Migration Act 1958
No. 62, 1958
Compilation No. 162
Compilation date: 14 October 2024
Includes amendments: Act No. 38, 2024
This compilation is in 2 volumes
Volume 1: sections 1–261K
Volume 2: sections 262–507
Schedule
Endnotes
Each volume has its own contents
About this compilation
This compilation
This is a compilation of the Migration Act 1958 that shows the text of the law as amended and in force on 14 October 2024 (the compilation date).
The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law.
Uncommenced amendments
The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the Register for the compiled law.
Application, saving and transitional provisions for provisions and amendments
If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.
Editorial changes
For more information about any editorial changes made in this compilation, see the endnotes.
Modifications
If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the Register for the compiled law.
Self‑repealing provisions
If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.
Contents
Part 1—Preliminary
1 Short title
2 Commencement
3 Repeal and savings
3A Act not to apply so as to exceed Commonwealth power
3B Compensation for acquisition of property
4 Object of Act
4AA Detention of minors a last resort
4A Application of the Criminal Code
5 Interpretation
5AAA Non‑citizen’s responsibility in relation to protection claims
5AA Meaning of unauthorised maritime arrival
5AB Sentencing for offences
5A Meaning of personal identifier
5B When personal identifier taken not to have been provided
5C Meaning of character concern
5CA Child of a person
5CB De facto partner
5D Limiting the types of identification tests that authorised officers may carry out
5E Meaning of purported privative clause decision
5F Spouse
5G Relationships and family members
5H Meaning of refugee
5J Meaning of well‑founded fear of persecution
5K Membership of a particular social group consisting of family
5L Membership of a particular social group other than family
5LA Effective protection measures
5M Particularly serious crime
6 Effect of limited meaning of enter Australia etc.
7 Act to extend to certain Territories
7A Effect on executive power to protect Australia’s borders
8 Certain resources installations to be part of Australia
9 Certain sea installations to be part of Australia
9A Migration zone etc.—offshore resources activities
10 Certain children taken to enter Australia at birth
11 Visa applicable to 2 or more persons
11A When applications under this Act are finally determined
12 Application of Part VA of the Marriage Act
Part 2—Arrival, presence and departure of persons
Division 1—Immigration status
13 Lawful non‑citizens
14 Unlawful non‑citizens
15 Effect of cancellation of visa on status
16 Removal of immigration rights of inhabitant of Protected Zone
17 Pre‑cleared flights
Division 2—Power to obtain information and documents about unlawful non‑citizens
18 Power to obtain information and documents about unlawful non‑citizens
19 Scales of expenses
20 Reasonable compensation
21 Failure to comply with section 18 notice
24 Information and documents that incriminate a person
25 Copies of documents
26 Minister may retain documents
27 Division binds the Crown
Division 3—Visas for non‑citizens
Subdivision A—General provisions about visas
28 Interpretation
29 Visas
30 Kinds of visas
31 Classes of visas
32 Special category visas
33 Special purpose visas
34 Absorbed person visas
35 Ex‑citizen visas
35A Protection visas—classes of visas
36 Protection visas—criteria provided for by this Act
36A Consideration of protection obligations
37 Bridging visas
37A Temporary safe haven visas
38 Criminal justice visas
38A Enforcement visas
38B Maritime crew visas
39 Criterion limiting number of visas
39A Minimum annual numbers of Protection (Class XA) visas and Refugee and Humanitarian (Class XB) visas
40 Circumstances for granting visas
41 Conditions on visas
42 Visa essential for travel
43 Visa holders must usually enter at a port
Subdivision AA—Applications for visas
44 Extent of following Subdivisions
45 Application for visa
45AA Application for one visa taken to be an application for a different visa
45A Visa application charge
45B Amount of visa application charge
45C Regulations about visa application charge
46 Valid visa application
46AA Visa applications, and the grant of visas, for some Act‑based visas
46A Visa applications by unauthorised maritime arrivals
46B Visa applications by transitory persons
46C Visa pre‑application process
47 Consideration of valid visa application
48 Non‑citizen refused a visa or whose visa cancelled may only apply for particular visas
48A No further applications for protection visa after refusal or cancellation
48B Minister may determine that section 48A does not apply to non‑citizen
49 Withdrawal of visa application
50 Only new information to be considered in later protection visa applications
51 Order of consideration
Subdivision AB—Code of procedure for dealing fairly, efficiently and quickly with visa applications
51A Exhaustive statement of natural justice hearing rule
52 Communication with Minister
54 Minister must have regard to all information in application
55 Further information may be given
56 Further information may be sought
57 Certain information must be given to applicant
58 Invitation to give further information or comments
59 Interviews
60 Medical examination
61 Prescribed periods
62 Failure to receive information does not require action
63 When decision about visa may be made
64 Notice that visa application charge is payable
Subdivision AC—Grant of visas
65 Decision to grant or refuse to grant visa
66 Notification of decision
67 Grant and refusal of visa—how and when
68 When visa is in effect
69 Effect of compliance or non‑compliance
Subdivision AF—Bridging visas
72 Interpretation
73 Bridging visas
74 Further applications for bridging visa
75 When eligible non‑citizen in immigration detention granted visa
76 Bridging visa not affect visa applications
76A Cessation by operation of law of certain bridging visas etc.
76AA Effect of community safety order on visa held by non‑citizen etc.
76B Offence relating to monitoring conditions of certain bridging visas
76C Offence relating to requirement to remain at notified address
76D Offences relating to monitoring device and related monitoring equipment
76DAA Offence relating to requirement not to perform certain work etc.
76DAB Offence relating to requirement not to go within certain distance of a school etc.
76DAC Offence relating to requirement not to contact victim of offence etc.
76DA Mandatory 1 year imprisonment for offences
76E Rules of natural justice do not apply to decision to grant certain bridging visas
76F Powers of officers etc.
Subdivision AG—Other provisions about visas
77 Visas held during visa period
78 Children born in Australia
79 Effect on visa of leaving Australia
80 Certain persons taken not to leave Australia
81 Extent of visa authority
82 When visas cease to be in effect
83 Certain persons taken to be included in spouse, de facto partner or parent’s visa
84 Minister may suspend processing of visa applications
Subdivision AH—Limit on visas
85 Limit on visas
86 Effect of limit
87 Limit does not prevent visas for certain persons
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
88 Limit does not affect processing of applications
89 Determination of limit not to mean failure to decide
90 Order of dealing with limited visas
91 Order of dealing with visas
Subdivision AI—Safe third countries
91A Reason for Subdivision
91B Interpretation
91C Non‑citizens covered by Subdivision
91D Safe third countries
91E Non‑citizens to which this Subdivision applies unable to make valid applications for certain visas
91F Minister may determine that section 91E does not apply to non‑citizen
91G Applications made before regulations take effect
Subdivision AJ—Temporary safe haven visas
91H Reason for this Subdivision
91J Non‑citizens to whom this Subdivision applies
91K Non‑citizens to whom this Subdivision applies are unable to make valid applications for certain visas
91L Minister may determine that section 91K does not apply to a non‑citizen
Subdivision AL—Other provisions about protection visas
91V Verification of information
91W Evidence of identity and bogus documents
91WA Providing bogus documents or destroying identity documents
91WB Application for protection visa by member of same family unit
91X Names of applicants for protection visas not to be published by the High Court, Federal Court or Federal Circuit and Family Court of Australia (Division 2)
Subdivision B—The “points” system
92 Operation of Subdivision
93 Determination of applicant’s score
94 Initial application of “points” system
95 Applications in pool
95A Extension of period in pool
96 Minister may set pool mark and pass mark
Subdivision C—Visas based on incorrect information may be cancelled
97 Interpretation
97A Exhaustive statement of natural justice hearing rule
98 Completion of visa application
99 Information is answer
100 Incorrect answers
101 Visa applications to be correct
102 Passenger cards to be correct
103 Bogus documents not to be given etc.
104 Changes in circumstances to be notified
105 Particulars of incorrect answers to be given
106 Obligations to give etc. information is not affected by other sources of information
107 Notice of incorrect applications
107A Possible non‑compliances in connection with a previous visa may be grounds for cancellation of current visa
108 Decision about non‑compliance
109 Cancellation of visa if information incorrect
110 Cancellation provisions apply whatever source of knowledge of non‑compliance
111 Cancellation provisions apply whether or not non‑compliance deliberate
112 Action because of one non‑compliance does not prevent action because of other non‑compliance
113 No cancellation if full disclosure
114 Effect of setting aside decision to cancel visa
115 Application of Subdivision
Subdivision D—Visas may be cancelled on certain grounds
116 Power to cancel
117 When visa may be cancelled
118 Cancellation powers do not limit or affect each other
Subdivision E—Procedure for cancelling visas under Subdivision D in or outside Australia
118A Exhaustive statement of natural justice hearing rule
119 Notice of proposed cancellation
120 Certain information must be given to visa holder
121 Invitation to give comments etc.
122 Prescribed periods
123 Failure to accept invitation not require action
124 When decision about visa cancellation may be made
125 Application of Subdivision to non‑citizen in immigration clearance
126 Application of Subdivision to non‑citizen in questioning detention
127 Notification of decision
Subdivision F—Other procedure for cancelling visas under Subdivision D outside Australia
127A Exhaustive statement of natural justice hearing rule
128 Cancellation of visas of people outside Australia
129 Notice of cancellation
130 Prescribed periods
131 Decision about revocation of cancellation
132 Notification of decision about revocation of cancellation
133 Effect of revocation of cancellation
Subdivision FA—Additional personal powers for Minister to cancel visas on section 109 or 116 grounds
133A Minister’s personal powers to cancel visas on section 109 grounds
133B Other provisions relating to the exercise of powers in section 133A
133C Minister’s personal powers to cancel visas on section 116 grounds
133D Cancellation under subsection 133A(1) or 133C(1)—method of satisfying Minister of matters
133E Cancellation under subsection 133A(1) or 133C(1)—notice of cancellation
133F Cancellation under subsection 133A(3) or 133C(3)—Minister may revoke cancellation in certain circumstances
Subdivision FB—Emergency cancellation on security grounds
134A Natural justice
134B Emergency cancellation on security grounds
134C Decision about revocation of emergency cancellation
134D Effect of revocation of cancellation
134E Notice of cancellation
134F Effect of cancellation on other visas
Subdivision G—Cancellation of business visas
134 Cancellation of business visas
135 Representations concerning cancellation of business visa
136 Review of decisions
137 Provision of information—holders of business visas
Subdivision GB—Automatic cancellation of student visas
137J Non‑complying students may have their visas automatically cancelled
137K Applying for revocation of cancellation
137L Dealing with the application
137M Notification of decision
137N Minister may revoke cancellation on his or her own initiative
137P Effect of revocation
Subdivision GC—Cancellation of regional sponsored employment visas
137Q Cancellation of regional sponsored employment visas
137R Representations concerning cancellation etc.
137S Notice of cancellation
137T Cancellation of other visas
Subdivision H—General provisions on cancellation
138 Cancellation and revocation of cancellation of visas—how and when
139 Visas held by 2 or more
140 Cancellation of visa results in other cancellation
Division 3A—Sponsorship
Subdivision A—Preliminary
140A Division applies to prescribed kinds of visa
140AA Purposes of this Division
140AB Ministerial Advisory Council on Skilled Migration
Subdivision B—Approval of sponsors
140E Minister to approve work and family sponsors
140F Approval process
140G Terms of approval
140GA Variation of terms of approval
Subdivision BA—Approval of nominations made by approved work sponsors
140GB Minister to approve nominations
140GBA Labour market testing—condition
140GBB Labour market testing—major disaster exemption
140GBC Labour market testing—skill and occupational exemptions
140GC Work agreements
Subdivision C—Sponsorship obligations
140H Sponsorship obligations—general
140HA Sponsorship obligations—Minister’s responsibility
140J Amounts payable in relation to sponsorship obligations
Subdivision D—Enforcement
140K Sanctions for failing to satisfy sponsorship obligations
140L Regulations may prescribe circumstances in which sponsor may be barred or sponsor’s approval cancelled
140M Cancelling approval as a sponsor or barring a sponsor
140N Process for cancelling approval or barring approved sponsor
140O Waiving a bar
140P Process for waiving a bar
140Q Civil penalty—failing to satisfy sponsorship obligations
140RA Enforceable undertakings
140RB Compliance notices
Subdivision E—Liability and recovery of amounts
140S Liability to pay amounts
140SA Interest up to judgment
140SB Interest on judgment
140SC Certain plaintiffs may choose small claims procedure in magistrates courts
140T Notice regarding amount of debt or other amount
140U Liability is in addition to any other liability
Subdivision F—Inspector powers
140UA Exercise of inspector powers
140V Inspectors
140W Identity cards
140X Purpose for which powers of inspectors may be exercised
140XA When powers of inspectors may be exercised
140XB Power of inspectors to enter premises or places
140XC Powers of inspectors while on premises or at a place
140XD Persons assisting inspectors
140XE Power to ask for person’s name and address
140XF Power to require persons to produce records or documents
140XG Self‑incrimination
140XH Certain records and documents are inadmissible
140XI Power to keep records or documents
140XJ Disclosure of information by the Secretary or Australian Border Force Commissioner
Subdivision G—Application of Division to partnerships and unincorporated associations
140ZB Partnerships—sponsorship rights and obligations
140ZC Partnerships—offences and civil penalties
140ZD Partnership ceases to exist
140ZE Unincorporated associations—sponsorship rights and obligations
140ZF Unincorporated associations—offences and civil penalties
140ZG Unincorporated association ceases to exist
Subdivision H—Miscellaneous
140ZH Disclosure of personal information by Minister
140ZI Disclosure of personal information to Minister
140ZJ Unclaimed money
140ZK Other regulation making powers not limited
140ZL Division binds the Crown
Division 3B—Nominations
140ZM Nomination training contribution charge
140ZN Regulations about nomination training contribution charge
140ZO Recovery of nomination training contribution charge and late payment penalty
140ZP Notional application of nomination training contribution charge in relation to nominations by the Commonwealth
140ZQ Division binds the Crown
Division 4—Criminal justice visitors
Subdivision A—Preliminary
141 Object of Division
142 Interpretation
143 Delegation by Minister
144 Authorised officials
Subdivision B—Criminal justice certificates for entry
145 Commonwealth criminal justice entry certificate
146 State criminal justice entry certificate
Subdivision C—Criminal justice certificates etc. staying removal or deportation
147 Commonwealth criminal justice stay certificate
148 State criminal justice stay certificate
149 Application for visa not to prevent certificate
150 Criminal justice stay certificates stay removal or deportation
151 Certain warrants stay removal or deportation
152 Certain subjects of stay certificates and stay warrants may be detained etc.
153 Removal or deportation not contempt etc. if no stay certificate or warrant
154 Officer not liable—criminal justice stay certificates or warrants
Subdivision D—Criminal justice visas
155 Criminal justice visas
156 Criterion for criminal justice entry visas
157 Criterion for criminal justice stay visas
158 Criteria for criminal justice visas
159 Procedure for obtaining criminal justice visa
160 Conditions of criminal justice visa
161 Effect of criminal justice visas
Subdivision E—Cancellation etc. of criminal justice certificates and criminal justice visas
162 Criminal justice certificates to be cancelled
163 Stay warrant to be cancelled
164 Effect of cancellation etc. on criminal justice visa
Division 4A—Enforcement visas
164A Definitions
164B Grant of enforcement visas (fisheries matters)
164BA Grant of enforcement visas (environment matters)
164C When enforcement visa ceases to be in effect
164D Applying for other visas
Division 5—Immigration clearance
165 Interpretation
166 Persons entering to present certain evidence of identity etc.
167 When and where evidence to be presented
168 Section 166 not to apply
169 Section 166 not usually to apply
170 Certain persons to present evidence of identity
171 Assistance with evidence
172 Immigration clearance
173 Visa ceases if holder enters in way not permitted
174 Visa ceases if holder remains without immigration clearance
175 Departing person to present certain evidence etc.
175A Determinations relating to kinds of passports
175B Collection, access and disclosure of information
Division 6—Certain non‑citizens to be kept in immigration detention
176 Reason for Division
177 Interpretation
178 Designated persons to be in immigration detention
179 Beginning of immigration detention of certain designated persons
180 Detention of designated person
181 Removal from Australia of designated persons
182 No immigration detention or removal after certain period
183 Courts must not release designated persons
185 Effect of Division on status etc.
186 Division applies despite other laws
187 Evidence
Division 7—Detention of unlawful non‑citizens
Subdivision A—General provisions
188 Lawful non‑citizen to give evidence of being so
189 Detention of unlawful non‑citizens
190 Non‑compliance with immigration clearance or requirement to provide personal identifier
191 End of certain detention
192 Detention of visa holders whose visas liable to cancellation
193 Application of law to certain non‑citizens while they remain in immigration detention
194 Detainee to be told of consequences of detention
195 Detainee may apply for visa
195A Minister may grant detainee visa (whether or not on application)
196 Duration of detention
197 Effect of escape from immigration detention
Subdivision B—Residence determinations
197AA Persons to whom Subdivision applies
197AB Minister may determine that person is to reside at a specified place rather than being held in detention centre etc.
197AC Effect of residence determination
197AD Revocation or variation of residence determination
197AE Minister not under duty to consider whether to exercise powers
197AF Minister to exercise powers personally
197AG Tabling of information relating to the making of residence determinations
Division 7A—Offences relating to immigration detention
197A Detainees must not escape from detention
197B Manufacture, possession etc. of weapons by detainees
Division 8—Removal of unlawful non‑citizens etc.
Subdivision A—Removal
197C Relevance of Australia’s non‑refoulement obligations to removal of unlawful non‑citizens under section 198
197D Decision that protection finding would no longer be made
198 Removal from Australia of unlawful non‑citizens
Subdivision B—Regional processing
198AA Reason for Subdivision
198AB Regional processing country
198AC Documents to be laid before Parliament
198AD Taking unauthorised maritime arrivals to a regional processing country
198AE Ministerial determination that section 198AD does not apply
198AF No regional processing country
198AG Non‑acceptance by regional processing country
198AH Application of section 198AD to certain transitory persons
198AHA Power to take action etc. in relation to arrangement or regional processing functions of a country
198AI Ministerial report
198AJ Reports about unauthorised maritime arrivals
Subdivision C—Transitory persons etc.
198B Power to bring transitory persons to Australia
199 Dependants of removed non‑citizens
Division 9—Deportation
200 Deportation of certain non‑citizens
201 Deportation of non‑citizens in Australia for less than 10 years who are convicted of crimes
202 Deportation of non‑citizens upon security grounds
203 Deportation of non‑citizens who are convicted of certain serious offences
204 Determination of time for sections 201 and 202
205 Dependants of deportee
206 Deportation order to be executed
Division 10—Costs etc. of removal and deportation
207 Interpretation
210 Removed or deported non‑citizen liable for costs of removal or deportation
212 Costs of removed or deported spouses, de facto partners and dependants
213 Carriers may be liable for costs of removal and deportation
214 Non‑citizens and carriers jointly liable
215 Costs are debts due to the Commonwealth
216 Use of existing ticket for removal or deportation
217 Vessels required to convey certain removees
218 Vessels required to convey deportees or other removees
219 Exemption from complying
220 Waiver of requirement
221 Cost of removal under notice
222 Orders restraining certain non‑citizens from disposing etc. of property
223 Secretary or Australian Border Force Commissioner may give direction about valuables of detained non‑citizens
224 Dealing with seized valuables
Division 11—Duties of masters in relation to crews
225 Production of identity documents and mustering of crew
226 Production of identity documents by persons on board resources installation
227 Production of identity documents by persons on board sea installation
228 Master to report absences
Division 12—Offences etc. in relation to entry into, and remaining in, Australia
Subdivision A—People smuggling and related offences
228A Application of Subdivision
228B Circumstances in which a non‑citizen has no lawful right to come to Australia
229 Carriage of non‑citizens to Australia without documentation
230 Carriage of concealed persons to Australia
231 Master of vessel to comply with certain requests
232 Penalty on master, owner, agent and charterer of vessel
233A Offence of people smuggling
233B Aggravated offence of people smuggling (danger of death or serious harm etc.)
233C Aggravated offence of people smuggling (at least 5 people)
233D Supporting the offence of people smuggling
233E Concealing and harbouring non‑citizens etc.
234 False documents and false or misleading information etc. relating to non‑citizens
234A Aggravated offence of false documents and false or misleading information etc. relating to non‑citizens (at least 5 people)
236 Offences relating to visas
236A No discharge without conviction for certain offences
236B Mandatory minimum penalties for certain offences
236C Time in immigration detention counts for sentencing etc.
236D Burden and standard of proof in relation to age
236E Evidentiary certificates in proceedings for offences
236F Evidentiary certificates—procedural matters
Subdivision B—Offences relating to abuse of laws allowing spouses etc. of Australian citizens or of permanent residents to become permanent residents
237 Reason for Subdivision
238 Interpretation
239 Application of Subdivision
240 Offence to arrange marriage to obtain permanent residence
241 Offence to arrange pretended de facto relationship to obtain permanent residence
243 Offences relating to application for permanent residence because of marriage or de facto relationship
245 Offences of making false or unsupported statements
Subdivision C—Offences and civil penalties in relation to work by non‑citizens
245AA Overview
245AAA Coercing etc. a lawful non‑citizen to work in breach of work‑related conditions
245AAB Coercing etc. an unlawful non‑citizen to work—adverse effect on presence in Australia
245AAC Coercing etc. a lawful non‑citizen to work—adverse effect on status etc.
245AB Allowing an unlawful non‑citizen to work
245AC Allowing a lawful non‑citizen to work in breach of a work‑related condition
245AD Aggravated offences if a person allows, or continues to allow, another person to work
245AE Referring an unlawful non‑citizen for work
245AEA Referring a lawful non‑citizen for work in breach of a work‑related condition
245AEB Aggravated offences if a person refers another person to a third person for work
245AF Circumstances in which this Subdivision does not apply
245AG Meaning of work and allows to work
245AGA Meaning of arrangement in relation to work
245AH Meaning of exploited
245AJ Criminal liability of executive officers of bodies corporate
245AK Civil liability of executive officers of bodies corporate
245AL Contravening civil penalty provisions
245ALA Enforceable undertakings
245AM Geographical scope of offence and civil penalty provisions
245AN Charge and trial for an aggravated offence
245AO Treatment of partnerships
245AP Treatment of unincorporated associations
245APA Effect of this Subdivision on the validity of certain contracts is to be disregarded
Subdivision D—Offences and civil penalties in relation to sponsored visas
245AQ Definitions
245AR Prohibition on asking for or receiving a benefit in return for the occurrence of a sponsorship‑related event
245AS Prohibition on offering to provide or providing a benefit in return for the occurrence of a sponsorship‑related event
245AT Criminal liability of executive officers of bodies corporate
245AU Civil liability of executive officers of bodies corporate
245AV Contravening civil penalty provisions
245AW Geographical scope of offence and civil penalty provisions
245AX Treatment of partnerships
245AY Treatment of unincorporated associations
Subdivision E—Prohibited employers
245AYAA Objects of this Subdivision
245AYA Overview
245AYB Definitions
245AYC Meaning of allows a non‑citizen to begin work
245AYD Meaning of prohibited employer
245AYE When a person is subject to a migrant worker sanction—bar placed on approved work sponsor etc.
245AYF When a person is subject to a migrant worker sanction—conviction of work‑related offence etc.
245AYG When a person is subject to a migrant worker sanction—contravention of certain civil penalty provisions etc.
245AYH When a person is subject to a migrant worker sanction—contravention of certain civil remedy provisions of the Fair Work Act 2009
245AYI When a person is subject to a migrant worker sanction—contravention of term of enforceable undertaking etc.
245AYJ When a person is subject to a migrant worker sanction—failure to comply with certain compliance notices
245AYK Declaration of person as prohibited employer
245AYL Prohibition on allowing additional non‑citizens to begin work
245AYM Publishing information about prohibited employers
245AYN Former prohibited employers to give certain information
245AYO Contravening civil penalty provisions
Subdivision F—Compliance notices for work‑related breaches
245AYP Compliance notices
Division 12A—Chasing, boarding etc. aircraft
245A Definitions
245E Identifying an aircraft and requesting it to land for boarding
245F Power to board and search etc. aircraft
245FA Searches of people on certain ships or aircraft
Division 12B—Reporting on passengers and crew of aircraft and ships
245I Definitions
245J Approval of primary reporting systems
245K Approval of fall‑back reporting systems
245L Obligation to report on persons arriving in Australia
245LA Obligation to report on persons departing from Australia
245LB Dealing with information collected under this Division etc.
245M Approved fall‑back reporting systems may be used in certain circumstances
245N Offence for failure to comply with reporting obligations
Division 13—Examination, search, detention and identification
246 Appointment of boarding stations
247 Vessels to enter ports and be brought to boarding stations
248 Exemption
249 Certain persons may be prevented from entering or landing
250 Detention of suspected offenders
251 Powers of entry and search
252 Searches of persons
252AA Power to conduct a screening procedure
252A Power to conduct a strip search
252B Rules for conducting a strip search
252C Possession and retention of certain things obtained during a screening procedure or strip search
252D Authorised officer may apply for a thing to be retained for a further period
252E Magistrate may order that thing be retained
252F Detainees held in State or Territory prisons or remand centres
252G Powers concerning entry to a detention centre
253 Detention of deportee
254 Removees and deportees held in other custody
255 Prescribed authorities
256 Person in immigration detention may have access to certain advice, facilities etc.
257 Persons may be required to answer questions
257A Person may be required to provide personal identifiers
258 Minister may determine that specified persons are not to be required to provide personal identifiers etc.
258A When detainees must not be required to provide personal identifiers under section 257A
258B Information to be provided—authorised officers carrying out identification tests
258D Regulations may prescribe manner for carrying out identification tests
258E General rules for carrying out identification tests
258F Person must not be required to provide personal identifiers in a cruel, inhuman or degrading way etc.
258G Authorised officer may get help to carry out identification tests
259 Detention of vessel for purpose of search
260 Detention of vessel pending recovery of penalty
261 Disposal of dilapidated vessels etc.
Division 13AA—Identification of immigration detainees
Subdivision A—Provision of personal identifiers
261AA Immigration detainees must provide personal identifiers
261AB Authorised officers must require and carry out identification tests
261AC Information to be provided before carrying out identification tests
Subdivision B—How identification tests are carried out
261AD General rules for carrying out identification tests
261AE Use of force in carrying out identification tests
261AF Identification tests not to be carried out in cruel, inhuman or degrading manner etc.
261AG Authorised officer may get help to carry out identification tests
261AH Identification tests to be carried out by authorised officer of same sex as non‑citizen
261AI Independent person to be present
261AJ Recording of identification tests
261AK Retesting
Subdivision C—Obligations relating to video recordings of identification tests
261AKA Definitions
261AKB Accessing video recordings
261AKC Authorising access to video recordings
261AKD Providing video recordings
261AKE Unauthorised modification of video recordings
261AKF Unauthorised impairment of video recordings
261AKG Meanings of unauthorised modification and unauthorised impairment etc.
261AKH Destroying video recordings
Division 13AB—Identification of minors and incapable persons
261AL Minors
261AM Incapable persons
Division 13A—Automatic forfeiture of things used in certain offences
Subdivision A—Automatic forfeiture
261A Forfeiture of things used in certain offences
Subdivision B—Seizure
261B Seizure of things used in certain offences
Subdivision C—Dealing with things seized as automatically forfeited
261C Application of this Subdivision
261D Notice of seizure
261E Dealing with thing before it is condemned
261F Thing condemned if not claimed in time
261G Dealing with claim for thing
261H What happens if thing is claimed
261I Dealing with thing after it is condemned
Subdivision D—Operation of Division
261J Operation of Division
Subdivision E—Minister’s order that a thing not be condemned as forfeited
261K Minister’s order that a thing not be condemned
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
This Act may be cited as the Migration Act 1958.
The several Parts of this Act shall come into operation on such dates as are respectively fixed by Proclamation.
(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.
(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 provides for non‑citizens and citizens to be required to provide personal identifiers for the purposes of this Act or the regulations.
(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.
(5) To advance its object, this Act provides for the taking of unauthorised maritime arrivals from Australia to a regional processing country.
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.
(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 Norfolk Island, 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.
appointed inspector has the meaning given by section 140V.
approved family sponsor means a person:
(a) who has been approved under section 140E as a family sponsor in relation to a class prescribed by the regulations for the purpose of subsection 140E(2); and
(b) whose approval has not been cancelled under section 140M, or otherwise ceased to have effect under section 140G, in relation to that class.
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) an approved family sponsor; or
(b) an approved work sponsor.
approved work sponsor means:
(a) a person:
(i) who has been approved under section 140E as a work sponsor 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 work 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).
ART means the Administrative Review Tribunal.
ART Act means the Administrative Review Tribunal Act 2024.
ART Act migration decision: see section 474A.
ART member means a member of the ART.
ART practice directions means practice directions made under section 36 of the ART Act.
ART Principal Registrar means the Principal Registrar within the meaning of the ART Act.
ASIO means the Australian Security Intelligence Organisation.
ASIO Act means the Australian Security Intelligence Organisation Act 1979.
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.
assessment, in relation to ASIO, has the same meaning as in subsection 35(1) of the ASIO Act.
Australian Border Force Commissioner has the same meaning as in the Australian Border Force Act 2015.
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 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, the Secretary or the Australian Border Force Commissioner 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.
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.
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 order has the meaning given by subsection 486R(4).
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.
Convention Against Torture means the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment done at New York on 10 December 1984.
Note: The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment is in Australian Treaty Series 1989 No. 21 ([1989] ATS 21) and could in 2014 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).
Coral Sea area has the same meaning as in section 7 of the Offshore Petroleum and Greenhouse Gas Storage Act 2006.
Covenant means the International Covenant on Civil and Political Rights, a copy of the English text of which is set out in Schedule 2 to the Australian Human Rights Commission Act 1986.
crime includes any offence.
criminal justice visa has the meaning given by section 38.
cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
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.
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
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 Circuit and Family Court of Australia (Division 2); 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.
Note: See also section 9A, which concerns offshore resources activities.
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.
evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.
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.
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.
Fair Work Inspector has the same meaning as in the Fair Work Act 2009.
Federal Court means the Federal Court of Australia.
finally determined: for when an application under this Act is finally determined, see section 11A.
Finance Minister means the Minister who administers the Public Governance, Performance and Accountability Act 2013.
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 vessel has the same meaning as in the Maritime Powers Act 2013.
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 or Australian Border Force Commissioner 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: Subsection 198AD(11) provides that being dealt with under subsection 198AD(3) 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).
inspector has the meaning given by section 140V.
installation means:
(a) a resources installation; or
(b) a sea installation.
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.
Note: See also section 9A, which concerns offshore resources activities.
maritime crew visa has the meaning given by section 38B.
maritime officer has the same meaning as in the Maritime Powers Act 2013.
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; or
(d) an ART Act migration decision.
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.
Note: See also section 9A, which concerns offshore resources activities.
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.
nomination training contribution charge means nomination training contribution charge imposed by section 7 of the Migration (Skilling Australians Fund) Charges Act 2018.
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‑political crime:
(a) subject to paragraph (b), means a crime where a person’s motives for committing the crime were wholly or mainly non‑political in nature; and
(b) includes an offence that, under paragraph (a), (b) or (c) 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.
non‑privative clause decision has the meaning given by subsection 474(6).
non‑refoulement obligations includes, but is not limited to:
(a) non‑refoulement obligations that may arise because Australia is a party to:
(i) the Refugees Convention; or
(ii) the Covenant; or
(iii) the Convention Against Torture; and
(b) any obligations accorded by customary international law that are of a similar kind to those mentioned in paragraph (a).
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 resources activity has the meaning given by subsection 9A(5).
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.
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.
protection visa has the meaning given by section 35A.
Note: Section 35A covers the following:
(a) permanent protection visas (classified by the Migration Regulations 1994 as Protection (Class XA) visas when this definition commenced);
(b) other protection visas formerly provided for by subsection 36(1);
(ba) safe haven enterprise visas;
(c) temporary protection visas (classified by the Migration Regulations 1994 as Temporary Protection (Class XD) visas when this definition commenced);
(d) any additional classes of permanent or temporary visas that are prescribed as protection visas by the regulations.
See also section 36 and Subdivision AL of Division 3 of Part 2.
purported privative clause decision has the meaning given by section 5E.
questioning detention means detention under section 192.
receiving country, in relation to a non‑citizen, means:
(a) a country of which the non‑citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non‑citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non‑citizen to the country.
refugee has the meaning given by section 5H.
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).
regional processing country means a country designated by the Minister under subsection 198AB(1) as a regional processing country.
Regulatory Powers Act means the Regulatory Powers (Standard Provisions) Act 2014.
relevant workplace law has the meaning given by subsection 245APA(2).
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).
reviewable migration decision: see section 338.
reviewable protection decision: see section 338A.
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.
serious Australian offence means 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.
serious foreign offence means 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.
significant harm means harm of a kind mentioned in subsection 36(2A).
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.
tax file number has the meaning given by subsection 995‑1(1) of the Income Tax Assessment Act 1997.
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.
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
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) a person who was taken to another country under repealed section 198A; or
(aa) a person who was taken to a regional processing country under section 198AD; or
(b) a person who was taken to a place outside Australia under paragraph 245F(9)(b) of this Act, or under Division 7 or 8 of Part 3 of the Maritime Powers Act 2013; 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; or
(d) the child of a transitory person mentioned in paragraph (aa) or (b), if:
(i) the child was born in a regional processing country to which the parent was taken as mentioned in the relevant paragraph; and
(ii) the child was not an Australian citizen at the time of birth; or
(e) the child of a transitory person mentioned in paragraph (aa) or (b), if:
(i) the child was born in the migration zone; and
(ii) the child was not an Australian citizen at the time of birth.
Note 1: For who is a child, see section 5CA.
Note 2: A transitory person who entered Australia by sea before being taken to a place outside Australia may also be an unauthorised maritime arrival: see section 5AA.
Note 3: Paragraphs (d) and (e) apply no matter when the child was born, whether before, on or after the commencement of those paragraphs. See the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014.
unauthorised maritime arrival has the meaning given by section 5AA.
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).
Note: See subsection 68(6) for when certain bridging visas are to be taken to have ceased to be in effect otherwise than under subsection 82(3).
visa pre‑application process charge means charge imposed by the Migration (Visa Pre‑application Process) Charge Act 2023.
well‑founded fear of persecution has the meaning given by section 5J.
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.
work‑related condition means a condition:
(a) prohibiting the holder of a visa from working in Australia; or
(b) restricting the work that the holder of a visa may do in Australia.
work‑related offence means:
(a) an offence against Subdivision C or E of Division 12 of Part 2; or
(b) an offence against section 6 of the Crimes Act 1914 that relates to an offence against one of those Subdivisions; or
(c) an ancillary offence (within the meaning of the Criminal Code) that is, or relates to, an offence against one of those Subdivisions.
(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.
(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.
(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.
5AAA Non‑citizen’s responsibility in relation to protection claims
(1) This section applies in relation to a non‑citizen who claims to be a person in respect of whom Australia has protection obligations (however arising).
(2) For the purposes of this Act, it is the responsibility of the non‑citizen to specify all particulars of his or her claim to be such a person and to provide sufficient evidence to establish the claim.
(3) The purposes of this Act include:
(a) the purposes of a regulation or other instrument under this Act; and
(b) the purposes of any administrative process that occurs in relation to:
(i) this Act; or
(ii) a regulation or instrument under this Act.
(4) To remove doubt, the Minister does not have any responsibility or obligation to:
(a) specify, or assist in specifying, any particulars of the non‑citizen’s claim; or
(b) establish, or assist in establishing, the claim.
5AA Meaning of unauthorised maritime arrival
(1) For the purposes of this Act, a person is an unauthorised maritime arrival if:
(a) the person entered Australia by sea:
(i) at an excised offshore place at any time after the excision time for that place; or
(ii) at any other place at any time on or after the commencement of this section; and
(b) the person became an unlawful non‑citizen because of that entry; and
(c) the person is not an excluded maritime arrival.
(1A) For the purposes of this Act, a person is also an unauthorised maritime arrival if:
(a) the person is born in the migration zone; and
(b) a parent of the person is, at the time of the person’s birth, an unauthorised maritime arrival because of subsection (1) (no matter where that parent is at the time of the birth); and
(c) the person is not an Australian citizen at the time of birth.
Note 1: For who is a parent of a person, see the definition in subsection 5(1) and section 5CA.
Note 2: A parent of the person may be an unauthorised maritime arrival even if the parent holds, or has held, a visa.
Note 3: A person to whom this subsection applies is an unauthorised maritime arrival even if the person is taken to have been granted a visa because of section 78 (which deals with the birth in Australia of non‑citizens).
Note 4: For when a person is an Australian citizen at the time of his or her birth, see section 12 of the Australian Citizenship Act 2007.
Note 5: This subsection applies even if the person was born before the commencement of the subsection. See the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014.
(1AA) For the purposes of this Act, a person is also an unauthorised maritime arrival if:
(a) the person is born in a regional processing country; and
(b) a parent of the person is, at the time of the person’s birth, an unauthorised maritime arrival because of subsection (1) (no matter where that parent is at the time of the birth); and
(c) the person is not an Australian citizen at the time of his or her birth.
Note 1: A parent of the person may be an unauthorised maritime arrival even if the parent holds, or has held, a visa.
Note 2: This Act may apply as mentioned in subsection (1AA) even if either or both parents of the person holds a visa, or is an Australian citizen or a citizen of the regional processing country, at the time of the person’s birth.
Note 3: This subsection applies even if the person was born before the commencement of the subsection. See the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014.
Entered Australia by sea
(2) A person entered Australia by sea if:
(a) the person entered the migration zone except on an aircraft that landed in the migration zone; or
(b) the person entered the migration zone as a result of being found on a ship detained under section 245F (as in force before the commencement of section 69 of the Maritime Powers Act 2013) and being dealt with under paragraph 245F(9)(a) (as in force before that commencement); or
(ba) the person entered the migration zone as a result of the exercise of powers under Division 7 or 8 of Part 3 of the Maritime Powers Act 2013; or
(c) the person entered the migration zone after being rescued at sea.
Excluded maritime arrival
(3) A person is an excluded maritime arrival if the person:
(a) is a New Zealand citizen who holds and produces a New Zealand passport that is in force; or
(b) is a non‑citizen who:
(i) holds and produces a passport that is in force; and
(ii) is ordinarily resident on Norfolk Island; or
(c) is included in a prescribed class of persons.
Definitions
(4) In this section:
aircraft has the same meaning as in section 245A.
ship has the meaning given by section 245A (as in force before the commencement of section 69 of the Maritime Powers Act 2013).
Note: An unauthorised maritime arrival who has been taken to a place outside Australia may also be a transitory person: see the definition of transitory person in subsection 5(1).
The provisions of this Act and the regulations apply no differently in relation to a single sentence imposed by a court in respect of 2 or more offences to the way in which those provisions apply in relation to a sentence imposed by a court in respect of a single offence.
Example: Paragraph 501(7)(c) applies in relation to a person sentenced to a term of imprisonment of 12 months or more. Because of this section, that paragraph applies in relation to a person sentenced to such a term, whether the sentence is imposed for a single offence or for 2 or more offences.
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; and
(ca) to improve 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 from people seeking protection as refugees; and
(fa) to assist in determining whether a person is an unlawful non‑citizen or a lawful non‑citizen; and
(g) to enhance the Department’s ability to identify non‑citizens who have a criminal history or who are of character concern; and
(ga) to assist in identifying persons who may be a security concern to Australia or a foreign country; 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 unauthorised maritime arrival who makes a claim for protection as a refugee; or
(iii) an unauthorised maritime arrival who makes a claim for protection on the basis that the person will suffer significant harm;
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 section 257A, not to have provided a personal identifier if:
(a) the personal identifier that is provided is unusable; or
(b) the Minister, an authorised officer or an officer is not satisfied:
(i) about the integrity or quality of the personal identifier that is provided; or
(ii) about the procedure followed to obtain the personal identifier.
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 been convicted of an offence that was committed:
(i) while the non‑citizen was in immigration detention; or
(ii) during an escape by the non‑citizen from immigration detention; or
(iii) after the non‑citizen escaped from immigration detention but before the non‑citizen was taken into immigration detention again; or
(ba) the non‑citizen has been convicted of an offence against section 197A; or
(bb) the Minister reasonably suspects:
(i) that the non‑citizen has been or is a member of a group or organisation, or has had or has an association with a group, organisation or person; and
(ii) that the group, organisation or person has been or is involved in criminal conduct; or
(bc) the Minister reasonably suspects that the non‑citizen has been or is involved in conduct constituting one or more of the following:
(i) an offence under one or more of sections 233A to 234A (people smuggling);
(ii) an offence of trafficking in persons;
(iii) the crime of genocide, a crime against humanity, a war crime, a crime involving torture or slavery or a crime that is otherwise of serious international concern;
whether or not the non‑citizen, or another person, has been convicted of an offence constituted by the 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 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; or
(e) a court in Australia or a foreign country has:
(i) convicted the non‑citizen of one or more sexually based offences involving a child; or
(ii) found the non‑citizen guilty of such an offence, or found a charge against the non‑citizen proved for such an offence, even if the non‑citizen was discharged without a conviction; or
(f) the non‑citizen has, in Australia or a foreign country, been charged with or indicted for one or more of the following:
(i) the crime of genocide;
(ii) a crime against humanity;
(iii) a war crime;
(iv) a crime involving torture or slavery;
(v) a crime that is otherwise of serious international concern; or
(g) the non‑citizen has been assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979); or
(h) an Interpol notice in relation to the non‑citizen, from which it is reasonable to infer that the non‑citizen would present a risk to the Australian community or a segment of that community, is in force.
(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, where the total of those terms is 12 months 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; or
(f) the non‑citizen has:
(i) been found by a court to not be fit to plead, in relation to an offence; and
(ii) the court has nonetheless found that on the evidence available the non‑citizen committed the offence; and
(iii) as a result, the non‑citizen has been detained in a facility or institution.
(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.
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, Secretary or Australian Border Force Commissioner 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).
(1) For the purposes of this Act, a person is the spouse of another person (whether of the same sex or a different sex) 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 a married couple 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.
(1) For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:
(a) in a case where the person has a nationality—is outside the country of his or her nationality and, owing to a well‑founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality—is outside the country of his or her former habitual residence and owing to a well‑founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well‑founded fear of persecution, see section 5J.
(2) Subsection (1) does not apply if the Minister has serious reasons for considering that:
(a) the person has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or
(b) the person committed a serious non‑political crime before entering Australia; or
(c) the person has been guilty of acts contrary to the purposes and principles of the United Nations.
5J Meaning of well‑founded fear of persecution
(1) For the purposes of the application of this Act and the regulations to a particular person, the person has a well‑founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2) A person does not have a well‑founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3) A person does not have a well‑founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i) alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii) conceal his or her true race, ethnicity, nationality or country of origin;
(iii) alter his or her political beliefs or conceal his or her true political beliefs;
(iv) conceal a physical, psychological or intellectual disability;
(v) enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi) alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4) If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5) Without limiting what is serious harm for the purposes of paragraph (4)(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.
(6) In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless 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.
5K Membership of a particular social group consisting of family
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 persecution 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 paragraph 5J(1)(a); 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.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i) the characteristic is an innate or immutable characteristic;
(ii) the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii) the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
(1) For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i) the relevant State; or
(ii) a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2) A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
For the purposes of the application of this Act and the regulations to a particular person, paragraph 36(1C)(b) has effect as if a reference in that paragraph to a particularly serious crime included a reference to a crime that consists of the commission of:
(a) a serious Australian offence; or
(b) a serious foreign offence.
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.
Note: See also subsection 9A(3), which deals with when a person is taken to be in Australia, to travel to Australia, to enter Australia or to leave Australia. Section 9A concerns offshore resources activities.
7 Act to extend to certain Territories
(1) In this section, prescribed Territory means Norfolk Island, 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.
9A Migration zone etc.—offshore resources activities
Migration zone etc.
(1) For the purposes of this Act, a person is taken to be in the migration zone while he or she is in an area to participate in, or to support, an offshore resources activity in relation to that area.
Example 1: A person is taken to be in the migration zone under this section if the person is on a vessel in an area to participate in an offshore resources activity under the Offshore Petroleum and Greenhouse Gas Storage Act 2006 in that area by exploring for, or recovering, petroleum.
Example 2: A person who is a member of the crew of the vessel is also taken to be in the migration zone under this section if the person is supporting the offshore resources activity.
Example 3: Neither a stowaway on the vessel, nor a person on the vessel because the person was rescued at sea, is taken to be in the migration zone, because neither is participating in, or supporting, the offshore resources activity.
(2) To avoid doubt, a person may be taken to be in the migration zone under subsection (1):
(a) whether or not the person’s participation in, or support of, an offshore resources activity in the area concerned has started, is continuing or has concluded; and
(b) whether or not the offshore resources activity concerned has started, is continuing or has concluded.
(3) For the purposes of this Act:
(a) a person is taken to be in Australia while he or she is taken to be in the migration zone because of subsection (1); and
(b) a person is taken to travel to Australia if the person travels to an area in which the person is taken to be in the migration zone because of subsection (1); and
(c) a person is taken to enter Australia when the person enters an area in which the person is taken to be in the migration zone because of subsection (1); and
(d) subject to section 80—a person is taken to leave Australia when the person leaves an area in which the person is taken to be in the migration zone because of subsection (1).
(4) Unless a provision of this Act, or another Act, expressly provides otherwise, this section does not have the effect of extending, for the purposes of another Act, the circumstances in which a person:
(a) is in the migration zone or is taken to be in the migration zone; or
(b) is in Australia or is taken to be in Australia; or
(c) travels to Australia or is taken to travel to Australia; or
(d) enters Australia or is taken to enter Australia; or
(e) leaves Australia or is taken to leave Australia.
Meaning of offshore resources activity
(5) In this section:
offshore resources activity, in relation to an area, means:
(a) a regulated operation (within the meaning of section 7 of the Offshore Petroleum and Greenhouse Gas Storage Act 2006) that is being carried out, or is to be carried out, within the area, except an operation determined by the Minister under subsection (6); or
(b) an activity performed under a licence or a special purpose consent (both within the meaning of section 4 of the Offshore Minerals Act 1994) that is being carried out, or is to be carried out, within the area, except an activity determined by the Minister under subsection (6); or
(c) an activity, operation or undertaking (however described) that is being carried out, or is to be carried out:
(i) under a law of the Commonwealth, a State or a Territory determined by the Minister under subsection (6); and
(ii) within the area, as determined by the Minister under subsection (6).
(6) The Minister may, in writing, make a determination for the purposes of the definition of offshore resources activity in subsection (5).
(7) A determination made under subsection (6) is a legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 does not apply to the determination.
(8) To avoid doubt, for the purposes of subsection (1), a person may participate in, or support, an offshore resources activity in relation to an area whether the person:
(a) is on an Australian resources installation in the area; or
(b) is otherwise in the area to participate in, or support, the activity.
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.
11A When applications under this Act are finally determined
(1) An application under this Act is finally determined when:
(a) a decision that has been made in respect of the application is not, or is no longer, subject to any form of review by application to the ART under Part 5; or
(b) a decision that has been made in respect of the application was subject to some form of review by application to the ART under Part 5 but the period within which such a review could be instituted has ended without a review having been instituted as prescribed.
(2) If a review of a decision that has been made in respect of an application under this Act is instituted by application to the ART under Part 5 as prescribed, the application is finally determined when a decision on review in respect of the application is taken to have been made as provided by the following provisions:
(a) if the decision on review is made under section 105 of the ART Act or paragraph 368C(3)(b) or subsection 368C(5) of this Act—section 368 of this Act;
(b) if the application for review is dismissed under the ART Act and an application for reinstatement cannot be made under section 368C of this Act—section 368B of this Act.
(3) However, subsection (2) does not apply in relation to a decision of the ART to remit a reviewable migration decision or a reviewable protection decision under subsection 349(2).
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—Arrival, presence and departure of persons
(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.
(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.
(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.
The regulations may prescribe scales of expenses to be allowed to persons required to give information or produce documents under this Division.
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.
(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.
(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
In this Division:
specified period includes the period until a specified date.
(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.
(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.
(1) There are to be prescribed classes of visas.
Note: See also subsection 35A(4), which allows additional classes of permanent and temporary visas to be prescribed as protection visas by regulations made for the purposes of this subsection.
(2) As well as the prescribed classes, there are the classes provided for by the following provisions:
(a) section 32 (special category visas);
(b) section 33 (special purpose visas);
(c) section 34 (absorbed person visas);
(d) section 35 (ex‑citizen visas);
(e) subsection 35A(2) (permanent protection visas);
(f) subsection 35A(3) (temporary protection visas);
(fa) subsection 35A(3A) (safe haven enterprise visas);
(g) section 37 (bridging visas);
(h) section 37A (temporary safe haven visas);
(i) section 38 (criminal justice visas);
(j) section 38A (enforcement visas);
(k) section 38B (maritime crew visas).
(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, 35A, 37, 37A or 38B but not by section 33, 34, 35, 38 or 38A).
(3A) To avoid doubt, subsection (3) does not require criteria to be prescribed for a visa or visas including, without limitation, visas of the following classes:
(a) special category visas (see section 32);
(b) permanent protection visas (see subsection 35A(2));
(c) temporary protection visas (see subsection 35A(3));
(ca) safe haven enterprise visas (see subsection 35A(3A));
(d) bridging visas (see section 37);
(e) temporary safe haven visas (see section 37A);
(f) maritime crew visas (see section 38B).
Note 1: An application for any of these visas is invalid if criteria relating to both the application and the grant of the visa have not been prescribed (see subsection 46AA(2)).
Note 2: If criteria are prescribed by the regulations for any of these visas, the visa cannot be granted unless any criteria prescribed by this Act, as well as any prescribed by regulation, are satisfied (see subsection 46AA(4)).
(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.
(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.
(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), AG, AH, C, D, E, F, FA, FB and H do not apply in relation to special purpose 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) and AH do not apply in relation to absorbed person 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) and AH do not apply in relation to ex‑citizen visas.
35A Protection visas—classes of visas
(1) A protection visa is a visa of a class provided for by this section.
(2) There is a class of permanent visas to be known as permanent protection visas.
Note: These visas were classified by the Migration Regulations 1994 as Protection (Class XA) visas when this section commenced.
(3) There is a class of temporary visas to be known as temporary protection visas.
Note: These visas were classified by the Migration Regulations 1994 as Temporary Protection (Class XD) visas when this section commenced.
(3A) There is a class of temporary visas to be known as safe haven enterprise visas.
(3B) The purpose of safe haven enterprise visas is both to provide protection and to encourage enterprise through earning and learning while strengthening regional Australia.
Note: If a person satisfies the requirements for working, study and accessing social security prescribed for the purposes of paragraph 46A(1A)(c), section 46A will not bar the person from making a valid application for any of the onshore visas prescribed for the purposes of paragraph 46A(1A)(b). This does not include permanent protection visas.
(4) Regulations made for the purposes of subsection 31(1) may prescribe additional classes of permanent and temporary visas as protection visas.
(5) A class of visas that was formerly provided for by subsection 36(1), as that subsection was in force before the commencement of this section, is also a class of protection visas for the purposes of this Act and the regulations.
Example: An example of a class of visas for subsection (5) is the class of visas formerly classified by the Migration Regulations 1994 as Protection (Class AZ) visas. These visas can no longer be granted.
Note: This section commenced, and subsection 36(1) was repealed, on the commencement of Part 1 of Schedule 2 to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014.
(6) The criteria for a class of protection visas are:
(a) the criteria set out in section 36; and
(b) any other relevant criteria prescribed by regulation for the purposes of section 31.
Note: See also Subdivision AL.
36 Protection visas—criteria provided for by this Act
(1A) An applicant for a protection visa must satisfy:
(a) both of the criteria in subsections (1B) and (1C); and
(b) at least one of the criteria in subsection (2).
(1B) A criterion for a protection visa is that the applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979).
(1C) A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:
(a) is a danger to Australia’s security; or
(b) having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.
Note: For paragraph (b), see section 5M.
(2) A criterion for a protection visa is that the applicant for the visa is:
(a) a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm; 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 of the same class as that applied for by the applicant; or
(c) a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:
(i) is mentioned in paragraph (aa); and
(ii) holds a protection visa of the same class as that applied for by the applicant.
(2A) A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B) However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
Ineligibility for grant of a protection visa
(2C) A non‑citizen is taken not to satisfy the criterion mentioned in paragraph (2)(aa) if:
(a) the Minister has serious reasons for considering that:
(i) the non‑citizen has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or
(ii) the non‑citizen committed a serious non‑political crime before entering Australia; or
(iii) the non‑citizen has been guilty of acts contrary to the purposes and principles of the United Nations; or
(b) the Minister considers, on reasonable grounds, that:
(i) the non‑citizen is a danger to Australia’s security; or
(ii) the non‑citizen, having been convicted by a final judgment of a particularly serious crime (including a crime that consists of the commission of a serious Australian offence or serious foreign offence), is a danger to the Australian community.
Protection obligations
(3) Australia is taken not to have protection obligations in respect of 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, subsection (3) does not apply in relation to a country in respect of which:
(a) the non‑citizen has a well‑founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or
(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non‑citizen will suffer significant harm in relation to the country.
(5) Subsection (3) does not apply in relation to a country if the non‑citizen has a well‑founded fear that:
(a) the 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.
(5A) Also, subsection (3) does not apply in relation to a country if:
(a) the non‑citizen has a well‑founded fear that the country will return the non‑citizen to another country; and
(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non‑citizen will suffer significant harm in relation to the other 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.
36A Consideration of protection obligations
(1) In considering a valid application for a protection visa made by a non‑citizen, the Minister must consider and make a record of whether the Minister is satisfied of any of the following:
(a) the non‑citizen satisfies the criterion in paragraph 36(2)(a) with respect to a country and also satisfies the criterion in subsection 36(1C);
(b) the non‑citizen satisfies the criterion in paragraph 36(2)(aa) with respect to a country;
(c) the non‑citizen:
(i) satisfies the criterion in paragraph 36(2)(a) with respect to a country but does not satisfy the criterion in subsection 36(1C); and
(ii) would satisfy the criterion in paragraph 36(2)(aa) with respect to a country except that the non‑citizen is a non‑citizen mentioned in paragraph 36(2)(a).
(2) The Minister must do so:
(a) before deciding whether to grant or refuse to grant the visa; and
(b) before considering whether the non‑citizen satisfies any other criteria for the grant of the visa; and
(c) before considering whether the grant of the visa is prevented by any provision of the Act or regulations; and
(d) without regard to subsections 36(2C) and (3).
(3) Subsection (1) does not apply if:
(a) the non‑citizen (the family applicant) is a member of the same family unit as another non‑citizen (the family visa holder) who holds a protection visa of the same class as the visa the family applicant is applying for; and
(b) the family applicant’s application for a protection visa was made before the family visa holder was granted their visa; and
(c) the family visa holder is a non‑citizen mentioned in paragraph 36(2)(a) or (aa).
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.
There is a class of temporary visas, to be known as criminal justice visas, to be granted under Subdivision D of Division 4.
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.
(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 Legislation 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.
(1) Despite any legislative instrument made for the purposes of section 39, the Minister must take all reasonably practicable measures to ensure the grant in a financial year of at least the minimum total number of Protection (Class XA) visas and Refugee and Humanitarian (Class XB) visas that is determined by the Minister under subsection (3) of this section for that year.
(2) Subsection (1) applies subject to this Act, and to any regulation or instrument made under or for the purposes of this Act (other than section 39 of this Act).
(3) The Minister may, by legislative instrument, determine a minimum total number of Protection (Class XA) visas and Refugee and Humanitarian (Class XB) visas for a financial year specified in the determination.
(4) Despite regulations made for the purposes of paragraph 44(2)(b) of the Legislation Act 2003, section 42 (disallowance) of that Act applies to a legislative instrument made under subsection (3) of this section.
(5) In this section:
Protection (Class XA) visas means visas classified by regulation as Protection (Class XA) visas.
Note: For this class of visas, see clause 1401 of Schedule 1 to the Migration Regulations 1994.
Refugee and Humanitarian (Class XB) visas means visas classified by regulation as Refugee and Humanitarian (Class XB) visas.
Note: For this class of visas, see clause 1402 of Schedule 1 to the Migration Regulations 1994.
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), the circumstances may be, or may include, that a person has complied with any requirement to provide one or more personal identifiers made under section 257A.
(1) The regulations may provide that visas, or visas of a specified class, are subject to specified conditions.
General rules about 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).
Conditions about offshore resources activity
(2B) In addition to any restrictions applying because of regulations made for the purposes of paragraph (2)(b), a condition of a visa that allows the holder of the visa to work is not taken to allow the holder to participate in, or support, an offshore resources activity in relation to any area unless the visa is:
(a) a permanent visa; or
(b) a visa prescribed by the regulations for the purposes of this subsection.
Note: For offshore resources activity, see subsection 9A(5).
(2C) To avoid doubt, for the purposes of subsection (2B), a person may participate in, or support, an offshore resources activity in relation to an area whether the person:
(a) is on an Australian resources installation in the area; or
(b) is, under section 9A, otherwise in the area to participate in, or support, the activity.
Additional conditions
(3) In addition to any conditions specified under subsection (1), or in subsection (2B), the Minister may specify that a visa is subject to such conditions as are permitted by the regulations for the purposes of this subsection.
(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
(c) if:
(i) the non‑citizen is brought to the migration zone under subsection 245F(9) of this Act or under Division 7 or 8 of Part 3 of the Maritime Powers Act 2013; and
(ii) the non‑citizen is a person who would, if in the migration zone, be an unlawful non‑citizen; or
(ca) if the non‑citizen is brought to Australia under section 198B; or
(d) if:
(i) an attempt to remove the non‑citizen under section 198 to another country was made but the removal was not completed; and
(ii) the non‑citizen travels to Australia as a direct result of the removal not being completed; and
(iii) the non‑citizen is a person who would, if in the migration zone, be an unlawful non‑citizen; or
(da) if:
(i) the non‑citizen has been removed under section 198 to another country but the non‑citizen does not enter the other country; and
(ii) the non‑citizen travels to Australia as a direct result of not entering the other country; 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 Circuit and Family Court of Australia (Division 2) 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 Circuit and Family Court of Australia (Division 2) 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.
(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 vessel as a result of the exercise of powers under section 69 of the Maritime Powers Act 2013 in relation to a fisheries detention offence; or
(c) an Australian resident entering Australia on a vessel (environment matters) as a result of an environment officer, maritime officer or other 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; or
(iii) exercising powers under section 69 of the Maritime Powers Act 2013 in relation to the vessel;
because the environment officer, maritime 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.
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.
(1) Subject to this Act and the regulations, a non‑citizen who wants a visa must apply for a visa of a particular class.
45AA Application for one visa taken to be an application for a different visa
Situation in which conversion regulation can be made
(1) This section applies if:
(a) a person has made a valid application (a pre‑conversion application) for a visa (a pre‑conversion visa) of a particular class; and
(b) the pre‑conversion visa has not been granted to the person, whether or not a migration decision has been made in relation to the pre‑conversion application; and
(c) since the application was made, one or more of the following events has occurred:
(i) the requirements for making a valid application for that class of visa change;
(ii) the criteria for the grant of that class of visa change;
(iii) that class of visa ceases to exist; and
(d) had the application been made after the event (or events) occurred, because of that event (or those events):
(i) the application would not have been valid; or
(ii) that class of visa could not have been granted to the person.
(2) To avoid doubt, under subsection (1) this section may apply in relation to:
(a) classes of visas, including protection visas and any other classes of visas provided for by this Act or the regulations; and
(b) classes of applicants, including applicants having a particular status; and
(c) applicants for a visa who are taken to have applied for the visa by the operation of this Act or the regulations.
Example: If a non‑citizen applies for a visa, and then, before the application is decided, gives birth to a child, in some circumstances the child is taken, by the operation of the regulations, to have applied for a visa of the same class at the time the child is born (see regulation 2.08).
Conversion regulation
(3) For the purposes of this Act, a regulation (a conversion regulation) may provide that, despite anything else in this Act, the pre‑conversion application for the pre‑conversion visa:
(a) is taken not to be, and never to have been, a valid application for the pre‑conversion visa; and
(b) is taken to be, and always to have been, a valid application (a converted application) for a visa of a different class (specified by the conversion regulation) made by the applicant for the pre‑conversion visa.
Note: This section may apply in relation to a pre‑conversion application made before the commencement of the section (see the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014).
For example, a conversion regulation (made after the commencement of this section) could have the effect that a pre‑conversion application for a particular type of visa made on 1 August 2014 (before that commencement):
(a) is taken not to have been made on 1 August 2014 (or ever); and
(b) is taken to be, and always to have been, a converted application for another type of visa made on 1 August 2014.
(4) Without limiting subsection (3), a conversion regulation may:
(a) prescribe a class or classes of pre‑conversion visas; and
(b) prescribe a class of applicants for pre‑conversion visas; and
(c) prescribe a time (the conversion time) when the regulation is to start to apply in relation to a pre‑conversion application, including different conversion times depending on the occurrence of different events.
Visa application charge
(5) If an amount has been paid as the first instalment of the visa application charge for a pre‑conversion application, then, at and after the conversion time in relation to the application:
(a) that payment is taken not to have been paid as the first instalment of the visa application charge for the pre‑conversion application; and
(b) that payment is taken to be payment of the first instalment of the visa application charge for the converted application, even if the first instalment of the visa application charge that would otherwise be payable for the converted application is greater than the actual amount paid for the first instalment of the visa application charge for the pre‑conversion application; and
(c) in a case in which the first instalment of the visa application charge payable for the converted application is less than the actual amount paid for the first instalment of the visa application charge for the pre‑conversion application, no refund is payable in respect of the difference only for that reason.
Note: For the visa application charge, see sections 45A, 45B and 45C.
Effect on bridging visas
(6) For the purposes of this Act, if, immediately before the conversion time for a pre‑conversion application, a person held a bridging visa because the pre‑conversion application had not been finally determined, then, at and after the conversion time, the bridging visa has effect as if it had been granted because of the converted application.
(7) For the purposes of this Act, if, immediately before the conversion time for a pre‑conversion application, a person had made an application for a bridging visa because of the pre‑conversion application, but the bridging visa application had not been finally determined, then, at and after the conversion time:
(a) the bridging visa application is taken to have been applied for because of the converted application; and
(b) the bridging visa (if granted) has effect as if it were granted because of the converted application.
Note: This Act and the regulations would apply to a bridging visa to which subsection (6) or (7) applies, and to when the bridging visa would cease to have effect, in the same way as this Act and the regulations would apply in relation to any bridging visa.
For example, such a bridging visa would generally cease to be in effect under section 82 if and when the substantive visa is granted because of the converted application.
Conversion regulation may affect accrued rights etc.
(8) To avoid doubt:
(a) subsection 12(2) (retrospective application of legislative instruments) of the Legislation Act 2003 does not apply in relation to the effect of a conversion regulation (including a conversion regulation enacted by the Parliament); and
(b) subsection 7(2) of the Acts Interpretation Act 1901, including that subsection as applied by section 13 of the Legislation Act 2003, does not apply in relation to the enactment of this section or the making of a conversion regulation (including a conversion regulation enacted by the Parliament).
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.
Validity—general
(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 any provision of this Act, or of any other law of the Commonwealth, including, without limitation, the following provisions of this Act:
(i) section 48 (visa refused or cancelled earlier);
(ii) section 48A (protection visa refused or cancelled earlier);
(iii) section 161 (criminal justice visa holders);
(iv) section 164D (enforcement visa holders);
(v) section 195 (detainee applying out of time);
(vi) section 501E (earlier refusal or cancellation on character grounds); and
(e) it is not invalid under any provision of this Act, or of any other law of the Commonwealth, including, without limitation, the following provisions of this Act:
(i) section 46AA (visa applications, and the grant of visas, for some Act‑based visas);
(ii) section 46A (visa applications by unauthorised maritime arrivals);
(iii) section 46B (visa applications by transitory persons);
(iv) section 91E or 91G (CPA and safe third countries);
(v) section 91K (temporary safe haven visas).
(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.
Provision of personal identifiers
(2A) An application for a visa is invalid if:
(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 to provide one or more personal identifiers under section 257A for the purposes of this subsection; 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).
Prescribed criteria for validity
(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.
(4B) However, the regulations cannot prescribe criteria mentioned in subsection (4A) for any of the following visas:
(a) protection visas;
(b) temporary safe haven visas;
(c) visas classified by the regulations as:
(i) Refugee and Humanitarian (Class XB) visas; or
(ii) Temporary (Humanitarian Concern) (Class UO) visas; or
(iii) Resolution of Status (Class CD) visas.
(5) To avoid doubt, subsections (3) and (4) do not require criteria to be prescribed in relation to the validity of visa applications, including, without limitation, applications for visas of the following classes:
(a) special category visas (see section 32);
(b) permanent protection visas (see subsection 35A(2));
(c) temporary protection visas (see subsection 35A(3));
(ca) safe haven enterprise visas (see subsection 35A(3A));
(d) bridging visas (see section 37);
(e) temporary safe haven visas (see section 37A);
(f) maritime crew visas (see section 38B).
46AA Visa applications, and the grant of visas, for some Act‑based visas
Visa classes covered by this section
(1) The following classes of visas are covered by this section:
(a) special category visas (see section 32);
(b) permanent protection visas (see subsection 35A(2));
(c) temporary protection visas (see subsection 35A(3));
(ca) safe haven enterprise visas (see subsection 35A(3A));
(d) bridging visas (see section 37);
(e) temporary safe haven visas (see section 37A);
(f) maritime crew visas (see section 38B).
Applications invalid if no prescribed criteria
(2) An application for a visa of any of the classes covered by this section is invalid if, when the application is made, both of the following conditions are satisfied:
(a) there are no regulations in effect prescribing criteria that must be satisfied for a visa of that particular class to be a valid application;
(b) there are no regulations in effect prescribing criteria that must be satisfied for a visa of that particular class to be granted.
Note: This subsection does not apply if regulations are in effect prescribing criteria mentioned in paragraph (a) or (b) (or both) for a visa.
(3) The criteria mentioned in subsection (2) do not include prescribed criteria that apply generally to visa applications or the granting of visas.
Example: The criteria mentioned in subsection (2) do not include the criteria set out in regulation 2.07 of the Migration Regulations 1994 (application for visa—general).
Criteria in the Act and the regulations
(4) If regulations are in effect prescribing criteria mentioned in paragraph (2)(a) or (b) (or both) for a visa of a class covered by this section:
(a) an application for the visa is invalid unless the application satisfies both:
(i) any applicable criteria under this Act that relate to applications for visas of that class; and
(ii) any applicable criteria prescribed by regulation that relate to applications for visas of that class; and
(b) the visa must not be granted unless the application satisfies both:
(i) any applicable criteria under this Act that relate to the grant of visas of that class; and
(ii) any applicable criteria prescribed by regulation that relate to the grant of visas of that class.
Note: For visa applications generally, see section 46. For the grant of a visa generally, see section 65.
46A Visa applications by unauthorised maritime arrivals
(1) An application for a visa is not a valid application if it is made by an unauthorised maritime arrival who:
(a) is in Australia; and
(b) either:
(i) is an unlawful non‑citizen; or
(ii) holds a bridging visa or a temporary protection visa, or a temporary visa of a kind (however described) prescribed for the purposes of this subparagraph.
Note: Temporary protection visas are provided for by subsection 35A(3).
(1A) Subsection (1) does not apply in relation to an application for a visa if:
(a) either:
(i) the applicant holds a safe haven enterprise visa (see subsection 35A(3A)); or
(ii) the applicant is a lawful non‑citizen who has ever held a safe haven enterprise visa; and
(b) the application is for a visa prescribed for the purposes of this paragraph; and
(c) the applicant satisfies any employment, educational or social security benefit requirements prescribed in relation to the safe haven enterprise visa for the purposes of this paragraph.
(2) If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to an unauthorised maritime arrival, determine that subsection (1) does not apply to an application by the unauthorised maritime arrival for a visa of a class specified in the determination.
(2A) A determination under subsection (2) may provide that it has effect only for the period specified in the determination and, if it does so, the determination ceases to have effect at the end of the specified period.
(2B) The period specified in a determination may be different for different classes of unauthorised maritime arrivals.
(2C) The Minister may, in writing, vary or revoke a determination made under subsection (2) if the Minister thinks that it is in the public interest to do so.
(3) The power under subsection (2) or (2C) may only be exercised by the Minister personally.
(4) If the Minister makes, varies or revokes a determination under this section, the Minister must cause to be laid before each House of the Parliament a statement that:
(a) sets out the determination, the determination as varied or the instrument of revocation; and
(b) sets out the reasons for the determination, variation or revocation, 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 unauthorised maritime arrival; or
(b) any information that may identify the unauthorised maritime arrival; 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) or (2C) in respect of any unauthorised maritime arrival whether the Minister is requested to do so by the unauthorised maritime arrival 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) either:
(i) is an unlawful non‑citizen; or
(ii) holds a bridging visa or a temporary protection visa, or a temporary visa of a kind (however described) prescribed for the purposes of this subparagraph.
Note: Temporary protection visas are provided for by subsection 35A(3).
(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.
(2A) A determination under subsection (2) may provide that it has effect only for the period specified in the determination and, if it does so, the determination ceases to have effect at the end of the specified period.
(2B) The period specified in a determination may be different for different classes of transitory persons.
(2C) The Minister may, in writing, vary or revoke a determination made under subsection (2) if the Minister thinks that it is in the public interest to do so.
(3) The power under subsection (2) or (2C) may only be exercised by the Minister personally.
(4) If the Minister makes, varies or revokes a determination under this section, the Minister must cause to be laid before each House of the Parliament a statement that:
(a) sets out the determination, the determination as varied or the instrument of revocation; and
(b) sets out the reasons for the determination, variation or revocation, 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) or (2C) 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.
46C Visa pre‑application process
Note: Criteria mentioned in subsection 46(4A) cannot be prescribed for visas mentioned in subsection 46(4B).
Characteristics of a visa pre‑application process
(2) A visa pre‑application process must involve:
(a) the registration of persons as registered participants in the process, so long as those persons meet the eligibility requirements set out in a subsection (14) determination that relates to the process; and
(b) registered participants being selected at random.
Note 1: This means that:
(a) there will be a pool of registered participants in a visa pre‑application process; and
(b) registered participants will be selected at random from that pool.
Note 2: See also subsection (21), which deals with eligibility requirements.
(3) A visa pre‑application process must involve:
(a) a finite period (the finite registration open period) during which the process is to be open for registration; or
(b) an indefinite period (the indefinite registration open period) during which the process is to be open for registration.
(4) If a visa pre‑application process involves a finite registration open period, this Act does not prevent the finite registration open period from being extended for a further period or further periods.
(5) A visa pre‑application process must involve:
(a) a finite period (the finite selection open period) during which the selection of registered participants may take place; or
(b) an indefinite period (the indefinite selection open period) during which the selection of registered participants may take place.
(6) If a visa pre‑application process involves a finite selection open period:
(a) this Act does not prevent the finite selection open period from being extended for a further period or further periods; and
(b) the selection of registered participants may take place on one or more occasions during the finite selection open period.
(7) If a visa pre‑application process involves an indefinite selection open period, the selection of registered participants may take place on one or more occasions during the indefinite selection open period.
(8) If:
(a) a person is a registered participant in a visa pre‑application process; and
(b) the person is selected in accordance with the process;
the person ceases to be a registered participant in the process.
(9) If:
(a) a visa pre‑application process relates to one or more visas; and
(b) the visa pre‑application process involves a finite registration open period; and
(c) the finite registration open period ends;
this Act does not prevent a fresh visa pre‑application process from being conducted in relation to any or all of those visas.
(10) This Act does not prevent 2 or more visa pre‑application processes from being conducted in relation to one or more visas.
Note: This means that visa pre‑application processes can be conducted concurrently.
Use of a computer program
(11) A visa pre‑application process, or a part of a visa pre‑application process, may be conducted by the use of a computer program under the Minister’s control.
(12) Subsection (11) does not limit subsection (1).
Ministerial determination
(13) A visa pre‑application process must not be conducted under subsection (1) unless a determination is in force under subsection (14) in relation to the conduct of the visa pre‑application process.
(14) The Minister may, by legislative instrument, determine rules that apply in relation to the conduct of a specified visa pre‑application process under subsection (1).
Note: For specification by class, see subsection 13(3) of the Legislation Act 2003.
(15) A determination under subsection (14):
(a) must deal with eligibility requirements for the registration of a person as a registered participant in a visa pre‑application process; and
(b) may deal with any or all of the following matters:
(i) the registration of persons as registered participants in a visa pre‑application process;
(ii) the manner in which a person may register as a registered participant in a visa pre‑application process;
(iii) information to be provided by a person when registering as a registered participant in a visa pre‑application process;
(iv) whether a visa pre‑application process must involve a finite registration open period and, if so, the duration of that period;
(v) if a visa pre‑application process involves a finite registration open period—the extension of that period;
(vi) whether a visa pre‑application process must involve an indefinite registration open period;
(vii) whether a visa pre‑application process must involve a finite selection open period and, if so, the duration of that period;
(viii) if a visa pre‑application process involves a finite selection open period—the extension of that period;
(ix) whether a visa pre‑application process must involve an indefinite selection open period;
(x) the withdrawal of a person’s registration as a registered participant in a visa pre‑application process;
(xi) the circumstances in which, or the time when, the registration of a person as a registered participant in a visa pre‑application process lapses;
(xii) the selection of registered participants in a visa pre‑application process.
(16) Subsection (15) does not limit subsection (14).
(17) A determination under subsection (14) may provide for different rules for different visa pre‑application processes.
(18) A determination under subsection (14) may provide for different rules for different classes of persons.
(19) Subsections (17) and (18) of this section do not limit subsection 33(3A) of the Acts Interpretation Act 1901.
(20) Despite regulations made for the purposes of paragraph 44(2)(b) of the Legislation Act 2003, section 42 (disallowance) of that Act applies to a determination under subsection (14) of this section.
Eligibility requirements
(21) The following provisions have effect:
(a) subsections 46(3) and (4) do not, by implication, limit what may be an eligibility requirement for the registration of a person as a registered participant in a visa pre‑application process;
(b) the eligibility requirements for the registration of a person as a registered participant in a visa pre‑application process may be different from the criteria and requirements prescribed for the purposes of subsection 46(3) or (4);
(c) an eligibility requirement for the registration of a person as a registered participant in a visa pre‑application process must be objective.
Visa pre‑application process charge
(22) If visa pre‑application process charge is payable in respect of the registration of a person as a registered participant in a visa pre‑application process, the charge is to be paid at the time of registration. If the charge is not paid at that time, the person is taken never to have been registered as a registered participant in the visa pre‑application process.
(23) The regulations may:
(a) make provision for the remission, refund or waiver of visa pre‑application process charge in specified circumstances; or
(b) make provision for exemptions from visa pre‑application process charge.
Extra‑territorial application
(24) This section extends to acts, omissions, matters and things outside Australia.
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) after last entering Australia:
(i) 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), 133A (Minister’s personal powers to cancel visas on section 109 grounds), 133C (Minister’s personal powers to cancel visas on section 116 grounds), 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 or have an application for such a visa made on his or her behalf, but not for a visa of any other class.
(1A) A non‑citizen in the migration zone who:
(a) does not hold a substantive visa; and
(b) 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 an application had been made on the non‑citizen’s behalf, whether or not:
(i) the application has been finally determined; or
(ii) the non‑citizen knew about, or understood the nature of, the application due to any mental impairment; or
(iii) the non‑citizen knew about, or understood the nature of, the application due to the fact that the non‑citizen was, at the time the application was made, a minor;
may, subject to the regulations, apply for a visa of a class prescribed for the purposes of this section or have an application for such a visa made on his or her behalf, but not for a visa of any other class.
(1B) If:
(a) an attempt was made to remove a non‑citizen from the migration zone under section 198 but the removal was not completed; and
(b) the non‑citizen is again in the migration zone as a result of travel to Australia that is covered by paragraph 42(2A)(d);
then, for the purposes of this section (which applies only in respect of applications made while a non‑citizen is in the migration zone), the non‑citizen is taken to have been continuously in the migration zone despite the attempted removal.
Note: Paragraph 42(2A)(d) relates to the travel of a non‑citizen to Australia after an attempt to remove the non‑citizen has been made under section 198.
(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)(da) or (e);
is taken to have been continuously in the migration zone despite the removal referred to in paragraph (a).
Note: Paragraphs 42(2A)(da) and (e) relate to the travel of a non‑citizen to Australia after the non‑citizen has been removed from Australia 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.
(4) In paragraphs (1)(b) and (1A)(b):
(a) a reference to an application for a visa made by or on behalf of a non‑citizen includes a reference to an application for a visa that is taken to have been made by the non‑citizen by the operation of this Act or a regulation; and
(b) a reference to the cancellation of a visa includes a reference to the cancellation of a visa for which an application is taken to have been made by the operation of this Act or a regulation.
48A No further applications for protection visa after refusal or cancellation
(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, or have a further application for a protection visa made on his or her behalf, while the non‑citizen is in the migration zone.
(1AA) Subject to section 48B, if:
(a) an application for a protection visa is made on a non‑citizen’s behalf while the non‑citizen is in the migration zone; and
(b) the grant of the visa has been refused, whether or not:
(i) the application has been finally determined; or
(ii) the non‑citizen knew about, or understood the nature of, the application due to any mental impairment; or
(iii) the non‑citizen knew about, or understood the nature of, the application due to the fact that the non‑citizen was, at the time the application was made, a minor;
the non‑citizen may not make a further application for a protection visa, or have a further application for a protection visa made on his or her behalf, while the non‑citizen is in the migration zone.
(1AB) If:
(a) an attempt was made to remove a non‑citizen from the migration zone under section 198 but the removal was not completed; and
(b) the non‑citizen is again in the migration zone as a result of travel to Australia that is covered by paragraph 42(2A)(d);
then, for the purposes of this section, the non‑citizen is taken to have been continuously in the migration zone despite the attempted removal.
Note: Paragraph 42(2A)(d) relates to the travel of a non‑citizen to Australia after an attempt to remove the non‑citizen has been made under section 198.
(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)(da) or (e);
is taken to have been continuously in the migration zone despite the removal referred to in paragraph (a).
Note: Paragraphs 42(2A)(da) and (e) relate to the travel of a non‑citizen to Australia after the non‑citizen has been removed from Australia 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.
(1C) Subsections (1) and (1B) apply in relation to a non‑citizen regardless of any of the following:
(a) the grounds on which an application would be made or the criteria which the non‑citizen would claim to satisfy;
(b) whether the grounds on which an application would be made or the criteria which the non‑citizen would claim to satisfy existed earlier;
(c) the grounds on which an earlier application was made or the criteria which the non‑citizen earlier claimed to satisfy;
(d) the grounds on which a cancelled protection visa was granted or the criteria the non‑citizen satisfied for the grant of that visa.
(1D) In paragraphs (1)(a) and (b) and (1AA)(a) and (b), a reference to an application for a protection visa made by or on behalf of a non‑citizen includes a reference to an application for a protection visa that is taken to have been made by the non‑citizen by the operation of this Act or a regulation.
(1E) In subsection (1B), a reference to the cancellation of a protection visa includes a reference to the cancellation of a protection visa in relation to which an application for a protection visa is taken to have been made by the operation of this Act or a regulation.
(2) In this section:
application for a protection visa means:
(aa) an application for a visa of a class provided for by section 35A (protection visas—classes of visas), including (without limitation) an application for a visa of a class formerly provided for by subsection 36(1) that was made before the commencement of this paragraph; or
Note: Visas formerly provided for by subsection 36(1) are provided for by subsection 35A(5). Subsection 36(1) was repealed by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014, which also inserted section 35A and this paragraph.
(aaa) an application for a visa, a criterion for which is that the applicant is a non‑citizen who is a refugee; or
(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; or
(b) an application for a decision that a non‑citizen is a refugee under the Refugees Convention as amended by the Refugees Protocol; or
(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.
(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 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) 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.
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.
(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.
(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.
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 does 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.
65 Decision to grant or refuse to grant visa
(1) Subject to sections 84 and 86, 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), 91W (evidence of identity and bogus documents), 91WA (bogus documents and destroying identity documents), 91WB (applications for protection visas by members of same family unit), 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 1: Section 84 allows the Minister to suspend the processing of applications for visas of a kind specified in a determination made under that section. Section 86 prevents the Minister from granting a visa of a kind specified in a determination under section 85 if the number of such visas granted in a specified financial year has reached a specified maximum number.
Note 2: 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).
(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 by application under Part 5 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, 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.
(6) Section 267 (decision‑maker must have regard to rules when giving notice of decision) of the ART Act does not apply in relation to notifications given under this section.
(7) Section 268 (requesting reasons for a reviewable decision from decision‑maker) of the ART Act does not apply in relation to decisions to refuse to grant a visa.
67 Grant and refusal of visa—how and when
(1) The following decisions are taken to be made by the Minister causing a record to be made of the decision:
(a) a decision to grant a visa;
(b) a decision to refuse to grant a visa.
(2) The record must state the day and time of its making.
(3) The decision is taken to have been made on the day and at the time the record is made.
(4) The Minister has no power to vary or revoke the decision after the day and time the record is made.
(5) Failure to comply with subsection (2) does not affect the validity of the decision or the operation of subsection (4).
(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.
(a) the first visa ceases to be in effect under subsection 82(3) because another Subclass 070 (Bridging (Removal Pending)) visa (the second visa) for the non‑citizen comes into effect after the commencement of this subsection; and
(b) at the time the second visa was granted, there was no real prospect of the removal of the non‑citizen from Australia becoming practicable in the reasonably foreseeable future.
(6) For the purposes of subparagraph (b)(ii) of the definition of visa period in subsection 5(1), the first visa is to be taken to have ceased to be in effect otherwise than under subsection 82(3).
Note: This means that the visa period for the first visa ends when the second visa comes into effect.
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.
(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.
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.
76A Cessation by operation of law of certain bridging visas etc.
(1) This section applies if:
(a) a non‑citizen holds a Subclass 070 (Bridging (Removal Pending)) visa (the first visa) immediately before the commencement of this section; and
(b) the first visa was granted to the non‑citizen without an application for the first visa being made by the non‑citizen; and
(c) the first visa was granted during the period that:
(i) starts at the start of 8 November 2023; and
(ii) ends immediately before the commencement of this section; and
(d) at the time the first visa was granted, there was no real prospect of the removal of the non‑citizen from Australia becoming practicable in the reasonably foreseeable future.
(2) Despite any other provision of this Act or the regulations, the first visa ceases to be in effect immediately after the commencement of this section.
Note: The visa period for the first visa ends when it ceases to be in effect under this subsection.
(3) Despite any other provision of this Act or the regulations:
(a) the non‑citizen is taken, immediately after the first visa ceases to be in effect under subsection (2), to have been granted another Subclass 070 (Bridging (Removal Pending)) visa (the second visa); and
(b) the second visa is taken to come into effect as soon as it is taken to be granted under paragraph (a) of this subsection.
Note: The visa period for the second visa begins when it is taken to be granted.
(4) This Act and the regulations apply, after the commencement of this section, in relation to the second visa in the same way as they would apply in relation to a Subclass 070 (Bridging (Removal Pending)) visa granted under the regulations.
(5) Without limiting subsection (4), the following provisions of the regulations, as in force at the time the second visa is taken to be granted under paragraph (3)(a), apply in relation to the second visa:
(a) a provision specifying when a Subclass 070 (Bridging (Removal Pending)) visa is in effect;
(b) a provision prescribing that a Subclass 070 (Bridging (Removal Pending)) visa permits the visa holder to remain in Australia;
(c) a provision specifying the mandatory conditions to which a Subclass 070 (Bridging (Removal Pending)) visa that is taken to be granted under paragraph (3)(a) is subject.
76AA Effect of community safety order on visa held by non‑citizen etc.
(1) This section applies if:
(a) a community safety order is made in relation to a non‑citizen; and
(b) the order comes into force at a particular time (the relevant time).
Non‑citizen who holds a visa (other than a criminal justice visa) at the relevant time
(2) If the non‑citizen holds a visa (other than a criminal justice visa) at the relevant time, then, despite any other provision of this Act or the regulations, the following apply:
(a) that visa ceases to be in effect at the relevant time;
(b) the non‑citizen is taken, immediately after the relevant time, to have been granted a Subclass 070 (Bridging (Removal Pending)) visa (the BVR visa);
(c) the BVR visa is taken to come into effect as soon as it is taken to be granted under paragraph (b).
Note: The visa period for the visa mentioned in paragraph (a) ends at the relevant time and the visa period for the BVR visa begins when it is taken to be granted.
Non‑citizen who holds a criminal justice visa at the relevant time
(3) If:
(a) the non‑citizen holds a criminal justice visa at the relevant time; and
(b) the criminal justice visa ceases to be in effect at a particular time (the cessation time) during the period in which the community safety order is in force in relation to the non‑citizen;
then, despite any other provision of this Act or the regulations, the following apply:
(c) the non‑citizen is taken, immediately after the cessation time, to have been granted a Subclass 070 (Bridging (Removal Pending)) visa (the BVR visa);
(d) the BVR visa is taken to come into effect as soon as it is taken to be granted under paragraph (c).
Note: The visa period for the BVR visa begins when it is taken to be granted.
Matters relating to the BVR visa taken to be granted to the non‑citizen
(4) Subject to subsections (6) and (7), this Act and the regulations apply, after the commencement of this section, in relation to the BVR visa that is taken to be granted under paragraph (2)(b) or (3)(c) (as the case may be) in the same way as they would apply in relation to a Subclass 070 (Bridging (Removal Pending)) visa granted under the regulations.
(5) Without limiting subsection (4), the following provisions of the regulations, as in force at the time the BVR visa is taken to be granted under paragraph (2)(b) or (3)(c) (as the case may be), apply in relation to the BVR visa:
(a) a provision specifying when a Subclass 070 (Bridging (Removal Pending)) visa is in effect;
(b) a provision prescribing that a Subclass 070 (Bridging (Removal Pending)) visa permits the visa holder to remain in Australia;
(c) a provision specifying the conditions to which a Subclass 070 (Bridging (Removal Pending)) visa that is taken to be granted under paragraph (2)(b) or (3)(c) (as the case may be) is subject.
(6) The non‑citizen’s BVR visa must not be subject to either of the following conditions:
(a) a condition requiring the non‑citizen to remain, between certain times of a day, at a particular address for the non‑citizen for the day;
(b) a condition requiring the non‑citizen to wear a monitoring device.
Minister must not do certain things while the community safety order is in force
(7) The Minister must not do either of the following at any time while the community safety order made in relation to the non‑citizen is in force:
(a) invite the non‑citizen, for the purposes of the regulations, to apply for another Subclass 070 (Bridging (Removal Pending)) visa;
(b) grant (whether or not on application) the non‑citizen another Subclass 070 (Bridging (Removal Pending)) visa under the regulations.
Inconsistency between the community safety order and the BVR visa
(8) If:
(a) the community safety order that is in force in relation to the non‑citizen is a community safety supervision order; and
(b) at a particular time, one or more conditions (the supervision order conditions) are imposed on the non‑citizen by the community safety supervision order; and
(c) at that time, a condition to which the non‑citizen’s BVR visa is subject is inconsistent, in whole or in part, with any of the supervision order conditions;
then, despite subsections (4) and (5), the BVR visa is to be taken, at that time, not to be subject to that condition to the extent of any such inconsistency.
(9) If:
(a) the community safety order made in relation to the non‑citizen is a community safety detention order; and
(b) the non‑citizen is unable, at a particular time, to comply with a condition to which the non‑citizen’s BVR visa is subject; and
(c) the non‑citizen is unable to comply with the condition only because the community safety detention order is in force in relation to the non‑citizen at that time;
then, despite subsections (4) and (5), the BVR visa is to be taken, at that time, not to be subject to that condition.
(10) Subsections (8) and (9) do not apply at any time while the community safety order made in relation to the non‑citizen is suspended.
Definitions
(11) In this section:
community safety detention order has the same meaning as in Division 395 of the Criminal Code.
community safety order means a community safety detention order or a community safety supervision order.
community safety supervision order has the same meaning as in Division 395 of the Criminal Code.
monitoring device means any electronic device capable of being used to determine or monitor the location of a person or an object or the status of an object.
76B Offence relating to monitoring conditions of certain bridging visas
(1) A person commits an offence if:
(a) the person holds a Subclass 070 (Bridging (Removal Pending)) visa; and
(b) at the time the visa was granted, there was no real prospect of the removal of the person from Australia becoming practicable in the reasonably foreseeable future; and
(c) the visa is subject to a monitoring condition; and
(d) the person fails to comply with a requirement of the monitoring condition.
Note: Section 4K of the Crimes Act 1914, which deals with continuing and multiple offences, applies to this offence.
Penalty: 5 years imprisonment or 300 penalty units, or both.
(2) Subsection (1) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).
(4) In this section:
monitoring condition is a mandatory condition that:
(a) requires the holder of a Subclass 070 (Bridging (Removal Pending)) visa to do any of the following things:
(i) to notify the Minister or Department of specified matters within a specified period or before or by a specified day;
(ii) to report at a specified time or times, and at a specified place or in a specified manner;
(iii) to attend at a specified place, on a specified day and at a specified time; and
(b) is not a prescribed condition.
76C Offence relating to requirement to remain at notified address
(1) A person commits an offence if:
(a) the person holds a Subclass 070 (Bridging (Removal Pending)) visa; and
(b) the visa is subject to a condition requiring the person to remain, between certain times of a day, at a particular address for the person for the day; and
(c) the person fails to comply with the requirement of the condition.
Penalty: 5 years imprisonment or 300 penalty units, or both.
(2) Subsection (1) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).
76D Offences relating to monitoring device and related monitoring equipment
Requirement to wear monitoring device at all times
(1) A person commits an offence if:
(a) the person holds a Subclass 070 (Bridging (Removal Pending)) visa; and
(b) the visa is subject to a condition requiring the person to wear a monitoring device at all times; and
(c) the person fails to comply with the requirement of the condition.
Penalty: 5 years imprisonment or 300 penalty units, or both.
Requirement to fit a monitoring device etc.
(2) A person commits an offence if:
(a) the person holds a Subclass 070 (Bridging (Removal Pending)) visa; and
(b) the visa is subject to a condition requiring the person to allow an authorised officer to fit, install, repair or remove:
(i) the person’s monitoring device; or
(ii) any related monitoring equipment for the person’s monitoring device; and
(c) the person fails to comply with the requirement of the condition.
Penalty: 5 years imprisonment or 300 penalty units, or both.
Requirements relating to good working order of monitoring device etc.
(3) A person commits an offence if:
(a) the person holds a Subclass 070 (Bridging (Removal Pending)) visa; and
(b) the visa is subject to a condition requiring the person to take any specified steps, and any other reasonable steps, to ensure that the following remain in good working order:
(i) the person’s monitoring device;
(ii) any related monitoring equipment for the person’s monitoring device; and
(c) the person fails to comply with the requirement of the condition.
Penalty: 5 years imprisonment or 300 penalty units, or both.
(4) A person commits an offence if:
(a) the person holds a Subclass 070 (Bridging (Removal Pending)) visa; and
(b) the visa is subject to a condition requiring that, if the person becomes aware that:
(i) the person’s monitoring device is not in good working order; or
(ii) any related monitoring equipment for the person’s monitoring device is not in good working order;
the person must notify an authorised officer of that as soon as practicable; and
(c) the person fails to comply with the requirement of the condition.
Note: Section 4K of the Crimes Act 1914, which deals with continuing and multiple offences, applies to this offence.
Penalty: 5 years imprisonment or 300 penalty units, or both.
Exception
(6) Subsections (1), (2), (3) and (4) do not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).
Definitions
(7) In this section:
monitoring device means any electronic device capable of being used to determine or monitor the location of a person or an object or the status of an object.
related monitoring equipment, for a monitoring device, means any electronic equipment necessary for operating the monitoring device.
76DAA Offence relating to requirement not to perform certain work etc.
(1) A person commits an offence if:
(a) the person holds a Subclass 070 (Bridging (Removal Pending)) visa; and
(b) the visa is subject to a condition requiring that the person not perform any work, or participate in any regular organised activity, involving more than incidental contact with another person who is a minor or other vulnerable person; and
(c) the person fails to comply with the requirement of the condition.
Penalty: 5 years imprisonment or 300 penalty units, or both.
(2) Subsection (1) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).
(3) For the purposes of paragraph (1)(b), it does not matter whether the work or activity is for reward or otherwise.
76DAB Offence relating to requirement not to go within certain distance of a school etc.
(1) A person commits an offence if:
(a) the person holds a Subclass 070 (Bridging (Removal Pending)) visa; and
(b) the visa is subject to a condition requiring that the person not go within a particular distance of a school, childcare centre or day care centre; and
(c) the person fails to comply with the requirement of the condition.
Penalty: 5 years imprisonment or 300 penalty units, or both.
(2) Subsection (1) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).
76DAC Offence relating to requirement not to contact victim of offence etc.
(1) A person commits an offence if:
(a) the person holds a Subclass 070 (Bridging (Removal Pending)) visa; and
(b) the person has been convicted of an offence involving violence or sexual assault; and
(c) the visa is subject to a condition requiring that the person not contact or attempt to contact:
(i) the victim of the offence; or
(ii) a member of the victim’s family; and
(d) the person fails to comply with the requirement of the condition.
Penalty: 5 years imprisonment or 300 penalty units, or both.
(2) Subsection (1) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).
(3) Without limiting what may be taken to be a reasonable excuse for the purposes of subsection (2), it is, for the purposes of that subsection, a reasonable excuse for failing to comply with the requirement of the condition if:
(a) the person referred to in subparagraph (1)(c)(i) or (ii):
(i) is at least 16 years of age; and
(ii) voluntarily consents to the contact or attempted contact; and
(iii) has capacity to give that consent; or
(b) the contact or attempted contact is (or would, but for this Act or the regulations, be) required or authorised by or under a law of the Commonwealth, a State or a Territory.
76DA Mandatory 1 year imprisonment for offences
If a person is convicted of an offence against section 76B, 76C, 76D, 76DAA, 76DAB or 76DAC, the court must impose a sentence of imprisonment of at least 1 year.
76E Rules of natural justice do not apply to decision to grant certain bridging visas
(1) This section applies in relation to a decision to grant a non‑citizen a Subclass 070 (Bridging (Removal Pending)) visa (the first visa) if:
(a) the first visa is subject to one or more prescribed conditions; and
(b) at the time the first visa is granted, there is no real prospect of the removal of the non‑citizen from Australia becoming practicable in the reasonably foreseeable future.
(2) For the avoidance of doubt, the rules of natural justice do not apply to the making of the decision.
(3) As soon as practicable after making the decision, the Minister must:
(a) give the non‑citizen, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the decision; and
(ii) any other prescribed information; and
(b) invite the person to make representations to the Minister, within the period and in the manner specified by the Minister, as to why the first visa should not be subject to one or more of the conditions prescribed for the purposes of paragraph (1)(a).
(4) The Minister must grant the non‑citizen another Subclass 070 (Bridging (Removal Pending)) visa (the second visa), under a prescribed provision of the regulations, that is not subject to any one or more of the conditions prescribed for the purposes of paragraph (1)(a) if:
(a) the non‑citizen makes representations in accordance with the invitation; and
(b) the Minister is satisfied that those conditions are not reasonably necessary for the protection of any part of the Australian community.
Note: If the Minister grants the second visa, the first visa will cease to be in effect, and the visa period for the first visa will end, on the grant of the second visa (see subsections 68(4) and (5)).
(5) The Minister must give the non‑citizen written notice of the decision and the reasons for the decision.
Powers relating to monitoring devices and related monitoring equipment
(1) An authorised officer may do all things necessary or convenient to be done for any of the following purposes in relation to a person who is subject to monitoring:
(a) installing, fitting, or removing the person’s monitoring device or related monitoring equipment for the person’s monitoring device;
(b) maintaining, repairing or otherwise keeping in good working order the person’s monitoring device or related monitoring equipment for the person’s monitoring device;
(c) operating or using the person’s monitoring device or related monitoring equipment for the person’s monitoring device;
(d) determining or monitoring the location of:
(i) the person; or
(ii) an object, or the status of an object, that relates to the person;
through the operation of a monitoring device or related monitoring equipment.
Collection, use and disclosure of information
(2) An authorised officer may collect, use, or disclose to any other person, information (including personal information) for any of the following purposes:
(a) determining whether a requirement of a condition of a visa held by a person who is subject to monitoring is being, or has been, complied with;
(b) determining whether a person who is subject to monitoring has committed an offence against this Act or the regulations;
(c) protecting the community in relation to persons who are subject to monitoring;
(d) facilitating the location of a person subject to monitoring who is suspected of having failed to comply with a requirement of a condition of a visa held by the person;
(e) facilitating the location of a person who is or has been subject to monitoring in the event that either or both of the following apply:
(i) there is a real prospect of the removal of the person from Australia becoming practicable in the reasonably foreseeable future;
(ii) a visa held by the person ceases to be in effect;
(f) facilitating the performance of functions, and exercise of powers, of authorised officers under this Act (including this section) and the regulations in relation to persons who are or have been subject to monitoring.
Powers may be exercised despite other laws
(3) An authorised officer may exercise a power under subsection (1) or (2) despite any other provision of:
(a) this Act or the regulations (other than regulations made for the purposes of subsection (4) of this section); or
(b) any other law of the Commonwealth, a State or a Territory (whether written or unwritten).
Powers are exercisable subject to regulations
(4) An authorised officer’s exercise of a power under subsection (1) or (2) is subject to any conditions, restrictions or other limitations that are prescribed by the regulations for the purposes of this subsection.
Other powers not limited
(5) The conferral of a power on an authorised officer by subsection (1) or (2) does not, by implication, limit any other powers that exist, or existed, for an authorised officer or any other person to do:
(a) a thing authorised by either of those subsections; or
(b) any other thing.
Definitions
(6) In this section:
authorised officer, when used in subsection (1) or (2), includes:
(a) a person who is authorised in writing by the Minister, the Secretary or the Australian Border Force Commissioner for the purposes of that provision; and
(b) a person who is included in a class of persons authorised in writing by the Minister, the Secretary or the Australian Border Force Commissioner for the purposes of that provision, including a person who becomes a member of the class after the authorisation is given.
Note: This definition does not limit the definition of authorised officer in subsection 5(1).
monitoring device has the same meaning as in section 76D.
related monitoring equipment, for a monitoring device, has the same meaning as in section 76D.
subject to monitoring: a person is subject to monitoring if the person holds a Subclass 070 (Bridging (Removal Pending)) visa that is subject to a condition requiring the person to wear a monitoring device at all times.
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.
(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) 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.
(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 legislative instrument, determine that dealing with applications for visas (including protection visas) of a specified class is to stop until a day specified in the determination (in this section called the resumption day).
(2) On and after the commencement of an instrument made under subsection (1), no act is to be done in relation to any application for a visa of the class concerned until the resumption day.
(3) A determination 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 determination 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.
(1) Subject to subsection (2), the Minister may, by legislative instrument, determine the maximum number of:
(a) the visas (including protection visas) of a specified class; or
(b) the visas (including protection visas) of specified classes;
that may be granted in a specified financial year.
(2) Subsection (1) does not apply in relation to temporary protection visas or safe haven enterprise visas.
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.
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
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.
(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.
(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.
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 ART, 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 (other than an unauthorised maritime arrival or a transitory person) 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
(1) 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.
(2) This Subdivision does not apply to an unauthorised maritime arrival or a transitory person.
Note: Unauthorised maritime arrivals are covered by section 46A and transitory persons are covered by section 46B.
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 AL—Other provisions about protection visas
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 Evidence of identity and bogus documents
(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) The Minister must refuse to grant the protection visa to the applicant if:
(a) the applicant has been given a request under subsection (1); and
(b) the applicant refuses or fails to comply with the request, or produces a bogus document in response to the request; and
(c) the applicant does not have a reasonable explanation for refusing or failing to comply with the request, or for producing the bogus document; and
(d) when the request was made, the applicant was given a warning, either orally or in writing, that the Minister cannot grant the protection visa to the applicant if the applicant:
(i) refuses or fails to comply with the request; or
(ii) produces a bogus document in response to the request.
(3) Subsection (2) does not apply if the Minister is satisfied that the applicant:
(a) has a reasonable explanation for refusing or failing to comply with the request or producing the bogus document; and
(b) either:
(i) produces documentary evidence of his or her identity, nationality or citizenship; or
(ii) has taken reasonable steps to produce such evidence.
(4) For the purposes of this section, a person produces a document if the person produces, gives, presents or provides the document or causes the document to be produced, given, presented or provided.
91WA Providing bogus documents or destroying identity documents
(1) The Minister must refuse to grant a protection visa to an applicant for a protection visa if:
(a) the applicant provides a bogus document as evidence of the applicant’s identity, nationality or citizenship; or
(b) the Minister is satisfied that the applicant:
(i) has destroyed or disposed of documentary evidence of the applicant’s identity, nationality or citizenship; or
(ii) has caused such documentary evidence to be destroyed or disposed of.
(2) Subsection (1) does not apply if the Minister is satisfied that the applicant:
(a) has a reasonable explanation for providing the bogus document or for the destruction or disposal of the documentary evidence; and
(b) either:
(i) provides documentary evidence of his or her identity, nationality or citizenship; or
(ii) has taken reasonable steps to provide such evidence.
(3) For the purposes of this section, a person provides a document if the person provides, gives or presents the document or causes the document to be provided, given or presented.
91WB Application for protection visa by member of same family unit
(1) This section applies to a non‑citizen in Australia (the family applicant):
(a) who applies for a protection visa; and
(b) who is a member of the same family unit as a person (the family visa holder) who has been granted a protection visa.
(2) Despite anything else in this Act, the Minister must not grant the protection visa to the family applicant on the basis of a criterion mentioned in paragraph 36(2)(b) or (c) unless the family applicant applies for the protection visa before the family visa holder is granted a protection visa.
(1) This section applies to a proceeding before the High Court, the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) 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.
Subdivision B—The “points” system
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.
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
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.
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).
Note: Bogus document is defined in subsection 5(1).
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.
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, a person or the ART, 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.
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, produce or provide to an officer, an authorised system, the Minister or the ART performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, produced 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 written 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.
(1C) The notice under subsection (1) must be given in the prescribed way.
(2) If the visa holder responds to the notice, he or she must do so without making any incorrect statement.
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.
(3) If the Minister cancels a visa under subsection (1), the Minister must give the former holder of the visa a written notice that:
(a) sets out the decision; and
(b) specifies the ground for the cancellation; and
(d) if the former holder has a right to have the decision reviewed by application under Part 5—states:
(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.
(4) The notice under subsection (3) must be given in the prescribed way.
(5) Failure to give notice of a decision does not affect the validity of the decision.
(6) Section 267 (decision‑maker must have regard to rules when giving notice of decision) of the ART Act does not apply in relation to notifications given under subsection (3) of this section.
(7) Section 268 (requesting reasons for a reviewable decision from decision‑maker) of the ART Act does not apply in relation to decisions to cancel a visa under this section.
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 does 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 Circuit and Family Court of Australia (Division 2) or the ART 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
(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:
(a) the decision to grant the visa was based, wholly or partly, on a particular fact or circumstance that is no longer the case or that no longer exists; or
(aa) the decision to grant the visa was based, wholly or partly, on the existence of a particular fact or circumstance, and that fact or circumstance did not 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 may be, or would or might be, a risk to:
(i) the health, safety or good order of the Australian community or a segment of the Australian community; or
(ii) the health or safety of an individual or individuals; 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.
(1AA) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is not satisfied as to the visa holder’s identity.
(1AB) Subject to subsections (2) and (3), the Minister may cancel a visa (the current visa) if he or she is satisfied that:
(a) incorrect information was given, by or on behalf of the person who holds the current visa, to:
(i) an officer; or
(ii) an authorised system; or
(iii) the Minister; or
(iv) any other person, or a tribunal, performing a function or purpose under this Act; or
(v) any other person or body performing a function or purpose in an administrative process that occurred or occurs in relation to this Act; and
(b) the incorrect information was taken into account in, or in connection with, making:
(i) a decision that enabled the person to make a valid application for a visa; or
(ii) a decision to grant a visa to the person; and
(c) the giving of the incorrect information is not covered by Subdivision C.
This subsection applies whenever the incorrect information was given and whether the visa referred to in subparagraph (b)(i) or (ii) is the current visa or a previous visa that the person held.
(1AC) Subject to subsections (2) and (3), the Minister may cancel a visa (the current visa) if he or she is satisfied that:
(a) a benefit was asked for or received by, or on behalf of, the person (the visa holder) who holds the current visa from another person in return for the occurrence of a sponsorship‑related event; or
(b) a benefit was offered or provided by, or on behalf of, the person (the visa holder) who holds the current visa to another person in return for the occurrence of a sponsorship‑related event.
(1AD) Subsection (1AC) applies:
(a) whether or not the visa holder held the current visa or any previous visa at the time the benefit was asked for, received, offered or provided; and
(b) whether or not the sponsorship‑related event relates to the current visa or any previous visa that the visa holder held; and
(c) whether or not the sponsorship‑related event occurred.
(1A) The regulations may do any one or more of the following:
(a) prescribe matters to which the Minister must, or must not, have regard in determining whether the Minister is satisfied as mentioned in:
(i) a paragraph of subsection (1) or (1AC); or
(ii) subsection (1AA) or (1AB); or
(b) prescribe matters to which the Minister may have regard in determining whether the Minister is satisfied as mentioned in:
(i) a paragraph of subsection (1) or (1AC); or
(ii) subsection (1AA) or (1AB); or
(c) specify the weight to be given to a matter prescribed under paragraph (a) or (b) of this subsection.
(1B) Subsection (1A) does not limit the matters to which the Minister may have regard in determining whether the Minister is satisfied as mentioned in:
(a) a paragraph of subsection (1) or (1AC); or
(b) subsection (1AA) or (1AB).
(2) The Minister is not to cancel a visa under subsection (1), (1AA), (1AB) or (1AC) 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), (1AA), (1AB) or (1AC), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.
(4) In this section:
benefit has a meaning affected by section 245AQ.
sponsorship‑related event has the meaning given by section 245AQ.
117 When visa may be cancelled
(1) Subject to subsection (2), a visa held by a non‑citizen may be cancelled under subsection 116(1), (1AA), (1AB) or (1AC):
(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 subsection 116(1) 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
(ca) section 133A (Minister’s personal powers to cancel visas on section 109 grounds); or
(cb) section 133C (Minister’s personal powers to cancel visas on section 116 grounds); or
(cc) section 134B (emergency cancellation on security grounds); 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, 501B or 501BA (special power to refuse or cancel on character grounds);
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, in writing, 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 notification under subsection (1) must be given in the prescribed way.
(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 by written notice:
(a) give particulars of the relevant information to the holder; and
(b) set out why it is relevant to the cancellation; and
(c) invite the holder to comment on it.
(3) The notice under subsection (2) must be given in the prescribed way.
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.
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.
(1) When the Minister decides to cancel a visa, he or she is to notify the visa holder of the decision in writing.
(2) Notification of a decision to cancel a visa must:
(a) specify the ground for the cancellation; and
(c) if the former visa holder has a right to have the decision reviewed by application under Part 5—state:
(i) that the decision can be reviewed by the ART; 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.
(2A) The notification under subsection (1) must be given in the prescribed way.
(3) Failure to give notification of a decision does not affect the validity of the decision.
(4) Section 267 (decision‑maker must have regard to rules when giving notice of decision) of the ART Act does not apply in relation to notifications given under this section.
(5) Section 268 (requesting reasons for a reviewable decision from decision‑maker) of the ART Act does not apply in relation to decisions to cancel a visa.
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.
(1) If the Minister cancels a visa under section 128, he or she must give the former holder of the visa a written 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.
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
(1) 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 writing.
(2) The notification under subsection (1) must be given 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 FA—Additional personal powers for Minister to cancel visas on section 109 or 116 grounds
133A Minister’s personal powers to cancel visas on section 109 grounds
Action by Minister—natural justice applies
(1) If a notice was given under section 107 to the holder of a visa in relation to a ground for cancelling the visa under section 109, and the ART, former Administrative Appeals Tribunal, former Migration Review Tribunal or former Refugee Review Tribunal or a delegate of the Minister:
(a) decided that the ground did not exist; or
(b) decided not to exercise the power in subsection 109(1) to cancel the visa (despite the existence of the ground);
the Minister may set aside that decision and cancel the visa, if:
(c) the Minister considers that the ground exists; and
(d) the visa holder does not satisfy the Minister that the ground does not exist; and
(e) the Minister is satisfied that it would be in the public interest to cancel the visa.
Note: The grounds for cancellation under section 109 are non‑compliance with section 101, 102, 103, 104 or 105.
(2) The procedure set out in Subdivision C does not apply to a decision under subsection (1).
Action by Minister—natural justice does not apply
(3) The Minister may cancel a visa held by a person who has been immigration cleared (whether or not because of that visa) if:
(a) the Minister is satisfied that a ground for cancelling the visa under section 109 exists; and
(b) the Minister is satisfied that it would be in the public interest to cancel the visa.
Note: The grounds for cancellation under section 109 are non‑compliance with section 101, 102, 103, 104 or 105.
(4) The rules of natural justice, and the procedure set out in Subdivision C, do not apply to a decision under subsection (3).
(5) The Minister may cancel a visa under subsection (3) whether or not:
(a) the visa holder was given a notice under section 107 in relation to the ground for cancelling the visa; or
(b) the visa holder responded to any such notice; or
(c) the ART, former Administrative Appeals Tribunal, former Migration Review Tribunal or former Refugee Review Tribunal or a delegate of the Minister:
(i) decided that the ground did not exist; or
(ii) decided not to exercise the power in subsection 109(1) to cancel the visa (despite the existence of the ground).
(6) If a decision was made as mentioned in paragraph (5)(c), the power under subsection (3) to cancel a visa is a power to set aside that decision and cancel the visa.
Minister’s exercise of power
(7) The power in subsection (1) or (3) may only be exercised by the Minister personally.
(8) The Minister does not have a duty to consider whether to exercise the power in subsection (1) or (3), whether or not the Minister is requested to do so, or in any other circumstances.
(9) Subsection 138(4) does not prevent the Minister setting aside a decision of the ART, former Administrative Appeals Tribunal, former Migration Review Tribunal or former Refugee Review Tribunal or a delegate and cancelling a visa in accordance with this section.
133B Other provisions relating to the exercise of powers in section 133A
(1) Subject to subsection (2), the possible non‑compliances that can constitute a ground for the cancellation of a visa under subsection 133A(1) or (3) include non‑compliances that occurred at any time (whether before or after the commencement of this section), including non‑compliances in respect of any previous visa held by the person.
(2) Section 115 (application of Subdivision C) applies in relation to section 133A in the same way that it applies in relation to Subdivision C.
(3) To avoid doubt, subsections 133A(1) and (3) apply:
(a) whether or not the Minister became aware of the ground for cancelling the visa because of information given by the visa holder; and
(b) whether the non‑compliance because of which the ground is considered to exist was deliberate or inadvertent.
(4) Steps taken for the purposes of the Minister exercising the power in subsection 133A(1) or (3) in relation to an instance of possible non‑compliance by a person do not prevent:
(a) a notice under section 107 being given to that person because of another instance of possible non‑compliance; or
(b) the exercise of the power in subsection 133A(1) or (3) in relation to the person because of another instance of possible non‑compliance.
(5) The non‑cancellation of a visa under section 133A 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.
133C Minister’s personal powers to cancel visas on section 116 grounds
Action by Minister—natural justice applies
(1) If a notification was given under section 119 to the holder of a visa in relation to a ground for cancelling the visa under section 116, and the ART, former Administrative Appeals Tribunal, former Migration Review Tribunal or former Refugee Review Tribunal or a delegate of the Minister:
(a) decided that the ground did not exist; or
(b) decided not to exercise the power in section 116 to cancel the visa (despite the existence of the ground);
the Minister may set aside that decision and cancel the visa if:
(c) the Minister considers that the ground exists; and
(d) the visa holder does not satisfy the Minister that the ground does not exist; and
(e) the Minister is satisfied that it would be in the public interest to cancel the visa.
Note: The Minister’s power to cancel a visa under this subsection is subject to section 117 (see subsection (9) of this section).
(2) The procedures set out in Subdivisions E and F do not apply to a decision under subsection (1).
Action by Minister—natural justice does not apply
(3) The Minister may cancel a visa held by a person if:
(a) the Minister is satisfied that a ground for cancelling the visa under section 116 exists; and
(b) the Minister is satisfied that it would be in the public interest to cancel the visa.
Note: The Minister’s power to cancel a visa under this subsection is subject to section 117 (see subsection (9) of this section).
(4) The rules of natural justice, and the procedures set out in Subdivisions E and F, do not apply to a decision under subsection (3).
(5) The Minister may cancel a visa under subsection (3) whether or not:
(a) the visa holder was given a notification under section 119 in relation to the ground for cancelling the visa; or
(b) the visa holder responded to any such notification; or
(c) the ART, former Administrative Appeals Tribunal, former Migration Review Tribunal or former Refugee Review Tribunal or a delegate of the Minister:
(i) decided that the ground did not exist; or
(ii) decided not to exercise the power in section 116 to cancel the visa (despite the existence of the ground); or
(d) a delegate of the Minister decided to revoke, under subsection 131(1), a cancellation of the visa in accordance with section 128 in relation to the ground.
(6) If a decision was made as mentioned in paragraph (5)(c), the power under subsection (3) to cancel a visa is a power to set aside that decision and cancel the visa.
Minister’s exercise of power
(7) The power in subsection (1) or (3) may only be exercised by the Minister personally.
(8) The Minister does not have a duty to consider whether to exercise the power in subsection (1) or (3), whether or not the Minister is requested to do so, or in any other circumstances.
(9) Section 117 applies in relation to the power in subsection (1) or (3) in the same way as it applies to the cancellation of a visa under section 116.
(10) Subsection 138(4) does not prevent the Minister setting aside a decision of the ART, former Administrative Appeals Tribunal, former Migration Review Tribunal or former Refugee Review Tribunal or a delegate and cancelling a visa in accordance with this section.
133D Cancellation under subsection 133A(1) or 133C(1)—method of satisfying Minister of matters
The regulations may provide that, in determining for the purposes of subsection 133A(1) or 133C(1) whether:
(a) a person; or
(b) a person included in a specified class of persons;
satisfies the Minister that a ground for cancelling the person’s visa does not exist, any information or material submitted by or on behalf of the person must not be considered by the Minister unless the information or material is submitted within the period, and in the manner, ascertained in accordance with the regulations.
133E Cancellation under subsection 133A(1) or 133C(1)—notice of cancellation
(1) If a decision is made under subsection 133A(1) or 133C(1) to cancel a visa that has been granted to a person, the Minister must give the former holder of the visa a written notice that:
(a) sets out the decision; and
(b) specifies the provision under which the decision was made; and
(c) sets out the reasons (other than non‑disclosable information) for the decision.
(2) The notice is to be given in the prescribed way.
(3) A failure to comply with this section in relation to a decision does not affect the validity of the decision.
(1) This section applies if the Minister makes a decision (the original decision) under subsection 133A(3) or 133C(3) to cancel a visa that has been granted to a person.
(2) For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a) would be the reason, or a part of the reason, for making the original decision; and
(b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3) As soon as practicable after making the original decision, the Minister must:
(a) give the person, in the prescribed way:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the person satisfies the Minister that the ground for cancelling the visa referred to in subsection 133A(3) or 133C(3) (as the case requires) does not exist.
(5) The power in subsection (4) may only be exercised by the Minister personally.
(6) If the Minister revokes the original decision, the original decision is taken not to have been made. This subsection has effect subject to subsection (7).
(7) Any detention of the person that occurred during any part of the period:
(a) beginning when the original decision was made; and
(b) ending at the time of the revocation of the original decision;
is lawful and the person is not entitled to make any claim against the Commonwealth, an officer or any other person because of the detention.
Subdivision FB—Emergency cancellation on security grounds
The rules of natural justice do not apply to a decision made under this Subdivision.
134B Emergency cancellation on security grounds
The Minister must cancel a visa held by a person if:
(a) there is an assessment made by ASIO for the purposes of this section; and
(b) the assessment contains advice that ASIO suspects that the person might be, directly or indirectly, a risk to security (within the meaning of section 4 of the ASIO Act); and
(c) the assessment contains a recommendation that all visas held by the person be cancelled under this section; and
(d) the person is outside Australia.
134C Decision about revocation of emergency cancellation
Application of section
(1) This section applies to a visa that is cancelled under section 134B.
First ground to revoke cancellation
(2) The Minister must revoke the cancellation of the visa as soon as reasonably practicable after the end of the period referred to in subsection (5).
(3) However, the Minister must not revoke the cancellation under subsection (2) if:
(a) there is an assessment made by ASIO for the purposes of this section before the end of the period referred to in subsection (5); and
(b) the assessment contains advice that the former holder of the visa is, directly or indirectly, a risk to security (within the meaning of section 4 of the ASIO Act); and
(c) the assessment contains a recommendation that the cancellation not be revoked under subsection (2).
Second ground to revoke cancellation
(4) If:
(a) there is an assessment made by ASIO for the purposes of this section before the end of the period referred to in subsection (5); and
(b) the assessment contains a recommendation that the cancellation of the visa be revoked under this subsection;
then the Minister must revoke the cancellation as soon as reasonably practicable after the assessment is made.
Period
(5) For the purposes of subsections (2), (3) and (4), the period is the period that:
(a) starts at the beginning of the day (the cancellation day) the visa is cancelled; and
(b) ends at the end of the 28th day after the cancellation day.
134D Effect of revocation of cancellation
(1) If the cancellation of a visa is revoked under section 134C, then, without limiting its operation before cancellation, it has effect as if it were granted on the revocation.
(2) However, the Minister may vary:
(a) the time the visa is to be in effect; or
(b) 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.
(1) If:
(a) the Minister decides under section 134B to cancel a visa; and
(b) the Minister decides under subsection 134C(3) not to revoke the cancellation;
then the Minister must give the former holder of the visa written notice of the cancellation.
(2) The notice must be given:
(a) if the assessment made by ASIO for the purposes of section 134C contains an advice that it is essential to the security of the nation that a notice is not given to the person under this section—as soon as reasonably practicable after ASIO advises the Minister, in writing, that it is no longer essential to the security of the nation for the notice not to be given; and
(b) otherwise—as soon as reasonably practicable after the Minister decides under subsection 134C(3) not to revoke the cancellation.
(3) The notice must:
(a) state that the visa was cancelled under section 134B; and
(b) be given to the person in the prescribed way.
(4) Failure to give the notice does not affect the validity of either:
(a) the decision under section 134B to cancel the visa; or
(b) the decision under subsection 134C(3) not to revoke the cancellation.
134F Effect of cancellation on other visas
(1) This section applies if:
(a) a visa held by a person (the relevant person) is cancelled under section 134B; and
(b) the Minister decides under subsection 134C(3) not to revoke the cancellation; and
(c) the Minister has given a notice to the relevant person under section 134E about the cancellation.
(2) If another person holds a visa only because the relevant person held a visa, then the Minister may, without notice to the other person, cancel the other person’s visa.
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) 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) 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.
(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 ART 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 give written notice of the cancellation decision to its holder, including:
(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 ART for review of the cancellation.
(7A) The notice under subsection (7) must be given in the prescribed way.
(7B) Section 267 (decision‑maker must have regard to rules when giving notice of decision) of the ART Act does not apply in relation to notices given under subsection (7).
(8) A cancellation under this section has effect on and from:
(a) if the person applies to the ART for a review of the decision to cancel the visa—the 28th day after the day on which the ART 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 ART for a review of the decision to cancel that person’s visa;
the 28th day after the day on which the ART 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 <