carrying out identification tests under this Act, specify the types of identification tests that the authorised officer may carry out.
(2) Such an authorised officer is not an authorised officer in relation to carrying out an identification test that is not of a type so specified.
5E Meaning of purported privative clause decision
(1) In this Act, purported privative clause decision means a decision purportedly made, proposed to be made, or required to be made, under this Act or under a regulation or other instrument made under this Act (whether in purported exercise of a discretion or not), that would be a privative clause decision if there were not:
(a) a failure to exercise jurisdiction; or
(b) an excess of jurisdiction;
in the making of the decision.
(2) In this section, decision includes anything listed in subsection 474(3).
5F Spouse
(1) For the purposes of this Act, a person is the spouse of another person if, under subsection (2), the 2 persons are in a married relationship.
(2) For the purposes of subsection (1), persons are in a married relationship if:
(a) they are married to each other under a marriage that is valid for the purposes of this Act; and
(b) they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and
(c) the relationship between them is genuine and continuing; and
(d) they:
(i) live together; or
(ii) do not live separately and apart on a permanent basis.
(3) The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.
Note: Section 12 also affects the determination of whether the condition in paragraph (2)(a) of this section exists.
5G Relationships and family members
(1) For the purposes of this Act, if one person is the child of another person because of the definition of child in section 5CA, relationships traced to or through that person are to be determined on the basis that the person is the child of the other person.
(2) For the purposes of this Act, the members of a person’s family and relatives of a person are taken to include the following:
(a) a de facto partner of the person;
(b) someone who is the child of the person, or of whom the person is the child, because of the definition of child in section 5CA;
(c) anyone else who would be a member of the person’s family or a relative of the person if someone mentioned in paragraph (a) or (b) is taken to be a member of the person’s family or a relative of the person.
This does not limit who is a member of a person’s family or relative of a person.
6 Effect of limited meaning of enter Australia etc.
To avoid doubt, although subsection 5(1) limits, for the purposes of this Act, the meanings of enter Australia, leave Australia and remain in Australia and as well, because of section 18A of the Acts Interpretation Act 1901, the meaning of parts of speech and grammatical forms of those phrases, this does not mean:
(a) that, for those purposes, the meaning of in Australia, to Australia or any other phrase is limited; or
(b) that this Act does not extend to parts of Australia outside the migration zone; or
(c) that this Act does not apply to persons in those parts.
7 Act to extend to certain Territories
(1) In this section, prescribed Territory means the Coral Sea Islands Territory, the Territory of Cocos (Keeling) Islands, the Territory of Christmas Island and the Territory of Ashmore and Cartier Islands.
(2) This Act extends to a prescribed Territory.
(3) Subject to this Act, a prescribed Territory:
(a) shall be deemed to be part of Australia for the purposes of this Act; and
(b) shall be deemed not to be a place outside Australia.
7A Effect on executive power to protect Australia’s borders
The existence of statutory powers under this Act does not prevent the exercise of any executive power of the Commonwealth to protect Australia’s borders, including, where necessary, by ejecting persons who have crossed those borders.
8 Certain resources installations to be part of Australia
(1) For the purposes of this Act, a resources installation that:
(a) becomes attached to the Australian seabed after the commencement of this subsection; or
(b) at the commencement of this subsection, is attached to the Australian seabed;
shall, subject to subsection (2), be deemed to be part of Australia and shall be deemed not to be a place outside Australia.
(2) A resources installation that is deemed to be part of Australia by virtue of the operation of this section shall, for the purposes of this Act, cease to be part of Australia if:
(a) the installation is detached from the Australian seabed, or from another resources installation that is attached to the Australian seabed, for the purpose of being taken to a place outside the outer limits of Australian waters (whether or not the installation is to be taken to a place in Australia before being taken outside those outer limits); or
(b) after having been detached from the Australian seabed otherwise than for the purpose referred to in paragraph (a), the installation is moved for the purpose of being taken to a place outside the outer limits of Australian waters (whether or not the installation is to be taken to a place in Australia before being taken outside those outer limits).
9 Certain sea installations to be part of Australia
(1) For the purposes of this Act, a sea installation that:
(a) becomes installed in an adjacent area or in a coastal area after the commencement of this subsection; or
(b) at the commencement of this subsection, is installed in an adjacent area or in a coastal area;
shall, subject to subsection (2), be deemed to be part of Australia and shall be deemed not to be a place outside Australia.
(2) A sea installation that is deemed to be part of Australia because of the operation of this section shall, for the purposes of this Act, cease to be part of Australia if:
(a) the installation is detached from its location for the purpose of being taken to a place outside the outer limits of Australian waters; or
(b) after having been detached from its location otherwise than for the purpose referred to in paragraph (a), the installation is moved for the purpose of being taken to a place outside the outer limits of Australian waters.
10 Certain children taken to enter Australia at birth
A child who:
(a) was born in the migration zone; and
(b) was a non‑citizen when he or she was born;
shall be taken to have entered Australia when he or she was born.
11 Visa applicable to 2 or more persons
Where:
(a) 2 or more persons who are the holders of the same visa travel to Australia on board the same vessel; and
(b) on entering Australia, one of those persons is in possession of evidence of that visa;
each of them shall, for the purposes of this Act, be taken to be in possession of that evidence on entering Australia.
12 Application of Part VA of the Marriage Act
For the purpose of deciding whether a marriage is to be recognised as valid for the purposes of this Act, Part VA of the Marriage Act 1961 applies as if section 88E of that Act were omitted.
Part 2—Control of arrival and presence of non‑citizens
Division 1—Immigration status
13 Lawful non‑citizens
(1) A non‑citizen in the migration zone who holds a visa that is in effect is a lawful non‑citizen.
(2) An allowed inhabitant of the Protected Zone who is in a protected area in connection with the performance of traditional activities is a lawful non‑citizen.
14 Unlawful non‑citizens
(1) A non‑citizen in the migration zone who is not a lawful non‑citizen is an unlawful non‑citizen.
(2) To avoid doubt, a non‑citizen in the migration zone who, immediately before 1 September 1994, was an illegal entrant within the meaning of the Migration Act as in force then became, on that date, an unlawful non‑citizen.
15 Effect of cancellation of visa on status
To avoid doubt, subject to subsection 13(2) (certain inhabitants of protected zone), if a visa is cancelled its former holder, if in the migration zone, becomes, on the cancellation, an unlawful non‑citizen unless, immediately after the cancellation, the former holder holds another visa that is in effect.
16 Removal of immigration rights of inhabitant of Protected Zone
The Minister may declare, in writing, that it is undesirable that a specified inhabitant of the Protected Zone continue to be permitted to enter or remain in Australia.
17 Pre‑cleared flights
(1) The Minister may, in writing, declare a specified flight by an aircraft on a specified day between a specified foreign country and Australia to be a pre‑cleared flight for the purposes of this Act.
(2) The Minister may declare, in writing, a specified class of flights conducted by a specified air transport enterprise or by another specified person to be pre‑cleared flights for the purposes of this Act.
(3) A particular flight to which a declaration under subsection (1) or (2) applies is not a pre‑cleared flight if an authorised officer decides, before the passengers on it disembark in Australia, that it is inappropriate to treat it as such.
Division 2—Power to obtain information and documents about unlawful non‑citizens
18 Power to obtain information and documents about unlawful
non‑citizens
(1) If the Minister has reason to believe that a person (in this subsection called the first person) is capable of giving information which the Minister has reason to believe is, or producing documents (including documents that are copies of other documents) which the Minister has reason to believe are, relevant to ascertaining the identity or whereabouts of another person whom the Minister has reason to believe is an unlawful non‑citizen, the Minister may, by notice in writing served on the first person, require the first person:
(a) to give to the Minister, within the period and in the manner specified in the notice, any such information; or
(b) to produce to the Minister, within the period and in the manner specified in the notice, any such documents; or
(c) to make copies of any such documents and to produce to the Minister, within the period and in the manner specified in the notice, those copies.
(2) A notice under subsection (1) must set out the effects of section 21 of this Act and sections 137.1 and 137.2 of the Criminal Code.
19 Scales of expenses
The regulations may prescribe scales of expenses to be allowed to persons required to give information or produce documents under this Division.
20 Reasonable compensation
A person is entitled to be paid by the Commonwealth reasonable compensation for complying with a requirement covered by paragraph 18(1)(c).
21 Failure to comply with section 18 notice
(1) A person must not refuse or fail to comply with a notice under subsection 18(1).
(1A) Subsection (1) does not apply:
(a) to the extent that the person is not capable of complying with the notice; or
(b) if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matters in subsection (1A) (see subsection 13.3(3) of the Criminal Code).
(2) The following are 2 of the reasonable excuses for refusing or failing to comply with a notice:
(a) the person whom the Minister had reason to believe was an unlawful non‑citizen was not an unlawful non‑citizen at the time the notice was given;
(b) the information or documents which the Minister had reason to believe were relevant to ascertaining the identity or whereabouts of a person were not relevant to ascertaining the identity or whereabouts of the person.
(3) An offence against subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
Penalty: Imprisonment for 6 months.
24 Information and documents that incriminate a person
A person is not excused from giving information or producing a document or a copy of a document under this Division on the ground that the information or the production of the document or copy might tend to incriminate the person, but:
(a) giving the information or producing the document or copy; or
(b) any information, document or thing obtained as a direct or indirect consequence of giving the information or producing the document or copy;
is not admissible in evidence against the person in any criminal proceedings other than a prosecution for:
(c) an offence against, or arising out of, this Division; or
(d) an offence against section 137.1 or 137.2 of the Criminal Code that relates to this Division.
25 Copies of documents
(1) The Minister may inspect a document or copy produced under this Division and may make and retain copies of, or take and retain extracts from, such a document or copy.
(2) The Minister may retain possession of a copy of a document produced in accordance with a requirement covered by paragraph 18(1)(c).
26 Minister may retain documents
(1) The Minister may, for the purposes of this Act, take, and retain for as long as is necessary for those purposes, possession of a document produced under this Division.
(2) The person otherwise entitled to possession of the document is entitled to be supplied, as soon as practicable, with a copy certified by the Minister to be a true copy.
(3) The certified copy must be received in all courts and tribunals as evidence as if it were the original.
(4) Until a certified copy is supplied, the Minister must, at such times and places as the Minister thinks appropriate, permit the person otherwise entitled to possession of the document, or a person authorised by that person, to inspect and make copies of, or take extracts from, the document.
27 Division binds the Crown
(1) This Division binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory.
(2) Nothing in this Division permits the Crown in right of the Commonwealth, of a State, of the Australian Capital Territory or of the Northern Territory to be prosecuted for an offence.
Division 3—Visas for non‑citizens
Subdivision A—General provisions about visas
28 Interpretation
In this Division:
specified period includes the period until a specified date.
29 Visas
(1) Subject to this Act, the Minister may grant a non‑citizen permission, to be known as a visa, to do either or both of the following:
(a) travel to and enter Australia;
(b) remain in Australia.
Note: A maritime crew visa is generally permission to travel to and enter Australia only by sea (as well as being permission to remain in Australia) (see section 38B).
(2) Without limiting subsection (1), a visa to travel to, enter and remain in Australia may be one to:
(a) travel to and enter Australia during a prescribed or specified period; and
(b) if, and only if, the holder travels to and enters during that period, remain in Australia during a prescribed or specified period or indefinitely.
(3) Without limiting subsection (1), a visa to travel to, enter and remain in Australia may be one to:
(a) travel to and enter Australia during a prescribed or specified period; and
(b) if, and only if, the holder travels to and enters during that period:
(i) remain in it during a prescribed or specified period or indefinitely; and
(ii) if the holder leaves Australia during a prescribed or specified period, travel to and re‑enter it during a prescribed or specified period.
(4) Without limiting section 83 (person taken to be included in visa), the regulations may provide for a visa being held by 2 or more persons.
30 Kinds of visas
(1) A visa to remain in Australia (whether also a visa to travel to and enter Australia) may be a visa, to be known as a permanent visa, to remain indefinitely.
(2) A visa to remain in Australia (whether also a visa to travel to and enter Australia) may be a visa, to be known as a temporary visa, to remain:
(a) during a specified period; or
(b) until a specified event happens; or
(c) while the holder has a specified status.
31 Classes of visas
(1) There are to be prescribed classes of visas.
(2) As well as the prescribed classes, there are the classes provided for by sections 32, 33, 34, 35, 36, 37, 37A, 38, 38A and 38B.
(3) The regulations may prescribe criteria for a visa or visas of a specified class (which, without limiting the generality of this subsection, may be a class provided for by section 32, 36, 37, 37A or 38B but not by section 33, 34, 35, 38 or 38A).
(4) The regulations may prescribe whether visas of a class are visas to travel to and enter Australia, or to remain in Australia, or both.
(5) A visa is a visa of a particular class if this Act or the regulations specify that it is a visa of that class.
32 Special category visas
(1) There is a class of temporary visas to be known as special category visas.
(2) A criterion for a special category visa is that the Minister is satisfied the applicant is:
(a) a non‑citizen:
(i) who is a New Zealand citizen and holds, and has presented to an officer or an authorised system, a New Zealand passport that is in force; and
(ii) is neither a behaviour concern non‑citizen nor a health concern non‑citizen; or
(b) a person declared by the regulations, to be a person for whom a visa of another class would be inappropriate; or
(c) a person in a class of persons declared by the regulations, to be persons for whom a visa of another class would be inappropriate.
(3) A person may comply with subparagraph (2)(a)(i) by presenting a New Zealand passport to an authorised system only if:
(a) the New Zealand passport is of a kind determined under section 175A to be an eligible passport for the purposes of Division 5 of Part 2; and
(c) before the person is granted a special category visa, neither the system nor an officer requires the person to present the passport to an officer.
33 Special purpose visas
(1) There is a class of temporary visas to travel to, enter and remain in Australia, to be known as special purpose visas.
(2) Subject to subsection (3), a non‑citizen is taken to have been granted a special purpose visa if:
(a) the non‑citizen:
(i) has a prescribed status; or
(ii) is a member of a class of persons that has a prescribed status; or
(b) the Minister declares, in writing, that:
(i) the non‑citizen is taken to have been granted a special purpose visa; or
(ii) persons of a class, of which the non‑citizen is a member, are taken to have been granted special purpose visas.
(3) A non‑citizen is not taken to have been granted a special purpose visa if a declaration under subsection (9) is in force in relation to the non‑citizen or a class of persons of which the non‑citizen is a member.
(4) A special purpose visa granted under subsection (2) is granted at the beginning of the later or latest of the following days:
(a) if paragraph (2)(a) applies:
(i) the day the non‑citizen commences to have the prescribed status;
(ii) the day the class of persons, of which the non‑citizen is a member, commences to have the prescribed status;
(iii) the day the non‑citizen commences to be a member of the class of persons that has a prescribed status;
(b) if paragraph (2)(b) applies:
(i) the day the declaration is made;
(ii) if a day is specified in the declaration as the day the visa comes into effect—that day;
(iii) the day the non‑citizen commences to be a member of the class of persons specified in the declaration.
(5) A special purpose visa ceases to be in effect at the earliest of the following times:
(a) if paragraph (2)(a) applies:
(i) if the non‑citizen ceases to have a prescribed status—the end of the day on which the non‑citizen so ceases; or
(ii) if the non‑citizen ceases to be a member of a class of persons that has a prescribed status—the end of the day on which the non‑citizen so ceases; or
(iii) if the Minister makes a declaration under subsection (9) in relation to the non‑citizen, or a class of persons of which the non‑citizen is a member—the time when that declaration takes effect;
(b) if paragraph (2)(b) applies:
(i) if a day is specified in the declaration as the day the visa ceases to be in effect—the end of that day; or
(ii) if an event is specified in the declaration as the event that causes the visa to cease to be in effect—the end of the day on which the event happens; or
(iii) if the non‑citizen ceases to be a member of a class of persons specified in the declaration—the end of the day on which the non‑citizen so ceases; or
(iv) if the declaration is revoked—the end of the day of the revocation; or
(v) if the Minister makes a declaration under subsection (9) in relation to the non‑citizen, or a class of persons of which the non‑citizen is a member—the time when that declaration takes effect.
(5A) For the purposes of subsection (5), the time when a declaration made by the Minister under subsection (9) takes effect is:
(a) if the Minister specifies a time in the declaration (which must be after the time when the declaration is made) as the time the declaration takes effect—the time so specified; or
(b) if the Minister does not specify such a time in the declaration—the end of the day on which the declaration is made.
(6) If the Minister makes a declaration under paragraph (2)(b), he or she is to cause to be laid before each House of the Parliament a statement that:
(a) sets out the contents of the declaration; and
(b) sets out the Minister’s reasons for the declaration.
(7) A statement under subsection (6) is not to include:
(a) the name of the non‑citizen; or
(b) if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned—the name of that other person.
(8) A statement under subsection (6) is to be laid before each House of the Parliament within 15 sitting days of that House after:
(a) if the declaration is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or
(b) if the declaration is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.
(9) The Minister may make a written declaration, for the purposes of this section, that it is undesirable that a person, or any persons in a class of persons, travel to and enter Australia or remain in Australia.
(10) Section 43 and Subdivisions AA, AB, AC (other than section 68), AE, AG, AH, C, D, E, F and H do not apply in relation to special purpose visas.
34 Absorbed person visas
(1) There is a class of permanent visas to remain in, but not re‑enter, Australia, to be known as absorbed person visas.
(2) A non‑citizen in the migration zone who:
(a) on 2 April 1984 was in Australia; and
(b) before that date, had ceased to be an immigrant; and
(c) on or after that date, has not left Australia, where left Australia has the meaning it had in this Act before 1 September 1994; and
(d) immediately before 1 September 1994, was not a person to whom section 20 of this Act as in force then applied;
is taken to have been granted an absorbed person visa on 1 September 1994.
(3) Subdivisions AA, AB, AC (other than section 68), AE and AH do not apply in relation to absorbed person visas.
35 Ex‑citizen visas
(1) There is a class of permanent visas to remain in, but not re‑enter, Australia, to be known as ex‑citizen visas.
(2) A person who:
(a) before 1 September 1994, ceased to be an Australian citizen while in the migration zone; and
(b) did not leave Australia after ceasing to be a citizen and before that date;
is taken to have been granted an ex‑citizen visa on that date.
(3) A person who, on or after 1 September 1994, ceases to be an Australian citizen while in the migration zone is taken to have been granted an ex‑citizen visa when that citizenship ceases.
(4) Subdivisions AA, AB, AC (other than section 68), AE and AH do not apply in relation to ex‑citizen visas.
36 Protection visas
(1) There is a class of visas to be known as protection visas.
Note: See also Subdivision AL.
(2) A criterion for a protection visa is that the applicant for the visa is:
(a) a non‑citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or
(b) a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:
(i) is mentioned in paragraph (a); and
(ii) holds a protection visa.
Protection obligations
(3) Australia is taken not to have protection obligations to a non‑citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non‑citizen is a national.
(4) However, if the non‑citizen has a well‑founded fear of being persecuted in a country for reasons of race, religion, nationality, membership of a particular social group or political opinion, subsection (3) does not apply in relation to that country.
(5) Also, if the non‑citizen has a well‑founded fear that:
(a) a country will return the non‑citizen to another country; and
(b) the non‑citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion;
subsection (3) does not apply in relation to the first‑mentioned country.
Determining nationality
(6) For the purposes of subsection (3), the question of whether a non‑citizen is a national of a particular country must be determined solely by reference to the law of that country.
(7) Subsection (6) does not, by implication, affect the interpretation of any other provision of this Act.
37 Bridging visas
There are classes of temporary visas, to be known as bridging visas, to be granted under Subdivision AF.
37A Temporary safe haven visas
(1) There is a class of temporary visas to travel to, enter and remain in Australia, to be known as temporary safe haven visas.
Note: A temporary safe haven visa is granted to a person to give the person temporary safe haven in Australia.
(2) The Minister may, by notice in the Gazette, extend the visa period of a temporary safe haven visa so that the visa ceases to be in effect on the day specified in the notice.
(3) The Minister may, by notice in the Gazette, shorten the visa period of a temporary safe haven visa so that the visa ceases to be in effect on the day specified in the notice if, in the Minister’s opinion, temporary safe haven in Australia is no longer necessary for the holder of the visa because of changes of a fundamental, durable and stable nature in the country concerned.
(4) If a notice under subsection (3) is published in the Gazette, the Minister must cause a copy of the notice to be laid before each House of the Parliament within 3 sitting days of that House after the publication of the notice, together with a statement that sets out the reasons for the notice, referring in particular to the Minister’s reasons for thinking that changes of a fundamental, durable and stable nature have occurred in the country concerned.
(5) If a notice under subsection (2) or (3) is published in the Gazette and has not been revoked, then the visa ceases to be in effect on the day specified in the notice, despite any other provision of this Act.
(6) The Minister does not have a duty to consider whether to exercise the power under subsection (2) in respect of any non‑citizen, whether he or she is requested to do so by the non‑citizen or by any other person, or in any other circumstances.
(7) In this section:
country concerned means the country or countries in which the circumstances exist that give rise to the grant of temporary safe haven visas.
38 Criminal justice visas
There is a class of temporary visas, to be known as criminal justice visas, to be granted under Subdivision D of Division 4.
38A Enforcement visas
There is a class of temporary visas to travel to, enter and remain in Australia, to be known as enforcement visas.
Note: Division 4A deals with these visas.
38B Maritime crew visas
(1) There is a class of temporary visas to travel to and enter Australia by sea, and to remain in Australia, to be known as maritime crew visas.
(2) Subject to subsection 43(1B), a maritime crew visa held by a non‑citizen does not grant the non‑citizen permission to travel to or enter Australia by air.
Note: However, a non‑citizen might also hold another class of visa that allows the non‑citizen to travel to and enter Australia by air.
(3) The Minister may make a written declaration, for the purposes of this section, that it is undesirable that a person, or any persons in a class of persons, travel to and enter Australia, or remain in Australia.
(4) If the Minister makes a declaration under subsection (3) in relation to a person, or a class of persons of which a person is a member, a maritime crew visa held by that person ceases to be in effect:
(a) if the Minister specifies a time in the declaration (which must be after the time when the declaration is made) as the time the declaration takes effect—at the time so specified; or
(b) if the Minister does not specify such a time in the declaration—at the end of the day on which the declaration is made.
Note: A maritime crew visa can also cease to be in effect under other sections (see for example section 82).
(5) If the Minister revokes a declaration made under subsection (4), the Minister is taken never to have made the declaration.
Note: Under subsection 33(3) of the Acts Interpretation Act 1901, the Minister may revoke a declaration made under subsection (4).
(6) Despite subsection (5), any detention of the non‑citizen that occurred during any part of the period:
(a) beginning when the Minister made the declaration; and
(b) ending at the time of the revocation of the declaration;
is lawful and the non‑citizen is not entitled to make any claim against the Commonwealth, an officer or any other person because of the detention.
39 Criterion limiting number of visas
(1) In spite of section 14 of the Legislative Instruments Act 2003, a prescribed criterion for visas of a class, other than protection visas, may be the criterion that the grant of the visa would not cause the number of visas of that class granted in a particular financial year to exceed whatever number is fixed by the Minister, by legislative instrument, as the maximum number of such visas that may be granted in that year (however the criterion is expressed).
(2) For the purposes of this Act, when a criterion allowed by subsection (1) prevents the grant in a financial year of any more visas of a particular class, any outstanding applications for the grant in that year of visas of that class are taken not to have been made.
40 Circumstances for granting visas
(1) The regulations may provide that visas or visas of a specified class may only be granted in specified circumstances.
(2) Without limiting subsection (1), the circumstances may be, or may include, that, when the person is granted the visa, the person:
(a) is outside Australia; or
(b) is in immigration clearance; or
(c) has been refused immigration clearance and has not subsequently been immigration cleared; or
(d) is in the migration zone and, on last entering Australia:
(i) was immigration cleared; or
(ii) bypassed immigration clearance and had not subsequently been immigration cleared.
(3) Without limiting subsection (1), if:
(a) prescribed circumstances exist; and
(b) the Minister has not waived the operation of this subsection in relation to granting the visa to the person;
the circumstances under subsection (1) may be, or may include, that the person has complied with any requirement of an officer to provide one or more personal identifiers in relation to the application for the visa.
(3A) An officer must not require, for the purposes of subsection (3), a person to provide a personal identifier other than:
(a) if the person is an applicant for a protection visa—any of the following (including any of the following in digital form):
(i) fingerprints or handprints of the person (including those taken using paper and ink or digital livescanning technologies);
(ii) a photograph or other image of the person’s face and shoulders;
(iii) an audio or a video recording of the person;
(iv) an iris scan;
(v) the person’s signature;
(vi) any other personal identifier contained in the person’s passport or other travel document;
(vii) any other personal identifier of a type prescribed for the purposes of paragraph (3C)(a); or
(b) if the person is an applicant for a temporary safe haven visa within the meaning of section 37A, or any other visa of a class that the regulations designate as a class of humanitarian visas—any of the following (including any of the following in digital form):
(i) fingerprints or handprints of the person (including those taken using paper and ink or digital livescanning technologies);
(ii) a photograph or other image of the person’s face and shoulders;
(iii) an iris scan;
(iv) the person’s signature;
(v) any other personal identifier contained in the person’s passport or other travel document;
(vi) any other personal identifier of a type prescribed for the purposes of paragraph (3C)(a); or
(c) if paragraphs (a) and (b) do not apply—any of the following (including any of the following in digital form):
(i) a photograph or other image of the person’s face and shoulders;
(ii) the person’s signature;
(iii) any other personal identifier contained in the person’s passport or other travel document;
(iv) any other personal identifier of a type prescribed for the purposes of paragraph (3C)(a).
Note: Division 13AB sets out further restrictions on the personal identifiers that minors and incapable persons can be required to provide.
(3B) In requiring, for the purposes of subsection (3), a person to provide a personal identifier, an officer must not contravene regulations made for the purposes of paragraph (3C)(b).
(3C) The regulations:
(a) may prescribe other types of personal identifiers; and
(b) may provide that a particular personal identifier referred to in subsection (3A), or a particular combination of such personal identifiers, must not be required except in the circumstances prescribed for the purposes of this paragraph.
(4) A person is taken not to have complied with a requirement referred to in subsection (3) unless the one or more personal identifiers are provided to an authorised officer by way of one or more identification tests carried out by an authorised officer.
Note: If the types of identification tests that the authorised officer may carry out are specified under section 5D, then each identification test must be of a type so specified.
(5) However, subsection (4) does not apply, in circumstances prescribed for the purposes of this subsection, if the personal identifier is of a prescribed type and the person:
(a) provides a personal identifier otherwise than by way of an identification test carried out by an authorised officer; and
(b) complies with any further requirements that are prescribed relating to the provision of the personal identifier.
41 Conditions on visas
(1) The regulations may provide that visas, or visas of a specified class, are subject to specified conditions.
(2) Without limiting subsection (1), the regulations may provide that a visa, or visas of a specified class, are subject to:
(a) a condition that, despite anything else in this Act, the holder of the visa will not, after entering Australia, be entitled to be granted a substantive visa (other than a protection visa, or a temporary visa of a specified kind) while he or she remains in Australia; or
(b) a condition imposing restrictions about the work that may be done in Australia by the holder, which, without limiting the generality of this paragraph, may be restrictions on doing:
(i) any work; or
(ii) work other than specified work; or
(iii) work of a specified kind.
(2A) The Minister may, in prescribed circumstances, by writing, waive a condition of a kind described in paragraph (2)(a) to which a particular visa is subject under regulations made for the purposes of that paragraph or under subsection (3).
(3) In addition to any conditions specified under subsection (1), the Minister may specify that a visa is subject to such conditions as are permitted by the regulations for the purposes of this subsection.
42 Visa essential for travel
(1) Subject to subsections (2), (2A) and (3), a non‑citizen must not travel to Australia without a visa that is in effect.
Note: A maritime crew visa is generally permission to travel to Australia only by sea (see section 38B).
(2) Subsection (1) does not apply to an allowed inhabitant of the Protected Zone travelling to a protected area in connection with traditional activities.
(2A) Subsection (1) does not apply to a non‑citizen in relation to travel to Australia:
(a) if the travel is by a New Zealand citizen who holds and produces a New Zealand passport that is in force; or
(b) if the travel is by a non‑citizen who holds and produces a passport that is in force and is endorsed with an authority to reside indefinitely on Norfolk Island; or
(c) if:
(i) the non‑citizen is brought to the migration zone under subsection 245F(9) of this Act or 185(3A) of the Customs Act 1901; and
(ii) the non‑citizen is a person who would, if in the migration zone, be an unlawful non‑citizen; or
(ca) the non‑citizen is brought to Australia under section 198B; or
(d) if:
(i) the non‑citizen has been removed under section 198 to another country but has been refused entry by that country; and
(ii) the non‑citizen travels to Australia as a direct result of that refusal; and
(iii) the non‑citizen is a person who would, if in the migration zone, be an unlawful non‑citizen; or
(e) if:
(i) the non‑citizen has been removed under section 198; and
(ii) before the removal the High Court, the Federal Court or the Federal Magistrates Court had made an order in relation to the non‑citizen, or the Minister had given an undertaking to the High Court, the Federal Court or the Federal Magistrates Court in relation to the non‑citizen; and
(iii) the non‑citizen’s travel to Australia is required in order to give effect to the order or undertaking; and
(iv) the Minister has made a declaration that this paragraph is to apply in relation to the non‑citizen’s travel; and
(v) the non‑citizen is a person who would, if in the migration zone, be an unlawful non‑citizen; or
(f) if:
(i) the travel is from Norfolk Island to Australia; and
(ii) the Minister has made a declaration that this paragraph is to apply in relation to the non‑citizen’s travel; and
(iii) the non‑citizen is a person who would, if in the migration zone, be an unlawful non‑citizen.
(3) The regulations may permit a specified non‑citizen or a non‑citizen in a specified class to travel to Australia without a visa that is in effect.
(4) Nothing in subsection (2A) or (3) is to be taken to affect the non‑citizen’s status in the migration zone as an unlawful non‑citizen.
Note: Section 189 provides that an unlawful non‑citizen in the migration zone must be detained.
43 Visa holders must usually enter at a port
(1) Subject to subsections (1A) and (3) and the regulations, a visa to travel to and enter Australia that is in effect is permission for the holder to enter Australia:
(a) at a port; or
(b) on a pre‑cleared flight; or
(c) if the holder travels to Australia on a vessel and the health or safety of a person or a prescribed reason, make it necessary to enter in another way, that way; or
(d) in a way authorised in writing by an authorised officer.
(1A) Subject to the regulations, a maritime crew visa that is in effect is permission for the holder to enter Australia:
(a) at a proclaimed port; or
(b) if the health or safety of a person, or a prescribed reason, make it necessary to enter Australia in another way, that way; or
(c) in a way authorised by an authorised officer.
(1B) Despite subsections 38B(1) and (2):
(a) the holder of a maritime crew visa may enter Australia as mentioned in paragraph (1A)(b) by air; and
(b) the authorised officer may, for the purposes of paragraph (1A)(c), authorise the holder to enter Australia by air.
(2) For the purposes of subsection (1), a holder who travels to and enters Australia on an aircraft is taken to have entered Australia when that aircraft lands.
(3) This section does not apply to:
(a) the holder of an enforcement visa; or
(b) an Australian resident entering Australia on a foreign boat as a result of a fisheries officer:
(i) making a requirement of the boat’s master under subparagraph 84(1)(k)(ii) or paragraph 84(1)(l) of the Fisheries Management Act 1991 or paragraph 42(1)(g) of the Torres Strait Fisheries Act 1984; or
(ii) exercising his or her power under paragraph 84(1)(m) of the Fisheries Management Act 1991 or paragraph 42(1)(h) of the Torres Strait Fisheries Act 1984 in relation to the boat;
because a fisheries officer had reasonable grounds to believe that the boat was used, or was intended to be used, in the commission of a fisheries detention offence; or
(c) an Australian resident entering Australia on a vessel (environment matters) as a result of an environment officer, or the person in command of a Commonwealth ship or a Commonwealth aircraft:
(i) exercising his or her power under paragraph 403(3)(a) of the Environment Protection and Biodiversity Conservation Act 1999 in relation to the vessel; or
(ii) making a requirement of the person in charge of the vessel under paragraph 403(3)(b) of the Environment Protection and Biodiversity Conservation Act 1999;
because the environment officer, or person in command, had reasonable grounds to suspect that the vessel had been used or otherwise involved in the commission of an environment detention offence.
Note: Subsection 33(10) also disapplies this section.
(4) In subsection (3):
Australian resident has the same meaning as in the Fisheries Management Act 1991.
Commonwealth aircraft has the same meaning as in the Environment Protection and Biodiversity Conservation Act 1999.
Commonwealth ship has the same meaning as in the Environment Protection and Biodiversity Conservation Act 1999.
master has the same meaning as in the Fisheries Management Act 1991.
(5) The references in subsection (3) to subparagraph 84(1)(k)(ii) and paragraphs 84(1)(l) and (m) of the Fisheries Management Act 1991 are to those provisions:
(a) as they apply of their own force; and
(b) as they apply because of section 87 or 87HA of that Act.
Subdivision AA—Applications for visas
44 Extent of following Subdivisions
(1) This Subdivision and the later Subdivisions of this Division, other than this section, Subdivision AG and subsection 138(1), do not apply to criminal justice visas.
(2) This Subdivision and the later Subdivisions of this Division, other than this section and Subdivision AG, do not apply to enforcement visas.
45 Application for visa
(1) Subject to this Act and the regulations, a non‑citizen who wants a visa must apply for a visa of a particular class.
45A Visa application charge
A non‑citizen who makes an application for a visa is liable to pay visa application charge if, assuming the charge were paid, the application would be a valid visa application.
45B Amount of visa application charge
(1) The amount of visa application charge is the amount, not exceeding the visa application charge limit, prescribed in relation to the application.
Note: The visa application charge limit is determined under the Migration (Visa Application) Charge Act 1997.
(2) The amount prescribed in relation to an application may be nil.
(3) The Minister must publish the Contributory Parent Visa Composite Index (within the meaning of the Migration (Visa Application) Charge Act 1997) for a financial year in the Gazette before the start of the financial year.
Note: The Contributory Parent Visa Composite Index affects the visa application charge limit in relation to contributory parent visas (within the meaning of the Migration (Visa Application) Charge Act 1997).
(4) If the Contributory Parent Visa Composite Index for a financial year is not published as required by subsection (3), it is not to be taken, merely because of that fact, to be invalid or to be a figure other than that published by the Australian Government Actuary for the financial year.
45C Regulations about visa application charge
(1) The regulations may:
(a) provide that visa application charge may be payable in instalments; and
(b) specify how those instalments are to be calculated; and
(c) specify when instalments are payable.
(2) The regulations may also:
(a) make provision for and in relation to:
(i) the recovery of visa application charge in relation to visa applications; or
(ii) the way, including the currency, in which visa application charge is to be paid; or
(iii) working out how much visa application charge is to be paid; or
(iv) the time when visa application charge is to be paid; or
(v) the persons who may be paid visa application charge on behalf of the Commonwealth; or
(b) make provision for the remission, refund or waiver of visa application charge or an amount of visa application charge; or
(c) make provision for exempting persons from the payment of visa application charge or an amount of visa application charge; or
(d) make provision for crediting visa application charge, or an amount of visa application charge, paid in respect of one application against visa application charge payable in respect of another application.
46 Valid visa application
(1) Subject to subsections (1A), (2) and (2A), an application for a visa is valid if, and only if:
(a) it is for a visa of a class specified in the application; and
(b) it satisfies the criteria and requirements prescribed under this section; and
(ba) subject to the regulations providing otherwise, any visa application charge that the regulations require to be paid at the time when the application is made, has been paid; and
(c) any fees payable in respect of it under the regulations have been paid; and
(d) it is not prevented by section 48 (visa refused or cancelled earlier), 48A (protection visa), 91E (CPA and safe third countries), 91K (temporary safe haven visa), 91P (non‑citizens with access to protection from third countries), 161 (criminal justice), 164D (enforcement visa), 195 (detainees) or 501E (visa refused or cancelled on character grounds).
(1A) Subject to subsection (2), an application for a visa is invalid if:
(a) the applicant is in the migration zone; and
(b) since last entering Australia, the applicant has held a visa subject to a condition described in paragraph 41(2)(a); and
(c) the Minister has not waived that condition under subsection 41(2A); and
(d) the application is for a visa of a kind that, under that condition, the applicant is not or was not entitled to be granted.
(2) Subject to subsection (2A), an application for a visa is valid if:
(a) it is an application for a visa of a class prescribed for the purposes of this subsection; and
(b) under the regulations, the application is taken to have been validly made.
(2A) An application for a visa is invalid if:
(a) prescribed circumstances exist; and
(aa) the Minister has not waived the operation of this subsection in relation to the application for the visa; and
(ab) the applicant has been required by an officer to provide one or more personal identifiers in relation to the application; and
(b) the applicant has not complied with the requirement.
Note: An invalid application for a visa cannot give rise to an obligation under section 65 to grant a visa: see subsection 47(3).
(2AA) An officer must not require, for the purposes of paragraph (2A)(ab), a person to provide a personal identifier other than:
(a) if the person is an applicant for a protection visa—any of the following (including any of the following in digital form):
(i) fingerprints or handprints of the person (including those taken using paper and ink or digital livescanning technologies);
(ii) a photograph or other image of the person’s face and shoulders;
(iii) an audio or a video recording of the person;
(iv) an iris scan;
(v) the person’s signature;
(vi) any other personal identifier contained in the person’s passport or other travel document;
(vii) any other personal identifier of a type prescribed for the purposes of paragraph (2AC)(a); or
(b) if the person is an applicant for a temporary safe haven visa within the meaning of section 37A, or any other visa of a class that the regulations designate as a class of humanitarian visas—any of the following (including any of the following in digital form):
(i) fingerprints or handprints of the person (including those taken using paper and ink or digital livescanning technologies);
(ii) a photograph or other image of the person’s face and shoulders;
(iii) an iris scan;
(iv) the person’s signature;
(v) any other personal identifier contained in the person’s passport or other travel document;
(vi) any other personal identifier of a type prescribed for the purposes of paragraph (2AC)(a); or
(c) if paragraphs (a) and (b) do not apply—any of the following (including any of the following in digital form):
(i) a photograph or other image of the person’s face and shoulders;
(ii) the person’s signature;
(iii) any other personal identifier contained in the person’s passport or other travel document;
(iv) any other personal identifier of a type prescribed for the purposes of paragraph (2AC)(a).
Note: Division 13AB sets out further restrictions on the personal identifiers that minors and incapable persons can be required to provide.
(2AB) In requiring, for the purposes of paragraph (2A)(ab), a person to provide a personal identifier, an officer must not contravene regulations made for the purposes of paragraph (2AC)(b).
(2AC) The regulations:
(a) may prescribe other types of personal identifiers; and
(b) may provide that a particular personal identifier referred to in subsection (2AA), or a particular combination of such personal identifiers, must not be required except in the circumstances prescribed for the purposes of this paragraph.
(2B) The applicant is taken not to have complied with a requirement referred to in paragraph (2A)(ab) unless the one or more personal identifiers are provided by way of one or more identification tests carried out by an authorised officer.
Note: If the types of identification tests that the authorised officer may carry out are specified under section 5D, then each identification test must be of a type so specified.
(2C) However, subsection (2B) does not apply, in circumstances prescribed for the purposes of this subsection, if the personal identifier is of a prescribed type and the applicant:
(a) provides a personal identifier otherwise than by way of an identification test carried out by an authorised officer; and
(b) complies with any further requirements that are prescribed relating to the provision of the personal identifier.
(3) The regulations may prescribe criteria that must be satisfied for an application for a visa of a specified class to be a valid application.
(4) Without limiting subsection (3), the regulations may also prescribe:
(a) the circumstances that must exist for an application for a visa of a specified class to be a valid application; and
(b) how an application for a visa of a specified class must be made; and
(c) where an application for a visa of a specified class must be made; and
(d) where an applicant must be when an application for a visa of a specified class is made.
46A Visa applications by offshore entry persons
(1) An application for a visa is not a valid application if it is made by an offshore entry person who:
(a) is in Australia; and
(b) is an unlawful non‑citizen.
(2) If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to an offshore entry person, determine that subsection (1) does not apply to an application by the person for a visa of a class specified in the determination.
(3) The power under subsection (2) may only be exercised by the Minister personally.
(4) If the Minister makes a determination under subsection (2), the Minister must cause to be laid before each House of the Parliament a statement that:
(a) sets out the determination; and
(b) sets out the reasons for the determination, referring in particular to the Minister’s reasons for thinking that the Minister’s actions are in the public interest.
(5) A statement under subsection (4) must not include:
(a) the name of the offshore entry person; or
(b) any information that may identify the offshore entry person; or
(c) if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned—the name of that other person or any information that may identify that other person.
(6) A statement under subsection (4) must be laid before each House of the Parliament within 15 sitting days of that House after:
(a) if the determination is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or
(b) if the determination is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.
(7) The Minister does not have a duty to consider whether to exercise the power under subsection (2) in respect of any offshore entry person whether the Minister is requested to do so by the offshore entry person or by any other person, or in any other circumstances.
46B Visa applications by transitory persons
(1) An application for a visa is not a valid application if it is made by a transitory person who:
(a) is in Australia; and
(b) is an unlawful non‑citizen.
(2) If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a transitory person, determine that subsection (1) does not apply to an application by the person for a visa of a class specified in the determination.
(3) The power under subsection (2) may only be exercised by the Minister personally.
(4) If the Minister makes a determination under subsection (2), the Minister must cause to be laid before each House of the Parliament a statement that:
(a) sets out the determination; and
(b) sets out the reasons for the determination, referring in particular to the Minister’s reasons for thinking that the Minister’s actions are in the public interest.
(5) A statement under subsection (4) must not include:
(a) the name of the transitory person; or
(b) any information that may identify the transitory person; or
(c) if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned—the name of that other person or any information that may identify that other person.
(6) A statement under subsection (4) must be laid before each House of the Parliament within 15 sitting days of that House after:
(a) if the determination is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or
(b) if the determination is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.
(7) The Minister does not have a duty to consider whether to exercise the power under subsection (2) in respect of any transitory person whether the Minister is requested to do so by the transitory person or by any other person, or in any other circumstances.
47 Consideration of valid visa application
(1) The Minister is to consider a valid application for a visa.
(2) The requirement to consider an application for a visa continues until:
(a) the application is withdrawn; or
(b) the Minister grants or refuses to grant the visa; or
(c) the further consideration is prevented by section 39 (limiting number of visas) or 84 (suspension of consideration).
(3) To avoid doubt, the Minister is not to consider an application that is not a valid application.
(4) To avoid doubt, a decision by the Minister that an application is not valid and cannot be considered is not a decision to refuse to grant the visa.
48 Non‑citizen refused a visa or whose visa cancelled may only apply for particular visas
(1) A non‑citizen in the migration zone who:
(a) does not hold a substantive visa; and
(b) either:
(i) after last entering Australia, was refused a visa, other than a refusal of a bridging visa or a refusal under section 501, 501A or 501B, for which the non‑citizen had applied (whether or not the application has been finally determined); or
(ii) held a visa that was cancelled under section 109 (incorrect information), 116 (general power to cancel), 134 (business visas), 137J (student visas) or 137Q (regional sponsored employment visas);
may, subject to the regulations, apply for a visa of a class prescribed for the purposes of this section, but not for a visa of any other class.
(2) For the purposes of this section (which applies only in respect of applications made while a non‑citizen is in the migration zone), a non‑citizen who:
(a) has been removed from the migration zone under section 198; and
(b) is again in the migration zone as a result of travel to Australia that is covered by paragraph 42(2A)(d) or (e);
is taken to have been continuously in the migration zone despite the removal referred to in paragraph (a).
Note: Paragraphs 42(2A)(d) and (e) cover limited situations where people are returned to Australia despite their removal under section 198.
(3) For the purposes of this section (which applies only in respect of applications made while a non‑citizen is in the migration zone), a non‑citizen who, while holding a bridging visa, leaves and re‑enters the migration zone is taken to have been continuously in the migration zone despite that travel.
48A Non‑citizen refused a protection visa may not make further application for protection visa
(1) Subject to section 48B, a non‑citizen who, while in the migration zone, has made:
(a) an application for a protection visa, where the grant of the visa has been refused (whether or not the application has been finally determined); or
(b) applications for protection visas, where the grants of the visas have been refused (whether or not the applications have been finally determined);
may not make a further application for a protection visa while in the migration zone.
(1A) For the purposes of this section, a non‑citizen who:
(a) has been removed from the migration zone under section 198; and
(b) is again in the migration zone as a result of travel to Australia that is covered by paragraph 42(2A)(d) or (e);
is taken to have been continuously in the migration zone despite the removal referred to in paragraph (a).
Note: Paragraphs 42(2A)(d) and (e) cover limited situations where people are returned to Australia despite their removal under section 198.
(1B) Subject to section 48B, a non‑citizen in the migration zone who held a protection visa that was cancelled may not make a further application for a protection visa while in the migration zone.
(2) In this section:
application for a protection visa includes:
(aa) an application for a visa, a criterion for which is that the applicant is a non‑citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; and
(ab) an application for a visa, a criterion for which is that the applicant is a non‑citizen in Australia who is a member of the same family unit as a non‑citizen in Australia:
(i) to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; and
(ii) who holds a protection visa; and
(a) an application for a visa, or entry permit (within the meaning of this Act as in force immediately before 1 September 1994), a criterion for which is that the applicant is a non‑citizen who has been determined to be a refugee under the Refugees Convention as amended by the Refugees Protocol; and
(b) an application for a decision that a non‑citizen is a refugee under the Refugees Convention as amended by the Refugees Protocol; and
(c) an application covered by paragraph (a) or (b) that is also covered by section 39 of the Migration Reform Act 1992.
48B Minister may determine that section 48A does not apply to non‑citizen
(1) If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a particular non‑citizen, determine that section 48A does not apply to prevent an application for a protection visa made by the non‑citizen in the period starting when the notice is given and ending at the end of the seventh working day after the day on which the notice is given.
(2) The power under subsection (1) may only be exercised by the Minister personally.
(3) If the Minister makes a determination under subsection (1), he or she is to cause to be laid before each House of the Parliament a statement that:
(a) sets out the determination; and
(b) sets out the reasons for the determination, referring in particular to the Minister’s reasons for thinking that his or her actions are in the public interest.
(4) A statement under subsection (3) is not to include:
(a) the name of the non‑citizen; or
(b) any information that may identify the non‑citizen; or
(c) if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned—the name of that other person or any information that may identify that other person.
(5) A statement under subsection (3) is to laid before each House of the Parliament within 15 sitting days of that House after:
(a) if the determination is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or
(b) if the determination is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.
(6) The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any non‑citizen, whether he or she is requested to do so by the non‑citizen or by any other person, or in any other circumstances.
49 Withdrawal of visa application
(1) An applicant for a visa may, by written notice given to the Minister, withdraw the application.
(2) An application that is withdrawn is taken to have been disposed of.
(3) For the purposes of sections 48 and 48A, the Minister is not taken to have refused to grant the visa if the application is withdrawn before the refusal.
(4) Subject to the regulations, fees payable in respect of an application that is withdrawn are not refundable.
50 Only new information to be considered in later protection visa applications
If a non‑citizen who has made:
(a) an application for a protection visa, where the grant of the visa has been refused and the application has been finally determined; or
(b) applications for protection visas, where the grants of the visas have been refused and the applications have been finally determined;
makes a further application for a protection visa, the Minister, in considering the further application:
(c) is not required to reconsider any information considered in the earlier application or an earlier application; and
(d) may have regard to, and take to be correct, any decision that the Minister made about or because of that information.
Note: Section 48A prevents repeat applications for protection visas in most circumstances where the applicant is in the migration zone.
51 Order of consideration
(1) The Minister may consider and dispose of applications for visas in such order as he or she considers appropriate.
(2) The fact that an application has not yet been considered or disposed of although an application that was made later has been considered or disposed of does not mean that the consideration or disposal of the earlier application is unreasonably delayed.
Subdivision AB—Code of procedure for dealing fairly, efficiently and quickly with visa applications
51A Exhaustive statement of natural justice hearing rule
(1) This Subdivision is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
(2) Sections 494A to 494D, in so far as they relate to this Subdivision, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.
52 Communication with Minister
(1) A visa applicant or interested person must communicate with the Minister in the prescribed way.
(2) The regulations may prescribe different ways of communicating and specify the circumstances when communication is to be in a particular way. For this purpose, a way of communicating includes any associated process for authenticating identity.
(3) If the applicant or interested person purports to communicate anything to the Minister in a way that is not the prescribed way, the communication is taken not to have been received unless the Minister in fact receives it.
(3A) A visa applicant must tell the Minister the address at which the applicant intends to live while the application is being dealt with.
(3B) If the applicant proposes to change the address at which he or she intends to live for a period of 14 days or more, the applicant must tell the Minister the address and the period of proposed residence.
(3C) If, in accordance with the regulations, 2 or more non‑citizens apply for visas together, notifications given to any of them about the application are taken to be given to each of them.
Note 1: If the Minister gives a person a document by a method specified in section 494B, the person is taken to have received the document at the time specified in section 494C in respect of that method.
Note 2: Section 494D deals with giving documents to a person’s authorised recipient.
(4) In this section, interested person means a person who wants, or who is requested, to give information about the applicant to the Minister.
54 Minister must have regard to all information in application
(1) The Minister must, in deciding whether to grant or refuse to grant a visa, have regard to all of the information in the application.
(2) For the purposes of subsection (1), information is in an application if the information is:
(a) set out in the application; or
(b) in a document attached to the application when it is made; or
(c) given under section 55.
(3) Without limiting subsection (1), a decision to grant or refuse to grant a visa may be made without giving the applicant an opportunity to make oral or written submissions.
55 Further information may be given
(1) Until the Minister has made a decision whether to grant or refuse to grant a visa, the applicant may give the Minister any additional relevant information and the Minister must have regard to that information in making the decision.
(2) Subsection (1) does not mean that the Minister is required to delay making a decision because the applicant might give, or has told the Minister that the applicant intends to give, further information.
56 Further information may be sought
(1) In considering an application for a visa, the Minister may, if he or she wants to, get any information that he or she considers relevant but, if the Minister gets such information, the Minister must have regard to that information in making the decision whether to grant or refuse the visa.
(2) Without limiting subsection (1), the Minister may invite, orally or in writing, the applicant for a visa to give additional information in a specified way.
57 Certain information must be given to applicant
(1) In this section, relevant information means information (other than non‑disclosable information) that the Minister considers:
(a) would be the reason, or a part of the reason, for refusing to grant a visa; and
(b) is specifically about the applicant or another person and is not just about a class of persons of which the applicant or other person is a member; and
(c) was not given by the applicant for the purpose of the application.
(2) Subject to subsection (3), the Minister must:
(a) give particulars of the relevant information to the applicant in the way that the Minister considers appropriate in the circumstances; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to consideration of the application; and
(c) invite the applicant to comment on it.
(3) This section does not apply in relation to an application for a visa unless:
(a) the visa can be granted when the applicant is in the migration zone; and
(b) this Act provides, under Part 5 or 7, for an application for review of a decision to refuse to grant the visa.
58 Invitation to give further information or comments
(1) If a person is:
(a) invited under section 56 to give additional information; or
(b) invited under section 57 to comment on information;
the invitation is to specify whether the additional information or the comments may be given:
(c) in writing; or
(d) at an interview between the applicant and an officer; or
(e) by telephone.
(2) Subject to subsection (4), if the invitation is to give additional information or comments otherwise than at an interview, the information or comments are to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period.
(3) Subject to subsection (5), if the invitation is to give information or comments at an interview, the interview is to take place:
(a) at a place specified in the invitation, being a prescribed place or if no place is prescribed, a reasonable place; and
(b) at a time specified in the invitation, being a time within a prescribed period or, if no period is prescribed, a reasonable period.
(4) If a person is to respond to an invitation within a prescribed period, that period may be extended by the Minister for a prescribed further period, and then the response is to be made in the extended period.
(5) If a person is to respond to an invitation at an interview at a time within a prescribed period, that time may be changed by the Minister to:
(a) a later time within that period; or
(b) a time within that period as extended by the Minister for a prescribed further period;
and then the response is to be made at an interview at the new time.
59 Interviews
(1) An applicant must make every reasonable effort to be available for, and attend, an interview.
(2) Section 58 and this section do not mean that the Minister cannot obtain information from an applicant by telephone or in any other way.
60 Medical examination
(1) If the health or physical or mental condition of an applicant for a visa is relevant to the grant of a visa, the Minister may require the applicant to visit, and be examined by, a specified person, being a person qualified to determine the applicant’s health, physical condition or mental condition, at a specified reasonable time and specified reasonable place.
(2) An applicant must make every reasonable effort to be available for, and attend, an examination.
61 Prescribed periods
If this Subdivision requires or allows the regulations to prescribe a period or other time limit relating to a step in considering an application for a visa, the regulations may prescribe different limits relating to that step and specify when that specified limit is to apply, which, without limiting the generality of the power, may be to:
(a) applications for a visa of a specified class; or
(b) applications in specified circumstances; or
(c) applicants in a specified class of persons; or
(d) applicants in a specified class of persons in specified circumstances.
62 Failure to receive information not require action
(1) If an applicant for a visa:
(a) is invited to give additional information; and
(b) does not give the information before the time for giving it has passed;
the Minister may make a decision to grant or refuse to grant the visa without taking any action to obtain the additional information.
(2) If an applicant for a visa:
(a) is invited to comment on information; and
(b) does not give the comments before the time for giving them has passed;
the Minister may make a decision to grant or refuse to grant the visa without taking any further action to obtain the applicant’s views on the information.
63 When decision about visa may be made
(1) Subject to sections 39 (criterion limiting number of visas), 57 (give applicant information), 84 (no further processing), 86 (effect of limit on visas) and 94 (put aside under points system) and subsections (2) and (3) of this section, the Minister may grant or refuse to grant a visa at any time after the application has been made.
(2) The Minister is not to refuse to grant a visa after inviting the applicant to give information and before whichever of the following happens first:
(a) the information is given;
(b) the applicant tells the Minister that the applicant does not wish to give the information or does not have it;
(c) the time in which the information may be given ends.
(3) The Minister is not to refuse to grant a visa after inviting the applicant to comment on information and before whichever of the following happens first:
(a) the comments are given;
(b) the applicant tells the Minister that the applicant does not wish to comment;
(c) the time in which the comments are to be given ends.
(4) The Minister is not to refuse to grant a visa after giving a notice under section 64 and before whichever of the following happens first:
(a) the applicant pays the visa application charge; or
(b) the applicant tells the Minister that the applicant does not intend to pay the visa application charge; or
(c) the end of the period set out in the notice.
64 Notice that visa application charge is payable
(1) This section applies to a valid application for a visa if the Minister, after considering the application, has made an assessment that:
(a) the health criteria for it (if any) have been satisfied; and
(b) the other criteria for it, prescribed by this Act or the regulations, have been satisfied.
(2) If this section applies and an amount of visa application charge is unpaid, the Minister must give the applicant written notice stating that:
(a) an amount of visa application charge is payable within the prescribed period; and
(b) subject to the regulations providing otherwise, a visa cannot be granted unless that amount is paid; and
(c) the Minister may refuse to grant the visa unless that amount is paid within the prescribed period.
(3) If, in accordance with the regulations, 2 or more non‑citizens apply for a visa together, the Minister may give notices under this section in the same document.
Subdivision AC—Grant of visas
65 Decision to grant or refuse to grant visa
(1) After considering a valid application for a visa, the Minister:
(a) if satisfied that:
(i) the health criteria for it (if any) have been satisfied; and
(ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and
(iii) the grant of the visa is not prevented by section 40 (circumstances when granted), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and
(iv) any amount of visa application charge payable in relation to the application has been paid;
is to grant the visa; or
(b) if not so satisfied, is to refuse to grant the visa.
Note: See also section 195A, under which the Minister has a non‑compellable power to grant a visa to a person in detention under section 189 (whether or not the person has applied for the visa). Subdivision AA, this Subdivision, Subdivision AF and the regulations do not apply to the Minister’s power under that section.
(2) To avoid doubt, an application put aside under section 94 is not taken for the purposes of subsection (1) to have been considered until it has been removed from the pool under subsection 95(3).
65A Period within which Minister must make decision on protection visas
(1) If an application for a protection visa:
(a) was validly made under section 46; or
(b) was remitted by any court or tribunal to the Minister for reconsideration;
then the Minister must make a decision under section 65 within 90 days starting on:
(c) the day on which the application for the protection visa was made or remitted; or
(d) in the circumstances prescribed by the regulations—the day prescribed by the regulations.
(2) Failure to comply with this section does not affect the validity of a decision made under section 65 on an application for a protection visa.
66 Notification of decision
(1) When the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way.
(2) Notification of a decision to refuse an application for a visa must:
(a) if the grant of the visa was refused because the applicant did not satisfy a criterion for the visa—specify that criterion; and
(b) if the grant of the visa was refused because a provision of this Act or the regulations prevented the grant of the visa—specify that provision; and
(c) unless subsection (3) applies to the application—give written reasons (other than non‑disclosable information) why the criterion was not satisfied or the provision prevented the grant of the visa; and
(d) if the applicant has a right to have the decision reviewed under Part 5 or 7 or section 500—state:
(i) that the decision can be reviewed; and
(ii) the time in which the application for review may be made; and
(iii) who can apply for the review; and
(iv) where the application for review can be made.
(3) This subsection applies to an application for a visa if:
(a) the visa is a visa that cannot be granted while the applicant is in the migration zone; and
(b) this Act does not provide, under Part 5 or 7, for an application for review of a decision to refuse to grant the visa.
(4) Failure to give notification of a decision does not affect the validity of the decision.
(5) This section does not apply to a decision under section 501, 501A, 501B or 501F to refuse to grant a visa to a person.
Note: Sections 501C and 501G provide for notification of a decision under section 501, 501A, 501B or 501F to refuse to grant a visa to a person.
67 Way visa granted
A visa is to be granted by the Minister causing a record of it to be made.
68 When visa is in effect
(1) Subject to subsection (2), a visa has effect as soon as it is granted.
(2) A visa may provide that it comes into effect at the beginning of a day, being a day after its grant:
(a) specified in the visa; or
(b) when an event, specified in the visa, happens.
(3) A visa can only be in effect during the visa period for the visa.
(4) A bridging visa (the reactivated bridging visa), held by a non‑citizen, that has ceased to be in effect under subsection 82(3), will come into effect again during the visa period for the visa if:
(a) the non‑citizen does not hold a substantive visa that is in effect; and
(b) either:
(i) the non‑citizen does not hold any other bridging visa; or
(ii) the reactivated bridging visa is determined, in accordance with the regulations, to be the most beneficial of the bridging visas held by the applicant.
69 Effect of compliance or non‑compliance
(1) Non‑compliance by the Minister with Subdivision AA or AB or section 494D in relation to a visa application does not mean that a decision to grant or refuse to grant the visa is not a valid decision but only means that the decision might have been the wrong one and might be set aside if reviewed.
(2) If the Minister deals with a visa application in a way that complies with Subdivision AA, AB and this Subdivision, the Minister is not required to take any other action in dealing with it.
Subdivision AE—Evidence of visas
70 Evidence of visa
Subject to the regulations, if a non‑citizen is granted a visa, an officer is to give the non‑citizen evidence of the visa.
71 Ways of giving evidence
(1) Evidence of a visa is to be given in a way prescribed for giving the evidence.
(2) The regulations may provide that the way in which evidence of a visa or a visa of a class is to be given is to depend on the circumstances in which it is given.
(3) If a regulation provides that evidence of a non‑citizen’s visa may be given by endorsing a valid passport or other valid travel document issued to the non‑citizen or another non‑citizen associated with him or her, the Minister may direct that a specified document is not to be taken to be a passport or travel document for the purposes of the regulation.
Subdivision AF—Bridging visas
72 Interpretation
(1) In this Subdivision:
eligible non‑citizen means a non‑citizen who:
(a) has been immigration cleared; or
(b) is in a prescribed class of persons; or
(c) the Minister has determined to be an eligible non‑citizen.
(2) The Minister may make a determination under paragraph (1)(c) that a non‑citizen is an eligible non‑citizen if:
(a) the non‑citizen was an unlawful non‑citizen when he or she entered the migration zone; and
(b) the non‑citizen made a valid application for a protection visa after he or she arrived in Australia; and
(c) the non‑citizen has been in immigration detention for a period of more than 6 months after the application for a protection visa was made; and
(d) the Minister has not made a primary decision in relation to the application for a protection visa; and
(e) the Minister thinks that the determination would be in the public interest.
(3) The power to make a determination under paragraph (1)(c) may only be exercised by the Minister personally.
(4) If the Minister makes a determination under paragraph (1)(c), he or she is to cause to be laid before each House of the Parliament a statement that:
(a) sets out the determination; and
(b) sets out the reasons for the determination, referring in particular to the Minister’s reasons for thinking that his or her actions are in the public interest.
(5) A statement made under subsection (4) is not to include:
(a) the name of any non‑citizen who is the subject of the determination; or
(b) any information that may identify the non‑citizen; or
(c) if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned—the name of that other person, or any information that may identify the person.
(6) A statement under subsection (4) is to be laid before each House of the Parliament within 15 sitting days of that House after:
(a) if the determination is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or
(b) if the determination is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.
(7) The Minister does not have a duty to consider whether to make a determination under paragraph (1)(c) in respect of any non‑citizen, whether he or she is requested to do so by the non‑citizen or any other person, or in any other circumstances.
73 Bridging visas
If the Minister is satisfied that an eligible non‑citizen satisfies the criteria for a bridging visa as prescribed under subsection 31(3), the Minister may grant a bridging visa permitting the non‑citizen to remain in, or to travel to, enter and remain in Australia:
(a) during a specified period; or
(b) until a specified event happens.
74 Further applications for bridging visa
(1) Subject to subsection (2), if:
(a) an eligible non‑citizen who is in immigration detention makes an application for a bridging visa; and
(b) the Minister refuses to grant the visa;
the eligible non‑citizen may make a further application for a bridging visa.
(2) Unless the further application for a bridging visa is made in prescribed circumstances, the further application may be made not earlier than 30 days after:
(a) if the eligible non‑citizen did not make an application for review of the decision to refuse to grant the visa—the refusal; or
(b) if the eligible non‑citizen made an application for such review—the application is finally determined.
75 When eligible non‑citizen in immigration detention granted visa
(1) If:
(a) an eligible non‑citizen who is in immigration detention makes an application for a bridging visa of a prescribed class; and
(b) the Minister does not make a decision, within the prescribed period, to grant or refuse to grant the bridging visa;
the non‑citizen is taken to have been granted a bridging visa of the prescribed class on prescribed conditions (if any) at the end of that period.
(2) The period in subsection (1) may be extended in relation to a particular application by agreement between the applicant and the Minister.
76 Bridging visa not affect visa applications
(1) The fact that a non‑citizen holds a bridging visa does not prevent or affect:
(a) an application by the non‑citizen for a visa of another class; or
(b) the grant of such a visa.
(2) To avoid doubt, the holding by a non‑citizen of a bridging visa is not to be taken to be, for the purposes of an application for a visa of another class, the holding of a visa.
Subdivision AG—Other provisions about visas
77 Visas held during visa period
To avoid doubt, for the purposes of this Act, a non‑citizen holds a visa at all times during the visa period for the visa.
78 Children born in Australia
(1) If:
(a) a child born in Australia is a non‑citizen when born; and
(b) at the time of the birth:
(i) one of the child’s parents holds a visa (other than a special purpose visa); and
(ii) the other parent is, under section 83, included in that visa or does not hold a visa (other than a special purpose visa);
the child is taken to have been granted, at the time of the birth, a visa of the same kind and class and on the same terms and conditions (if any) as that visa.
(2) If:
(a) a child born in Australia is a non‑citizen when born; and
(b) at the time of the birth, each of the child’s parents holds a visa (other than a special purpose visa);
the child is taken to have been granted, at the time of the birth, visas of the same kind and class and on the same terms and conditions (if any) as each of those visas.
(3) Subdivisions AA, AB, AC (other than section 68), AE and AH do not apply in relation to visas granted under this section.
79 Effect on visa of leaving Australia
If the holder of a visa leaves Australia the holder may only re‑enter Australia because of the visa if:
(a) the visa is permission for the re‑entry; and
(b) the visa is in effect on re‑entry.
80 Certain persons taken not to leave Australia
A person is taken not to leave Australia if the person goes outside the migration zone on a vessel and:
(a) does not go (other than for transit purposes) to a foreign country; and
(b) remains a passenger, or a member of the crew, of that vessel while outside the migration zone; and
(c) is outside the migration zone for no longer than the prescribed period.
81 Extent of visa authority
(1) A visa to travel to Australia during a period is not permission to travel to it outside that period.
(2) A visa to enter Australia within a period is not permission to so enter outside that period.
(3) A visa to remain in Australia during a period is not permission to so remain outside that period.
82 When visas cease to be in effect
(1) A visa that is cancelled ceases to be in effect on cancellation.
(2) A substantive visa held by a non‑citizen ceases to be in effect if another substantive visa (other than a special purpose visa) for the non‑citizen comes into effect.
(2AA) Despite subsection (2):
(a) a maritime crew visa held by a non‑citizen does not cease to be in effect if a substantive visa for the non‑citizen that is of a class specified by the Minister, by legislative instrument, for the purposes of this subsection comes into effect; and
(b) a substantive visa held by a non‑citizen that is of a class specified by the Minister, by legislative instrument, for the purposes of this subsection does not cease to be in effect if a maritime crew visa for the non‑citizen comes into effect.
(2A) A temporary visa held by a non‑citizen ceases to be in effect if an enforcement visa for the non‑citizen comes into effect.
(3) A bridging visa held by a non‑citizen ceases to be in effect if another visa (other than a special purpose visa or a maritime crew visa) for the non‑citizen comes into effect.
(4) A visa ceases to be in effect when the holder leaves Australia because of a deportation order made under section 200.
(5) A visa to travel to and enter Australia (whether also a visa to remain in Australia) during a particular period or until a particular date ceases to be in effect at the end of that period or on that date unless the holder of the visa:
(a) has entered Australia in that period or on or before that date; and
(b) is in Australia at the end of that period or on that date.
(6) A visa to travel to and enter Australia (whether also a visa to remain in Australia) during a particular period or until a particular date ceases to be in effect if the holder leaves Australia after that period or date.
(7) A visa to remain in Australia (whether also a visa to travel to and enter Australia) during a particular period or until a particular date ceases to be in effect at the end of that period or on that date.
(7A) A bridging visa permitting the holder to remain in, or to travel to, enter and remain in, Australia until a specified event happens, ceases to be in effect the moment the event happens.
(8) A visa to remain in, but not re‑enter, Australia that is granted to a non‑citizen in Australia ceases to be in effect if the holder leaves Australia.
(9) This section does not affect the operation of other provisions of this Act under which a visa ceases to be in effect (such as sections 173 and 174).
(10) For the purposes of subsections (5), (6) and (7), particular date includes:
(a) the date an event, specified in the visa, happens; or
(b) the date the holder ceases to have a status specified in the visa or the regulations.
83 Certain persons taken to be included in spouse, de facto partner or parent’s visa
(1) Where:
(a) a person’s name is included in the passport or other document of identity of the person’s spouse or de facto partner; and
(b) the person accompanies his or her spouse or de facto partner to Australia (whether before or after the commencement of this section);
the person shall be taken to be included in any visa granted to the spouse or de facto partner evidence of which is endorsed on the passport or other document of identity if, and only if, the person’s name is included in the endorsement.
Note: Subsection 5(1) defines de facto partner and spouse. For the purposes of this section, those definitions apply only in relation to visas granted on or after 1 July 2009: see the Same‑Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Act 2008. This section as in force before the amendment of this Act by that Act continues to apply in relation to visas granted before 1 July 2009.
(2) Where:
(a) the name of a child is included in the passport or other document of identity of a parent of the child; and
(b) the child accompanies that parent to Australia (whether before or after the commencement of this section);
the child shall be taken to be included in any visa granted to the parent evidence of which is endorsed on the passport or other document of identity if, and only if, the child’s name is included in the endorsement.
Note: Subsection 5(1) defines child and parent. For the purposes of this section, those definitions apply only in relation to visas granted on or after 1 July 2009: see the Same‑Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Act 2008.
84 Minister may suspend processing of visa applications
(1) The Minister may, by notice in the Gazette, determine that dealing with applications for visas of a specified class is to stop until a day specified in the notice (in this section called the resumption day).
(2) Where a notice under subsection (1) is published in the Gazette, no act is to be done in relation to any application for a visa of the class concerned until the resumption day.
(3) A notice under this section does not have any effect in relation to an application for a visa made by a person on the ground that he or she is the spouse, de facto partner or dependent child of:
(a) an Australian citizen; or
(b) the holder of a permanent visa that is in effect; or
(c) a person who is usually resident in Australia and whose continued presence in Australia is not subject to a limitation as to time imposed by law.
(4) Nothing in this section prevents an act being done to implement a decision to grant or to refuse to grant a visa if the decision had been made before the date of the notice concerned.
(5) For the purposes of this section, a child of a person is a dependent child if the child:
(a) does not have a spouse or de facto partner; and
(b) either:
(i) is under 18; or
(ii) is 18, 19 or 20 and is dependent on the person for:
(A) financial and psychological support; or
(B) physical support.
(6) In this section:
act means an act connected with performing functions or exercising powers under or for the purposes of this Act.
Subdivision AH—Limit on visas
85 Limit on visas
The Minister may, by notice in the Gazette, determine the maximum number of:
(a) the visas of a specified class; or
(b) the visas of specified classes;
that may be granted in a specified financial year.
86 Effect of limit
If:
(a) there is a determination of the maximum number of visas of a class or classes that may be granted in a financial year; and
(b) the number of visas of the class or classes granted in the year reaches that maximum number;
no more visas of the class or classes may be granted in the year.
87 Limit does not prevent visas for certain persons
(1) Section 86 does not prevent the grant of a visa to a person who applied for it on the ground that he or she is the spouse, de facto partner or dependent child of:
(a) an Australian citizen; or
(b) the holder of a permanent visa that is in effect; or
(c) a person who is usually resident in Australia and whose continued presence in Australia is not subject to a limitation as to time imposed by law.
(2) For the purposes of this section, a child of a person is a dependent child if the child:
(a) does not have a spouse or de facto partner; and
(b) either:
(i) is under 18; or
(ii) is 18, 19 or 20 and is dependent on the person for:
(A) financial and psychological support; or
(B) physical support.
87A Limit does not prevent the grant of visas to certain people who are unable to meet health or character requirements before the limit applies because of circumstances beyond their control
If:
(a) a person has applied, whether before or after the commencement of this section, for the grant of a visa; and
(b) a time was or is reached when the grant of the visa to the person in a particular financial year was or is prevented by section 86; and
(c) the person was requested by the Minister after that time to satisfy requirements for the grant of the visa that relate to health or character; and
(d) after the making of the request referred to in paragraph (c) the person satisfies the requirements referred to in that paragraph in a financial year subsequent to the financial year in which the time referred to in paragraph (b) occurred; and
(e) the grant of the visa to the person at the time when the requirements referred to in paragraph (c) are satisfied would, apart from this section, be prevented by section 86; and
(f) the person was unable to satisfy the requirements referred to in paragraph (c) at a time when, apart from this section, section 86 would not have prevented the grant of the visa to the person; and
(g) the Minister is satisfied that the person’s inability to satisfy the requirements referred to in paragraph (c) at a time mentioned in paragraph (e) was due to circumstances beyond the person’s control;
section 86 does not prevent the grant of the visa to the person.
88 Limit does not affect processing of applications
Section 86’s prevention of the grant of a visa does not prevent any other action related to the application for it.
89 Determination of limit not to mean failure to decide
The fact that the Minister has neither granted nor refused to grant a visa of a class or classes to which a determination under section 85 applies does not mean, for any purpose, that the Minister has failed to make a decision to grant or refuse to grant the visa.
90 Order of dealing with limited visas
The fact that an application for a visa of a class or classes to which a determination under section 85 applies has not been considered or disposed of although an application for another visa of the class or classes that was made later has been considered or disposed of does not mean, for any purpose, that the consideration or disposal of the earlier application is unreasonably delayed.
91 Order of dealing with visas
If a determination under section 85 applies, or has applied, to visas of a class or classes, the Minister may consider or, subject to section 86, dispose of outstanding and further applications for such visas in such order as he or she considers appropriate.
Subdivision AI—Safe third countries
91A Reason for Subdivision
This Subdivision is enacted because the Parliament considers that certain non‑citizens who are covered by the CPA, or in relation to whom there is a safe third country, should not be allowed to apply for a protection visa or, in some cases, any other visa. Any such non‑citizen who is an unlawful non‑citizen will be subject to removal under Division 8.
91B Interpretation
(1) In this Subdivision:
agreement includes a written arrangement or understanding, whether or not binding.
CPA means the Comprehensive Plan of Action approved by the International Conference on Indo‑Chinese Refugees, held at Geneva, Switzerland, from 13 to 14 June 1989.
(2) For the purposes of this Subdivision, if, apart from this section:
(a) a colony, overseas territory or protectorate of a foreign country; or
(b) an overseas territory for the international relations of which a foreign country is responsible;
is not a country in its own right, the colony, territory or protectorate is taken to be a country in its own right.
91C Non‑citizens covered by Subdivision
(1) This Subdivision applies to a non‑citizen at a particular time if:
(a) the non‑citizen is in Australia at that time; and
(b) at that time, the non‑citizen is covered by:
(i) the CPA; or
(ii) an agreement, relating to persons seeking asylum, between Australia and a country that is, or countries that include a country that is, at that time, a safe third country in relation to the non‑citizen (see section 91D); and
(c) the non‑citizen is not excluded by the regulations from the application of this Subdivision.
(2) To avoid doubt, a country does not need to be prescribed as a safe third country at the time that the agreement referred to in subparagraph (1)(b)(ii) is made.
91D Safe third countries
(1) A country is a safe third country in relation to a non‑citizen if:
(a) the country is prescribed as a safe third country in relation to the non‑citizen, or in relation to a class of persons of which the non‑citizen is a member; and
(b) the non‑citizen has a prescribed connection with the country.
(2) Without limiting paragraph (1)(b), the regulations may provide that a person has a prescribed connection with a country if:
(a) the person is or was present in the country at a particular time or at any time during a particular period; or
(b) the person has a right to enter and reside in the country (however that right arose or is expressed).
(3) The Minister must, within 2 sitting days after a regulation under paragraph (1)(a) is laid before a House of the Parliament, cause to be laid before that House a statement, covering the country, or each of the countries, prescribed as a safe third country by the regulation, about:
(a) the compliance by the country, or each of the countries, with relevant international law concerning the protection of persons seeking asylum; and
(b) the meeting by the country, or each of the countries, of relevant human rights standards for the persons in relation to whom the country is prescribed as a safe third country; and
(c) the willingness of the country, or each of the countries, to allow any person in relation to whom the country is prescribed as a safe third country:
(i) to go to the country; and
(ii) to remain in the country during the period in which any claim by the person for asylum is determined; and
(iii) if the person is determined to be a refugee while in the country—to remain in the country until a durable solution relating to the permanent settlement of the person is found.
(4) A regulation made for the purposes of paragraph (1)(a) ceases to be in force at the end of 2 years after the regulation commences.
91E Non‑citizens to which this Subdivision applies unable to make valid applications for certain visas
Despite any other provision of this Act, if this Subdivision applies to a non‑citizen at a particular time and, at that time, the non‑citizen applies, or purports to apply, for a protection visa then, subject to section 91F:
(a) if the non‑citizen has not been immigration cleared at that time—neither that application nor any other application made by the non‑citizen for a visa is a valid application; or
(b) if the non‑citizen has been immigration cleared at that
time—neither that application nor any other application made by the non‑citizen for a protection visa is a valid application.
91F Minister may determine that section 91E does not apply to non‑citizen
(1) If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a particular non‑citizen, determine:
(a) that section 91E does not apply to an application for a visa made by the non‑citizen in the period starting when the notice is given and ending at the end of the seventh working day after the day that the notice is given; or
(b) that section 91G does not apply to an application for a visa made by the non‑citizen during the transitional period referred to in that section.
(2) The power under subsection (1) may only be exercised by the Minister personally.
(3) If the Minister makes a determination under subsection (1), he or she is to cause to be laid before each House of the Parliament a statement that:
(a) sets out the determination; and
(b) sets out the reasons for the determination, referring in particular to the Minister’s reasons for thinking that his or her actions are in the public interest.
(4) A statement under subsection (3) is not to include:
(a) the name of the non‑citizen; or
(b) any information that may identify the non‑citizen; or
(c) if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned—the name of that other person or any information that may identify that other person.
(5) A statement under subsection (3) is to be laid before each House of the Parliament within 15 sitting days of that House after:
(a) if the determination is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or
(b) if the determination is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.
(6) The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any non‑citizen, whether he or she is requested to do so by the non‑citizen or by any other person, or in any other circumstances.
91G Applications made before regulations take effect
(1) Subject to section 91F and subsection (3), if:
(a) this Subdivision applies to a non‑citizen immediately after a regulation prescribing a country as a safe third country takes effect and did not apply to the non‑citizen immediately before that time; and
(b) the regulation prescribes a day as the cut off day; and
(c) during the period (the transitional period) from the beginning of the cut off day until immediately before that regulation takes effect, the non‑citizen made an application for a protection visa;
then:
(d) if the non‑citizen had not been immigration cleared at the time of making the application—that application, and any other application made by the non‑citizen for a visa made during the transitional period, ceases to be a valid application when the regulation takes effect; and
(e) if the non‑citizen had been immigration cleared at the time of making the application—that application, and any other application made by the non‑citizen for a protection visa made during the transitional period, ceases to be a valid application when the regulation takes effect; and
(f) on and after the regulation takes effect, this Act applies as if the non‑citizen had applied for a protection visa immediately after the regulation takes effect.
(2) To avoid doubt:
(a) paragraphs (1)(d) and (e) apply even if an application referred to in the paragraph concerned, or a decision in relation to such an application, is the subject of a review by, or an appeal or application to, the Migration Review Tribunal, the Refugee Review Tribunal, the Administrative Appeals Tribunal, a Federal Court or any other body or court; and
(b) no visa may be granted to the non‑citizen as a direct, or indirect, result of such an application.
(3) Subsection (1) does not apply in relation to a non‑citizen who, before the regulation referred to in that subsection takes effect, has:
(a) been granted a substantive visa as a result of an application referred to in that subsection; or
(b) been determined under this Act to be a non‑citizen who satisfies the criterion mentioned in subsection 36(2).
(4) The cut off day specified in the regulation must not be:
(a) before a day on which the Minister, by notice in the Gazette, announces that he or she intends that such a regulation will be made; or
(b) more than 6 months before the regulation takes effect.
Subdivision AJ—Temporary safe haven visas
91H Reason for this Subdivision
This Subdivision is enacted because the Parliament considers that a non‑citizen who holds a temporary safe haven visa, or who has not left Australia since ceasing to hold such a visa, should not be allowed to apply for a visa other than another temporary safe haven visa. Any such non‑citizen who ceases to hold a visa will be subject to removal under Division 8.
Note: For temporary safe haven visas, see section 37A.
91J Non‑citizens to whom this Subdivision applies
This Subdivision applies to a non‑citizen in Australia at a particular time if, at that time, the non‑citizen:
(a) holds a temporary safe haven visa; or
(b) has not left Australia since ceasing to hold a temporary safe haven visa.
91K Non‑citizens to whom this Subdivision applies are unable to make valid applications for certain visas
Despite any other provision of this Act but subject to section 91L, if this Subdivision applies to a non‑citizen at a particular time and, at that time, the non‑citizen applies, or purports to apply, for a visa (other than a temporary safe haven visa), then that application is not a valid application.
91L Minister may determine that section 91K does not apply to a non‑citizen
(1) If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a particular non‑citizen, determine that section 91K does not apply to an application for a visa made by the non‑citizen in the period starting when the notice is given and ending at the end of the seventh working day after the day that the notice is given.
(2) The power under subsection (1) may only be exercised by the Minister personally.
(3) If the Minister makes a determination under subsection (1), he or she is to cause to be laid before each House of the Parliament a statement that:
(a) sets out the determination; and
(b) sets out the reasons for the determination, referring in particular to the Minister’s reasons for thinking that his or her actions are in the public interest.
(4) A statement under subsection (3) is not to include:
(a) the name of the non‑citizen; or
(b) any information that may identify the non‑citizen; or
(c) if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned—the name of that other person or any information that may identify that other person.
(5) A statement under subsection (3) is to be laid before each House of the Parliament within 15 sitting days of that House after:
(a) if the determination is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or
(b) if the determination is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.
(6) The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any non‑citizen, whether he or she is requested to do so by the non‑citizen or by any other person, or in any other circumstances.
Subdivision AK—Non‑citizens with access to protection from third countries
91M Reason for this Subdivision
This Subdivision is enacted because the Parliament considers that a non‑citizen who can avail himself or herself of protection from a third country, because of nationality or some other right to re‑enter and reside in the third country, should seek protection from the third country instead of applying in Australia for a protection visa, or, in some cases, any other visa. Any such non‑citizen who is an unlawful non‑citizen will be subject to removal under Division 8.
Note: For protection visas, see section 36.
91N Non‑citizens to whom this Subdivision applies
(1) This Subdivision applies to a non‑citizen at a particular time if, at that time, the non‑citizen is a national of 2 or more countries.
(2) This Subdivision also applies to a non‑citizen at a particular time if, at that time:
(a) the non‑citizen has a right to re‑enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country (the available country) apart from:
(i) Australia; or
(ii) a country of which the non‑citizen is a national; or
(iii) if the non‑citizen has no country of nationality—the country of which the non‑citizen is an habitual resident; and
(b) the non‑citizen has ever resided in the available country for a continuous period of at least 7 days or, if the regulations prescribe a longer continuous period, for at least that longer period; and
(c) a declaration by the Minister is in effect under subsection (3) in relation to the available country.
(3) The Minister may, after considering any advice received from the Office of the United Nations High Commissioner for Refugees:
(a) declare in writing that a specified country:
(i) provides access, for persons seeking asylum, to effective procedures for assessing their need for protection; and
(ii) provides protection to persons to whom that country has protection obligations; and
(iii) meets relevant human rights standards for persons to whom that country has protection obligations; or
(b) in writing, revoke a declaration made under paragraph (a).
(4) A declaration made under paragraph (3)(a):
(a) takes effect when it is made by the Minister; and
(b) ceases to be in effect if and when it is revoked by the Minister under paragraph (3)(b).
(5) The Minister must cause a copy of a declaration, or of a revocation of a declaration, to be laid before each House of the Parliament within 2 sitting days of that House after the Minister makes the declaration or revokes the declaration.
Determining nationality
(6) For the purposes of this section, the question of whether a non‑citizen is a national of a particular country must be determined solely by reference to the law of that country.
(7) Subsection (6) does not, by implication, affect the interpretation of any other provision of this Act.
91P Non‑citizens to whom this Subdivision applies are unable to make valid applications for certain visas
(1) Despite any other provision of this Act but subject to section 91Q, if:
(a) this Subdivision applies to a non‑citizen at a particular time; and
(b) at that time, the non‑citizen applies, or purports to apply, for a visa; and
(c) the non‑citizen is in the migration zone and has not been immigration cleared at that time;
neither that application, nor any other application the non‑citizen makes for a visa while he or she remains in the migration zone, is a valid application.
(2) Despite any other provision of this Act but subject to section 91Q, if:
(a) this Subdivision applies to a non‑citizen at a particular time; and
(b) at that time, the non‑citizen applies, or purports to apply, for a protection visa; and
(c) the non‑citizen is in the migration zone and has been immigration cleared at that time;
neither that application, nor any other application made by the non‑citizen for a protection visa while he or she remains in the migration zone, is a valid application.
91Q Minister may determine that section 91P does not apply to a non‑citizen
(1) If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a particular non‑citizen, determine that section 91P does not apply to an application for a visa made by the non‑citizen in the period starting when the notice is given and ending at the end of the seventh working day after the day that the notice is given.
(2) For the purposes of subsection (1), the matters that the Minister may consider include information that raises the possibility that, although the non‑citizen satisfies the description set out in subsection 91N(1) or (2), the non‑citizen might not be able to avail himself or herself of protection from the country, or any of the countries, by reference to which the non‑citizen satisfies that description.
(3) The power under subsection (1) may only be exercised by the Minister personally.
(4) If the Minister makes a determination under subsection (1), he or she is to cause to be laid before each House of the Parliament a statement that:
(a) sets out the determination; and
(b) sets out the reasons for the determination, referring in particular to the Minister’s reasons for thinking that his or her actions are in the public interest.
(5) A statement under subsection (4) is not to include:
(a) the name of the non‑citizen; or
(b) any information that may identify the non‑citizen; or
(c) if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned—the name of that other person or any information that may identify that other person.
(6) A statement under subsection (4) is to be laid before each House of the Parliament within 15 sitting days of that House after:
(a) if the determination is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or
(b) if the determination is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.
(7) The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any non‑citizen, whether he or she is requested to do so by the non‑citizen or by any other person, or in any other circumstances.
Subdivision AL—Other provisions about protection visas
91R Persecution
(1) For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
(a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and
(b) the persecution involves serious harm to the person; and
(c) the persecution involves systematic and discriminatory conduct.
(2) Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(3) For the purposes of the application of this Act and the regulations to a particular person:
(a) in determining whether the person has a well‑founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;
disregard any conduct engaged in by the person in Australia unless:
(b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.
91S Membership of a particular social group
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of being persecuted for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol; and
(b) disregard any fear of persecution, or any persecution, that:
(i) the first person has ever experienced; or
(ii) any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
91T Non‑political crime
(1) For the purposes of the application of this Act and the regulations to a particular person, Article 1F of the Refugees Convention as amended by the Refugees Protocol has effect as if the reference in that Article to a non‑political crime were a reference to a crime where the person’s motives for committing the crime were wholly or mainly non‑political in nature.
(2) Subsection (1) has effect subject to subsection (3).
(3) For the purposes of the application of this Act and the regulations to a particular person, Article 1F of the Refugees Convention as amended by the Refugees Protocol has effect as if the reference in that Article to a non‑political crime included a reference to an offence that, under paragraph (a), (b), (c) or (d) of the definition of political offence in section 5 of the Extradition Act 1988, is not a political offence in relation to a country for the purposes of that Act.
91U Particularly serious crime
(1) For the purposes of the application of this Act and the regulations to a particular person, Article 33(2) of the Refugees Convention as amended by the Refugees Protocol has effect as if a reference in that Article to a particularly serious crime included a reference to a crime that consists of the commission of:
(a) a serious Australian offence (as defined by subsection (2)); or
(b) a serious foreign offence (as defined by subsection (3)).
(2) For the purposes of this section, a serious Australian offence is an offence against a law in force in Australia, where:
(a) the offence:
(i) involves violence against a person; or
(ii) is a serious drug offence; or
(iii) involves serious damage to property; or
(iv) is an offence against section 197A or 197B (offences relating to immigration detention); and
(b) the offence is punishable by:
(i) imprisonment for life; or
(ii) imprisonment for a fixed term of not less than 3 years; or
(iii) imprisonment for a maximum term of not less than 3 years.
(3) For the purposes of this section, a serious foreign offence is an offence against a law in force in a foreign country, where:
(a) the offence:
(i) involves violence against a person; or
(ii) is a serious drug offence; or
(iii) involves serious damage to property; and
(b) if it were assumed that the act or omission constituting the offence had taken place in the Australian Capital Territory, the act or omission would have constituted an offence (the Territory offence) against a law in force in that Territory, and the Territory offence would have been punishable by:
(i) imprisonment for life; or
(ii) imprisonment for a fixed term of not less than 3 years; or
(iii) imprisonment for a maximum term of not less than 3 years.
91V Verification of information
Applicant for protection visa
(1) If an applicant for a protection visa has given information to the Minister or an officer in, or in connection with, the application for the visa, the Minister or an officer may, either orally or in writing, request the applicant to make an oral statement, on oath or affirmation, to the effect that the information is true.
(2) If:
(a) the applicant has been given a request under subsection (1); and
(b) the applicant refuses or fails to comply with the request; and
(c) when the request was made, the applicant was given a warning, either orally or in writing, that the Minister may draw an inference unfavourable to the applicant’s credibility in the event that the applicant refuses or fails to comply with the request;
then, in making a decision whether to grant the protection visa to the applicant, the Minister may draw any reasonable inference unfavourable to the applicant’s credibility.
(3) If:
(a) the applicant has been given a request under subsection (1); and
(b) the applicant complies with the request; and
(c) the Minister has reason to believe that, because of:
(i) the manner in which the applicant complied with the request; or
(ii) the applicant’s demeanour in relation to compliance with the request;
the applicant was not sincere;
then, in making a decision whether to grant the protection visa to the applicant, the Minister may draw any reasonable inference unfavourable to the applicant’s credibility.
Non‑citizen refused immigration clearance
(4) If:
(a) either:
(i) a non‑citizen gave information to an officer when the non‑citizen was in immigration clearance, and the non‑citizen is subsequently refused immigration clearance; or
(ii) a non‑citizen was refused immigration clearance and subsequently gave information to an officer; and
(b) the information is relevant to the administration or enforcement of this Act or the regulations;
an officer may, either orally or in writing, request the non‑citizen to make an oral statement, on oath or affirmation, to the effect that the information is true.
(5) If:
(a) the non‑citizen has been given a request under subsection (4); and
(b) the non‑citizen refuses or fails to comply with the request; and
(c) when the request was made, the non‑citizen was given a warning, either orally or in writing, that the Minister may draw an inference unfavourable to the non‑citizen’s credibility in the event that the non‑citizen refuses or fails to comply with the request;
then, in making a decision about the non‑citizen under this Act or the regulations, the Minister may draw any reasonable inference unfavourable to the non‑citizen’s credibility.
(6) If:
(a) the non‑citizen has been given a request under subsection (4); and
(b) the non‑citizen complies with the request; and
(c) the Minister has reason to believe that, because of:
(i) the manner in which the non‑citizen complied with the request; or
(ii) the non‑citizen’s demeanour in relation to compliance with the request;
the non‑citizen was not sincere;
then, in making a decision about the non‑citizen under this Act or the regulations, the Minister may draw any reasonable inference unfavourable to the non‑citizen’s credibility.
Officer
(7) A reference in this section to an officer includes a reference to a person who is a clearance officer within the meaning of section 165.
Oaths or affirmations
(8) The Minister or an officer may administer an oath or affirmation for the purposes of this section.
91W Documentary evidence of identity, nationality or citizenship
(1) The Minister or an officer may, either orally or in writing, request an applicant for a protection visa to produce, for inspection by the Minister or the officer, documentary evidence of the applicant’s identity, nationality or citizenship.
(2) If:
(a) the applicant has been given a request under subsection (1); and
(b) the applicant refuses or fails to comply with the request; and
(c) the applicant does not have a reasonable explanation for refusing or failing to comply with the request; and
(d) when the request was made, the applicant was given a warning, either orally or in writing, that the Minister may draw an inference unfavourable to the applicant’s identity, nationality or citizenship in the event that the applicant refuses or fails to comply with the request;
then, in making a decision whether to grant the protection visa to the applicant, the Minister may draw any reasonable inference unfavourable to the applicant’s identity, nationality or citizenship.
91X Names of applicants for protection visas not to be published by the High Court, the Federal Court or the Federal Magistrates Court
(1) This section applies to a proceeding before the High Court, the Federal Court or the Federal Magistrates Court if the proceeding relates to a person in the person’s capacity as:
(a) a person who applied for a protection visa; or
(b) a person who applied for a protection‑related bridging visa; or
(c) a person whose protection visa has been cancelled; or
(d) a person whose protection‑related bridging visa has been cancelled.
(2) The court must not publish (in electronic form or otherwise), in relation to the proceeding, the person’s name.
(3) In this section:
application for a protection‑related bridging visa means an application for a bridging visa, where the applicant for the bridging visa is, or has been, an applicant for a protection visa.
proceeding means a proceeding in a court, whether between parties or not, and includes an incidental proceeding in the course of, or in connection with, a proceeding, and also includes an appeal.
protection‑related bridging visa means a bridging visa granted as a result of an application for a protection‑related bridging visa.
91Y Secretary’s obligation to report to Minister
Secretary must give periodic reports to Minister
(1) The Secretary must give a report under this section to the Minister within 45 days after the end of each of the following periods (each of which is a reporting period):
(a) the period that started on 1 July 2005 and ends, or ended, on 31 October 2005; and
(b) each subsequent period of 4 months.
Secretary must give additional reports to Minister as required
(2) The Minister may give to the Secretary a notice requiring the Secretary to give to the Minister a report under this section in addition to the reports required under subsection (1). The notice must specify the period to which the report is to relate (also a reporting period).
(3) The Secretary must give the report under subsection (2) to the Minister:
(a) within 45 days after the day on which the reporting period ends; or
(b) within 45 days after the day on which the Minister gives the notice to the Secretary;
whichever is later.
(4) A notice under subsection (2) is not a legislative instrument.
Information that must be included in report
(5) A report under this section relating to a reporting period must include information about each application for a protection visa:
(a) that:
(i) an applicant has validly made under section 46; or
(ii) a court or tribunal has remitted to the Minister for reconsideration; and
(b) for which:
(i) the Minister has made a decision under section 65 during the reporting period, but has not made the decision within the decision period; or
(ii) the Minister has not made a decision under section 65 before or during the reporting period, and the decision period has ended (whether before or during the reporting period).
(6) The report must also include:
(a) the date on which each application was made that:
(i) was validly made under section 46; and
(ii) paragraph (5)(b) applies to; and
(b) the reasons why decisions were not made within the decision period.
Note: The reasons mentioned in paragraph (6)(b) may relate to aspects of processing applications that are beyond the Department’s control.
Information that must not be included in the report
(7) A report under this section must not include:
(a) the name of any current or former applicant for a protection visa; or
(b) any information that may identify such an applicant; or
(c) the name of any other person connected in any way with any application for a protection visa made by the applicant mentioned in paragraph (a); or
(d) any information that may identify that other person.
Information that may be included in the report
(8) The report may include any other information that the Secretary thinks appropriate.
Reports to be tabled in Parliament
(9) The Minister must cause a copy of a report under this section to be tabled in each House of the Parliament within 15 sitting days of that House after the day on which the Minister receives the report from the Secretary.
Definition
(10) In this section:
decision period for an application for a protection visa means the period of 90 days starting on:
(a) the day on which the application for the protection visa was made or remitted as mentioned in subsection (5); or
(b) in the circumstances prescribed by the regulations—the day prescribed by the regulations.
Subdivision B—The “points” system
92 Operation of Subdivision
This Subdivision has effect where one of the prescribed criteria in relation to a visa of a particular class is the criterion that the applicant receives the qualifying score when assessed as provided by this Subdivision.
93 Determination of applicant’s score
(1) The Minister shall make an assessment by giving the applicant the prescribed number of points for each prescribed qualification that is satisfied in relation to the applicant.
(2) In this section:
prescribed means prescribed by regulations in force at the time the assessment is made.
94 Initial application of “points” system
(1) An applicant whose assessed score is more than or equal to the applicable pass mark at the time when the score is assessed is taken to have received the qualifying score.
(2) An applicant whose assessed score is less than the applicable pool mark at the time when the score is assessed is taken not to have received the qualifying score.
(3) If an applicant’s assessed score is more than or equal to the applicable pool mark, but less than the applicable pass mark, at the time when the score is assessed:
(a) the Minister must, unless the application is withdrawn, put the application aside and deal with it in accordance with section 95; and
(b) if the Minister puts the application aside—the Minister is taken to have put the application into a pool.
(4) Where, in accordance with this section, the Minister puts an application aside, he or she shall be taken for all purposes not to have failed to make a decision to grant or refuse to grant a visa.
95 Applications in pool
When section applies
(1) This section applies if the Minister puts an application into a pool.
How applications to be dealt with
(2) If, within 12 months after the assessment of the applicant’s assessed score, the Minister gives a notice under section 96 varying the applicable pass mark or the applicable pool mark:
(a) the Minister must, without re‑assessing that score, compare that score with the applicable pass mark and the applicable pool mark; and
(b) if that score is more than or equal to the applicable pass mark—the applicant is taken to have received the qualifying score; and
(c) if that score is less than the applicable pool mark—the applicant is taken not to have received the qualifying score; and
(d) if that score is more than or equal to the applicable pool mark but less than the applicable pass mark—the application remains in the pool until it is removed from the pool (see subsection (3)).
Removal of applications from pool
(3) An application in the pool is taken to have been removed from the pool at whichever is the earliest of the following times:
(a) the end of 12 months after the assessment of the applicant’s assessed score;
(b) the earliest time (if any) when the applicant is taken to have received the qualifying score as the result of the operation of subsection (2);
(c) the earliest time (if any) when the applicant is taken not to have received the qualifying score as the result of the operation of subsection (2).
Removal from pool under paragraph (3)(a) treated as failure to receive qualifying score
(4) If an application is removed from the pool because of paragraph (3)(a), the applicant is taken not to have received the qualifying score.
Section to be subject to section 95A
(5) This section has effect subject to section 95A.
95A Extension of period in pool
(1) This section applies to an application that:
(a) is in the pool at the commencement of this section; or
(b) is put in the pool after that commencement.
(2) Section 95 has effect in relation to the application as if references in subsections 95(2) and (3) to 12 months were references to 2 years.
96 Minister may set pool mark and pass mark
(1) The Minister may, from time to time, by notice in the Gazette, specify, in relation to a class of visas, the pool mark for the purposes of this Act and the regulations.
(2) The Minister may, from time to time, by notice in the Gazette, specify, in relation to applications for visas of a particular class, the pass mark for the purposes of this Act and the regulations.
(3) A notice under subsection (1) or (2) operates to revoke the previous notice under that subsection in relation to the same class of visas and also operates as a variation of the mark specified in the previous notice.
(4) The Minister shall cause copies of each notice under subsection (1) or (2) to be laid before each House of the Parliament within 15 sitting days of that House after the publication of the notice in the Gazette.
(5) This Act does not prevent a pool mark and a pass mark from being equal.
(6) This Act does not prevent a pool mark and a pass mark from being varied independently of each other.
Subdivision C—Visas based on incorrect information may be cancelled
97 Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a) purports to have been, but was not, issued in respect of the person; or
(b) is counterfeit or has been altered by a person who does not have authority to do so; or
(c) was obtained because of a false or misleading statement, whether or not made knowingly.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
97A Exhaustive statement of natural justice hearing rule
(1) This Subdivision is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
(2) Sections 494A to 494D, in so far as they relate to this Subdivision, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.
98 Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99 Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system or a person or Tribunal reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100 Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101 Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a) all questions on it are answered; and
(b) no incorrect answers are given or provided.
102 Passenger cards to be correct
A non‑citizen must fill in his or her passenger card in such a way that:
(a) all questions on it are answered; and
(b) no incorrect answers are given.
103 Bogus documents not to be given etc.
A non‑citizen must not give, present or provide to an officer, an authorised system, the Minister, or a tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented or provided.
104 Changes in circumstances to be notified
(1) If circumstances change so that an answer to a question on a non‑citizen’s application form or an answer under this section is incorrect in the new circumstances, he or she must, as soon as practicable, inform an officer in writing of the new circumstances and of the correct answer in them.
(2) If the applicant is in Australia at the time the visa is granted, subsection (1) only applies to changes in circumstance before the visa is granted.
(3) If the applicant is outside Australia at the time the visa is granted, subsection (1) only applies to changes in circumstances after the application and before the applicant is immigration cleared.
(4) Subsection (1) applies despite the grant of any visa.
105 Particulars of incorrect answers to be given
(1) If a non‑citizen becomes aware that:
(a) an answer given or provided in his or her application form; or
(b) an answer given in his or her passenger card; or
(c) information given by him or her under section 104 about the form or card; or
(d) a response given by him or her under section 107;
was incorrect when it was given or provided, he or she must, as soon as practicable, notify an officer in writing of the incorrectness and of the correct answer.
(2) Subsection (1) applies despite the grant of any visa.
106 Obligations to give etc. information is not affected by other sources of information
The requirement for a non‑citizen to comply with sections 101, 102, 103, 104 and 105, is not removed or otherwise affected by the fact that the Minister or an officer had, or had access to:
(a) any information given by the non‑citizen for purposes unrelated to the non‑citizen’s visa application; or
(b) any other information.
107 Notice of incorrect applications
(1) If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a) giving particulars of the possible non‑compliance; and
(b) stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i) if the holder disputes that there was non‑compliance:
(A) shows that there was compliance; and
(B) in case the Minister decides under section 108 that, in spite of the statement under sub-subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or
(ii) if the holder accepts that there was non‑compliance:
(A) give reasons for the non‑compliance; and
(B) shows cause why the visa should not be cancelled; and
(c) stating that the Minister will consider cancelling the visa:
(i) if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii) if the holder gives the Minister a written response within that period—when the response is given; or
(iii) otherwise—at the end of that period; and
(d) setting out the effect of sections 108, 109, 111 and 112; and
(e) informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f) requiring the holder:
(i) to tell the Minister the address at which the holder is living; and
(ii) if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.
(1A) The period to be stated in the notice under subsection (1) must be:
(a) in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b) otherwise—14 days.
(1B) Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a) visas of a stated class; or
(b) visa holders in stated circumstances; or
(c) visa holders in a stated class of people (who may be visa holders in a particular place); or
(d) visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2) If the visa holder responds to the notice, he or she must do so without making any incorrect statement.
107A Possible non‑compliances in connection with a previous visa may be grounds for cancellation of current visa
The possible non‑compliances that:
(a) may be specified in a notice by the Minister under section 107 to a person who is the holder of a visa; and
(b) if so specified, can constitute a ground for the cancellation of that visa under section 109;
include non‑compliances that occurred at any time, including non‑compliances in respect of any previous visa held by the person.
108 Decision about non‑compliance
The Minister is to:
(a) consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b) decide whether there was non‑compliance by the visa holder in the way described in the notice.
109 Cancellation of visa if information incorrect
(1) The Minister, after:
(a) deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b) considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c) having regard to any prescribed circumstances;
may cancel the visa.
(2) If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.
110 Cancellation provisions apply whatever source of knowledge of non‑compliance
To avoid doubt, sections 107, 108 and 109 apply whether or not the Minister became aware of the non‑compliance because of information given by the holder.
111 Cancellation provisions apply whether or not non‑compliance deliberate
To avoid doubt, sections 107, 108 and 109 apply whether the non‑compliance was deliberate or inadvertent.
112 Action because of one non‑compliance not prevent action because of other non‑compliance
(1) A notice under section 107 to a person because of an instance of possible non‑compliance does not prevent another notice under that section to that person because of another instance of possible non‑compliance.
(2) The non‑cancellation of a visa under section 109 despite an instance of non‑compliance does not prevent the cancellation, or steps for the cancellation, of the visa because of another instance of non‑compliance.
113 No cancellation if full disclosure
If the holder of a visa who has been immigration cleared complied with sections 101, 102, 103, 104 and 105 in relation to the visa, it cannot be cancelled under this Subdivision because of any matter that was fully disclosed in so complying.
114 Effect of setting aside decision to cancel visa
(1) If the Federal Court, the Federal Magistrates Court, the Administrative Appeals Tribunal, the Migration Review Tribunal or the Refugee Review Tribunal sets aside a decision under section 109 to cancel a person’s visa, the visa is taken never to have been cancelled.
(2) In spite of subsection (1), any detention of the non‑citizen between the purported cancellation of the visa and the decision to set aside the decision to cancel is lawful and the non‑citizen is not entitled to make any claim against the Commonwealth or an officer because of the detention.
115 Application of Subdivision
(1) This Subdivision applies to:
(a) applications for visas made; and
(b) passenger cards filled in;
on or after 1 September 1994.
(2) This Subdivision, other than sections 101 and 102, applies to:
(a) applications for visas, or entry permits, within the meaning of the Migration Act 1958 as in force before 1 September 1994, that under the regulations are taken to be applications for visas and that have not been finally determined before that date; and
(b) passenger cards filled in before 1 September 1994.
(3) This Subdivision applies to a visa granted otherwise than because of an application on or after 1 September 1994 and does so as if:
(a) this Subdivision had applied to:
(i) the application for the visa; and
(ii) passenger cards filled in before that date; and
(b) the application for any other visa, or entry permit, (within the meaning of the Migration Act 1958 as in force immediately before that date) because of which the visa is held had been the application for the visa; and
(c) for the purposes of sections 107 to 114, non‑compliance by the holder of the visa with the sections referred to in section 107 included any action or condition of the holder because of which section 20 of that Act as so in force applied to the holder.
Subdivision D—Visas may be cancelled on certain grounds
116 Power to cancel
(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
(a) any circumstances which permitted the grant of the visa no longer exist; or
(b) its holder has not complied with a condition of the visa; or
(c) another person required to comply with a condition of the visa has not complied with that condition; or
(d) if its holder has not entered Australia or has so entered but has not been immigration cleared—it would be liable to be cancelled under Subdivision C (incorrect information given by holder) if its holder had so entered and been immigration cleared; or
(e) the presence of its holder in Australia is, or would be, a risk to the health, safety or good order of the Australian community; or
(f) the visa should not have been granted because the application for it or its grant was in contravention of this Act or of another law of the Commonwealth; or
(fa) in the case of a student visa:
(i) its holder is not, or is likely not to be, a genuine student; or
(ii) its holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa; or
(g) a prescribed ground for cancelling a visa applies to the holder.
(1A) The regulations may prescribe matters to which the Minister may have regard in determining whether he or she is satisfied as mentioned in paragraph (1)(fa). Such regulations do not limit the matters to which the Minister may have regard for that purpose.
(2) The Minister is not to cancel a visa if there exist prescribed circumstances in which a visa is not to be cancelled.
(3) If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.
117 When visa may be cancelled
(1) Subject to subsection (2), a visa held by a non‑citizen may be cancelled under section 116:
(a) before the non‑citizen enters Australia; or
(b) when the non‑citizen is in immigration clearance (see section 172); or
(c) when the non‑citizen leaves Australia; or
(d) while the non‑citizen is in the migration zone.
(2) A permanent visa cannot be cancelled under section 116 if the holder of the visa:
(a) is in the migration zone; and
(b) was immigration cleared on last entering Australia.
118 Cancellation powers do not limit or affect each other
The powers to cancel a visa under:
(a) section 109 (incorrect information); or
(b) section 116 (general power to cancel); or
(c) section 128 (when holder outside Australia); or
(d) section 134 (cancellation of business visas); or
(da) section 137Q (cancellation of regional sponsored employment visas); or
(e) section 140 (consequential cancellation of other visas); or
(ea) section 500A (refusal or cancellation of temporary safe haven visas); or
(f) section 501, 501A or 501B (special power to refuse or cancel);
are not limited, or otherwise affected, by each other.
Subdivision E—Procedure for cancelling visas under Subdivision D in or outside Australia
118A Exhaustive statement of natural justice hearing rule
(1) This Subdivision is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
(2) Sections 494A to 494D, in so far as they relate to this Subdivision, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.
119 Notice of proposed cancellation
(1) Subject to Subdivision F (non‑citizens outside Australia), if the Minister is considering cancelling a visa, whether its holder is in or outside Australia, under section 116, the Minister must notify the holder that there appear to be grounds for cancelling it and:
(a) give particulars of those grounds and of the information (not being non‑disclosable information) because of which the grounds appear to exist; and
(b) invite the holder to show within a specified time that:
(i) those grounds do not exist; or
(ii) there is a reason why it should not be cancelled.
(2) The holder is to be notified in the prescribed way or, if there is no prescribed way, a way that the Minister considers to be appropriate.
(3) The way of notifying the holder, whether prescribed or considered appropriate, may, without limiting the generality of subsection (2), be orally.
(4) The other provisions of this Subdivision do not apply to a cancellation:
(a) under a provision other than section 116; or
(b) to which Subdivision F applies.
120 Certain information must be given to visa holder
(1) In this section, relevant information means information (other than non‑disclosable information) that the Minister considers:
(a) would be the reason, or a part of the reason, for cancelling a visa; and
(b) is specifically about the holder or another person and is not just about a class of persons of which the holder or other person is a member; and
(c) was not given by the holder; and
(d) was not disclosed to the holder in the notification under section 119.
(2) The Minister must:
(a) give particulars of the relevant information to the holder; and
(b) ensure, as far as reasonably practicable, that the holder understands why it is relevant to the cancellation; and
(c) invite the holder to comment on it.
(3) The particulars and invitation are to be given in the way that the Minister considers appropriate in the circumstances.
121 Invitation to give comments etc.
(1) An invitation under paragraph 119(1)(b) or 120(2)(c) is to specify whether the response to the invitation may be given:
(a) in writing; or
(b) at an interview between the holder and an officer; or
(c) by telephone.
(2) Subject to subsection (4), if the invitation is to respond otherwise than at an interview, the response is to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period.
(3) Subject to subsection (5), if the invitation is to respond at an interview, the interview is to take place:
(a) at a place specified in the invitation, being a prescribed place or, if no place is prescribed, a reasonable place; and
(b) at a time specified in the invitation, being a time within a prescribed period or, if no period is prescribed, within a reasonable period.
(4) If a person is to respond to an invitation within a prescribed period, that period may be extended by the Minister for a prescribed further period, and then the response is to be given in the extended period.
(5) If a person is to respond to an invitation at an interview at a time within a prescribed period, that time may be changed by the Minister to:
(a) a later time within that period; or
(b) a time within that period as extended by the Minister for a prescribed further period;
and then the response is to be given at an interview at the new time.
(6) This section is subject to sections 125 and 126.
122 Prescribed periods
Regulations prescribing a period or other time limit relating to a step in considering the cancellation of a visa may prescribe different limits relating to that step and specify when a particular limit is to apply, which, without limiting the generality of the power, may be to:
(a) visas of a specified class; or
(b) visa holders in specified circumstances; or
(c) visa holders in a specified class of persons (which may be visa holders in a specified place); or
(d) visa holders in a specified class of persons (which may be visa holders in a specified place) in specified circumstances.
123 Failure to accept invitation not require action
If a visa holder does not respond to an invitation under paragraph 119(1)(b) or 120(2)(c) before the time for giving it has passed or tells the Minister that the visa holder does not wish to respond, the Minister may make the decision about cancellation without taking any further action about the information.
124 When decision about visa cancellation may be made
(1) Subject to section 120 (give information) and subsection (2), the Minister may cancel a visa at any time after notice about the cancellation has been given under section 119 and after whichever one of the following happens first:
(a) the holder responds to the notice;
(b) the holder tells the Minister that the holder does not wish to respond;
(c) the time for responding to the notice passes.
(2) The Minister is not to cancel a visa after inviting the visa holder to comment on information and before whichever one of the following happens first:
(a) the comments are given;
(b) the holder tells the Minister that the holder does not wish to comment;
(c) the time for commenting passes.
125 Application of Subdivision to non‑citizen in immigration clearance
If a non‑citizen in immigration clearance who is not taken into questioning detention is given an invitation under paragraph 119(1)(b) or 120(2)(c), the period within which he or she may respond to the invitation is to end when, or before, he or she ceases to be in immigration clearance.
126 Application of Subdivision to non‑citizen in questioning detention
(1) If a non‑citizen in questioning detention who is not released before the end of the 4 hours for which he or she may be detained is given an invitation under paragraph 119(1)(b) or 120(2)(c), the period within which he or she may respond to the invitation is to end when, or before, those 4 hours end.
(2) If a non‑citizen who has been given an invitation under paragraph 119(1)(b) or 120(2)(c) (whether in immigration clearance or otherwise) is taken into questioning detention and not released before the end of the 4 hours for which he or she may be detained, the period within which he or she is to respond to the invitation is to end when, or before, those 4 hours end.
127 Notification of decision
(1) When the Minister decides to cancel a visa, he or she is to notify the visa holder of the decision in the prescribed way.
(2) Notification of a decision to cancel a visa must:
(a) specify the ground for the cancellation; and
(b) state whether the decision is reviewable under Part 5 or 7; and
(c) if the former visa holder has a right to have the decision reviewed under Part 5 or 7—state:
(i) that the decision can be reviewed; and
(ii) the time in which the application for review may be made; and
(iii) who can apply for the review; and
(iv) where the application for review can be made.
(3) Failure to give notification of a decision does not affect the validity of the decision.
Subdivision F—Other procedure for cancelling visas under Subdivision D outside Australia
127A Exhaustive statement of natural justice hearing rule
(1) This Subdivision is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
(2) Sections 494A to 494D, in so far as they relate to this Subdivision, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.
128 Cancellation of visas of people outside Australia
If:
(a) the Minister is satisfied that:
(i) there is a ground for cancelling a visa under section 116; and
(ii) it is appropriate to cancel in accordance with this Subdivision; and
(b) the non‑citizen is outside Australia;
the Minister may, without notice to the holder of the visa, cancel the visa.
129 Notice of cancellation
(1) If the Minister cancels a visa under section 128, he or she must give the former holder of the visa a notice:
(a) stating the ground on which it was cancelled; and
(b) giving particulars of that ground and of the information (not being non‑disclosable information) because of which the ground was considered to exist; and
(c) inviting the former holder to show, within a specified time, being a prescribed time, that:
(i) that ground does not exist; or
(ii) there is a reason why the visa should not have been cancelled; and
(d) stating that, if the former holder shows, within the specified time, that the ground does not exist, the cancellation will be revoked; and
(e) stating that, if the former holder shows that there is a reason why the visa should not have been cancelled, the cancellation might be revoked.
(2) The notice is to be given in the prescribed way.
(3) Failure to give notification of a decision does not affect the validity of the decision.
130 Prescribed periods
Regulations prescribing a period for the purpose of paragraph 129(1)(c) may prescribe different periods and specify when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a) visas of a specified class; or
(b) former visa holders in specified circumstances; or
(c) former visa holders in a specified class of persons (which may be former visa holders in a specified place); or
(d) former visa holders in a specified class of persons (which may be former visa holders in a specified place) in specified circumstances.
131 Decision about revocation of cancellation
(1) Subject to subsection (2), after considering any response to a notice under section 129 of the cancellation of a visa, the Minister:
(a) if not satisfied that there was a ground for the cancellation; or
(b) if satisfied that there is another reason why the cancellation should be revoked;
is to revoke the cancellation.
(2) The Minister is not to revoke the cancellation of a visa if there exist prescribed circumstances in which the visa must be cancelled.
132 Notification of decision about revocation of cancellation
When, under section 131, the Minister revokes or does not revoke the cancellation of a visa, he or she is to notify the visa holder or former visa holder of the decision in the prescribed way.
133 Effect of revocation of cancellation
(1) If the cancellation of a visa is revoked, then, without limiting its operation before cancellation, it has effect as if it were granted on the revocation.
(2) Subject to subsection (1), if the cancellation of a visa is revoked, the Minister may vary the time the visa is to be in effect or any period in which, or date until which, the visa permits its holder to travel to, enter and remain in Australia, or to remain in Australia.
Subdivision G—Cancellation of business visas
134 Cancellation of business visas
(1) Subject to subsection (2) and to section 135, the Minister may cancel a business visa (other than an established business in Australia visa, an investment‑linked visa or a family member’s visa), by written notice given to its holder, if the Minister is satisfied that its holder:
(a) has not obtained a substantial ownership interest in an eligible business in Australia; or
(b) is not utilising his or her skills in actively participating at a senior level in the day‑to‑day management of that business; or
(c) does not intend to continue to:
(i) hold a substantial ownership interest in; and
(ii) utilise his or her skills in actively participating at a senior level in the day‑to‑day management of;
an eligible business in Australia.
(2) The Minister must not cancel a business visa under subsection (1) if the Minister is satisfied that its holder:
(a) has made a genuine effort to obtain a substantial ownership interest in an eligible business in Australia; and
(b) has made a genuine effort to utilise his or her skills in actively participating at a senior level in the day‑to‑day management of that business; and
(c) intends to continue to make such genuine efforts.
(3) Without limiting the generality of matters that the Minister may take into account in determining whether a person has made the genuine effort referred to in subsection (2), the Minister may take into account any or all of the following matters:
(a) business proposals that the person has developed;
(b) the existence of partners or joint venturers for the business proposals;
(c) research that the person has undertaken into the conduct of an eligible business in Australia;
(d) the period or periods during which the person has been present in Australia;
(e) the value of assets transferred to Australia by the person for use in obtaining an interest in an eligible business;
(f) the value of ownership interest in eligible businesses in Australia that are, or have been, held by the person;
(g) business activity that is, or has been, undertaken by the person;
(h) whether the person has failed to comply with a notice under section 137;
(i) if the person no longer holds a substantial ownership interest in a particular business or no longer utilises his or her skills in actively participating at a senior level of a day‑to‑day management of a business:
(i) the length of time that the person held the ownership interest or participated in the management (as the case requires); and
(ii) the reasons why the person no longer holds the interest or participates in the management (as the case requires).
(3A) Subject to section 135, the Minister may cancel an investment‑linked visa (other than a family member’s visa), by written notice to its holder, if the Minister is satisfied that the person, or any of the persons, who held the relevant designated investment when the visa was granted has or have ceased, for any reason, to hold that investment within 3 years of that investment being made.
(4) Subject to subsection (5) and to section 135, if:
(a) the Minister cancels a person’s business visa under subsection (1) or (3A); and
(b) a business visa is held by another person who is or was a member of the family unit of the holder of the cancelled visa; and
(c) the other person would not have held that business visa if he or she had never been a member of the family unit of the holder of the cancelled visa;
the Minister must cancel the other person’s business permit or business visa by giving written notice to that person.
(5) The Minister must not cancel the other person’s business visa under subsection (4) if the cancellation of that visa would result in extreme hardship to the person.
(6) The Minister is taken not to have cancelled a person’s business visa under subsection (4) if the Administrative Appeals Tribunal has set aside the decision of the Minister to cancel the business visa of the relevant person to whom paragraph (4)(a) applied.
(7) If the Minister cancels a business visa under this section, the Minister must include in the notice given to its holder:
(a) the Minister’s reason for the cancellation; and
(b) a statement to the effect that the holder may, within 28 days after receiving the notice, apply to the Administrative Appeals Tribunal for review of the cancellation.
(8) A cancellation under this section has effect on and from:
(a) if the person applies to the Administrative Appeals Tribunal for a review of the decision to cancel the visa—the 28th day after the day on which the Administrative Appeals Tribunal gives its decision on that review; or
(b) if:
(i) the person’s visa was cancelled under subsection (4); and
(ii) the relevant person to whom paragraph (4)(a) applied has applied to the Administrative Appeals Tribunal for a review of the decision to cancel that person’s visa;
the 28th day after the day on which the Administrative Appeals Tribunal gives its decision on that review; or
(c) the 28th day after the day on which the notice of cancellation is given to the holder of the cancelled visa;
whichever is the latest.
(9) The Minister must not cancel a business visa under subsection (1), (3A) or (4) unless a notice under section 135 was given to its holder within the period of 3 years commencing:
(a) if its holder was in Australia when he or she was first granted a business visa—on the day on which that first visa was granted; or
(b) if its holder was not in Australia when he or she was first granted a business visa—on the day on which its holder first entered Australia after that first visa was granted.
(10) In this section:
business visa means:
(a) a visa included in a class of visas, being a class that:
(i) has the words “Business Skills” in its title; and
(ii) is prescribed for the purposes of this paragraph; or
(b) a visa:
(i) to which a prescribed provision of the Migration Reform (Transitional Provisions) Regulations applies; and
(ii) that is of a kind prescribed for the purposes of this paragraph; or
(c) a return visa that is granted to a person who is or was the holder of a business permit or business visa;
that is or was granted on or after 17 February 1992.
designated investment has the meaning given by the regulations.
eligible business means a business that the Minister reasonably believes is resulting or will result in one or more of the following:
(a) the development of business links with the international market;
(b) the creation or maintenance of employment in Australia;
(c) the export of Australian goods or services;
(d) the production of goods or the provision of services that would otherwise be imported into Australia;
(e) the introduction of new or improved technology to Australia;
(f) an increase in commercial activity and competitiveness within sectors of the Australian economy.
established business in Australia visa means a business visa a criterion for whose grant:
(a) relates to the applicant having an established business in Australia; or
(b) is that the applicant is a member of the family unit of the holder of a visa a criterion for whose grant is as mentioned in paragraph (a).
family member’s visa means a business visa held by a person:
(a) who is or was a member of the family unit of another person who held a business visa; and
(b) who would not have held the business visa if he or she had never been a member of the family unit of the other person.
investment‑linked visa means a business visa a criterion for whose grant:
(a) relates to the holding of a designated investment; or
(b) is that the applicant is a member of the family unit of the holder of a visa a criterion for whose grant is as mentioned in paragraph (a).
ownership interest, in relation to a business, means an interest in the business as:
(a) a shareholder in a company that carries on the business; or
(b) a partner in a partnership that carries on the business; or
(c) the sole proprietor of the business;
including such an interest held indirectly through one or more interposed companies, partnerships or trusts.
relevant designated investment, in relation to an investment‑linked visa (other than a family member’s visa), means the designated investment that was, in deciding to grant the visa, regarded as satisfying the criterion referred to in paragraph (a) of the definition of investment‑linked visa.
return visa has the same meaning as in the regulations.
135 Representations concerning cancellation of business visa
(1) Before cancelling a visa under subsection 134(1), (3A) or (4), the Minister must give its holder a written notice:
(a) stating that the Minister proposes to cancel the visa; and
(b) inviting its holder to make representations to the Minister concerning the proposed cancellation within:
(i) if the notice is given in Australia—28 days after the notice is given; or
(ii) if the notice is given outside Australia—70 days after the notice is given.
(2) The holder may make such representations to the Minister within the time specified in the notice.
(3) The Minister must give due consideration to any representations.
(4) If:
(a) the time specified in the notice ends after the end of the period referred to in subsection 134(9); and
(b) at the end of the period of 90 days commencing at the time specified in the notice, the Minister has not made a decision on whether to proceed with the cancellation;
the Minister is not to proceed with the cancellation.
(5) If the Minister decides not to proceed with the cancellation, the Minister must give its holder written notice to that effect.
136 Review of decisions
Application may be made to the Administrative Appeals Tribunal for review of a decision of the Minister under subsection 134(1), (3A) or (4).
137 Provision of information—holders of business visas
(1) The Secretary may by written notice require the holder of a business visa to give the Secretary such information as is specified in the notice.
(2) The Secretary may not require information under subsection (1) unless the information is to be used by the Secretary or the Minister for the purpose of the administration of this Act or of regulations made under this Act.
(3) A notice under subsection (1) is only valid in the period of 3 years commencing:
(a) if the holder was in Australia when he or she was first granted a business visa—on the day on which that first visa was granted; or
(b) if the holder was not in Australia when he or she was first granted a business visa—on the day on which the holder first entered Australia after that first visa was granted.
(4) Without limiting the generality of the information that may be required under subsection (1), the Secretary may require the holder to advise the Secretary in writing of any change in the address of the holder during a period specified in the notice.
(5) A notice under subsection (1) must state that the information must be provided within a period of 28 days commencing on a day specified in the notice.
(6) The day specified in the notice may be:
(a) the day on which the notice is issued; or
(b) a later particular day; or
(c) the day on which an event specified in the notice occurs.
(7) A person who fails to comply with a notice under subsection (1) commits an offence at the end of every successive 28 day period that is contained in the period commencing on the day specified in the notice and ending when the person complies with the notice.
(7A) Subsection (7) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in subsection (7A) (see subsection 13.3(3) of the Criminal Code).
(7B) An offence against subsection (7) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(8) Subsection 4K(2) of the Crimes Act 1914 does not apply to an offence under subsection (7).
(10) In this section:
business visa has the same meaning as in section 134.
Penalty: $5,000.
Subdivision GB—Automatic cancellation of student visas
137J Non‑complying students may have their visas automatically cancelled
(1) This section applies if a notice is sent to a non‑citizen under section 20 of the Education Services for Overseas Students Act 2000 in relation to a visa held by the non‑citizen (even if the non‑citizen never receives the notice).
Note: Under that section, a registered education provider must send a notice to a non‑citizen who breaches a condition of the non‑citizen’s visa that is prescribed by regulations made for the purposes of that Act. The notice must give particulars of the breach and must require the non‑citizen to attend before an officer for the purpose of making any submissions about the breach and the circumstances that led to the breach.
(2) The non‑citizen’s visa is cancelled by force of this section at the end of the 28th day after the day that the notice specifies as the date of the notice unless, before the end of that 28th day:
(a) the non‑citizen complies with the notice; or
(b) the non‑citizen, while attending in person at an office of Immigration (within the meaning of the regulations) that is either:
(i) in Australia; or
(ii) approved for the purposes of this paragraph by the Minister by notice in the Gazette;
makes himself or herself available to an officer for the stated purpose of making any submissions about the breach and the circumstances that led to the breach.
137K Applying for revocation of cancellation
(1) A non‑citizen whose visa has been cancelled under section 137J may apply in writing to the Minister for revocation of the cancellation.
(2) A non‑citizen who is in the migration zone cannot apply for revocation at a time when, because of section 82, the visa would no longer have been in effect anyway had the visa not been cancelled under section 137J.
(3) In addition to the restriction in subsection (2), a non‑citizen who is in the migration zone and who has been detained under section 189 cannot apply for revocation later than:
(a) 2 working days after the day on which section 194 was complied with in relation to his or her detention; or
(b) if he or she informs an officer in writing within those 2 days of his or her intention to so apply—within the next 5 working days after those 2 working days.
(4) A non‑citizen who is outside the migration zone cannot apply for revocation later than 28 days after the day of the cancellation.
(5) In any case, a non‑citizen cannot apply for revocation if he or she has previously made such an application in respect of the same cancellation.
137L Dealing with the application
(1) On an application under section 137K, the Minister may revoke the cancellation if, and only if, the applicant satisfies the Minister:
(a) that the non‑citizen did not in fact breach the relevant visa condition or conditions; or
(b) that the breach was due to exceptional circumstances beyond the non‑citizen’s control; or
(c) of any other matter prescribed in the regulations.
(2) However, the Minister must not revoke the cancellation on the ground that the non‑citizen was unaware of the notice or of the effect of section 137J.
(3) A cancellation is revoked under this section by the Minister causing a record of the revocation to be made.
137M Notification of decision
(1) When the Minister decides whether to revoke a cancellation under section 137L, he or she must give the non‑citizen written notice of the decision.
(2) Notice of a decision not to revoke a cancellation must:
(a) specify the grounds for the decision; and
(b) state:
(i) that if the non‑citizen was in the migration zone when the decision was made, the decision is reviewable under Part 5; and
(ii) the time in which the application for review may be made; and
(iii) who may apply for the review; and
(iv) where the application for review may be made.
(3) Failure to notify of a decision whether to revoke a cancellation does not affect the validity of the decision.
137N Minister may revoke cancellation on his or her own initiative
(1) The Minister may, on his or her own initiative, revoke the cancellation under section 137J of a particular non‑citizen’s visa, if the Minister thinks that it is in the public interest to do so.
(2) The Minister must give the relevant non‑citizen written notice of a decision under subsection (1) to revoke a cancellation.
(3) The power in subsection (1) may only be exercised by the Minister personally.
(4) The Minister does not have a duty to consider whether to exercise the power in subsection (1), whether or not the non‑citizen or anyone else requests him or her to do so, or in any other circumstances.
(5) A cancellation is revoked under this section by the Minister causing a record of the revocation to be made.
137P Effect of revocation
(1) If the cancellation of a visa is revoked under section 137L or 137N, the visa is taken never to have been cancelled under section 137J.
(2) If the revocation is under section 137L and the decision is made wholly or partly on the ground that paragraph 137L(1)(a) or (b) applies to the breach that was alleged in the notice mentioned in section 137J, then that breach cannot be a ground for cancelling the visa under section 116.
(3) However, a revocation under section 137L or 137N does not otherwise limit or affect any other power to cancel the visa under this Act.
(4) In particular, a different or later breach of a condition of the visa can be a ground for cancelling the visa under section 116.
(5) Despite subsection (1), any detention of the non‑citizen that occurred during any part of the period:
(a) beginning when the visa was cancelled under section 137J; and
(b) ending at the time of the revocation of the cancellation;
is lawful and the non‑citizen is not entitled to make any claim against the Commonwealth, an officer or any other person because of the detention.
Subdivision GC—Cancellation of regional sponsored employment visas
137Q Cancellation of regional sponsored employment visas
Employment does not commence
(1) The Minister may cancel a regional sponsored employment visa held by a person if:
(a) the Minister is satisfied that the person has not commenced the employment referred to in the relevant employer nomination within the period prescribed by the regulations; and
(b) the person does not satisfy the Minister that he or she has made a genuine effort to commence that employment within that period.
Employment terminates within 2 years
(2) The Minister may cancel a regional sponsored employment visa held by a person if:
(a) the Minister is satisfied that:
(i) the person commenced the employment referred to in the relevant employer nomination (whether or not within the period prescribed by the regulations); and
(ii) the employment terminated within the period (the required employment period) of 2 years starting on the day the person commenced that employment; and
(b) the person does not satisfy the Minister that he or she has made a genuine effort to be engaged in that employment for the required employment period.
Regional sponsored employment visa
(3) In this section:
regional sponsored employment visa means a visa of a kind that:
(a) is included in a class of visas that has the words “Employer Nomination” in its title; and
(b) is prescribed by the regulations for the purposes of this definition.
137R Representations concerning cancellation etc.
(1) Before cancelling a person’s visa under section 137Q, the Minister must give the person a written notice:
(a) stating that the Minister proposes to cancel the visa; and
(b) inviting the person to make representations to the Minister concerning the proposed cancellation within:
(i) if the notice is given in Australia—28 days after the notice is given; or
(ii) if the notice is given outside Australia—70 days after the notice is given.
(2) The Minister must consider any representations received within that period.
(3) If the Minister decides not to proceed with the cancellation, the Minister must give the person written notice of the decision.
137S Notice of cancellation
(1) If the Minister decides to cancel a person’s visa under section 137Q, he or she must give the person written notice of the decision. The notice must:
(a) specify the reasons for the cancellation; and
(b) state whether or not the decision to cancel the visa is reviewable under Part 5; and
(c) if the decision to cancel the visa is reviewable under Part 5—state the period within which an application for review can be made, who can apply for the review and where the application for review can be made.
(2) Failure to give notice of the decision does not affect the validity of the decision.
137T Cancellation of other visas
(1) If a person’s visa is cancelled under section 137Q, a visa held by another person because of being a member of the family unit of the person is also cancelled.
(2) The cancellation under subsection (1) of this section is set aside if the cancellation of the person’s visa under section 137Q is set aside under Part 5.
Subdivision H—General provisions on cancellation
138 Way visa cancelled or cancellation revoked
(1) A visa is cancelled by the Minister causing a record of it to be made.
(1A) Subsection (1) does not apply to a cancellation under section 137J.
(2) The cancellation of a visa is revoked under section 131 by the Minister causing a record of the revocation to be made.
139 Visas held by 2 or more
If a visa is held by 2 or more non‑citizens:
(a) Subdivisions C, D, E and F and this Subdivision apply as if each of them were the holder of the visa; and
(b) to avoid doubt, if the visa is cancelled because of one non‑citizen being its holder, it is cancelled so that all those non‑citizens cease to hold the visa.
140 Cancellation of visa results in other cancellation
(1) If a person’s visa is cancelled under section 109 (incorrect information), 116 or 128 or 137J (student visas), a visa held by another person because of being a member of the family unit of the person is also cancelled.
(2) If:
(a) a person’s visa is cancelled under section 109 (incorrect information), 116 or 128 or 137J (student visas); and
(b) another person to whom subsection (1) does not apply holds a visa only because the person whose visa is cancelled held a visa;
the Minister may, without notice to the other person, cancel the other person’s visa.
(3) If:
(a) a person’s visa (the cancelled visa) is cancelled under any provision of this Act; and
(b) the person is a parent of another person; and
(c) the other person holds a particular visa (the other visa), that was granted under section 78 (child born in Australia) because the parent held the cancelled visa;
the other visa is also cancelled.
(4) If:
(a) a visa is cancelled under subsection (1), (2) or (3) because another visa is cancelled; and
(b) the cancellation of the other visa is revoked under section 131, 137L or 137N;
the cancellation under subsection (1), (2) or (3) is revoked.
Division 3A—Sponsorship
Subdivision A—Preliminary
140A Division applies to prescribed kinds of visa
This Division applies to visas of a prescribed kind (however described).
Subdivision B—Approving sponsors and nominations
140E Minister to approve sponsor
(1) The Minister must approve a person as a sponsor in relation to one or more classes prescribed for the purpose of subsection (2) if prescribed criteria are satisfied.
Note: A person (other than a Minister) who is a party to a work agreement is an approved sponsor and does not need to be approved as a sponsor under this section: see paragraph (b) of the definition of approved sponsor.
(2) The regulations must prescribe classes in relation to which a person may be approved as a sponsor.
(3) Different criteria may be prescribed for:
(a) different kinds of visa (however described); and
(b) different classes in relation to which a person may be approved as a sponsor; and
(c) different classes of person within a class in relation to which a person may be approved as a sponsor.
140F Process for approving sponsors
(1) The regulations may establish a process for the Minister to approve a person as a sponsor.
(2) Different processes may be prescribed for:
(a) different kinds of visa (however described); and
(b) different classes in relation to which a person may be approved as a sponsor.
140G Terms of approval as a sponsor
(1) An approval as a sponsor may be on terms specified in the approval.
(2) The terms must be of a kind prescribed by the regulations.
Note: The following are examples of the kinds of terms that might be set out in the regulations:
(a) the number of people whom the approved sponsor may sponsor under the approval;
(b) the duration of the approval.
(3) An actual term may be prescribed by the regulations.
(4) Different kinds of terms may be prescribed for:
(a) different kinds of visa (however described); and
(b) different classes in relation to which a person may be approved as a sponsor.
140GA Variation of terms of approval as a sponsor
(1) The regulations may establish a process for the Minister to vary a term of a person’s approval as a sponsor.
(2) The Minister must vary a term specified in an approval if:
(a) the term is of a kind prescribed by the regulations for the purposes of this paragraph; and
(b) prescribed criteria are satisfied.
(3) Different processes and different criteria may be prescribed for:
(a) different kinds of visa (however described); and
(b) different kinds of terms; and
(c) different classes in relation to which a person may be approved as a sponsor.
140GB Minister to approve nominations
(1) An approved sponsor may nominate:
(a) an applicant, or proposed applicant, for a visa of a prescribed kind (however described), in relation to:
(i) the applicant or proposed applicant’s proposed occupation; or
(ii) the program to be undertaken by the applicant or proposed applicant; or
(iii) the activity to be carried out by the applicant or proposed applicant; or
(b) a proposed occupation, program or activity.
(2) The Minister must approve an approved sponsor’s nomination if prescribed criteria are satisfied.
(3) The regulations may establish a process for the Minister to approve an approved sponsor’s nomination.
(4) Different criteria and different processes may be prescribed for:
(a) different kinds of visa (however described); and
(b) different classes in relation to which a person may be approved as a sponsor.
140GC Work agreements
For the purposes of the definition of work agreement, the regulations may prescribe requirements that an agreement must satisfy.
Note: A person (other than a Minister) who is a party to a work agreement is an approved sponsor and must satisfy sponsorship obligations.
Subdivision C—Sponsorship obligations
140H Sponsorship obligations
(1) A person who is or was an approved sponsor must satisfy the sponsorship obligations prescribed by the regulations.
Note: The following are examples of the kinds of sponsorship obligations that might be prescribed by the regulations:
(a) to pay a minimum wage (however described) to a visa holder sponsored by the approved sponsor;
(b) to pay to the Commonwealth certain costs, which may include costs of locating and removing from Australia a visa holder sponsored by the approved sponsor;
(c) to pay the costs of the departure from Australia of a visa holder sponsored by the approved sponsor;
(d) to comply with the Department’s requirements to provide information to the Department;
(e) to notify the Department of changes in the circumstances of the sponsor or of a visa holder sponsored by the approved sponsor;
(f) to cooperate with the Department’s monitoring of the approved sponsor or of a visa holder sponsored by the sponsor.
(2) However, if:
(a) a person (other than a Minister) is or was a party to a work agreement; and
(b) a sponsorship obligation, that would otherwise be imposed on the person by the regulations, is varied by a term of the agreement;
then, the person must satisfy the sponsorship obligation as so varied.
(3) If:
(a) a person (other than a Minister) is or was a party to a work agreement; and
(b) an obligation, identified in the agreement as a sponsorship obligation, is imposed on the person by a term of the agreement;
then, the person must also satisfy the sponsorship obligation imposed by the term of the agreement.
(4) The regulations may require a person to satisfy sponsorship obligations in respect of each visa holder sponsored by the person or generally.
(5) Sponsorship obligations must be satisfied in the manner (if any) and within the period (if any) prescribed by the regulations.
(6) Different kinds of sponsorship obligations may be prescribed for:
(a) different kinds of visa (however described); and
(b) different classes in relation to which a person may be, or may have been, approved as a sponsor.
(7) The regulations cannot prescribe, as a sponsorship obligation, an obligation to pay the Commonwealth an amount relating to the cost of a person’s immigration detention.
140J Amounts payable in relation to sponsorship obligations
(1) If an amount is payable under the regulations by a person who is or was an approved sponsor in relation to a sponsorship obligation, the person is not liable to pay to the Commonwealth more than the lesser of:
(a) if a limit is prescribed by the regulations—that limit; and
(b) the actual costs incurred by the Commonwealth.
Example: If the Commonwealth incurs costs in locating a person, the person who is or was an approved sponsor is not liable to pay to the Commonwealth more than the total amount of those costs or a lesser amount (if a limit is prescribed in the regulations and that limit is less than the actual costs incurred by the Commonwealth).
(2) The Minister may, by legislative instrument, specify one or more methods for working out the actual costs incurred by the Commonwealth in relation to a sponsorship obligation.
(3) If an amount is payable under the regulations by a person who is or was an approved sponsor in relation to a sponsorship obligation, the person (the sponsor) is taken not to have satisfied the sponsorship obligation if a visa holder or former visa holder, or a person on behalf of a visa holder or former visa holder, reimburses the sponsor or another person for all or part of the amount.
Subdivision D—Enforcement
140K Sanctions for failing to satisfy sponsorship obligations
Actions that may be taken in relation to approved sponsors
(1) If a person is an approved sponsor and fails to satisfy an applicable sponsorship obligation, one or more of the following actions may be taken:
(a) the Minister may do one or more of the following:
(i) if regulations are prescribed under section 140L, bar the sponsor under subsection 140M(1) from doing certain things;
(ii) if regulations are prescribed under section 140L, cancel the person’s approval as a sponsor under subsection 140M(1);
(iii) apply for an order for a civil penalty under Part 8D;
(b) the person may be issued with an infringement notice, as an alternative to civil penalty proceedings, under section 140R;
(c) an authorized officer may require and take a security under section 269 or enforce a security already taken under that section.
Actions that may be taken in relation to former approved sponsors
(2) If a person was an approved sponsor and fails to satisfy an applicable sponsorship obligation, one or more of the following actions may be taken:
(a) the Minister may do either or both of the following:
(i) if regulations are prescribed under section 140L, bar the person under subsection 140M(2) from making future applications for approval;
(ii) apply for an order for a civil penalty under Part 8D;
(b) the person may be issued with an infringement notice, as an alternative to civil penalty proceedings, under section 140R;
(c) an authorized officer may require and take a security under section 269 or enforce a security already taken under that section.
(3) To avoid doubt, subsections (1) and (2) do not limit the circumstances in which:
(a) the Minister may:
(i) bar a sponsor under section 140M from doing certain things; or
(ii) cancel a person’s approval as a sponsor under section 140M; or
(b) an authorized officer may require and take a security under section 269 or enforce a security already taken under that section.
140L Regulations may prescribe circumstances in which sponsor may be barred or sponsor’s approval cancelled
Circumstances in which the Minister may take action
(1) The regulations may prescribe:
(a) either or both of the following:
(i) circumstances in which the Minister may take one or more of the actions mentioned in section 140M in relation to a person who is or was an approved sponsor if the Minister is reasonably satisfied that the person has failed to satisfy a sponsorship obligation in the manner (if any) or within the period (if any) prescribed by the regulations;
(ii) other circumstances in which the Minister may take one or more of the actions mentioned in section 140M; and
(b) the criteria to be taken into account by the Minister in determining what action to take under section 140M.
Circumstances in which the Minister must take action
(2) The regulations may prescribe either or both of the following:
(a) circumstances in which the Minister must take one or more of the actions mentioned in section 140M in relation to a person who is or was an approved sponsor if the Minister is reasonably satisfied that the person has failed to satisfy a sponsorship obligation in the manner (if any) or within the period (if any) prescribed by the regulations;
(b) other circumstances in which the Minister must take one or more of the actions mentioned in section 140M.
(3) Different circumstances and different criteria may be prescribed for:
(a) different kinds of visa (however described); and
(b) different classes in relation to which a person may be, or may have been, approved as a sponsor.
140M Cancelling approval as a sponsor or barring a sponsor
Actions that may be taken in relation to approved sponsors
(1) If regulations are prescribed under section 140L, the Minister may (or must) take one or more of the following actions in relation to an approved sponsor:
(a) cancelling the approval of a person as a sponsor in relation to a class to which the sponsor belongs;
(b) cancelling the approval of a person as a sponsor for all classes to which the sponsor belongs;
(c) barring the sponsor, for a specified period, from sponsoring more people under the terms of one or more existing specified approvals for different kinds of visa (however described);
(d) barring the sponsor, for a specified period, from making future applications for approval as a sponsor in relation to one or more classes prescribed by the regulations for the purpose of subsection 140E(2).
Action that may be taken in relation to former approved sponsors
(2) If regulations are prescribed under section 140L and a person was an approved sponsor, the Minister may (or must) bar the person, for a specified period, from making future applications for approval as a sponsor in relation to one or more classes prescribed by the regulations for the purpose of subsection 140E(2).
140N Process for cancelling or barring approval as a sponsor
(1) The regulations may establish a process for the Minister to cancel the approval of a person as a sponsor under section 140M.
(2) The regulations may establish a process for the Minister to place a bar on a person under section 140M.
(3) Different processes may be prescribed for:
(a) different kinds of visa (however described); and
(b) different classes in relation to which a person may be, or may have been, approved as a sponsor.
140O Waiving a bar
(2) The Minister may, in prescribed circumstances, waive a bar placed on a person under section 140M.
(3) The regulations may prescribe the criteria to be taken into account by the Minister in determining whether to waive the bar.
(4) Different circumstances and different criteria may be prescribed for:
(a) different kinds of visa (however described); and
(b) different classes in relation to which a person may be, or may have been, approved as a sponsor.
140P Process for waiving a bar
(1) The regulations may establish a process for the Minister to waive a bar placed on a person under section 140M.
(2) Different processes may be prescribed for:
(a) different kinds of visa (however described); and
(b) different classes in relation to which a person may be, or may have been, approved as a sponsor.
140Q Civil penalty—failing to satisfy sponsorship obligations
(1) A person contravenes this subsection if:
(a) the regulations impose a sponsorship obligation on the person; and
(b) the person fails to satisfy the sponsorship obligation in the manner (if any) or within the period (if any) prescribed by the regulations.
Civil penalty:
(a) for an individual—60 penalty units; and
(b) for a body corporate—300 penalty units.
(2) A person contravenes this subsection if:
(a) the person (other than a Minister) is a party to a work agreement; and
(b) the terms of the work agreement:
(i) vary a sponsorship obligation that would otherwise be imposed on the person by the regulations; or
(ii) impose an obligation, identified in the agreement as a sponsorship obligation, on the person; and
(c) the person fails to satisfy the sponsorship obligation in the manner (if any) or within the period (if any) specified in the work agreement.
Civil penalty:
(a) for an individual—60 penalty units; and
(b) for a body corporate—300 penalty units.
140R Infringement notices in respect of civil penalty provisions
(1) The regulations may make provision enabling a person who is alleged to have contravened a civil penalty provision to pay to the Commonwealth, as an alternative to civil penalty proceedings against the person, a specified penalty.
(2) The penalty must not exceed an amount equal to one‑fifth of the maximum penalty prescribed for contravening that provision.
Subdivision E—Liability and recovery of amounts
140S Liability to pay amounts
(1) This section applies if a person who is or was an approved sponsor is required to pay an amount of a kind prescribed in the regulations to the Commonwealth, a State or Territory or another person (the payee) in relation to a sponsorship obligation.
(2) The payee may recover the amount as a debt due to the payee in an eligible court.
(3) To avoid doubt, an amount may be recovered under this section if civil penalty proceedings are brought under Part 8D and discontinued or completed without the court making an order under subsection 486R(6) in relation to the amount.
(4) For the purpose of paragraph (e) of the definition of eligible court, the regulations may prescribe a court of a State or Territory in which an amount may be recovered under this section.
140SA Interest up to judgment
(1) A party to proceedings under section 140S may apply to the eligible court for an order under subsection (2).
(2) If an application is made under subsection (1), the eligible court must, unless good cause is shown to the contrary, either:
(a) order that there be included in the sum for which judgment is given interest at such rate as the eligible court thinks fit on the whole or any part of the money for the whole or any part of the period between:
(i) the date when the cause of action arose; and
(ii) the date as of which judgment is entered; or
(b) without proceeding to calculate interest in accordance with paragraph (a)—order that there be included in the sum for which judgment is given, a lump sum instead of any such interest.
(3) Subsection (2) does not:
(a) authorise the giving of interest upon interest or of a sum instead of such interest; or
(b) apply in relation to any debt upon which interest is payable as of right, whether because of an agreement or otherwise; or
(c) authorise the giving of interest, or a sum instead of interest, otherwise than by consent, upon any sum for which judgment is given by consent.
140SB Interest on judgment
A judgment debt under a judgment of an eligible court under section 140S carries interest:
(a) from the date as of which the judgment is entered; and
(b) at the rate that would apply under section 52 of the Federal Court of Australia Act 1976 as if the debt were a judgment debt to which that section applies.
140SC Certain plaintiffs may choose small claims procedure in magistrates courts
(1) This section applies if:
(a) a person brings proceedings under section 140S in a magistrates court; and
(b) the person indicates, in a manner prescribed by the regulations or by rules of court relating to that court, that the person wants a small claims procedure to apply in relation to the proceeding.
(2) The procedure is governed by the following conditions:
(a) the court may not award an amount exceeding $5,000 or such higher amount as is prescribed;
(b) the court may act in an informal manner, is not bound by any rules of evidence, and may act without regard to legal forms and technicalities;
(c) at any stage of the action, the court may amend the papers initiating the action if sufficient notice is given to any party adversely affected by the amendment;
(d) a person is not entitled to legal representation unless allowed by the court.
(3) If the court allows a person to have legal representation, the court may, if it thinks fit, do so subject to conditions designed to ensure that a party is not unfairly disadvantaged.
(4) Despite paragraph (2)(d) and subsection (3):
(a) in a case heard in a court of a State—if, in a particular proceeding (whatever the nature of the proceeding) the law of the State prohibits or restricts legal representation of the parties, the regulations may prohibit or restrict legal representation of the parties to the same extent as that law; and
(b) in a case heard in a court of a Territory—the regulations may prohibit or restrict legal representation of the parties.
140T Notice regarding amount of debt or other amount
(1) Where a debt, or other amount, that a person is required to pay to the Commonwealth becomes payable, the Minister may issue a notice in writing stating the amount of the debt or other amount.
(2) In any proceedings a notice under this section is prima facie evidence that the amount of the debt or other amount is that stated in the notice.
140U Liability is in addition to any other liability
Any liability created under this Division is in addition to any liability created under:
(a) this or any other Act; or
(b) regulations made under this or any other Act.
Subdivision F—Inspectors
140V Inspectors
(1) The Minister may, by written instrument:
(a) appoint a person to be an inspector; or
(b) appoint a class of persons to be inspectors.
(2) A person, or a class of persons, is appointed for the period specified in the instrument of appointment, which must not be longer than the period specified in regulations made for the purposes of this subsection.
(3) An inspector has the powers conferred on an inspector by this Division, or the regulations, that are specified in his or her instrument of appointment.
Note: The Minister may give written directions specifying the manner in which, and any conditions and qualifications subject to which, powers conferred on inspectors are to be exercised: see section 499.
140W Identity cards
Issue of identity card
(1) The Minister must issue an identity card to an inspector.
Form of identity card
(2) An identity card:
(a) must be in the form prescribed by the regulations; and
(b) must contain a recent photograph of the inspector.
Identity card to be carried
(3) An inspector must carry the identity card at all times when exercising powers as an inspector.
Offence
(4) A person commits an offence if:
(a) the person has been issued with an identity card; and
(b) the person ceases to be an inspector; and
(c) the person does not return his or her identity card to the Secretary within 14 days after ceasing to be an inspector.
Penalty: 1 penalty unit.
(5) An offence against subsection (4) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(6) However, a person does not commit an offence against subsection (4) if the person’s identity card was lost or destroyed.
Note: A defendant bears an evidential burden in relation to the matter in subsection (6): see subsection 13.3(3) of the Criminal Code.
140X Purpose for which powers of inspectors may be exercised
The powers of an inspector under this Subdivision may be exercised:
(a) for the purpose of determining whether a sponsorship obligation is being, or has been, complied with; or
(b) for a purpose prescribed by the regulations.
140XA When powers of inspectors may be exercised
An inspector may exercise powers under this Subdivision:
(a) at any time during working hours; or
(b) at any other time, if the inspector reasonably believes that it is necessary to do so for the purposes referred to in section 140X.
140XB Power of inspectors to enter premises or places
(1) An inspector may, without force, enter business premises or another place, if the inspector reasonably believes that there are records or documents relevant to the purposes referred to in section 140X on the premises or at the place, or accessible from a computer on the premises or at the place.
(2) The inspector must, either before or as soon as practicable after entering those premises or that place, show his or her identity card to the occupier, or another person who apparently represents the occupier, if the occupier or other person is present at the premises or place.
140XC Powers of inspectors while on premises or at a place
An inspector who enters premises or a place under section 140XB may exercise one or more of the following powers while on the premises or at the place:
(a) inspect any work, process or object;
(b) interview any person;
(c) require a person to tell the inspector who has custody of, or access to, a record or document;
(d) require a person who has the custody of, or access to, a record or document to produce the record or document to the inspector either while the inspector is on the premises or at the place, or within a specified period;
(e) inspect, and make copies of, any record or document that:
(i) is kept on the premises or at the place; or
(ii) is accessible from a computer that is kept on the premises or at the place.
Note: See also sections 140XG, 140XH and 140XI (which deal with self‑incrimination and produced documents etc.).
140XD Persons assisting inspectors
(1) A person (the assistant) may accompany the inspector onto the premises or to the place to assist the inspector if the Secretary is satisfied that:
(a) the assistance is necessary and reasonable; and
(b) the assistant has suitable qualifications and experience to properly assist the inspector.
(2) The assistant:
(a) may do such things on the premises or at the place as the inspector requires to assist the inspector to exercise powers under this Subdivision; but
(b) must not do anything that the inspector does not have power to do.
(3) Anything done by the assistant is taken for all purposes to have been done by the inspector.
140XE Power to ask for person’s name and address
(1) An inspector may require a person to tell the inspector the person’s name and address if the inspector reasonably believes that the person has contravened a civil penalty provision.
(2) If the inspector reasonably believes that the name or address is false, the inspector may require the person to give evidence of its correctness.
(3) A person contravenes this subsection if:
(a) the inspector requires the person to do a thing referred to in subsection (1) or (2); and
(b) the inspector advises the person that he or she may contravene a civil penalty provision if he or she fails to comply with the requirement; and
(c) the inspector shows his or her identity card to the person; and
(d) the person does not comply with the requirement.
Civil penalty:
(a) for an individual—60 penalty units; and
(b) for a body corporate—300 penalty units.
(4) Subsection (3) does not apply if the person has a reasonable excuse.
140XF Power to require persons to produce records or documents
(1) An inspector may require a person, by notice, to produce a record or document to the inspector.
(2) The notice must:
(a) be in writing; and
(b) be served on the person; and
(c) require the person to produce the record or document at a specified place within a specified period of at least 7 days.
The notice may be served by sending the notice to the person’s fax number.
(3) A person contravenes this subsection if:
(a) the person is served with a notice to produce under subsection (1); and
(b) the person fails to comply with the notice.
Civil penalty:
(a) for an individual—60 penalty units; and
(b) for a body corporate—300 penalty units.
(4) Subsection (3) does not apply if the person has a reasonable excuse.
140XG Self‑incrimination
(1) A person is not excused from producing a record or document under paragraph 140XC(d), or subsection 140XF(1), on the ground that the production of the record or document might tend to incriminate the person or expose the person to a penalty.
(2) However, in the case of an individual, none of the following are admissible in evidence against the individual in criminal proceedings:
(a) the record or document produced;
(b) producing the record or document;
(c) any information, document or thing obtained as a direct or indirect consequence of producing the record or document;
except in proceedings for an offence against section 137.1 or 137.2 of the Criminal Code (false or misleading information or documents) in relation to the information or document.
140XH Certain records and documents are inadmissible
The following are not admissible in evidence in criminal proceedings against an individual:
(a) any record or document inspected or copied under paragraph 140XC(e) of which the individual had custody, or to which the individual had access, when it was inspected or copied;
(b) any information, document or thing obtained as a direct or indirect consequence of inspecting or copying a record or document of which the individual had custody, or to which the individual had access, when it was inspected or copied under paragraph 140XC(e).
140XI Power to keep records or documents
(1) If a record or document is produced to an inspector in accordance with this Subdivision, the inspector may:
(a) inspect, and make copies of, the record or document; and
(b) keep the record or document for such period as is necessary.
(2) While an inspector keeps a record or document, the inspector must allow the following persons to inspect, or make copies of, the record or document at all reasonable times:
(a) the person who produced the record or document;
(b) any person otherwise entitled to possession of the record or document;
(c) a person authorised by the person referred to in paragraph (b).
140XJ Disclosure of information by the Secretary
Information to which this section applies
(1) This section applies to the following information:
(a) information acquired by an inspector in the course of performing functions, or exercising powers, as an inspector under this Subdivision;
(b) information acquired by a person in the course of assisting an inspector under section 140XD.
Disclosure that is necessary or appropriate, or likely to assist administration or enforcement
(2) The Secretary may disclose, or authorise the disclosure of, the information if the Secretary reasonably believes:
(a) that it is necessary or appropriate to do so in the course of performing functions, or exercising powers, under Division 3A of Part 2 of this Act; or
(b) that the disclosure is likely to assist in the administration or enforcement of a law of the Commonwealth, a State or a Territory.
Subdivision G—Application of Division to partnerships and unincorporated associations
140ZB Partnerships—sponsorship rights and obligations
(1) This Division, the regulations made under it and any other provision of this Act as far as it relates to this Division or the regulations, apply to a partnership as if it were a person, but with the changes set out in this section and sections 140ZC and 140ZD.
(2) A sponsorship right that would otherwise be exercisable by the partnership is exercisable by each partner instead.
(3) A sponsorship obligation that would otherwise be imposed on the partnership:
(a) is imposed on each partner instead; but
(b) may be discharged by any of the partners.
(4) Subject to section 140ZC, the partners are jointly and severally liable to pay an amount in relation to a sponsorship obligation.
140ZC Partnerships—offences and civil penalties
(1) An offence against this Division that would otherwise be committed by a partnership is taken to have been committed by each partner in the partnership, at the time the offence is committed, who:
(a) did the relevant act or made the relevant omission; or
(b) aided, abetted, counselled or procured the relevant act or omission; or
(c) was in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly or whether by any act or omission of the partner).
(2) A civil penalty provision of this Division that would otherwise be contravened by a partnership is taken to have been contravened by each partner in the partnership, at the time of the conduct constituting the contravention, who:
(a) engaged in the conduct; or
(b) aided, abetted, counselled or procured the conduct; or
(c) was in any way knowingly concerned in, or party to, the conduct (whether directly or indirectly or whether by any act or omission of the partner).
(3) If a partner in a partnership contravenes a civil penalty provision, the civil penalty that may be imposed on the partner must not exceed an amount equal to one‑fifth of the maximum penalty that could be imposed on a body corporate for the same contravention.
(4) For the purposes of subsections (1) and (2), to establish that a partnership engaged in particular conduct, it is sufficient to show that the conduct was engaged in by a partner:
(a) in the ordinary course of the business of the partnership; or
(b) within the scope of the actual or apparent authority of the partner.
(5) For the purposes of subsection (1), to establish that a partnership had a particular state of mind when it engaged in particular conduct, it is sufficient to show that a relevant partner had the relevant state of mind.
140ZD Partnership ceases to exist
(1) If a partnership ceases to exist, the persons who were partners immediately before the cessation must continue to satisfy any applicable sponsorship obligation.
(2) Section 140ZB applies as if:
(a) references to a partnership were to a partnership that ceases to exist; and
(b) references to partners of the partnership were to the persons who were partners immediately before the cessation.
(3) For the purpose of this section, a partnership ceases to exist if the dissolution of the partnership does not result in the creation of another partnership.
140ZE Unincorporated associations—sponsorship rights and obligations
(1) This Division, the regulations made under it and any other provision of this Act as far as it relates to this Division or the regulations, apply to an unincorporated association as if it were a person, but with the changes set out in this section and sections 140ZF and 140ZG.
(2) A sponsorship right that would otherwise be exercisable by the unincorporated association is exercisable by each member of the association’s committee of management instead.
(3) A sponsorship obligation that would otherwise be imposed on the unincorporated association:
(a) is imposed on each member of the association’s committee of management instead; but
(b) may be discharged by any of those members.
(4) Subject to section 140ZF, the members are jointly and severally liable to pay an amount in relation to a sponsorship obligation.
140ZF Unincorporated associations—offences and civil penalties
(1) An offence against this Division that would otherwise be committed by an unincorporated association is taken to have been committed by each member of the association’s committee of management, at the time the offence is committed, who:
(a) did the relevant act or made the relevant omission; or
(b) aided, abetted, counselled or procured the relevant act or omission; or
(c) was in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly or whether by any act or omission of the member).
(2) A civil penalty provision of this Division that would otherwise be contravened by an unincorporated association is taken to have been contravened by each member of the association’s committee of management, at the time of the conduct constituting the contravention, who:
(a) engaged in the conduct; or
(b) aided, abetted, counselled or procured the conduct; or
(c) was in any way knowingly concerned in, or party to, the conduct (whether directly or indirectly or whether by any act or omission of the member).
(3) If a member of an unincorporated association’s committee of management contravenes a civil penalty provision, the civil penalty that may be imposed on the member must not exceed an amount equal to one‑fifth of the maximum penalty that could be imposed on a body corporate for the same contravention.
(4) For the purposes of subsection (1), to establish that an unincorporated association had a particular state of mind when it engaged in particular conduct, it is sufficient to show that a relevant member of the association’s committee of management had the relevant state of mind.
140ZG Unincorporated association ceases to exist
(1) If an unincorporated association ceases to exist, the persons who were members of the association’s committee of management immediately before the cessation must continue to satisfy any applicable sponsorship obligation.
(2) Section 140ZE applies as if:
(a) references to an unincorporated association were to an unincorporated association that ceases to exist; and
(b) references to members of the association’s committee of management were to the persons who were members immediately before the cessation.
(3) To avoid doubt, for the purpose of this section, an unincorporated association ceases to exist if the dissolution of the association does not result in the creation of another association.
Subdivision H—Miscellaneous
140ZH Disclosure of personal information by Minister
(1) The Minister may disclose personal information of a prescribed kind about a person mentioned in column 2 of the following table in relation to an item to the person or persons mentioned in column 3 of the table in relation to the item:
To whom the Minister may disclose personal information | |
Column 1 | Column 2 | Column 3 |
Item | If the personal information of a prescribed kind is about ... | then, the Minister may disclose that personal information to ... |
1 | a visa holder | (a) an approved sponsor of the visa holder; or (b) a former approved sponsor of the visa holder; or (c) an agency of the Commonwealth or a State or Territory prescribed by the regulations |
2 | a former visa holder | (a) an approved sponsor of the visa holder; or (b) a former approved sponsor of the visa holder; or (c) an agency of the Commonwealth or a State or Territory prescribed by the regulations |
3 | an approved sponsor of a visa holder or an approved sponsor of a former visa holder | (a) the visa holder; or (b) a former visa holder; or (c) an agency of the Commonwealth or a State or Territory prescribed by the regulations |
4 | a former approved sponsor of a visa holder or a former approved sponsor of a former visa holder | (a) the visa holder; or (b) a former visa holder; or (c) an agency of the Commonwealth or a State or Territory prescribed by the regulations |
| | | |
(2) The regulations may prescribe circumstances in which the Minister may disclose the personal information.
(3) The regulations may prescribe circumstances in which the recipient may use or disclose the personal information disclosed.
(4) If the Minister discloses personal information under subsection (1) (other than to an agency of the Commonwealth or a State or Territory prescribed by the regulations), the Minister must give written notice to the person about whom the information is disclosed of:
(a) the disclosure; and
(b) the details of the personal information disclosed.
140ZI Disclosure of personal information to Minister
(1) For the purposes of this Division, the Minister may request a person mentioned in column 2 of the following table in relation to an item to disclose to the Minister personal information of a prescribed kind about a person mentioned in column 3 of the table in relation to the item:
From whom the Minister may request disclosure of personal information | |
Column 1 | Column 2 | Column 3 |
Item | The Minister may request ... | to disclose personal information of a prescribed kind to the Minister about ... |
1 | an approved sponsor or former approved sponsor of a visa holder | the visa holder |
2 | an approved sponsor or former approved sponsor of a former visa holder | the former visa holder |
| | | |
(2) For the purposes of:
(a) paragraph (1)(d) of Information Privacy Principle 11 in section 14 of the Privacy Act 1988; and
(b) paragraph 2.1(g) of National Privacy Principle 2 in Schedule 3 to the Privacy Act 1988; and
(c) a provision of a law of a State or Territory that provides that information that is personal may be disclosed if the disclosure is authorised by law;
the disclosure of information by a person in response to a request under this section is taken to be a disclosure that is authorised by law.
(3) Nothing in this section has the effect of authorising a disclosure that, despite subsection (2), is prevented by a law of the Commonwealth, a State or Territory.
140ZJ Unclaimed money
(1) If a person who is or was an approved sponsor has not paid an amount in relation to a sponsorship obligation because the person does not know the location of the intended recipient, the person may pay the amount to the Commonwealth.
(2) The Commonwealth holds the amount in trust for the intended recipient.
(3) Payment of the amount to the Commonwealth is a sufficient discharge to the person, as against the intended recipient, for the amount paid.
140ZK Other regulation making powers not limited
Regulations made for the purposes of this Division do not limit the power to make regulations under any other provision of this or any other Act.
Division 4—Criminal justice visitors
Subdivision A—Preliminary
141 Object of Division
This Division is enacted so that, if the administration of criminal justice requires the presence in Australia of a non‑citizen, that non‑citizen may be brought to, or allowed to stay in, Australia for the purposes of that administration.
142 Interpretation
In this Division:
administration of criminal justice means:
(a) an investigation to find out whether an offence has been committed; or
(b) the prosecution of a person for an offence; or
(c) the punishment by way of imprisonment of a person for the commission of an offence.
Australia means the migration zone.
authorised official, in relation to a State, means a person authorised under section 144 to be an authorised official for that State.
criminal justice certificate means:
(a) a criminal justice entry certificate; or
(b) a criminal justice stay certificate.
criminal justice entry certificate means:
(a) a certificate given under section 145; or
(b) a certificate given under subsection 146(1) and endorsed under subsection 146(2).
criminal justice entry visa has the meaning given by section 155.
criminal justice stay certificate means a certificate given under section 147 or 148.
criminal justice stay visa has the meaning given by section 155.
criminal justice stay warrant means a warrant described in section 151.
criminal justice visa has the meaning given by section 38.
State includes Territory.
143 Delegation by Attorney‑General
(1) The Attorney‑General may, in writing, delegate any of his or her powers under this Division to:
(a) the Secretary of the Attorney‑General’s Department; or
(b) an SES employee, or acting SES employee, in that Department.
(2) Subject to subsection (3), the Attorney‑General may, in writing, delegate his or her power under section 147 to a commissioned police officer (within the meaning of the Australian Federal Police Act 1979).
(3) A delegation under subsection (2) must provide that:
(a) the power may only be exercised in relation to a person at a port; and
(b) any certificate that is issued by the member is to remain in force for no longer than 5 days.
(4) The Attorney‑General may, at any time, by written notice, revoke a certificate issued by a person exercising a power delegated under subsection (2).
144 Authorised officials
The Attorney‑General may, in writing, appoint as an authorised official for a State for the purposes of this Division:
(a) the Attorney‑General of the State; or
(b) a person holding an office under a law of the State that is like the office of the Director of Public Prosecutions; or
(c) the highest ranking member of the police force of the State.
Subdivision B—Criminal justice certificates for entry
145 Commonwealth criminal justice entry certificate
(1) If the Attorney‑General considers that:
(a) the temporary presence in Australia of a non‑citizen who is outside Australia is required for the purposes of:
(i) the Extradition Act 1988; or
(ia) the International War Crimes Tribunals Act 1995; or
(ib) the International Criminal Court Act 2002; or
(ii) the Mutual Assistance in Criminal Matters Act 1987; or
(iii) the administration of criminal justice in relation to an offence against a law of the Commonwealth; and
(b) the presence of the non‑citizen in Australia for the relevant purposes would not hinder the national interest in any way to such an extent that the non‑citizen should not be present in Australia; and
(c) satisfactory arrangements have been made to make sure that the person or organisation who wants the non‑citizen for the relevant purposes or the non‑citizen or both will meet the cost of bringing the non‑citizen to, keeping the non‑citizen in, and removing the non‑citizen from, Australia;
the Attorney‑General may give a certificate that the presence of the non‑citizen in Australia is required for the administration of criminal justice.
(2) For the purposes of paragraph (1)(c), the cost of keeping the non‑citizen in Australia does not include the cost of immigration detention (if any).
146 State criminal justice entry certificate
(1) If an authorised official for a State considers that:
(a) the temporary presence in Australia of a non‑citizen who is outside Australia is required for the purposes of the administration of criminal justice in relation to an offence against a law of the State; and
(b) satisfactory arrangements have been made to make sure that the person or organisation who wants the non‑citizen for those purposes or the non‑citizen or both will meet the cost of bringing the non‑citizen to, keeping the non‑citizen in, and removing the non‑citizen from, Australia;
the official may give a certificate that the presence of the non‑citizen in Australia is required for the administration of criminal justice by the State.
(2) If:
(a) a certificate has been given under subsection (1) about a non‑citizen; and
(b) the Attorney‑General considers that the temporary presence of the non‑citizen in Australia in order to advance the administration of criminal justice by the State would not hinder the national interest in any way to such an extent that the non‑citizen should not be present in Australia;
the Attorney‑General may endorse the certificate with a statement that it is to be a criminal justice certificate for the purposes of this Division.
(3) For the purposes of paragraph (1)(b), the cost of keeping the non‑citizen in Australia does not include the cost of immigration detention (if any).
Subdivision C—Criminal justice certificates etc. staying removal or deportation
147 Commonwealth criminal justice stay certificate
(1) If:
(a) an unlawful non‑citizen is to be, or is likely to be, removed or deported; and
(b) the Attorney‑General considers that the non‑citizen should remain in Australia temporarily for the purposes of:
(i) the Extradition Act 1988; or
(ia) the International War Crimes Tribunals Act 1995; or
(ib) the International Criminal Court Act 2002; or
(ii) the Mutual Assistance in Criminal Matters Act 1987; or
(iii) the administration of criminal justice in relation to an offence against a law of the Commonwealth; and
(c) the Attorney‑General considers that satisfactory arrangements have been made to make sure that the person or organisation who wants the non‑citizen for the relevant purposes or the non‑citizen or both will meet the cost of keeping the non‑citizen in Australia;
the Attorney‑General may give a certificate that the stay of the non‑citizen’s removal or deportation is required for the administration of criminal justice.
(2) For the purposes of paragraph (1)(c), the cost of keeping the non‑citizen in Australia does not include the cost of immigration detention (if any).
148 State criminal justice stay certificate
(1) If:
(a) an unlawful non‑citizen is to be, or is likely to be, removed or deported; and
(b) an authorised official for a State considers that the non‑citizen should remain in Australia temporarily for the purposes of the administration of criminal justice in relation to an offence against a law of the State; and
(c) that authorised official considers that satisfactory arrangements have been made to make sure that the person or organisation who wants the non‑citizen for those purposes or the non‑citizen or both will meet the cost of keeping the non‑citizen in Australia;
the official may give a certificate that the stay of the non‑citizen’s removal or deportation is required for the administration of criminal justice by the State.
(2) For the purposes of paragraph (1)(c), the cost of keeping the non‑citizen in Australia does not include the cost of immigration detention (if any).
149 Application for visa not to prevent certificate
A criminal justice stay certificate for a non‑citizen may be given even though an application for a visa for the non‑citizen has been made but not finalised.
150 Criminal justice stay certificates stay removal or deportation
If a criminal justice stay certificate about a non‑citizen is in force, the non‑citizen is not to be removed or deported.
151 Certain warrants stay removal or deportation
(1) If an unlawful non‑citizen is to be, or is likely to be, removed or deported, this Act does not prevent a court issuing for the purposes of the administration of criminal justice in relation to an offence against a law a warrant to stay the removal or deportation.
(2) If a criminal justice stay warrant about a non‑citizen is in force, the non‑citizen is not to be removed or deported.
(3) If a court issues a criminal justice stay warrant about a non‑citizen, the applicant for the warrant is responsible for the costs of any maintenance or accommodation (other than immigration detention) of the non‑citizen while the warrant is in force.
152 Certain subjects of stay certificates and stay warrants may be detained etc.
If:
(a) a criminal justice stay certificate or a criminal justice stay warrant about a non‑citizen is in force; and
