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Migration Act 1958

  • - C2005C00346
  • In force - Superseded Version
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Act No. 62 of 1958 as amended, taking into account amendments up to Act No. 38 of 2005
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
Administered by: DIMA; Immigration and Citizenship
General Comments: This compilation is affected by a retrospective amendment, please see Deterring People Smuggling Act 2011 [Act No. 135 of 2011], for details.
Registered 16 May 2005
Start Date 16 May 2005
End Date 30 Jun 2005
Table of contents.
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Collapse Volume 1Volume 1
Part 1—Preliminary
1 Short title [see Note 1]
2 Commencement [see Note 1]
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
4A Application of the Criminal Code
5 Interpretation
5A Meaning of personal identifier
5B When personal identifier taken not to have been provided
5C Meaning of character concern
5D Limiting the types of identification tests that authorised officers may carry out
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
10 Certain children taken to enter Australia at birth
11 Visa applicable to 2 or more persons
12 Application of Part VA of the Marriage Act
Part 2—Control of arrival and presence of non‑citizens
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 [see Note 2]
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
36 Protection visas
37 Bridging visas
37A Temporary safe haven visas
38 Criminal justice visas
38A Enforcement visas
39 Criterion limiting number of 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
45A Visa application charge
45B Amount of visa application charge
45C Regulations about visa application charge
46 Valid visa application
46A Visa applications by offshore entry persons
46B Visa applications by transitory persons
47 Consideration of valid visa application
48 Non‑citizen refused a visa or whose visa cancelled may only apply for particular visas
48A Non‑citizen refused a protection visa may not make further application for protection visa
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 Min ister
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 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 Way visa granted
68 When visa is in effect
69 Effect of compliance or non‑compliance
Subdivision AE—Evidence of visas
70 Evidence of visa
71 Ways of giving evidence
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
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 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
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 AK—Non‑citizens with access to protection from third countries
91M Reason for this Subdivision
91N Non‑citizens to whom this Subdivision applies
91P Non‑citizens to whom this Subdivision applies are unable to make valid applications for certain visas
91Q Minister may determine that section 91P does not apply to a non‑citizen
Subdivision AL—Other provisions about protection visas
91R Persecution
91S Membership of a particular social group
91T Non‑political crime
91U Particularly serious crime
91V Verification of information
91W Documentary evidence of identity, nationality or citizenship
91X Names of applicants for protection visas not to be published by the High Court, the Federal Court or the Federal Magistrates Court
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 B ogus documents not to be given
104 Changes in circumstances to be notified
105 Particulars of incorrect answers to be given
106 Obligations to give 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 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 G—Cancellation of business visas
134 Cancellation of business visas
136 Review of decisions
137 Provision of information—holders of business visas
Subdivision GA—Cancellation of approval as a business sponsor
137A Definitions
137B Power of Minister to cancel approval as a business sponsor
137C Non‑cancellation of approval because of one matter not to prevent cancellation of approval because of another matter
137D Notice of decision
137E What constitutes an appropriate address for delivery of notice of a decision
137F Effect of compliance
137G Effect of setting aside decision to cancel approval
137H Provision of information—business sponsors
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 Way visa cancelled or cancellation revoked
139 Visas held by 2 or more
140 Cancellation of visa results in other cancellation
Division 3A—Sponsorship
Subdivision A—Application of Division
140A Division applies to prescribed kinds of visa
Subdivision B—Sponsorship system
140B Sponsorship as a criterion for prescribed visas
140C Sponsorship as a criterion for valid visa applications
140D Approved sponsor
140E Approving sponsor
140F Process for approving sponsors
140G Terms of approval as a sponsor
140H Sponsorship undertakings
140I Amounts payable to the Commonwealth
140J Cancelling or barring approval as a sponsor if undertakings breached
140K Cancelling or barring approval as a sponsor in other circumstances
140L Actions under sections 14 0J and 140K
140M Right to take security under section 269 etc. not affected
140N Process for cancelling or barring approval as a sponsor
140O Waiving a bar
140P Process for waiving a bar
140Q Consequences if the visa holder or the sponsor changes status
140R Joint and several liability for debts
140S Liability to pay other amounts
140T Notice regarding amount of debt or other amount
140U Liability is in addition to any other liability
140V Disclosure of personal information in prescribed circumstances etc.
140W Other regulation making powers not limited etc.
Subdivision C—Application of the sponsorship system to partnerships and unincorporated associations
140X Application to partnerships
140Y Sponsorship obligations and rights of partnership
140Z New partners
140ZA Retiring partners
140ZB Discharging sponsorship obligations and exercising sponsorship rights—partnerships
140ZC Application to unincorporated associations
140ZD Sponsorship obligations and rights of unincorporated associations
140ZE New members of committees of management
140ZF Former members of committees of management
140ZG Discharging sponsorship obligations and exercising sponsorship rights—unincorporated associations
140ZH Definitions
Division 4—Criminal justice visitors
Subdivision A—Preliminary
141 Object of Division
142 Interpretation
143 Delegation by Attorney‑General
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
164C When enforcement visa ceases to be in effect
164D Applying for other visas
Division 5—Immigration clearance
165 Interpretation
166 Persons entering to give certain evidence of identity etc.
167 When and where evidence to be given
168 Section 166 not to apply
169 Section 166 not usually apply
170 Certain persons to give 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 give certain evidence etc.
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
188 Lawful non‑c itizen to give evidence of being so
189 Detention of unlawful non‑citizens
190 Non‑compliance with immigration clearance or section 192 basis of detention
191 End of certain detention
192 Detention of visa holders whose visas liable to cancellation
192A Authorisation of identification tests in certain cases
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
196 Duration of detention
197 Effect of escape from immigration detention
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
198 Removal from Australia of unlawful non‑citizens
198A Offshore entry person may be taken to a declared country
198B Power to bring transitory persons to Australia
198C Certain transitory persons entitled to assessment of refugee status
198D Certificate of non‑cooperation
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 detention, removal and deportation
207 Interpretation
208 Determination of daily maintenance amount
209 Detainees liable for costs of detention
210 Removed or deported non‑citizen liable for costs of removal or deportation
211 Costs of detained spouses and dependants
212 Costs of removed or deported spouses and dependants
213 Carriers may be liable for costs of detention, 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
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 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 in relation to entry into, and remaining in, Australia
Subdivision A—General offences
228A Application of Subdivision
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
232A Organising bringing groups of non‑citizens into Australia
233 Persons concerned in bringing non‑citizens into Australia in contravention of this Act or harbouring illegal entrants
233A Other offences relating to groups of non‑citizens etc.
233B No discharge of offenders without proceeding to conviction for certain offences
233C Mandatory penalties for certain offences
234 False papers etc.
235 Offences in relation to work
236 Offences relating to visas
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
242 Offence to arrange pretended interdependency relationship to obtain permanent residence
243 Offences relating to application for permanent residence because of marriage or de facto relationship
244 Offences relating to an application for permanent residence because of interdependency relationship
245 Offences of making false or unsupported statements
Division 12A—Chasing, boarding etc. ships and aircraft
245A Definitions
245C Power to chase foreign ships for boarding
245D Power to chase Australian ships for boarding
245E Identifying an aircraft and requesting it to land for boarding
245F Power to board and search etc. ships and aircraft
245FA Searches of people on certain ships or aircraft
245FB Returning persons to ships
245G Boarding of certain ships on the high seas
245H Moving or destroying hazardous ships etc.
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 passengers and crew
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 and detention
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
258 Minister may determine that personal identifiers are not required
258A When non‑citizen cannot be required to provide personal identifier
258B Information to be provided—authorised officers carrying out identification tests
258C Information to be provided—authorised officers not carrying out identification tests
258D Regulations may prescribe manner for carrying out identification tests
258E General rules for carrying out identification tests
258F Identification tests not to be carried out in cruel, inhuman or degrading manner 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
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
Expand Volume 2Volume 2

Migration Act 1958

Act No. 62 of 1958 as amended

This compilation was prepared on 16 May 2005
taking into account amendments up to Act No. 38 of 2005

Volume 1 includes:       Table of Contents
                                    Sections 1 – 261K

The text of any of those amendments not in force
on that date is appended in the Notes section

The operation of amendments that have been incorporated may be
affected by application provisions that are set out in the Notes section

Volume 2 includes:        Table of Contents
                                   
Sections 262 – 507
                                   
Schedule
                                    Note 1

                                   
Table of Acts
                                    Act Notes
                                    Table of Amendments
                                    Notes 2 and 3
                                    Table A
                                    Renumbering Table 1
                                    Renumbering Table 2

Prepared by the Office of Legislative Drafting and Publishing,
Attorney-General’s Department,
Canberra

 

 

 


Contents

Part 1—Preliminary                                                                                                               1

1............ Short title [see Note 1]....................................................................... 1

2............ Commencement [see Note 1].............................................................. 1

3............ Repeal and savings.............................................................................. 1

3A......... Act not to apply so as to exceed Commonwealth power.................. 2

3B......... Compensation for acquisition of property......................................... 3

4............ Object of Act...................................................................................... 3

4A......... Application of the Criminal Code...................................................... 4

5............ Interpretation...................................................................................... 4

5A......... Meaning of personal identifier.......................................................... 24

5B......... When personal identifier taken not to have been provided.............. 25

5C......... Meaning of character concern.......................................................... 26

5D......... Limiting the types of identification tests that authorised officers may carry out   27

6............ Effect of limited meaning of enter Australia etc............................... 27

7............ Act to extend to certain Territories.................................................. 27

7A......... Effect on executive power to protect Australia’s borders................ 28

8............ Certain resources installations to be part of Australia..................... 28

9............ Certain sea installations to be part of Australia............................... 29

10.......... Certain children taken to enter Australia at birth............................. 29

11.......... Visa applicable to 2 or more persons............................................... 29

12.......... Application of Part VA of the Marriage Act................................... 30

Part 2—Control of arrival and presence of non-citizens                                 31

Division 1—Immigration status                                                                            31

13.......... Lawful non-citizens.......................................................................... 31

14.......... Unlawful non-citizens...................................................................... 31

15.......... Effect of cancellation of visa on status............................................. 31

16.......... Removal of immigration rights of inhabitant of Protected Zone...... 31

17.......... Pre-cleared flights............................................................................. 32

Division 2—Power to obtain information and documents about unlawful non-citizens  33

18.......... Power to obtain information and documents about unlawful non-citizens [see Note 2]         33

19.......... Scales of expenses............................................................................. 33

20.......... Reasonable compensation................................................................. 33

21.......... Failure to comply with section 18 notice......................................... 34

24.......... Information and documents that incriminate a person..................... 34

25.......... Copies of documents........................................................................ 35

26.......... Minister may retain documents........................................................ 35

27.......... Division binds the Crown................................................................. 35

Division 3—Visas for non-citizens                                                                       36

Subdivision A—General provisions about visas                                                  36

28.......... Interpretation.................................................................................... 36

29.......... Visas................................................................................................. 36

30.......... Kinds of visas................................................................................... 37

31.......... Classes of visas................................................................................. 37

32.......... Special category visas....................................................................... 37

33.......... Special purpose visas....................................................................... 38

34.......... Absorbed person visas..................................................................... 40

35.......... Ex-citizen visas................................................................................. 41

36.......... Protection visas................................................................................ 41

37.......... Bridging visas.................................................................................... 42

37A....... Temporary safe haven visas............................................................. 42

38.......... Criminal justice visas........................................................................ 43

38A....... Enforcement visas............................................................................. 43

39.......... Criterion limiting number of visas.................................................... 44

40.......... Circumstances for granting visas...................................................... 44

41.......... Conditions on visas.......................................................................... 46

42.......... Visa essential for travel..................................................................... 47

43.......... Visa holders must usually enter at a port......................................... 49

Subdivision AA—Applications for visas                                                               50

44.......... Extent of following Subdivisions...................................................... 50

45.......... Application for visa.......................................................................... 50

45A....... Visa application charge..................................................................... 50

45B....... Amount of visa application charge................................................... 50

45C....... Regulations about visa application charge........................................ 51

46.......... Valid visa application....................................................................... 52

46A....... Visa applications by offshore entry persons................................... 55

46B....... Visa applications by transitory persons.......................................... 56

47.......... Consideration of valid visa application............................................ 57

48.......... Non-citizen refused a visa or whose visa cancelled may only apply for particular visas       58

48A....... Non-citizen refused a protection visa may not make further application for protection visa 59

48B....... Minister may determine that section 48A does not apply to non-citizen              60

49.......... Withdrawal of visa application......................................................... 61

50.......... Only new information to be considered in later protection visa applications         61

51.......... Order of consideration...................................................................... 62

Subdivision AB—Code of procedure for dealing fairly, efficiently and quickly with visa applications           62

51A....... Exhaustive statement of natural justice hearing rule......................... 62

52.......... Communication with Minister......................................................... 62

54.......... Minister must have regard to all information in application............ 63

55.......... Further information may be given.................................................... 64

56.......... Further information may be sought.................................................. 64

57.......... Certain information must be given to applicant............................... 64

58.......... Invitation to give further information or comments......................... 65

59.......... Interviews......................................................................................... 66

60.......... Medical examination......................................................................... 66

61.......... Prescribed periods............................................................................ 66

62.......... Failure to receive information not require action.............................. 67

63.......... When decision about visa may be made........................................... 67

64.......... Notice that visa application charge is payable................................. 68

Subdivision AC—Grant of visas                                                                             69

65.......... Decision to grant or refuse to grant visa........................................... 69

66.......... Notification of decision.................................................................... 69

67.......... Way visa granted.............................................................................. 70

68.......... When visa is in effect........................................................................ 70

69.......... Effect of compliance or non-compliance.......................................... 71

Subdivision AE—Evidence of visas                                                                         71

70.......... Evidence of visa................................................................................ 71

71.......... Ways of giving evidence................................................................... 71

Subdivision AF—Bridging visas                                                                            72

72.......... Interpretation.................................................................................... 72

73.......... Bridging visas.................................................................................... 73

74.......... Further applications for bridging visa............................................... 73

75.......... When eligible non-citizen in immigration detention granted visa...... 74

76.......... Bridging visa not affect visa applications......................................... 74

Subdivision AG—Other provisions about visas                                                   75

77.......... Visas held during visa period............................................................ 75

78.......... Children born in Australia................................................................ 75

79.......... Effect on visa of leaving Australia.................................................... 75

80.......... Certain persons taken not to leave Australia.................................... 76

81.......... Extent of visa authority.................................................................... 76

82.......... When visas cease to be in effect....................................................... 76

83.......... Certain persons taken to be included in spouse or parent’s visa..... 77

84.......... Minister may suspend processing of visa applications................... 78

Subdivision AH—Limit on visas                                                                             79

85.......... Limit on visas................................................................................... 79

86.......... Effect of limit.................................................................................... 79

87.......... Limit does not prevent visas for certain persons............................. 79

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  80

88.......... Limit does not affect processing of applications.............................. 81

89.......... Determination of limit not to mean failure to decide........................ 81

90.......... Order of dealing with limited visas................................................... 81

91.......... Order of dealing with visas............................................................... 81

Subdivision AI—Safe third countries                                                                    81

91A....... Reason for Subdivision..................................................................... 81

91B....... Interpretation.................................................................................... 82

91C....... Non-citizens covered by Subdivision............................................... 82

91D....... Safe third countries........................................................................... 82

91E........ Non-citizens to which this Subdivision applies unable to make valid applications for certain visas      84

91F........ Minister may determine that section 91E does not apply to non-citizen               84

91G....... Applications made before regulations take effect............................. 85

Subdivision AJ—Temporary safe haven visas                                                     86

91H....... Reason for this Subdivision.............................................................. 86

91J........ Non-citizens to whom this Subdivision applies............................... 87

91K....... Non-citizens to whom this Subdivision applies are unable to make valid applications for certain visas                87

91L........ Minister may determine that section 91K does not apply to a non-citizen            87

Subdivision AK—Non-citizens with access to protection from third countries  88

91M...... Reason for this Subdivision.............................................................. 88

91N....... Non-citizens to whom this Subdivision applies............................... 89

91P........ Non-citizens to whom this Subdivision applies are unable to make valid applications for certain visas                90

91Q....... Minister may determine that section 91P does not apply to a non-citizen            91

Subdivision AL—Other provisions about protection visas                                92

91R....... Persecution....................................................................................... 92

91S........ Membership of a particular social group.......................................... 93

91T....... Non-political crime........................................................................... 93

91U....... Particularly serious crime................................................................. 94

91V....... Verification of information............................................................... 95

91W...... Documentary evidence of identity, nationality or citizenship......... 97

91X....... Names of applicants for protection visas not to be published by the High Court, the Federal Court or the Federal Magistrates Court............................................................................. 98

Subdivision B—The “points” system                                                                    99

92.......... Operation of Subdivision.................................................................. 99

93.......... Determination of applicant’s score.................................................. 99

94.......... Initial application of “points” system.............................................. 99

95.......... Applications in pool....................................................................... 100

95A....... Extension of period in pool............................................................ 101

96.......... Minister may set pool mark and pass mark................................... 101

Subdivision C—Visas based on incorrect information may be cancelled     102

97.......... Interpretation.................................................................................. 102

97A....... Exhaustive statement of natural justice hearing rule....................... 102

98.......... Completion of visa application...................................................... 103

99.......... Information is answer..................................................................... 103

100........ Incorrect answers............................................................................ 103

101........ Visa applications to be correct....................................................... 103

102........ Passenger cards to be correct.......................................................... 103

103........ Bogus documents not to be given................................................... 104

104........ Changes in circumstances to be notified......................................... 104

105........ Particulars of incorrect answers to be given................................... 104

106........ Obligations to give information is not affected by other sources of information    105

107........ Notice of incorrect applications..................................................... 105

107A..... Possible non-compliances in connection with a previous visa may be grounds for cancellation of current visa     106

108........ Decision about non-compliance...................................................... 107

109........ Cancellation of visa if information incorrect................................... 107

110........ Cancellation provisions apply whatever source of knowledge of non-compliance 107

111........ Cancellation provisions apply whether or not non-compliance deliberate              108

112........ Action because of one non-compliance not prevent action because of other non-compliance                108

113........ No cancellation if full disclosure..................................................... 108

114........ Effect of setting aside decision to cancel visa................................. 108

115........ Application of Subdivision............................................................. 109

Subdivision D—Visas may be cancelled on certain grounds                          109

116........ Power to cancel............................................................................... 109

117........ When visa may be cancelled........................................................... 110

118........ Cancellation powers do not limit or affect each other.................... 111

Subdivision E—Procedure for cancelling visas under Subdivision D in or outside Australia         111

118A..... Exhaustive statement of natural justice hearing rule....................... 111

119........ Notice of proposed cancellation..................................................... 112

120........ Certain information must be given to visa holder........................... 112

121........ Invitation to give comments etc...................................................... 113

122........ Prescribed periods.......................................................................... 114

123........ Failure to accept invitation not require action................................ 114

124........ When decision about visa cancellation may be made...................... 114

125........ Application of Subdivision to non-citizen in immigration clearance 115

126........ Application of Subdivision to non-citizen in questioning detention 115

127........ Notification of decision.................................................................. 115

Subdivision F—Other procedure for cancelling visas under Subdivision D outside Australia        116

127A..... Exhaustive statement of natural justice hearing rule....................... 116

128........ Cancellation of visas of people outside Australia.......................... 116

129........ Notice of cancellation..................................................................... 117

130........ Prescribed periods.......................................................................... 117

131........ Decision about revocation of cancellation...................................... 118

132........ Notification of decision about revocation of cancellation............... 118

133........ Effect of revocation of cancellation................................................ 118

Subdivision G—Cancellation of business visas                                                 118

134........ Cancellation of business visas........................................................ 118

135........ Representations concerning cancellation of business visa.............. 123

136........ Review of decisions........................................................................ 124

137........ Provision of information—holders of business visas..................... 124

Subdivision GA—Cancellation of approval as a business sponsor                 126

137A..... Definitions...................................................................................... 126

137B..... Power of Minister to cancel approval as a business sponsor........ 126

137C..... Non-cancellation of approval because of one matter not to prevent cancellation of approval because of another matter........................................................................................................ 127

137D..... Notice of decision........................................................................... 127

137E...... What constitutes an appropriate address for delivery of notice of a decision         128

137F...... Effect of compliance....................................................................... 128

137G..... Effect of setting aside decision to cancel approval......................... 128

137H..... Provision of information—business sponsors............................... 128

Subdivision GB—Automatic cancellation of student visas                              129

137J...... Non-complying students may have their visas automatically cancelled  129

137K..... Applying for revocation of cancellation......................................... 130

137L...... Dealing with the application........................................................... 130

137M.... Notification of decision.................................................................. 131

137N..... Minister may revoke cancellation on his or her own initiative....... 131

137P...... Effect of revocation........................................................................ 132

Subdivision GC—Cancellation of regional sponsored employment visas     133

137Q..... Cancellation of regional sponsored employment visas................... 133

137R..... Representations concerning cancellation etc................................... 134

137S...... Notice of cancellation..................................................................... 134

137T..... Cancellation of other visas.............................................................. 135

Subdivision H—General provisions on cancellation                                         135

138........ Way visa cancelled or cancellation revoked.................................... 135

139........ Visas held by 2 or more.................................................................. 135

140........ Cancellation of visa results in other cancellation............................ 135

Division 3A—Sponsorship                                                                                     137

Subdivision A—Application of Division                                                              137

140A..... Division applies to prescribed kinds of visa.................................. 137

Subdivision B—Sponsorship system                                                                   137

140B..... Sponsorship as a criterion for prescribed visas.............................. 137

140C..... Sponsorship as a criterion for valid visa applications.................... 137

140D..... Approved sponsor......................................................................... 138

140E...... Approving sponsor........................................................................ 138

140F...... Process for approving sponsors..................................................... 138

140G..... Terms of approval as a sponsor..................................................... 138

140H..... Sponsorship undertakings.............................................................. 139

140I....... Amounts payable to the Commonwealth....................................... 140

140J...... Cancelling or barring approval as a sponsor if undertakings breached 140

140K..... Cancelling or barring approval as a sponsor in other circumstances 141

140L...... Actions under sections 140J and 140K.......................................... 142

140M.... Right to take security under section 269 etc. not affected............. 142

140N..... Process for cancelling or barring approval as a sponsor................. 142

140O..... Waiving a bar.................................................................................. 143

140P...... Process for waiving a bar................................................................ 143

140Q..... Consequences if the visa holder or the sponsor changes status..... 143

140R..... Joint and several liability for debts................................................. 144

140S...... Liability to pay other amounts....................................................... 144

140T..... Notice regarding amount of debt or other amount.......................... 144

140U..... Liability is in addition to any other liability................................... 145

140V..... Disclosure of personal information in prescribed circumstances etc. 145

140W.... Other regulation making powers not limited etc............................. 145

Subdivision C—Application of the sponsorship system to partnerships and unincorporated associations   146

140X..... Application to partnerships........................................................... 146

140Y..... Sponsorship obligations and rights of partnership......................... 146

140Z..... New partners.................................................................................. 147

140ZA.. Retiring partners............................................................................. 148

140ZB... Discharging sponsorship obligations and exercising sponsorship rights—partnerships         148

140ZC... Application to unincorporated associations................................... 148

140ZD.. Sponsorship obligations and rights of unincorporated associations 149

140ZE... New members of committees of management................................ 149

140ZF... Former members of committees of management............................ 150

140ZG.. Discharging sponsorship obligations and exercising sponsorship rights—unincorporated associations 151

140ZH.. Definitions...................................................................................... 151

Division 4—Criminal justice visitors                                                               152

Subdivision A—Preliminary                                                                                 152

141........ Object of Division.......................................................................... 152

142........ Interpretation.................................................................................. 152

143........ Delegation by Attorney-General.................................................... 153

144........ Authorised officials........................................................................ 153

Subdivision B—Criminal justice certificates for entry                                   154

145........ Commonwealth criminal justice entry certificate........................... 154

146........ State criminal justice entry certificate............................................. 154

Subdivision C—Criminal justice certificates etc. staying removal or deportation             155

147........ Commonwealth criminal justice stay certificate............................. 155

148........ State criminal justice stay certificate.............................................. 156

149........ Application for visa not to prevent certificate............................... 156

150........ Criminal justice stay certificates stay removal or deportation....... 156

151........ Certain warrants stay removal or deportation................................ 157

152........ Certain subjects of stay certificates and stay warrants may be detained etc.          157

153........ Removal or deportation not contempt etc. if no stay certificate or warrant           157

154........ Officer not liable—criminal justice stay certificates or warrants... 158

Subdivision D—Criminal justice visas                                                               158

155........ Criminal justice visas...................................................................... 158

156........ Criterion for criminal justice entry visas........................................ 158

157........ Criterion for criminal justice stay visas.......................................... 158

158........ Criteria for criminal justice visas.................................................... 159

159........ Procedure for obtaining criminal justice visa.................................. 159

160........ Conditions of criminal justice visa.................................................. 159

161........ Effect of criminal justice visas........................................................ 160

Subdivision E—Cancellation etc. of criminal justice certificates and criminal justice visas           160

162........ Criminal justice certificates to be cancelled.................................... 160

163........ Stay warrant to be cancelled........................................................... 161

164........ Effect of cancellation etc. on criminal justice visa.......................... 162

Division 4A—Enforcement visas                                                                       163

164A..... Definitions...................................................................................... 163

164B..... Grant of enforcement visas............................................................. 163

164C..... When enforcement visa ceases to be in effect................................. 165

164D..... Applying for other visas................................................................ 166

Division 5—Immigration clearance                                                                   167

165........ Interpretation.................................................................................. 167

166........ Persons entering to give certain evidence of identity etc................ 167

167........ When and where evidence to be given............................................ 169

168........ Section 166 not to apply................................................................ 169

169........ Section 166 not usually apply........................................................ 170

170........ Certain persons to give evidence of identity.................................. 170

171........ Assistance with evidence................................................................ 171

172........ Immigration clearance..................................................................... 171

173........ Visa ceases if holder enters in way not permitted.......................... 173

174........ Visa ceases if holder remains without immigration clearance......... 173

175........ Departing person to give certain evidence etc................................ 173

Division 6—Certain non-citizens to be kept in immigration detention  175

176........ Reason for Division........................................................................ 175

177........ Interpretation.................................................................................. 175

178........ Designated persons to be in immigration detention........................ 176

179........ Beginning of immigration detention of certain designated persons. 176

180........ Detention of designated person...................................................... 176

181........ Removal from Australia of designated persons.............................. 177

182........ No immigration detention or removal after certain period.............. 178

183........ Courts must not release designated persons................................... 180

185........ Effect of Division on status etc...................................................... 180

186........ Division applies despite other laws............................................... 180

187........ Evidence.......................................................................................... 180

Division 7—Detention of unlawful non-citizens                                          181

188........ Lawful non-citizen to give evidence of being so............................. 181

189........ Detention of unlawful non-citizens................................................ 182

190........ Non-compliance with immigration clearance or section 192 basis of detention      183

191........ End of certain detention.................................................................. 183

192........ Detention of visa holders whose visas liable to cancellation.......... 184

192A..... Authorisation of identification tests in certain cases...................... 186

193........ Application of law to certain non-citizens while they remain in immigration detention         188

194........ Detainee to be told of consequences of detention.......................... 189

195........ Detainee may apply for visa.......................................................... 189

196........ Duration of detention..................................................................... 190

197........ Effect of escape from immigration detention.................................. 191

Division 7A—Offences relating to immigration detention                   192

197A..... Detainees must not escape from detention..................................... 192

197B..... Manufacture, possession etc. of weapons by detainees................ 192

Division 8—Removal of unlawful non-citizens                                            193

198........ Removal from Australia of unlawful non-citizens.......................... 193

198A..... Offshore entry person may be taken to a declared country........... 196

198B..... Power to bring transitory persons to Australia.............................. 197

198C..... Certain transitory persons entitled to assessment of refugee status 197

198D..... Certificate of non-cooperation........................................................ 198

199........ Dependants of removed non-citizens............................................. 199

Division 9—Deportation                                                                                         200

200........ Deportation of certain non-citizens................................................ 200

201........ Deportation of non-citizens in Australia for less than 10 years who are convicted of crimes                200

202........ Deportation of non-citizens upon security grounds...................... 201

203........ Deportation of non-citizens who are convicted of certain serious offences            202

204........ Determination of time for sections 201 and 202............................ 204

205........ Dependants of deportee................................................................. 205

206........ Deportation order to be executed................................................... 206

Division 10—Costs etc. of detention, removal and deportation        207

207........ Interpretation.................................................................................. 207

208........ Determination of daily maintenance amount.................................. 208

209........ Detainees liable for costs of detention............................................ 208

210........ Removed or deported non-citizen liable for costs of removal or deportation         208

211........ Costs of detained spouses and dependants.................................... 208

212........ Costs of removed or deported spouses and dependants................ 209

213........ Carriers may be liable for costs of detention, removal and deportation  210

214........ Non-citizens and carriers jointly liable........................................... 211

215........ Costs are debts due to the Commonwealth.................................... 211

216........ Use of existing ticket for removal or deportation........................... 211

217........ Vessels required to convey certain removees................................. 212

218........ Vessels required to convey deportees or other removees............... 212

219........ Exemption from complying............................................................ 212

220........ Waiver of requirement.................................................................... 213

221........ Cost of removal under notice.......................................................... 213

222........ Orders restraining certain non-citizens from disposing etc. of property 214

223........ Secretary may give direction about valuables of detained non-citizens 215

224........ Dealing with seized valuables......................................................... 218

Division 11—Duties of masters in relation to crews                               220

225........ Production of identity documents and mustering of crew.............. 220

226........ Production of identity documents by persons on board resources installation       220

227........ Production of identity documents by persons on board sea installation 221

228........ Master to report absences.............................................................. 222

Division 12—Offences in relation to entry into, and remaining in, Australia     224

Subdivision A—General offences                                                                         224

228A..... Application of Subdivision............................................................. 224

229........ Carriage of non-citizens to Australia without documentation........ 224

230........ Carriage of concealed persons to Australia..................................... 225

231........ Master of vessel to comply with certain requests......................... 226

232........ Penalty on master, owner, agent and charterer of vessel................ 226

232A..... Organising bringing groups of non-citizens into Australia............. 228

233........ Persons concerned in bringing non-citizens into Australia in contravention of this Act or harbouring illegal entrants........................................................................................................ 228

233A..... Other offences relating to groups of non-citizens etc..................... 229

233B..... No discharge of offenders without proceeding to conviction for certain offences   230

233C..... Mandatory penalties for certain offences....................................... 230

234........ False papers etc.............................................................................. 231

235........ Offences in relation to work........................................................... 231

236........ Offences relating to visas................................................................ 232

Subdivision B—Offences relating to abuse of laws allowing spouses etc. of Australian citizens or of permanent residents to become permanent residents                                               233

237........ Reason for Subdivision................................................................... 233

238........ Interpretation.................................................................................. 234

239........ Application of Subdivision............................................................. 234

240........ Offence to arrange marriage to obtain permanent residence........... 235

241........ Offence to arrange pretended de facto relationship to obtain permanent residence                235

242........ Offence to arrange pretended interdependency relationship to obtain permanent residence  235

243........ Offences relating to application for permanent residence because of marriage or de facto relationship  236

244........ Offences relating to an application for permanent residence because of interdependency relationship  236

245........ Offences of making false or unsupported statements.................... 237

Division 12A—Chasing, boarding etc. ships and aircraft                      239

245A..... Definitions...................................................................................... 239

245B..... Request to board a ship.................................................................. 240

245C..... Power to chase foreign ships for boarding...................................... 244

245D..... Power to chase Australian ships for boarding................................ 245

245E...... Identifying an aircraft and requesting it to land for boarding.......... 246

245F...... Power to board and search etc. ships and aircraft.......................... 247

245FA... Searches of people on certain ships or aircraft............................... 254

245FB... Returning persons to ships............................................................. 255

245G..... Boarding of certain ships on the high seas...................................... 256

245H..... Moving or destroying hazardous ships etc.................................... 258

Division 12B—Reporting on passengers and crew of aircraft and ships              260

245I....... Definitions...................................................................................... 260

245J...... Approval of primary reporting systems........................................ 261

245K..... Approval of fall-back reporting systems....................................... 262

245L...... Obligation to report on passengers and crew................................. 262

245M.... Approved fall-back reporting systems may be used in certain circumstances        264

245N..... Offence for failure to comply with reporting obligations............... 265

Division 13—Examination, search and detention                                      266

246........ Appointment of boarding stations................................................. 266

247........ Vessels to enter ports and be brought to boarding stations............ 266

248........ Exemption....................................................................................... 268

249........ Certain persons may be prevented from entering or landing.......... 268

250........ Detention of suspected offenders................................................... 269

251........ Powers of entry and search............................................................ 270

252........ Searches of persons........................................................................ 271

252AA.. Power to conduct a screening procedure........................................ 273

252A..... Power to conduct a strip search..................................................... 274

252B..... Rules for conducting a strip search................................................. 276

252C..... Possession and retention of certain things obtained during a screening procedure or strip search          278

252D..... Authorised officer may apply for a thing to be retained for a further period          279

252E...... Magistrate may order that thing be retained................................... 280

252F...... Detainees held in State or Territory prisons or remand centres..... 280

252G..... Powers concerning entry to a detention centre............................... 281

253........ Detention of deportee..................................................................... 282

254........ Removees and deportees held in other custody............................. 284

255........ Prescribed authorities..................................................................... 285

256........ Person in immigration detention may have access to certain advice, facilities etc.  286

257........ Persons may be required to answer questions................................ 286

258........ Minister may determine that personal identifiers are not required 287

258A..... When non-citizen cannot be required to provide personal identifier 287

258B..... Information to be provided—authorised officers carrying out identification tests 288

258C..... Information to be provided—authorised officers not carrying out identification tests           288

258D..... Regulations may prescribe manner for carrying out identification tests  289

258E...... General rules for carrying out identification tests.......................... 289

258F...... Identification tests not to be carried out in cruel, inhuman or degrading manner etc.              289

258G..... Authorised officer may get help to carry out identification tests.. 290

259........ Detention of vessel for purpose of search...................................... 290

260........ Detention of vessel pending recovery of penalty........................... 290

261........ Disposal of dilapidated vessels etc................................................. 292

Division 13AA—Identification of immigration detainees                      294

Subdivision A—Provision of personal identifiers                                             294

261AA.. Immigration detainees must provide personal identifiers............... 294

261AB.. Authorised officers must require and carry out identification tests 295

261AC.. Information to be provided before carrying out identification tests 295

Subdivision B—How identification tests are carried out                                 296

261AD.. General rules for carrying out identification tests.......................... 296

261AE... Use of force in carrying out identification tests............................. 296

261AF... Identification tests not to be carried out in cruel, inhuman or degrading manner etc.              298

261AG.. Authorised officer may get help to carry out identification tests.. 298

261AH.. Identification tests to be carried out by authorised officer of same sex as non-citizen           298

261AI.... Independent person to be present.................................................. 299

261AJ... Recording of identification tests..................................................... 299

261AK.. Retesting......................................................................................... 299

Subdivision C—Obligations relating to video recordings of identification tests                302

261AKA............................................................................................ Definitions  302

261AKB................................................................... Accessing video recordings  302

261AKC................................................. Authorising access to video recordings  302

261AKD.................................................................... Providing video recordings  303

261AKE Unauthorised modification of video recordings.............................. 304

261AKF Unauthorised impairment of video recordings................................ 305

261AKG Meanings of unauthorised modification and unauthorised impairment etc.            305

261AKH................................................................. Destroying video recordings  306

Division 13AB—Identification of minors and incapable persons      307

261AL... Minors............................................................................................ 307

261AM. Incapable persons........................................................................... 308

Division 13A—Automatic forfeiture of things used in certain offences 310

Subdivision A—Automatic forfeiture                                                                  310

261A..... Forfeiture of things used in certain offences................................... 310

Subdivision B—Seizure                                                                                         311

261B..... Seizure of things used in certain offences....................................... 311

Subdivision C—Dealing with things seized as automatically forfeited         311

261C..... Application of this Subdivision...................................................... 311

261D..... Notice of seizure............................................................................. 311

261E...... Dealing with thing before it is condemned...................................... 312

261F...... Thing condemned if not claimed in time......................................... 313

261G..... Dealing with claim for thing............................................................ 313

261H..... What happens if thing is claimed.................................................... 314

261I....... Dealing with thing after it is condemned........................................ 315

Subdivision D—Operation of Division                                                                 315

261J...... Operation of Division..................................................................... 315

Subdivision E—Minister’s order that a thing not be condemned as forfeited 316

261K..... Minister’s order that a thing not be condemned............................. 316

 


An Act relating to the entry into, and presence in, Australia of aliens, and the departure or deportation from Australia of aliens and certain other persons

  

Part 1Preliminary

  

1  Short title [see Note 1]

                   This Act may be cited as the Migration Act 1958.

2  Commencement [see Note 1]

                   The several Parts of this Act shall come into operation on such dates as are respectively fixed by Proclamation.

3  Repeal and savings

             (1)  The Acts specified in the Schedule to this Act are repealed.

             (2)  Section 9 of the War Precautions Act Repeal Act 1920-1955 and the heading to that section, and the Schedule to that Act, are repealed.

             (3)  The War Precautions Act Repeal Act 1920-1955, as amended by this section, may be cited as the War Precautions Act Repeal Act 1920-1958.

             (4)  Notwithstanding the repeals effected by this section:

                     (a)  a certificate of exemption in force under the Immigration Act 1901-1949 immediately before the date of commencement of this Part shall, for all purposes of this Act, be deemed to be a temporary visa granted under this Act to the person specified in the certificate and authorizing that person to remain in Australia for a period ending on the date on which the certificate would have expired if this Act had not been passed.

             (5)  For the purposes of paragraph (4)(a), where, before the commencement of this Part, a person who had previously entered Australia re-entered Australia and, upon or after the re-entry, a certificate of exemption purported to be issued to the person, the certificate shall be deemed to have been as validly issued as if the person had not previously entered Australia.

3A  Act not to apply so as to exceed Commonwealth power

             (1)  Unless the contrary intention appears, if a provision of this Act:

                     (a)  would, apart from this section, have an invalid application; but

                     (b)  also has at least one valid application;

it is the Parliament’s intention that the provision is not to have the invalid application, but is to have every valid application.

             (2)  Despite subsection (1), the provision is not to have a particular valid application if:

                     (a)  apart from this section, it is clear, taking into account the provision’s context and the purpose or object underlying this Act, that the provision was intended to have that valid application only if every invalid application, or a particular invalid application, of the provision had also been within the Commonwealth’s legislative power; or

                     (b)  the provision’s operation in relation to that valid application would be different in a substantial respect from what would have been its operation in relation to that valid application if every invalid application of the provision had been within the Commonwealth’s legislative power.

             (3)  Subsection (2) does not limit the cases where a contrary intention may be taken to appear for the purposes of subsection (1).

             (4)  This section applies to a provision of this Act, whether enacted before, at or after the commencement of this section.

             (5)  In this section:

application means an application in relation to:

                     (a)  one or more particular persons, things, matters, places, circumstances or cases; or

                     (b)  one or more classes (however defined or determined) of persons, things, matters, places, circumstances or cases.

invalid application, in relation to a provision, means an application because of which the provision exceeds the Commonwealth’s legislative power.

valid application, in relation to a provision, means an application that, if it were the provision’s only application, would be within the Commonwealth’s legislative power.

3B  Compensation for acquisition of property

             (1)  If:

                     (a)  this Act would result in an acquisition of property; and

                     (b)  any provision of this Act would not be valid, apart from this section, because a particular person has not been compensated;

the Commonwealth must pay that person:

                     (c)  a reasonable amount of compensation agreed on between the person and the Commonwealth; or

                     (d)  failing agreement—a reasonable amount of compensation determined by a court of competent jurisdiction.

             (2)  Any damages or compensation recovered, or other remedy given, in a proceeding begun otherwise than under this section must be taken into account in assessing compensation payable in a proceeding begun under this section and arising out of the same event or transaction.

             (3)  In this section:

acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.

4  Object of Act

             (1)  The object of this Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.

             (2)  To advance its object, this Act provides for visas permitting non-citizens to enter or remain in Australia and the Parliament intends that this Act be the only source of the right of non-citizens to so enter or remain.

             (3)  To advance its object, this Act requires persons, whether citizens or non-citizens, entering Australia to identify themselves so that the Commonwealth government can know who are the non-citizens so entering.

             (4)  To advance its object, this Act provides for the removal or deportation from Australia of non-citizens whose presence in Australia is not permitted by this Act.

4A  Application of the Criminal Code

                   Chapter 2 of the Criminal Code (except Part 2.5) applies to all offences against this Act.

Note:          Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

5  Interpretation

             (1)  In this Act, unless the contrary intention appears:

absorbed person visa has the meaning given by section 34.

adjacent area means an adjacent area in respect of a State, of the Northern Territory, of the Territory of Ashmore and Cartier Islands, of the Territory of Cocos (Keeling) Islands or of the Territory of Christmas Island, as determined in accordance with section 5 of the Sea Installations Act.

allowed inhabitant of the Protected Zone means an inhabitant of the Protected Zone, other than an inhabitant to whom a declaration under section 16 (presence declared undesirable) applies.

applicable pass mark, in relation to a visa of a particular class, means the number of points specified as the pass mark for that class in a notice, under section 96, in force at the time concerned.

applicable pool mark, in relation to a visa of a particular class, means the number of points specified as the pool mark for that class in a notice under section 96 in force at the time concerned.

approved form, when used in a provision of this Act, means a form approved by the Minister in writing for the purposes of that provision.

approved sponsor, in relation to a visa of a kind (however described) to which Division 3A of Part 2 applies, has the meaning given by section 140D.

area in the vicinity of the Protected Zone means an area in respect of which a notice is in force under subsection (8).

assessed score, in relation to an applicant for a visa, means the total number of points given to the applicant in an assessment under section 93.

Australian passport means a passport issued under the Passports Act 1938.

Australian resources installation means a resources installation that is deemed to be part of Australia because of the operation of section 8.

Australian seabed means so much of the seabed adjacent to Australia (other than the seabed within the Joint Petroleum Development Area) as is:

                     (a)  within the area comprising:

                              (i)  the areas described in Schedule 2 to the Petroleum (Submerged Lands) Act 1967; and

                             (ii)  the Coral Sea area; and

                     (b)  part of:

                              (i)  the continental shelf of Australia;

                             (ii)  the seabed beneath the territorial sea of Australia (including the territorial sea adjacent to any island forming part of Australia); or

                            (iii)  the seabed beneath waters of the sea that are on the landward side of the territorial sea of Australia and are not within the limits of a State or Territory.

Australian sea installation means a sea installation that is deemed to be part of Australia because of the operation of section 9.

Australian waters means:

                     (a)  in relation to a resources installation—waters above the Australian seabed; and

                     (b)  in relation to a sea installation—waters comprising all of the adjacent areas and the coastal area.

authorised officer, when used in a provision of this Act, means an officer authorised in writing by the Minister or the Secretary for the purposes of that provision.

Note:          Section 5D can affect the meaning of this term for the purposes of carrying out identification tests.

behaviour concern non-citizen means a non-citizen who:

                     (a)  has been convicted of a crime and sentenced to death or to imprisonment, for at least one year; or

                     (b)  has been convicted of 2 or more crimes and sentenced to imprisonment, for periods that add up to at least one year if:

                              (i)  any period concurrent with part of a longer period is disregarded; and

                             (ii)  any periods not disregarded that are concurrent with each other are treated as one period;

                            whether or not:

                            (iii)  the crimes were of the same kind; or

                            (iv)  the crimes were committed at the same time; or

                             (v)  the convictions were at the same time; or

                            (vi)  the sentencings were at the same time; or

                           (vii)  the periods were consecutive; or

                     (c)  has been charged with a crime and either:

                              (i)  found guilty of having committed the crime while of unsound mind; or

                             (ii)  acquitted on the ground that the crime was committed while the person was of unsound mind;

                     (d)  has been removed or deported from Australia or removed or deported from another country; or

                     (e)  has been excluded from another country in prescribed circumstances;

where sentenced to imprisonment includes ordered to be confined in a corrective institution.

bridging visa has the meaning given by section 37.

brought into physical contact has the same meaning as in the Sea Installations Act.

bypass immigration clearance has the meaning given by subsection 172(4).

certified printout means a printout certified by an authorised officer to be a printout of information kept in the movement records.

character concern has the meaning given by section 5C.

coastal area has the same meaning as in the Customs Act 1901.

continental shelf has the same meaning as in the Seas and Submerged Lands Act 1973.

Coral Sea area has the same meaning as in the Petroleum (Submerged Lands) Act 1967.

crime includes any offence.

criminal justice visa has the meaning given by section 38.

data base (except in Part 4A) means a discrete body of information stored by means of a computer.

Note:          Section 336A defines this term differently for the purposes of Part 4A.

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.

detainee means a person detained.

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.

enforcement visa has the meaning given by section 38A.

enter includes re-enter.

enter Australia, in relation to a person, means enter the migration zone.

entered includes re-entered.

entry includes re-entry.

environment related activity has the same meaning as in the Sea Installations Act.

excised offshore place means any of the following:

                     (a)  the Territory of Christmas Island;

                     (b)  the Territory of Ashmore and Cartier Islands;

                     (c)  the Territory of Cocos (Keeling) Islands;

                     (d)  any other external Territory that is prescribed by the regulations for the purposes of this paragraph;

                     (e)  any island that forms part of a State or Territory and is prescribed for the purposes of this paragraph;

                      (f)  an Australian sea installation;

                     (g)  an Australian resources installation.

Note:          The effect of this definition is to excise the listed places and installations from the migration zone for the purposes of limiting the ability of offshore entry persons to make valid visa applications.

excision time, for an excised offshore place, means:

                     (a)  for the Territory of Christmas Island—2 pm on 8 September 2001 by legal time in the Australian Capital Territory; or

                     (b)  for the Territory of Ashmore and Cartier Islands—2 pm on 8 September 2001 by legal time in the Australian Capital Territory; or

                     (c)  for the Territory of Cocos (Keeling) Islands—12 noon on 17 September 2001 by legal time in the Australian Capital Territory; or

                     (d)  for any other external Territory that is prescribed by the regulations for the purposes of the definition of excised offshore place—the time when the regulations commence; or

                     (e)  for any island that forms part of a State or Territory and is prescribed by the regulations for the purposes of the definition of excised offshore place—the time when the regulations commence; or

                      (f)  for an Australian sea installation—the commencement of the Migration Amendment (Excision from Migration Zone) Act 2001; or

                     (g)  for an Australian resources installation—the commencement of the Migration Amendment (Excision from Migration Zone) Act 2001.

ex-citizen visa has the meaning given by section 35.

Federal Court means the Federal Court of Australia.

fisheries detention offence means an offence against section 99, 100, 100A, 101, 101A, 101B, 105E or 105F of the Fisheries Management Act 1991.

fisheries officer means an officer as defined in the Fisheries Management Act 1991.

foreign boat has the same meaning as in the Fisheries Management Act 1991.

health concern non-citizen means a non-citizen who is suffering from a prescribed disease or a prescribed physical or mental condition.

health criterion, in relation to a visa, means a prescribed criterion for the visa that:

                     (a)  relates to the applicant for the visa, or the members of the family unit of that applicant (within the meaning of the regulations); and

                     (b)  deals with:

                              (i)  a prescribed disease; or

                             (ii)  a prescribed kind of disease; or

                            (iii)  a prescribed physical or mental condition; or

                            (iv)  a prescribed kind of physical or mental condition; or

                             (v)  a prescribed kind of examination; or

                            (vi)  a prescribed kind of treatment.

holder, in relation to a visa, means, subject to section 77 (visas held during visa period) the person to whom it was granted or a person included in it.

identification test means a test carried out in order to obtain a personal identifier.

identity document, in relation to a member of the crew of a vessel, means:

                     (a)  an identification card, in accordance with a form approved by the Minister, in respect of the member signed by the master of the vessel; or

                     (b)  a document, of a kind approved by the Minister as an identity document for the purposes of this Act, in respect of the member.

immigration cleared has the meaning given by subsection 172(1).

immigration detention means:

                     (a)  being in the company of, and restrained by:

                              (i)  an officer; or

                             (ii)  in relation to a particular detainee—another person directed by the Secretary to accompany and restrain the detainee; or

                     (b)  being held by, or on behalf of, an officer:

                              (i)  in a detention centre established under this Act; or

                             (ii)  in a prison or remand centre of the Commonwealth, a State or a Territory; or

                            (iii)  in a police station or watch house; or

                            (iv)  in relation to a non-citizen who is prevented, under section 249, from leaving a vessel—on that vessel; or

                             (v)  in another place approved by the Minister in writing;

but does not include being restrained as described in subsection 245F(8A), or being dealt with under paragraph 245F(9)(b).

Note:          See also section 198A, which provides that being dealt with under that section does not amount to immigration detention.

incapable person means a person who is incapable of understanding the general nature and effect of, and purposes of, a requirement to provide a personal identifier.

independent person means a person (other than an officer or an authorised officer) who:

                     (a)  is capable of representing the interests of a non-citizen who is providing, or is to provide, a personal identifier; and

                     (b)  as far as practicable, is acceptable to the non-citizen who is providing, or is to provide, the personal identifier; and

                     (c)  if the non-citizen is a minor—is capable of representing the minor’s best interests.

inhabitant of the Protected Zone means a person who is a citizen of Papua New Guinea and who is a traditional inhabitant.

in immigration clearance has the meaning given by subsection 172(2).

installation means:

                     (a)  a resources installation; or

                     (b)  a sea installation.

Joint Petroleum Development Area has the same meaning as in the Petroleum (Timor Sea Treaty) Act 2003.

lawful non-citizen has the meaning given by section 13.

leave Australia, in relation to a person, means, subject to section 80 (leaving without going to other country), leave the migration zone.

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.

Migration Review Tribunal means the Migration Review Tribunal established by section 394.

migration zone means the area consisting of the States, the Territories, Australian resource installations and Australian sea installations and, to avoid doubt, includes:

                     (a)  land that is part of a State or Territory at mean low water; and

                     (b)  sea within the limits of both a State or a Territory and a port; and

                     (c)  piers, or similar structures, any part of which is connected to such land or to ground under such sea;

but does not include sea within the limits of a State or Territory but not in a port.

minor means a person who is less than 18 years old.

movement records means information stored in a notified data base.

natural resources means the mineral and other non-living resources of the seabed and its subsoil.

non-citizen means a person who is not an Australian citizen.

non-disclosable information means information or matter:

                     (a)  whose disclosure would, in the Minister’s opinion, be contrary to the national interest because it would:

                              (i)  prejudice the security, defence or international relations of Australia; or

                             (ii)  involve the disclosure of deliberations or decisions of the Cabinet or of a committee of the Cabinet; or

                     (b)  whose disclosure would, in the Minister’s opinion, be contrary to the public interest for a reason which could form the basis of a claim by the Crown in right of the Commonwealth in judicial proceedings; or

                     (c)  whose disclosure would found an action by a person, other than the Commonwealth, for breach of confidence;

and includes any document containing, or any record of, such information or matter.

notified data base means a data base declared to be a notified data base under section 489.

offence against this Act includes:

                     (a)  an offence against section 6 of the Crimes Act 1914 that relates to an offence against a provision of this Act; and

                     (b)  an ancillary offence (within the meaning of the Criminal Code) that is, or relates to, an offence against a provision of this Act.

officer means:

                     (a)  an officer of the Department, other than an officer specified by the Minister in writing for the purposes of this paragraph; or

                     (b)  a person who is an officer for the purposes of the Customs Act 1901, other than such an officer specified by the Minister in writing for the purposes of this paragraph; or

                     (c)  a person who is a protective service officer for the purposes of the Australian Federal Police Act 1979, other than such a person specified by the Minister in writing for the purposes of this paragraph; or

                     (d)  a member of the Australian Federal Police or of the police force of a State or an internal Territory; or

                     (e)  a member of the police force of an external Territory; or

                      (f)  a person who is authorised in writing by the Minister to be an officer for the purposes of this Act; or

                     (g)  any person who is included in a class of persons authorised in writing by the Minister to be officers for the purposes of this Act, including a person who becomes a member of the class after the authorisation is given.

offshore entry person means a person who:

                     (a)  entered Australia at an excised offshore place after the excision time for that offshore place; and

                     (b)  became an unlawful non-citizen because of that entry.

old visa means a visa, document, or notation, that:

                     (a)  permits a person to travel to Australia; and

                     (b)  was issued before 1 September 1994; and

                     (c)  has not been cancelled or otherwise stopped being in effect.

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.

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.

questioning detention means detention under section 192.

Refugee Review Tribunal means the Refugee Review Tribunal established by section 457.

Refugees Convention means the Convention relating to the Status of Refugees done at Geneva on 28 July 1951.

Refugees Protocol means the Protocol relating to the Status of Refugees done at New York on 31 January 1967.

refused immigration clearance has the meaning given by subsection 172(3).

remain in Australia, in relation to a person, means remain in the migration zone.

remove means remove from Australia.

removee means an unlawful non-citizen removed, or to be removed, under Division 8 of Part 2.

resources installation means:

                     (a)  a resources industry fixed structure within the meaning of subsection (10); or

                     (b)  a resources industry mobile unit within the meaning of subsection (11).

RRT-reviewable decision has the meaning given by section 411.

score, in relation to a visa applicant, means the total number of points given to the applicant under section 93 in the most recent assessment or re-assessment under Subdivision B of Division 3 of Part 2.

sea installation has the same meaning as in the Sea Installations Act.

Sea Installations Act means the Sea Installations Act 1987.

Secretary means the Secretary to the Department.

special category visa has the meaning given by section 32.

special purpose visa has the meaning given by section 33.

student visa has the meaning given by the regulations.

substantive visa means a visa other than:

                     (a)  a bridging visa; or

                     (b)  a criminal justice visa; or

                     (c)  an enforcement visa.

temporary visa has the meaning given by subsection 30(2).

Territory means:

                     (a)  an internal Territory; or

                     (b)  an external Territory to which this Act extends.

ticket includes a travel document in respect of the conveyance of a person from one place to another place.

Torres Strait Treaty means the Treaty between Australia and the Independent State of Papua New Guinea that was signed at Sydney on 18 December 1978.

traditional activities has the same meaning as in the Torres Strait Treaty.

traditional inhabitants has the same meaning as in the Torres Strait Fisheries Act 1984.

transitory person means:

                     (a)  an offshore entry person who was taken to another country under section 198A; or

                     (b)  a person who was taken to a place outside Australia under paragraph 245F(9)(b); or

                     (c)  a person who, while a non-citizen and during the period from 27 August 2001 to 6 October 2001:

                              (i)  was transferred to the ship HMAS Manoora from the ship Aceng or the ship MV Tampa; and

                             (ii)  was then taken by HMAS Manoora to another country; and

                            (iii)  disembarked in that other country;

but does not include a person who has been assessed to be a refugee for the purposes of the Refugees Convention as amended by the Refugees Protocol.

unlawful non-citizen has the meaning given by section 14.

vessel includes an aircraft or an installation.

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).

working day, in relation to a place, means any day that is not a Saturday, a Sunday or a public holiday in that place.

          (1A)  The Minister has power to give authorisations as provided by paragraphs (f) and (g) of the definition of officer in subsection (1) and, if such an authorisation is given:

                     (a)  the Minister is to cause notice of the authorisation to be published in the Gazette; but

                     (b)  without affecting the obligation of the Minister to cause a notice to be so published:

                              (i)  the authorisation takes effect when it is given; and

                             (ii)  the validity of the authorisation is not affected if such a notice is not published.

             (2)  For the purposes of this Act, a person has functional English at a particular time if:

                     (a)  the person passes a test that:

                              (i)  is approved in writing by the Minister for the purposes of this subsection; and

                             (ii)  is conducted by a person, or organisation, approved for the purposes of this subsection by the Minister by notice in the Gazette; or

                     (b)  the person provides the Minister with prescribed evidence of the person’s English language proficiency.

             (3)  Any power that may be exercised by an authorized officer or by an officer under this Act may also be exercised by the Minister.

             (4)  Where, in any provision of this Act, reference is made to the exercise of a power by an authorized officer or by an officer and that power is a power which, by virtue of subsection (3), may also be exercised by the Minister, that reference shall be construed as including a reference to the exercise of that power by the Minister.

          (4A)  A reference in the definition of independent person in subsection (1) of this section, in sections 258 to 258G or in Division 13AB of Part 2 to a non-citizen includes a reference to a person whom an officer, in the course of exercising or considering the exercising of his or her powers under section 188, reasonably suspects is a non-citizen.

             (5)  The Minister may, by notice published in the Gazette:

                     (a)  appoint ports in an external Territory to which this Act extends as proclaimed ports for the purposes of this Act and fix the limits of those ports; and

                     (b)  appoint airports in an external Territory to which this Act extends as proclaimed airports for the purposes of this Act and fix the limits of those airports.

             (6)  For the purposes of this Act, where a resources installation that has been brought into Australian waters from a place outside the outer limits of Australian waters becomes attached to the Australian seabed:

                     (a)  the installation shall be deemed to have entered Australia at the time when it becomes so attached;

                     (b)  any person on board the installation at the time when it becomes so attached shall be deemed to have travelled to Australia on board that installation, to have entered Australia at that time and to have been brought into Australia at that time.

             (7)  For the purposes of this Act, where a sea installation that has been brought into Australian waters from a place outside the outer limits of Australian waters is installed in an adjacent area or in a coastal area:

                     (a)  the installation shall be deemed to have entered Australia at the time that it becomes so installed; and

                     (b)  any person on board the installation at the time that it becomes so installed shall be deemed to have travelled to Australia on board that installation, to have entered Australia at that time and to have been brought into Australia at that time.

             (8)  The Minister may, by notice published in the Gazette, declare an area adjacent to the Protected Zone and to the south of the line described in Annex 5 to the Torres Strait Treaty to be an area in the vicinity of the Protected Zone for the purposes of this Act.

             (9)  For the purposes of this Act, an application under this Act is finally determined when either:

                     (a)  a decision that has been made in respect of the application is not, or is no longer, subject to any form of review under Part 5 or 7; or

                     (b)  a decision that has been made in respect of the application was subject to some form of review under Part 5 or 7, but the period within which such a review could be instituted has ended without a review having been instituted as prescribed.

           (10)  A reference in this Act to a resources industry fixed structure shall be read as a reference to a structure (including a pipeline) that:

                     (a)  is not able to move or be moved as an entity from one place to another; and

                     (b)  is used or is to be used off-shore in, or in any operations or activities associated with, or incidental to, exploring or exploiting natural resources.

           (11)  A reference in this Act to a resources industry mobile unit shall be read as a reference to:

                     (a)  a vessel that is used or is to be used wholly or principally in:

                              (i)  exploring or exploiting natural resources by drilling the seabed or its subsoil with equipment on or forming part of the vessel or by obtaining substantial quantities of material from the seabed or its subsoil with equipment of that kind; or

                             (ii)  operations or activities associated with, or incidental to, activities of the kind referred to in subparagraph (i); or

                     (b)  a structure (not being a vessel) that:

                              (i)  is able to float or be floated;

                             (ii)  is able to move or be moved as an entity from one place to another; and

                            (iii)  is used or is to be used off-shore wholly or principally in:

                                        (A)  exploring or exploiting natural resources by drilling the seabed or its subsoil with equipment on or forming part of the structure or by obtaining substantial quantities of material from the seabed or its subsoil with equipment of that kind; or

                                        (B)  operations or activities associated with, or incidental to, activities of the kind referred to in sub-subparagraph (A).

           (12)  A vessel of a kind referred to in paragraph (11)(a) or a structure of a kind referred to in paragraph (11)(b) shall not be taken not to be a resources industry mobile unit by reason only that the vessel or structure is also used or to be used in, or in any operations or activities associated with, or incidental to, exploring or exploiting resources other than natural resources.

           (13)  The reference in subparagraph (11)(a)(ii) to a vessel that is used or is to be used wholly or principally in operations or activities associated with, or incidental to, activities of the kind referred to in subparagraph (11)(a)(i) shall be read as not including a reference to a vessel that is used or is to be used wholly or principally in:

                     (a)  transporting persons or goods to or from a resources installation; or

                     (b)  manoeuvring a resources installation, or in operations relating to the attachment of a resources installation to the Australian seabed.

           (14)  A resources installation shall be taken to be attached to the Australian seabed if:

                     (a)  the installation:

                              (i)  is in physical contact with, or is brought into physical contact with, a part of the Australian seabed; and

                             (ii)  is used or is to be used, at that part of the Australian seabed, wholly or principally in or in any operations or activities associated with, or incidental to, exploring or exploiting natural resources; or

                     (b)  the installation:

                              (i)  is in physical contact with, or is brought into physical contact with, another resources installation that is taken to be attached to the Australian seabed by virtue of the operation of paragraph (a); and

                             (ii)  is used or is to be used, at the place where it is brought into physical contact with the other installation, wholly or principally in or in any operations or activities associated with, or incidental to, exploring or exploiting natural resources.

           (15)  Subject to subsection (17), for the purposes of this Act, a sea installation shall be taken to be installed in an adjacent area if:

                     (a)  the installation is in, or is brought into, physical contact with a part of the seabed in the adjacent area; or

                     (b) the installation is in, or is brought into, physical contact with another sea installation that is to be taken to be installed in the adjacent area because of paragraph (a).

           (16)  For the purposes of this Act, a sea installation shall be taken to be installed in an adjacent area at a particular time if the whole or part of the installation:

                     (a)  is in that adjacent area at that time; and

                     (b)  has been in a particular locality:

                              (i)  that is circular and has a radius of 20 nautical miles; and

                             (ii)  the whole or part of which is in that adjacent area;

                            for:

                            (iii)  a continuous period, of at least 30 days, that immediately precedes that time; or

                            (iv)  one or more periods, during the 60 days that immediately precede that time, that in sum amount to at least 40 days.

           (17)  Where a sea installation, being a ship or an aircraft:

                     (a) is brought into physical contact with a part of the seabed in an adjacent area; or

                     (b)  is in, or is brought into, physical contact with another sea installation that is to be taken to be installed in an adjacent area;

for less than:

                     (c)  in the case of a ship, or an aircraft, registered under the law of a foreign country—30 days; or

                     (d)  in any other case—5 days;

it shall not be taken to be installed in that adjacent area under subsection (15).

           (18)  A sea installation shall not be taken to be installed in an adjacent area for the purposes of this Act unless it is to be taken to be so installed under this section.

           (19)  Subject to subsection (21), for the purposes of this Act, a sea installation shall be taken to be installed in a coastal area if:

                     (a)  the installation is in, or is brought into, physical contact with a part of the seabed in the coastal area; or

                     (b)  the installation is in, or is brought into, physical contact with another sea installation that is to be taken to be installed in the coastal area because of paragraph (a).

           (20)  For the purposes of this Act, a sea installation (other than an installation installed in an adjacent area) shall be taken to be installed at a particular time in a coastal area if the whole or part of the installation:

                     (a)  is in that coastal area at that time; and

                     (b)  has been in a particular locality:

                              (i)  that is circular and has a radius of 20 nautical miles; and

                             (ii)  the whole or part of which is in that coastal area;

                            for:

                            (iii)  a continuous period, of at least 30 days, that immediately precedes that time; or

                            (iv)  one or more periods, during the 60 days that immediately precede that time, that in sum amount to at least 40 days.

           (21)  Where a sea installation, being a ship or an aircraft:

                     (a)  is brought into physical contact with a part of the seabed in a coastal area; or

                     (b)  is in, or is brought into, physical contact with another sea installation that is to be taken to be installed in a coastal area;

for less than:

                     (c)  in the case of a ship, or an aircraft, registered under the law of a foreign country—30 days; or

                     (d)  in any other case—5 days;

it shall not be taken to be installed in that coastal area under subsection (19).

           (22)  A sea installation shall not be taken to be installed in a coastal area for the purposes of this Act unless it is to be taken to be so installed under this section.

           (23)  To avoid doubt, in this Act is taken, when followed by the infinitive form of a verb, has the same force and effect as is deemed when followed by the infinitive form of that verb.

5A  Meaning of personal identifier

             (1)  In this Act:

personal identifier means any of the following (including any of the following in digital form):

                     (a)  fingerprints or handprints of a person (including those taken using paper and ink or digital livescanning technologies);

                     (b)  a measurement of a person’s height and weight;

                     (c)  a photograph or other image of a person’s face and shoulders;

                     (d)  an audio or a video recording of a person (other than a video recording under section 261AJ);

                     (e)  an iris scan;

                      (f)  a person’s signature;

                     (g)  any other identifier prescribed by the regulations, other than an identifier the obtaining of which would involve the carrying out of an intimate forensic procedure within the meaning of section 23WA of the Crimes Act 1914.

             (2)  Before the Governor-General makes regulations for the purposes of paragraph (1)(g) prescribing an identifier, the Minister must be satisfied that:

                     (a)  obtaining the identifier would not involve the carrying out of an intimate forensic procedure within the meaning of section 23WA of the Crimes Act 1914; and

                     (b)  the identifier is an image of, or a measurement or recording of, an external part of the body; and

                     (c)  obtaining the identifier will promote one or more of the purposes referred to in subsection (3).

             (3)  The purposes are:

                     (a)  to assist in the identification of, and to authenticate the identity of, any non-citizen who can be required under this Act to provide a personal identifier; and

                     (b)  to assist in identifying, in the future, any such non-citizen; and

                     (c)  to improve the integrity of entry programs, including passenger processing at Australia’s border; and

                     (d)  to facilitate a visa-holder’s access to his or her rights under this Act or the regulations; and

                     (e)  to improve the procedures for determining visa applications; and

                      (f)  to improve the procedures for determining claims for protection under the Refugees Convention as amended by the Refugees Protocol; and

                     (g)  to enhance the Department’s ability to identify non-citizens who have a criminal history, who are of character concern or who are of national security concern; and

                     (h)  to combat document and identity fraud in immigration matters; and

                      (i)  to detect forum shopping by applicants for visas; and

                      (j)  to ascertain whether:

                              (i)  an applicant for a protection visa; or

                             (ii)  an offshore entry person who makes a claim for protection under the Refugees Convention as amended by the Refugees Protocol;

                            had sufficient opportunity to avail himself or herself of protection before arriving in Australia; and

                     (k)  to complement anti-people smuggling measures; and

                      (l)  to inform the governments of foreign countries of the identity of non-citizens who are, or are to be, removed or deported from Australia.

5B  When personal identifier taken not to have been provided

                   A non-citizen is taken, for the purposes of sections 40, 46, 166, 170, 175, 188 and 192, not to have provided a personal identifier if:

                     (a)  the personal identifier that is provided is unusable; or

                     (b)  an authorised officer or an officer is not satisfied:

                              (i)  about the integrity of the personal identifier that is provided; or

                             (ii)  about the procedure followed to obtain the personal identifier; or

                     (c)  in a case to which subsection 40(5), 46(2C), 166(1C), 170(5), 175(5), 188(7) or 192(2C) applies—the quality of the personal identifier that is provided does not satisfy an officer who uses the personal identifier for the purpose of making a decision under this Act or the regulations.

5C  Meaning of character concern

             (1)  For the purposes of this Act, a non-citizen is of character concern if:

                     (a)  the non-citizen has a substantial criminal record (as defined by subsection (2)); or

                     (b)  the non-citizen has or has had an association with someone else, or with a group or organisation, who is reasonably suspected of having been or being involved in criminal conduct; or

                     (c)  having regard to either or both of the following:

                              (i)  the non-citizen’s past and present criminal conduct;

                             (ii)  the non-citizen’s past and present general conduct;

                            the non-citizen is not of good character; or

                     (d)  in the event that the non-citizen were allowed to enter or to remain in Australia, there is a significant risk that the non-citizen would:

                              (i)  engage in criminal conduct in Australia; or

                             (ii)  harass, molest, intimidate or stalk another person in Australia; or

                            (iii)  vilify a segment of the Australian community; or

                            (iv)  incite discord in the Australian community or in a segment of that community; or

                             (v)  represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.

             (2)  For the purposes of subsection (1), a non-citizen has a substantial criminal record if:

                     (a)  the non-citizen has been sentenced to death; or

                     (b)  the non-citizen has been sentenced to imprisonment for life; or

                     (c)  the non-citizen has been sentenced to a term of imprisonment of 12 months or more; or

                     (d)  the non-citizen has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), and the total of those terms is 2 years or more; or

                     (e)  the non-citizen has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution.

5D  Limiting the types of identification tests that authorised officers may carry out

             (1)  The Minister or Secretary may, in an instrument authorising an officer as an authorised officer for the purposes of carrying out identification tests under this Act, specify the types of identification tests that the authorised officer may carry out.

             (2)  Such an authorised officer is not an authorised officer in relation to carrying out an identification test that is not of a type so specified.

6  Effect of limited meaning of enter Australia etc.

                   To avoid doubt, although subsection 5(1) limits, for the purposes of this Act, the meanings of enter Australia, leave Australia and remain in Australia and as well, because of section 18A of the Acts Interpretation Act 1901, the meaning of parts of speech and grammatical forms of those phrases, this does not mean:

                     (a)  that, for those purposes, the meaning of in Australia, to Australia or any other phrase is limited; or

                     (b)  that this Act does not extend to parts of Australia outside the migration zone; or

                     (c)  that this Act does not apply to persons in those parts.

7  Act to extend to certain Territories

             (1)  In this section, prescribed Territory means the Coral Sea Islands Territory, the Territory of Cocos (Keeling) Islands, the Territory of Christmas Island and the Territory of Ashmore and Cartier Islands.

             (2)  This Act extends to a prescribed Territory.

             (3)  Subject to this Act, a prescribed Territory:

                     (a)  shall be deemed to be part of Australia for the purposes of this Act; and

                     (b)  shall be deemed not to be a place outside Australia.

7A  Effect on executive power to protect Australia’s borders

                   The existence of statutory powers under this Act does not prevent the exercise of any executive power of the Commonwealth to protect Australia’s borders, including, where necessary, by ejecting persons who have crossed those borders.

8  Certain resources installations to be part of Australia

             (1)  For the purposes of this Act, a resources installation that:

                     (a)  becomes attached to the Australian seabed after the commencement of this subsection; or

                     (b)  at the commencement of this subsection, is attached to the Australian seabed;

shall, subject to subsection (2), be deemed to be part of Australia and shall be deemed not to be a place outside Australia.

             (2)  A resources installation that is deemed to be part of Australia by virtue of the operation of this section shall, for the purposes of this Act, cease to be part of Australia if:

                     (a)  the installation is detached from the Australian seabed, or from another resources installation that is attached to the Australian seabed, for the purpose of being taken to a place outside the outer limits of Australian waters (whether or not the installation is to be taken to a place in Australia before being taken outside those outer limits); or

                     (b)  after having been detached from the Australian seabed otherwise than for the purpose referred to in paragraph (a), the installation is moved for the purpose of being taken to a place outside the outer limits of Australian waters (whether or not the installation is to be taken to a place in Australia before being taken outside those outer limits).

9  Certain sea installations to be part of Australia

             (1)  For the purposes of this Act, a sea installation that:

                     (a)  becomes installed in an adjacent area or in a coastal area after the commencement of this subsection; or

                     (b)  at the commencement of this subsection, is installed in an adjacent area or in a coastal area;

shall, subject to subsection (2), be deemed to be part of Australia and shall be deemed not to be a place outside Australia.

             (2)  A sea installation that is deemed to be part of Australia because of the operation of this section shall, for the purposes of this Act, cease to be part of Australia if:

                     (a) the installation is detached from its location for the purpose of being taken to a place outside the outer limits of Australian waters; or

                     (b)  after having been detached from its location otherwise than for the purpose referred to in paragraph (a), the installation is moved for the purpose of being taken to a place outside the outer limits of Australian waters.

10  Certain children taken to enter Australia at birth

                   A child who:

                     (a)  was born in the migration zone; and

                     (b)  was a non-citizen when he or she was born;

shall be taken to have entered Australia when he or she was born.

11  Visa applicable to 2 or more persons

                   Where:

                     (a)  2 or more persons who are the holders of the same visa travel to Australia on board the same vessel; and

                     (b)  on entering Australia, one of those persons is in possession of evidence of that visa;

each of them shall, for the purposes of this Act, be taken to be in possession of that evidence on entering Australia.

12  Application of Part VA of the Marriage Act

                   For the purpose of deciding whether a marriage is to be recognised as valid for the purposes of this Act, Part VA of the Marriage Act 1961 applies as if section 88E of that Act were omitted.


 

Part 2Control of arrival and presence of non-citizens

Division 1Immigration status

13  Lawful non-citizens

             (1)  A non-citizen in the migration zone who holds a visa that is in effect is a lawful non-citizen.

             (2)  An allowed inhabitant of the Protected Zone who is in a protected area in connection with the performance of traditional activities is a lawful non-citizen.

14  Unlawful non-citizens

             (1)  A non-citizen in the migration zone who is not a lawful non-citizen is an unlawful non-citizen.

             (2)  To avoid doubt, a non-citizen in the migration zone who, immediately before 1 September 1994, was an illegal entrant within the meaning of the Migration Act as in force then became, on that date, an unlawful non-citizen.

15  Effect of cancellation of visa on status

                   To avoid doubt, subject to subsection 13(2) (certain inhabitants of protected zone), if a visa is cancelled its former holder, if in the migration zone, becomes, on the cancellation, an unlawful non-citizen unless, immediately after the cancellation, the former holder holds another visa that is in effect.

16  Removal of immigration rights of inhabitant of Protected Zone

                   The Minister may declare, in writing, that it is undesirable that a specified inhabitant of the Protected Zone continue to be permitted to enter or remain in Australia.

17  Pre-cleared flights

             (1)  The Minister may, in writing, declare a specified flight by an aircraft on a specified day between a specified foreign country and Australia to be a pre-cleared flight for the purposes of this Act.

             (2)  The Minister may declare, in writing, a specified class of flights conducted by a specified air transport enterprise or by another specified person to be pre-cleared flights for the purposes of this Act.

             (3)  A particular flight to which a declaration under subsection (1) or (2) applies is not a pre-cleared flight if an authorised officer decides, before the passengers on it disembark in Australia, that it is inappropriate to treat it as such.


 

Division 2Power to obtain information and documents about unlawful non-citizens

18  Power to obtain information and documents about unlawful
non-citizens
[see Note 2]

             (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 sections 21, 22 and 23.

19  Scales of expenses

                   The regulations may prescribe scales of expenses to be allowed to persons required to give information or produce documents under this Division.

20  Reasonable compensation

                   A person is entitled to be paid by the Commonwealth reasonable compensation for complying with a requirement covered by paragraph 18(1)(c).

21  Failure to comply with section 18 notice

             (1)  A person must not refuse or fail to comply with a notice under subsection 18(1).

          (1A)  Subsection (1) does not apply:

                     (a)  to the extent that the person is not capable of complying with the notice; or

                     (b)  if the person has a reasonable excuse.

Note:          A defendant bears an evidential burden in relation to the matters in subsection (1A) (see subsection 13.3(3) of the Criminal Code).

             (2)  The following are 2 of the reasonable excuses for refusing or failing to comply with a notice:

                     (a)  the person whom the Minister had reason to believe was an unlawful non-citizen was not an unlawful non-citizen at the time the notice was given;

                     (b)  the information or documents which the Minister had reason to believe were relevant to ascertaining the identity or whereabouts of a person were not relevant to ascertaining the identity or whereabouts of the person.

             (3)  An offence against subsection (1) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code.

Penalty:  Imprisonment for 6 months.

24  Information and documents that incriminate a person

                   A person is not excused from giving information or producing a document or a copy of a document under this Division on the ground that the information or the production of the document or copy might tend to incriminate the person, but:

                     (a)  giving the information or producing the document or copy; or

                     (b)  any information, document or thing obtained as a direct or indirect consequence of giving the information or producing the document or copy;

is not admissible in evidence against the person in any criminal proceedings other than a prosecution for:

                     (c)  an offence against, or arising out of, this Division; or

                     (d)  an offence against section 137.1 or 137.2 of the Criminal Code that relates to this Division.

25  Copies of documents

             (1)  The Minister may inspect a document or copy produced under this Division and may make and retain copies of, or take and retain extracts from, such a document or copy.

             (2)  The Minister may retain possession of a copy of a document produced in accordance with a requirement covered by paragraph 18(1)(c).

26  Minister may retain documents

             (1)  The Minister may, for the purposes of this Act, take, and retain for as long as is necessary for those purposes, possession of a document produced under this Division.

             (2)  The person otherwise entitled to possession of the document is entitled to be supplied, as soon as practicable, with a copy certified by the Minister to be a true copy.

             (3)  The certified copy must be received in all courts and tribunals as evidence as if it were the original.

             (4)  Until a certified copy is supplied, the Minister must, at such times and places as the Minister thinks appropriate, permit the person otherwise entitled to possession of the document, or a person authorised by that person, to inspect and make copies of, or take extracts from, the document.

27  Division binds the Crown

             (1)  This Division binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory.

             (2)  Nothing in this Division permits the Crown in right of the Commonwealth, of a State, of the Australian Capital Territory or of the Northern Territory to be prosecuted for an offence.


 

Division 3Visas for non-citizens

Subdivision AGeneral provisions about visas

28  Interpretation

                   In this Division:

specified period includes the period until a specified date.

29  Visas

             (1)  Subject to this Act, the Minister may grant a non-citizen permission, to be known as a visa, to do either or both of the following:

                     (a)  travel to and enter Australia;

                     (b)  remain in Australia.

             (2)  Without limiting subsection (1), a visa to travel to, enter and remain in Australia may be one to:

                     (a)  travel to and enter Australia during a prescribed or specified period; and

                     (b)  if, and only if, the holder travels to and enters during that period, remain in Australia during a prescribed or specified period or indefinitely.

             (3)  Without limiting subsection (1), a visa to travel to, enter and remain in Australia may be one to:

                     (a)  travel to and enter Australia during a prescribed or specified period; and

                     (b)  if, and only if, the holder travels to and enters during that period:

                              (i)  remain in it during a prescribed or specified period or indefinitely; and

                             (ii)  if the holder leaves Australia during a prescribed or specified period, travel to and re-enter it during a prescribed or specified period.

             (4)  Without limiting section 83 (person taken to be included in visa), the regulations may provide for a visa being held by 2 or more persons.

30  Kinds of visas

             (1)  A visa to remain in Australia (whether also a visa to travel to and enter Australia) may be a visa, to be known as a permanent visa, to remain indefinitely.

             (2)  A visa to remain in Australia (whether also a visa to travel to and enter Australia) may be a visa, to be known as a temporary visa, to remain:

                     (a)  during a specified period; or

                     (b)  until a specified event happens; or

                     (c)  while the holder has a specified status.

31  Classes of visas

             (1)  There are to be prescribed classes of visas.

             (2)  As well as the prescribed classes, there are the classes provided for by sections 32, 33, 34, 35, 36, 37, 37A and 38.

             (3)  The regulations may prescribe criteria for a visa or visas of a specified class (which, without limiting the generality of this subsection, may be a class provided for by section 32, 36, 37 or 37A but not by section 33, 34, 35 or 38).

             (4)  The regulations may prescribe whether visas of a class are visas to travel to and enter Australia, or to remain in Australia, or both.

             (5)  A visa is a visa of a particular class if this Act or the regulations specify that it is a visa of that class.

32  Special category visas

             (1)  There is a class of temporary visas to be known as special category visas.

             (2)  A criterion for a special category visa is that the Minister is satisfied the applicant is:

                     (a)  a non-citizen:

                              (i)  who is a New Zealand citizen and holds, and has shown an officer, 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.

33  Special purpose visas

             (1)  There is a class of temporary visas to travel to, enter and remain in Australia, to be known as special purpose visas.

             (2)  Subject to subsection (3), a non-citizen is taken to have been granted a special purpose visa if:

                     (a)  the non-citizen:

                              (i)  has a prescribed status; or

                             (ii)  is a member of a class of persons that has a prescribed status; or

                     (b)  the Minister declares, in writing, that:

                              (i)  the non-citizen is taken to have been granted a special purpose visa; or

                             (ii)  persons of a class, of which the non-citizen is a member, are taken to have been granted special purpose visas.

             (3)  A non-citizen is not taken to have been granted a special purpose visa if a declaration under subsection (9) is in force in relation to the non-citizen or a class of persons of which the non-citizen is a member.

             (4)  A special purpose visa granted under subsection (2) is granted at the beginning of the later or latest of the following days:

                     (a)  if paragraph (2)(a) applies:

                              (i)  the day the non-citizen commences to have the prescribed status;

                             (ii)  the day the class of persons, of which the non-citizen is a member, commences to have the prescribed status;

                            (iii)  the day the non-citizen commences to be a member of the class of persons that has a prescribed status;

                     (b)  if paragraph (2)(b) applies:

                              (i)  the day the declaration is made;

                             (ii)  if a day is specified in the declaration as the day the visa comes into effect—that day;

                            (iii)  the day the non-citizen commences to be a member of the class of persons specified in the declaration.

             (5)  A special purpose visa ceases to be in effect at the end of the earlier or earliest of the following days:

                     (a)  if paragraph (2)(a) applies:

                              (i)  if the non-citizen ceases to have a prescribed status—the day the non-citizen so ceases;

                             (ii)  if the non-citizen ceases to be a member of a class of persons that has a prescribed status—the day the non-citizen so ceases;

                            (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 day that declaration is made;

                     (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—that day;

                             (ii)  if an event is specified in the declaration as the event that causes the visa to cease to be in effect—the day the event happens;

                            (iii)  if the non-citizen ceases to be a member of a class of persons specified in the declaration—the day the non-citizen so ceases;

                            (iv)  if the declaration is revoked—the day of the revocation;

                             (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 day that declaration is made.

             (6)  If the Minister makes a declaration under paragraph (2)(b), he or she is to cause to be laid before each House of the Parliament a statement that:

                     (a)  sets out the contents of the declaration; and

                     (b)  sets out the Minister’s reasons for the declaration.

             (7)  A statement under subsection (6) is not to include:

                     (a)  the name of the non-citizen; or

                     (b)  if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned—the name of that other person.

             (8)  A statement under subsection (6) is to be laid before each House of the Parliament within 15 sitting days of that House after:

                     (a)  if the declaration is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or

                     (b)  if the declaration is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.

             (9)  The Minister may make a written declaration, for the purposes of this section, that it is undesirable that a person, or any persons in a class of persons, travel to and enter Australia or remain in Australia.

           (10)  Section 43 and Subdivisions AA, AB, AC (other than section 68), AE, AG, AH, C, D, E, F and H do not apply in relation to special purpose visas.

34  Absorbed person visas

             (1)  There is a class of permanent visas to remain in, but not re-enter, Australia, to be known as absorbed person visas.

             (2)  A non-citizen in the migration zone who:

                     (a)  on 2 April 1984 was in Australia; and

                     (b)  before that date, had ceased to be an immigrant; and

                     (c)  on or after that date, has not left Australia, where left Australia has the meaning it had in this Act before 1 September 1994; and

                     (d)  immediately before 1 September 1994, was not a person to whom section 20 of this Act as in force then applied;

is taken to have been granted an absorbed person visa on 1 September 1994.

             (3)  Subdivisions AA, AB, AC (other than section 68), AE and AH do not apply in relation to absorbed person visas.

35  Ex-citizen visas

             (1)  There is a class of permanent visas to remain in, but not re-enter, Australia, to be known as ex-citizen visas.

             (2)  A person who:

                     (a)  before 1 September 1994, ceased to be an Australian citizen while in the migration zone; and

                     (b)  did not leave Australia after ceasing to be a citizen and before that date;

is taken to have been granted an ex-citizen visa on that date.

             (3)  A person who, on or after 1 September 1994, ceases to be an Australian citizen while in the migration zone is taken to have been granted an ex-citizen visa when that citizenship ceases.

             (4)  Subdivisions AA, AB, AC (other than section 68), AE and AH do not apply in relation to ex-citizen visas.

36  Protection visas

             (1)  There is a class of visas to be known as protection visas.

Note:          See also Subdivision AL.

             (2)  A criterion for a protection visa is that the applicant for the visa is:

                     (a)  a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

                     (b)  a non-citizen in Australia who is the spouse or a dependant of a non-citizen who:

                              (i)  is mentioned in paragraph (a); and

                             (ii)  holds a protection visa.

Protection obligations

             (3)  Australia is taken not to have protection obligations to a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.

             (4)  However, if the non-citizen has a well-founded fear of being persecuted in a country for reasons of race, religion, nationality, membership of a particular social group or political opinion, subsection (3) does not apply in relation to that country.

             (5)  Also, if the non-citizen has a well-founded fear that:

                     (a)  a country will return the non-citizen to another country; and

                     (b)  the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion;

subsection (3) does not apply in relation to the first-mentioned country.

Determining nationality

             (6)  For the purposes of subsection (3), the question of whether a non-citizen is a national of a particular country must be determined solely by reference to the law of that country.

             (7)  Subsection (6) does not, by implication, affect the interpretation of any other provision of this Act.

37  Bridging visas

                   There are classes of temporary visas, to be known as bridging visas, to be granted under Subdivision AF.

37A  Temporary safe haven visas

             (1)  There is a class of temporary visas to travel to, enter and remain in Australia, to be known as temporary safe haven visas.

Note:          A temporary safe haven visa is granted to a person to give the person temporary safe haven in Australia.

             (2)  The Minister may, by notice in the Gazette, extend the visa period of a temporary safe haven visa so that the visa ceases to be in effect on the day specified in the notice.

             (3)  The Minister may, by notice in the Gazette, shorten the visa period of a temporary safe haven visa so that the visa ceases to be in effect on the day specified in the notice if, in the Minister’s opinion, temporary safe haven in Australia is no longer necessary for the holder of the visa because of changes of a fundamental, durable and stable nature in the country concerned.

             (4)  If a notice under subsection (3) is published in the Gazette, the Minister must cause a copy of the notice to be laid before each House of the Parliament within 3 sitting days of that House after the publication of the notice, together with a statement that sets out the reasons for the notice, referring in particular to the Minister’s reasons for thinking that changes of a fundamental, durable and stable nature have occurred in the country concerned.

             (5)  If a notice under subsection (2) or (3) is published in the Gazette and has not been revoked, then the visa ceases to be in effect on the day specified in the notice, despite any other provision of this Act.

             (6)  The Minister does not have a duty to consider whether to exercise the power under subsection (2) in respect of any non-citizen, whether he or she is requested to do so by the non-citizen or by any other person, or in any other circumstances.

             (7)  In this section:

country concerned means the country or countries in which the circumstances exist that give rise to the grant of temporary safe haven visas.

38  Criminal justice visas

                   There is a class of temporary visas, to be known as criminal justice visas, to be granted under Subdivision D of Division 4.

38A  Enforcement visas

                   There is a class of temporary visas to travel to, enter and remain in Australia, to be known as enforcement visas.

Note:          Division 4A deals with these visas.

39  Criterion limiting number of visas

             (1)  In spite of section 49A of the Acts Interpretation Act 1901, 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 notice published in the Gazette, as the maximum number of such visas that may be granted in that year (however the criterion is expressed).

             (2)  For the purposes of this Act, when a criterion allowed by subsection (1) prevents the grant in a financial year of any more visas of a particular class, any outstanding applications for the grant in that year of visas of that class are taken not to have been made.

40  Circumstances for granting visas

             (1)  The regulations may provide that visas or visas of a specified class may only be granted in specified circumstances.

             (2)  Without limiting subsection (1), the circumstances may be, or may include, that, when the person is granted the visa, the person:

                     (a)  is outside Australia; or

                     (b)  is in immigration clearance; or

                     (c)  has been refused immigration clearance and has not subsequently been immigration cleared; or

                     (d)  is in the migration zone and, on last entering Australia:

                              (i)  was immigration cleared; or

                             (ii)  bypassed immigration clearance and had not subsequently been immigration cleared.

             (3)  Without limiting subsection (1), if:

                     (a)  prescribed circumstances exist; and

                     (b)  the Minister has not waived the operation of this subsection in relation to granting the visa to the person;

the circumstances under subsection (1) may be, or may include, that the person has complied with any requirement of an officer to provide one or more personal identifiers in relation to the application for the visa.

          (3A)  An officer must not require, for the purposes of subsection (3), a person to provide a personal identifier other than:

                     (a)  if the person is an applicant for a protection visa—any of the following (including any of the following in digital form):

                              (i)  fingerprints or handprints of the person (including those taken using paper and ink or digital livescanning technologies);

                             (ii)  a photograph or other image of the person’s face and shoulders;

                            (iii)  an audio or a video recording of the person;

                            (iv)  an iris scan;

                             (v)  the person’s signature;

                            (vi)  any other personal identifier contained in the person’s passport or other travel document;

                           (vii)  any other personal identifier of a type prescribed for the purposes of paragraph (3C)(a); or

                     (b)  if the person is an applicant for a temporary safe haven visa within the meaning of section 37A, or any other visa of a class that the regulations designate as a class of humanitarian visas—any of the following (including any of the following in digital form):

                              (i)  fingerprints or handprints of the person (including those taken using paper and ink or digital livescanning technologies);

                             (ii)  a photograph or other image of the person’s face and shoulders;

                            (iii)  an iris scan;

                            (iv)  the person’s signature;

                             (v)  any other personal identifier contained in the person’s passport or other travel document;

                            (vi)  any other personal identifier of a type prescribed for the purposes of paragraph (3C)(a); or

                     (c)  if paragraphs (a) and (b) do not apply—any of the following (including any of the following in digital form):

                              (i)  a photograph or other image of the person’s face and shoulders;

                             (ii)  the person’s signature;

                            (iii)  any other personal identifier contained in the person’s passport or other travel document;

                            (iv)  any other personal identifier of a type prescribed for the purposes of paragraph (3C)(a).

Note:          Division 13AB sets out further restrictions on the personal identifiers that minors and incapable persons can be required to provide.

          (3B)  In requiring, for the purposes of subsection (3), a person to provide a personal identifier, an officer must not contravene regulations made for the purposes of paragraph (3C)(b).

          (3C)  The regulations:

                     (a)  may prescribe other types of personal identifiers; and

                     (b)  may provide that a particular personal identifier referred to in subsection (3A), or a particular combination of such personal identifiers, must not be required except in the circumstances prescribed for the purposes of this paragraph.

             (4)  A person is taken not to have complied with a requirement referred to in subsection (3) unless the one or more personal identifiers are provided to an authorised officer by way of one or more identification tests carried out by an authorised officer.

Note:          If the types of identification tests that the authorised officer may carry out are specified under section 5D, then each identification test must be of a type so specified.

             (5)  However, subsection (4) does not apply, in circumstances prescribed for the purposes of this subsection, if the personal identifier is of a prescribed type and the person:

                     (a)  provides a personal identifier otherwise than by way of an identification test carried out by an authorised officer; and

                     (b)  complies with any further requirements that are prescribed relating to the provision of the personal identifier.

41  Conditions on visas

             (1)  The regulations may provide that visas, or visas of a specified class, are subject to specified conditions.

             (2)  Without limiting subsection (1), the regulations may provide that a visa, or visas of a specified class, are subject to:

                     (a)  a condition that, despite anything else in this Act, the holder of the visa will not, after entering Australia, be entitled to be granted a substantive visa (other than a protection visa, or a temporary visa of a specified kind) while he or she remains in Australia; or

                     (b)  a condition imposing restrictions about the work that may be done in Australia by the holder, which, without limiting the generality of this paragraph, may be restrictions on doing:

                              (i)  any work; or

                             (ii)  work other than specified work; or

                            (iii)  work of a specified kind.

          (2A)  The Minister may, in prescribed circumstances, by writing, waive a condition of a kind described in paragraph (2)(a) to which a particular visa is subject under regulations made for the purposes of that paragraph or under subsection (3).

             (3)  In addition to any conditions specified under subsection (1), the Minister may specify that a visa is subject to such conditions as are permitted by the regulations for the purposes of this subsection.

42  Visa essential for travel

             (1)  Subject to subsections (2), (2A) and (3), a non-citizen must not travel to Australia without a visa that is in effect.

             (2)  Subsection (1) does not apply to an allowed inhabitant of the Protected Zone travelling to a protected area in connection with traditional activities.

          (2A)  Subsection (1) does not apply to a non-citizen in relation to travel to Australia:

                     (a)  if the travel is by a New Zealand citizen who holds and produces a New Zealand passport that is in force; or

                     (b)  if the travel is by a non-citizen who holds and produces a passport that is in force and is endorsed with an authority to reside indefinitely on Norfolk Island; or

                     (c)  if:

                              (i)  the non-citizen is brought to the migration zone under subsection 245F(9) of this Act or 185(3A) of the Customs Act 1901; and

                             (ii)  the non-citizen is a person who would, if in the migration zone, be an unlawful non-citizen; or

                    (ca)  the non-citizen is brought to Australia under section 198B; or

                     (d)  if:

                              (i)  the non-citizen has been removed under section 198 to another country but has been refused entry by that country; and

                             (ii)  the non-citizen travels to Australia as a direct result of that refusal; and

                            (iii)  the non-citizen is a person who would, if in the migration zone, be an unlawful non-citizen; or

                     (e)  if:

                              (i)  the non-citizen has been removed under section 198; and

                             (ii)  before the removal the High Court, the Federal Court or the Federal Magistrates Court had made an order in relation to the non-citizen, or the Minister had given an undertaking to the High Court, the Federal Court or the Federal Magistrates Court in relation to the non-citizen; and

                            (iii)  the non-citizen’s travel to Australia is required in order to give effect to the order or undertaking; and

                            (iv)  the Minister has made a declaration that this paragraph is to apply in relation to the non-citizen’s travel; and

                             (v)  the non-citizen is a person who would, if in the migration zone, be an unlawful non-citizen; or

                      (f)  if:

                              (i)  the travel is from Norfolk Island to Australia; and

                             (ii)  the Minister has made a declaration that this paragraph is to apply in relation to the non-citizen’s travel; and

                            (iii)  the non-citizen is a person who would, if in the migration zone, be an unlawful non-citizen.

             (3)  The regulations may permit a specified non-citizen or a non-citizen in a specified class to travel to Australia without a visa that is in effect.

             (4)  Nothing in subsection (2A) or (3) is to be taken to affect the non-citizen’s status in the migration zone as an unlawful non-citizen.

Note:          Section 189 provides that an unlawful non-citizen in the migration zone must be detained.

43  Visa holders must usually enter at a port

             (1)  Subject to subsection (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.

             (2)  For the purposes of subsection (1), a holder who travels to and enters Australia on an aircraft is taken to have entered Australia when that aircraft lands.

             (3)  This section does not apply to:

                     (a)  the holder of an enforcement visa; or

                     (b)  an Australian resident entering Australia on a foreign boat as a result of a fisheries officer:

                              (i)  making a requirement of the boat’s master under subparagraph 84(1)(k)(ii) or paragraph 84(1)(l) of the Fisheries Management Act 1991; or

                             (ii)  exercising his or her power under paragraph 84(1)(m) of that Act in relation to the boat;

                            because a fisheries officer had reasonable grounds to believe that the boat was used, or was intended to be used, in the commission of a fisheries detention offence.

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.

master has the same meaning as in the Fisheries Management Act 1991.

             (5)  The references in subsection (3) to subparagraph 84(1)(k)(ii) and paragraphs 84(1)(l) and (m) of the Fisheries Management Act 1991 are to those provisions:

                     (a)  as they apply of their own force; and

                     (b)  as they apply because of section 87B, 87C or 87D of that Act.

Subdivision AAApplications for visas

44  Extent of following Subdivisions

             (1)  This Subdivision and the later Subdivisions of this Division, other than this section, Subdivision AG and subsection 138(1), do not apply to criminal justice visas.

             (2)  This Subdivision and the later Subdivisions of this Division, other than this section and Subdivision AG, do not apply to enforcement visas.

45  Application for visa

             (1)  Subject to this Act and the regulations, a non-citizen who wants a visa must apply for a visa of a particular class.

45A  Visa application charge

                   A non-citizen who makes an application for a visa is liable to pay visa application charge if, assuming the charge were paid, the application would be a valid visa application.

45B  Amount of visa application charge

             (1)  The amount of visa application charge is the amount, not exceeding the visa application charge limit, prescribed in relation to the application.

Note:          The visa application charge limit is determined under the Migration (Visa Application) Charge Act 1997.

             (2)  The amount prescribed in relation to an application may be nil.

             (3)  The Minister must publish the Contributory Parent Visa Composite Index (within the meaning of the Migration (Visa Application) Charge Act 1997) for a financial year in the Gazette before the start of the financial year.

Note:          The Contributory Parent Visa Composite Index affects the visa application charge limit in relation to contributory parent visas (within the meaning of the Migration (Visa Application) Charge Act 1997).

             (4)  If the Contributory Parent Visa Composite Index for a financial year is not published as required by subsection (3), it is not to be taken, merely because of that fact, to be invalid or to be a figure other than that published by the Australian Government Actuary for the financial year.

45C  Regulations about visa application charge

             (1)  The regulations may:

                     (a)  provide that visa application charge may be payable in instalments; and

                     (b)  specify how those instalments are to be calculated; and

                     (c)  specify when instalments are payable.

             (2)  The regulations may also:

                     (a)  make provision for and in relation to:

                              (i)  the recovery of visa application charge in relation to visa applications; or

                             (ii)  the way, including the currency, in which visa application charge is to be paid; or

                            (iii)  working out how much visa application charge is to be paid; or

                            (iv)  the time when visa application charge is to be paid; or

                             (v)  the persons who may be paid visa application charge on behalf of the Commonwealth; or

                     (b)  make provision for the remission, refund or waiver of visa application charge or an amount of visa application charge; or

                     (c)  make provision for exempting persons from the payment of visa application charge or an amount of visa application charge; or

                     (d)  make provision for crediting visa application charge, or an amount of visa application charge, paid in respect of one application against visa application charge payable in respect of another application.

46  Valid visa application

             (1)  Subject to subsections (1A), (2) and (2A), an application for a visa is valid if, and only if:

                     (a)  it is for a visa of a class specified in the application; and

                     (b)  it satisfies the criteria and requirements prescribed under this section; and

                    (ba)  subject to the regulations providing otherwise, any visa application charge that the regulations require to be paid at the time when the application is made, has been paid; and

                     (c)  any fees payable in respect of it under the regulations have been paid; and

                     (d)  it is not prevented by section 48 (visa refused or cancelled earlier), 48A (protection visa), 91E (CPA and safe third countries), 91K (temporary safe haven visa), 91P (non-citizens with access to protection from third countries), 161 (criminal justice), 164D (enforcement visa), 195 (detainees) or 501E (visa refused or cancelled on character grounds).

          (1A)  Subject to subsection (2), an application for a visa is invalid if:

                     (a)  the applicant is in the migration zone; and

                     (b)  since last entering Australia, the applicant has held a visa subject to a condition described in paragraph 41(2)(a); and

                     (c)  the Minister has not waived that condition under subsection 41(2A); and

                     (d)  the application is for a visa of a kind that, under that condition, the applicant is not or was not entitled to be granted.

             (2)  Subject to subsection (2A), an application for a visa is valid if:

                     (a)  it is an application for a visa of a class prescribed for the purposes of this subsection; and

                     (b)  under the regulations, the application is taken to have been validly made.

          (2A)  An application for a visa is invalid if:

                     (a)  prescribed circumstances exist; and

                    (aa)  the Minister has not waived the operation of this subsection in relation to the application for the visa; and

                    (ab)  the applicant has been required by an officer to provide one or more personal identifiers in relation to the application; and

                     (b)  the applicant has not complied with the requirement.

Note:          An invalid application for a visa cannot give rise to an obligation under section 65 to grant a visa: see subsection 47(3).

       (2AA)  An officer must not require, for the purposes of paragraph (2A)(ab), a person to provide a personal identifier other than:

                     (a)  if the person is an applicant for a protection visa—any of the following (including any of the following in digital form):

                              (i)  fingerprints or handprints of the person (including those taken using paper and ink or digital livescanning technologies);

                             (ii)  a photograph or other image of the person’s face and shoulders;

                            (iii)  an audio or a video recording of the person;

                            (iv)  an iris scan;

                             (v)  the person’s signature;

                            (vi)  any other personal identifier contained in the person’s passport or other travel document;

                           (vii)  any other personal identifier of a type prescribed for the purposes of paragraph (2AC)(a); or

                     (b)  if the person is an applicant for a temporary safe haven visa within the meaning of section 37A, or any other visa of a class that the regulations designate as a class of humanitarian visas—any of the following (including any of the following in digital form):

                              (i)  fingerprints or handprints of the person (including those taken using paper and ink or digital livescanning technologies);

                             (ii)  a photograph or other image of the person’s face and shoulders;

                            (iii)  an iris scan;

                            (iv)  the person’s signature;

                             (v)  any other personal identifier contained in the person’s passport or other travel document;

                            (vi)  any other personal identifier of a type prescribed for the purposes of paragraph (2AC)(a); or

                     (c)  if paragraphs (a) and (b) do not apply—any of the following (including any of the following in digital form):

                              (i)  a photograph or other image of the person’s face and shoulders;

                             (ii)  the person’s signature;

                            (iii)  any other personal identifier contained in the person’s passport or other travel document;

                            (iv)  any other personal identifier of a type prescribed for the purposes of paragraph (2AC)(a).

Note:          Division 13AB sets out further restrictions on the personal identifiers that minors and incapable persons can be required to provide.

        (2AB)  In requiring, for the purposes of paragraph (2A)(ab), a person to provide a personal identifier, an officer must not contravene regulations made for the purposes of paragraph (2AC)(b).

        (2AC)  The regulations:

                     (a)  may prescribe other types of personal identifiers; and

                     (b)  may provide that a particular personal identifier referred to in subsection (2AA), or a particular combination of such personal identifiers, must not be required except in the circumstances prescribed for the purposes of this paragraph.

          (2B)  The applicant is taken not to have complied with a requirement referred to in paragraph (2A)(ab) unless the one or more personal identifiers are provided by way of one or more identification tests carried out by an authorised officer.

Note:          If the types of identification tests that the authorised officer may carry out are specified under section 5D, then each identification test must be of a type so specified.

          (2C)  However, subsection (2B) does not apply, in circumstances prescribed for the purposes of this subsection, if the personal identifier is of a prescribed type and the applicant:

                     (a)  provides a personal identifier otherwise than by way of an identification test carried out by an authorised officer; and

                     (b)  complies with any further requirements that are prescribed relating to the provision of the personal identifier.

             (3)  The regulations may prescribe criteria that must be satisfied for an application for a visa of a specified class to be a valid application.

             (4)  Without limiting subsection (3), the regulations may also prescribe:

                     (a)  the circumstances that must exist for an application for a visa of a specified class to be a valid application; and

                     (b)  how an application for a visa of a specified class must be made; and

                     (c)  where an application for a visa of a specified class must be made; and

                     (d)  where an applicant must be when an application for a visa of a specified class is made.

46A  Visa applications by offshore entry persons

             (1)  An application for a visa is not a valid application if it is made by an offshore entry person who:

                     (a)  is in Australia; and

                     (b)  is an unlawful non-citizen.

             (2)  If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to an offshore entry person, determine that subsection (1) does not apply to an application by the person for a visa of a class specified in the determination.

             (3)  The power under subsection (2) may only be exercised by the Minister personally.

             (4)  If the Minister makes a determination under subsection (2), the Minister must cause to be laid before each House of the Parliament a statement that:

                     (a)  sets out the determination; and

                     (b)  sets out the reasons for the determination, referring in particular to the Minister’s reasons for thinking that the Minister’s actions are in the public interest.

             (5)  A statement under subsection (4) must not include:

                     (a)  the name of the offshore entry person; or

                     (b)  any information that may identify the offshore entry person; or

                     (c)  if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned—the name of that other person or any information that may identify that other person.

             (6)  A statement under subsection (4) must be laid before each House of the Parliament within 15 sitting days of that House after:

                     (a)  if the determination is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or

                     (b)  if the determination is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.

             (7)  The Minister does not have a duty to consider whether to exercise the power under subsection (2) in respect of any offshore entry person whether the Minister is requested to do so by the offshore entry person or by any other person, or in any other circumstances.

46B  Visa applications by transitory persons

             (1)  An application for a visa is not a valid application if it is made by a transitory person who:

                     (a)  is in Australia; and

                     (b)  is an unlawful non-citizen.

             (2)  If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a transitory person, determine that subsection (1) does not apply to an application by the person for a visa of a class specified in the determination.

             (3)  The power under subsection (2) may only be exercised by the Minister personally.

             (4)  If the Minister makes a determination under subsection (2), the Minister must cause to be laid before each House of the Parliament a statement that:

                     (a)  sets out the determination; and

                     (b)  sets out the reasons for the determination, referring in particular to the Minister’s reasons for thinking that the Minister’s actions are in the public interest.

             (5)  A statement under subsection (4) must not include:

                     (a)  the name of the transitory person; or

                     (b)  any information that may identify the transitory person; or

                     (c)  if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned—the name of that other person or any information that may identify that other person.

             (6)  A statement under subsection (4) must be laid before each House of the Parliament within 15 sitting days of that House after:

                     (a)  if the determination is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or

                     (b)  if the determination is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.

             (7)  The Minister does not have a duty to consider whether to exercise the power under subsection (2) in respect of any transitory person whether the Minister is requested to do so by the transitory person or by any other person, or in any other circumstances.

47  Consideration of valid visa application

             (1)  The Minister is to consider a valid application for a visa.

             (2)  The requirement to consider an application for a visa continues until:

                     (a)  the application is withdrawn; or

                     (b)  the Minister grants or refuses to grant the visa; or

                     (c)  the further consideration is prevented by section 39 (limiting number of visas) or 84 (suspension of consideration).

             (3)  To avoid doubt, the Minister is not to consider an application that is not a valid application.

             (4)  To avoid doubt, a decision by the Minister that an application is not valid and cannot be considered is not a decision to refuse to grant the visa.

48  Non-citizen refused a visa or whose visa cancelled may only apply for particular visas

             (1)  A non-citizen in the migration zone who:

                     (a)  does not hold a substantive visa; and

                     (b)  either:

                              (i)  after last entering Australia, was refused a visa, other than a refusal of a bridging visa or a refusal under section 501, 501A or 501B, for which the non-citizen had applied (whether or not the application has been finally determined); or

                             (ii)  held a visa that was cancelled under section 109 (incorrect information), 116 (general power to cancel), 134 (business visas), 137J (student visas) or 137Q (regional sponsored employment visas);

may, subject to the regulations, apply for a visa of a class prescribed for the purposes of this section, but not for a visa of any other class.

             (2)  For the purposes of this section, a non-citizen who:

                     (a)  has been removed from the migration zone under section 198; and

                     (b)  is again in the migration zone as a result of travel to Australia that is covered by paragraph 42(2A)(d) or (e);

is taken to have been continuously in the migration zone despite the removal referred to in paragraph (a).

Note:          Paragraphs 42(2A)(d) and (e) cover limited situations where people are returned to Australia despite their removal under section 198.

48A  Non-citizen refused a protection visa may not make further application for protection visa

             (1)  Subject to section 48B, a non-citizen who, while in the migration zone, has made:

                     (a)  an application for a protection visa, where the grant of the visa has been refused (whether or not the application has been finally determined); or

                     (b)  applications for protection visas, where the grants of the visas have been refused (whether or not the applications have been finally determined);

may not make a further application for a protection visa while in the migration zone.

          (1A)  For the purposes of this section, a non-citizen who:

                     (a)  has been removed from the migration zone under section 198; and

                     (b)  is again in the migration zone as a result of travel to Australia that is covered by paragraph 42(2A)(d) or (e);

is taken to have been continuously in the migration zone despite the removal referred to in paragraph (a).

Note:          Paragraphs 42(2A)(d) and (e) cover limited situations where people are returned to Australia despite their removal under section 198.

          (1B)  Subject to section 48B, a non-citizen in the migration zone who held a protection visa that was cancelled may not make a further application for a protection visa while in the migration zone.

             (2)  In this section:

application for a protection visa includes:

                    (aa)  an application for a visa, a criterion for which is that the applicant is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; and

                    (ab)  an application for a visa, a criterion for which is that the applicant is a non-citizen in Australia who is the spouse or a dependant of a non-citizen in Australia:

                              (i)  to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; and

                             (ii)  who holds a protection visa; and

                     (a)  an application for a visa, or entry permit (within the meaning of this Act as in force immediately before 1 September 1994), a criterion for which is that the applicant is a non-citizen who has been determined to be a refugee under the Refugees Convention as amended by the Refugees Protocol; and

                     (b)  an application for a decision that a non-citizen is a refugee under the Refugees Convention as amended by the Refugees Protocol; and

                     (c)  an application covered by paragraph (a) or (b) that is also covered by section 39 of the Migration Reform Act 1992.

48B  Minister may determine that section 48A does not apply to non-citizen

             (1)  If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a particular non-citizen, determine that section 48A does not apply to prevent an application for a protection visa made by the non-citizen in the period starting when the notice is given and ending at the end of the seventh working day after the day on which the notice is given.

             (2)  The power under subsection (1) may only be exercised by the Minister personally.

             (3)  If the Minister makes a determination under subsection (1), he or she is to cause to be laid before each House of the Parliament a statement that:

                     (a)  sets out the determination; and

                     (b)  sets out the reasons for the determination, referring in particular to the Minister’s reasons for thinking that his or her actions are in the public interest.

             (4)  A statement under subsection (3) is not to include:

                     (a)  the name of the non-citizen; or

                     (b)  any information that may identify the non-citizen; or

                     (c)  if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned—the name of that other person or any information that may identify that other person.

             (5)  A statement under subsection (3) is to laid before each House of the Parliament within 15 sitting days of that House after:

                     (a)  if the determination is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or

                     (b)  if the determination is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.

             (6)  The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any non-citizen, whether he or she is requested to do so by the non-citizen or by any other person, or in any other circumstances.

49  Withdrawal of visa application

             (1)  An applicant for a visa may, by written notice given to the Minister, withdraw the application.

             (2)  An application that is withdrawn is taken to have been disposed of.

             (3)  For the purposes of sections 48 and 48A, the Minister is not taken to have refused to grant the visa if the application is withdrawn before the refusal.

             (4)  Subject to the regulations, fees payable in respect of an application that is withdrawn are not refundable.

50  Only new information to be considered in later protection visa applications

                   If a non-citizen who has made:

                     (a)  an application for a protection visa, where the grant of the visa has been refused and the application has been finally determined; or

                     (b)  applications for protection visas, where the grants of the visas have been refused and the applications have been finally determined;

makes a further application for a protection visa, the Minister, in considering the further application:

                     (c)  is not required to reconsider any information considered in the earlier application or an earlier application; and

                     (d)  may have regard to, and take to be correct, any decision that the Minister made about or because of that information.

Note:          Section 48A prevents repeat applications for protection visas in most circumstances where the applicant is in the migration zone.

51  Order of consideration

             (1)  The Minister may consider and dispose of applications for visas in such order as he or she considers appropriate.

             (2)  The fact that an application has not yet been considered or disposed of although an application that was made later has been considered or disposed of does not mean that the consideration or disposal of the earlier application is unreasonably delayed.

Subdivision ABCode 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:       If a person gives the Minister notice under section 494D, documents that would have been given to the person will be given to the person’s authorised recipient.

             (4)  In this section, interested person means a person who wants, or who is requested, to give information about the applicant to the Minister.

54  Minister must have regard to all information in application

             (1)  The Minister must, in deciding whether to grant or refuse to grant a visa, have regard to all of the information in the application.

             (2)  For the purposes of subsection (1), information is in an application if the information is:

                     (a)  set out in the application; or

                     (b)  in a document attached to the application when it is made; or

                     (c)  given under section 55.

             (3)  Without limiting subsection (1), a decision to grant or refuse to grant a visa may be made without giving the applicant an opportunity to make oral or written submissions.

55  Further information may be given

             (1)  Until the Minister has made a decision whether to grant or refuse to grant a visa, the applicant may give the Minister any additional relevant information and the Minister must have regard to that information in making the decision.

             (2)  Subsection (1) does not mean that the Minister is required to delay making a decision because the applicant might give, or has told the Minister that the applicant intends to give, further information.

56  Further information may be sought

             (1)  In considering an application for a visa, the Minister may, if he or she wants to, get any information that he or she considers relevant but, if the Minister gets such information, the Minister must have regard to that information in making the decision whether to grant or refuse the visa.

             (2)  Without limiting subsection (1), the Minister may invite, orally or in writing, the applicant for a visa to give additional information in a specified way.

57  Certain information must be given to applicant

             (1)  In this section, relevant information means information (other than non-disclosable information) that the Minister considers:

                     (a)  would be the reason, or a part of the reason, for refusing to grant a visa; and

                     (b)  is specifically about the applicant or another person and is not just about a class of persons of which the applicant or other person is a member; and

                     (c)  was not given by the applicant for the purpose of the application.

             (2)  Subject to subsection (3), the Minister must:

                     (a)  give particulars of the relevant information to the applicant in the way that the Minister considers appropriate in the circumstances; and

                     (b)  ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to consideration of the application; and

                     (c)  invite the applicant to comment on it.

             (3)  This section does not apply in relation to an application for a visa unless:

                     (a)  the visa can be granted when the applicant is in the migration zone; and

                     (b)  this Act provides, under Part 5 or 7, for an application for review of a decision to refuse to grant the visa.

58  Invitation to give further information or comments

             (1)  If a person is:

                     (a)  invited under section 56 to give additional information; or

                     (b)  invited under section 57 to comment on information;

the invitation is to specify whether the additional information or the comments may be given:

                     (c)  in writing; or

                     (d)  at an interview between the applicant and an officer; or

                     (e)  by telephone.

             (2)  Subject to subsection (4), if the invitation is to give additional information or comments otherwise than at an interview, the information or comments are to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period.

             (3)  Subject to subsection (5), if the invitation is to give information or comments at an interview, the interview is to take place:

                     (a)  at a place specified in the invitation, being a prescribed place or if no place is prescribed, a reasonable place; and

                     (b)  at a time specified in the invitation, being a time within a prescribed period or, if no period is prescribed, a reasonable period.

             (4)  If a person is to respond to an invitation within a prescribed period, that period may be extended by the Minister for a prescribed further period, and then the response is to be made in the extended period.

             (5)  If a person is to respond to an invitation at an interview at a time within a prescribed period, that time may be changed by the Minister to:

                     (a)  a later time within that period; or

                     (b)  a time within that period as extended by the Minister for a prescribed further period;

and then the response is to be made at an interview at the new time.

59  Interviews

             (1)  An applicant must make every reasonable effort to be available for, and attend, an interview.

             (2)  Section 58 and this section do not mean that the Minister cannot obtain information from an applicant by telephone or in any other way.

60  Medical examination

             (1)  If the health or physical or mental condition of an applicant for a visa is relevant to the grant of a visa, the Minister may require the applicant to visit, and be examined by, a specified person, being a person qualified to determine the applicant’s health, physical condition or mental condition, at a specified reasonable time and specified reasonable place.

             (2)  An applicant must make every reasonable effort to be available for, and attend, an examination.

61  Prescribed periods

                   If this Subdivision requires or allows the regulations to prescribe a period or other time limit relating to a step in considering an application for a visa, the regulations may prescribe different limits relating to that step and specify when that specified limit is to apply, which, without limiting the generality of the power, may be to:

                     (a)  applications for a visa of a specified class; or

                     (b)  applications in specified circumstances; or

                     (c)  applicants in a specified class of persons; or

                     (d)  applicants in a specified class of persons in specified circumstances.

62  Failure to receive information not require action

             (1)  If an applicant for a visa:

                     (a)  is invited to give additional information; and

                     (b)  does not give the information before the time for giving it has passed;

the Minister may make a decision to grant or refuse to grant the visa without taking any action to obtain the additional information.

             (2)  If an applicant for a visa:

                     (a)  is invited to comment on information; and

                     (b)  does not give the comments before the time for giving them has passed;

the Minister may make a decision to grant or refuse to grant the visa without taking any further action to obtain the applicant’s views on the information.

63  When decision about visa may be made

             (1)  Subject to sections 39 (criterion limiting number of visas), 57 (give applicant information), 84 (no further processing), 86 (effect of limit on visas) and 94 (put aside under points system) and subsections (2) and (3) of this section, the Minister may grant or refuse to grant a visa at any time after the application has been made.

             (2)  The Minister is not to refuse to grant a visa after inviting the applicant to give information and before whichever of the following happens first:

                     (a)  the information is given;

                     (b)  the applicant tells the Minister that the applicant does not wish to give the information or does not have it;

                     (c)  the time in which the information may be given ends.

             (3)  The Minister is not to refuse to grant a visa after inviting the applicant to comment on information and before whichever of the following happens first:

                     (a)  the comments are given;

                     (b)  the applicant tells the Minister that the applicant does not wish to comment;

                     (c)  the time in which the comments are to be given ends.

             (4)  The Minister is not to refuse to grant a visa after giving a notice under section 64 and before whichever of the following happens first:

                     (a)  the applicant pays the visa application charge; or

                     (b)  the applicant tells the Minister that the applicant does not intend to pay the visa application charge; or

                     (c)  the end of the period set out in the notice.

64  Notice that visa application charge is payable

             (1)  This section applies to a valid application for a visa if the Minister, after considering the application, has made an assessment that:

                     (a)  the health criteria for it (if any) have been satisfied; and

                     (b)  the other criteria for it, prescribed by this Act or the regulations, have been satisfied.

             (2)  If this section applies and an amount of visa application charge is unpaid, the Minister must give the applicant written notice stating that:

                     (a)  an amount of visa application charge is payable within the prescribed period; and

                     (b)  subject to the regulations providing otherwise, a visa cannot be granted unless that amount is paid; and

                     (c)  the Minister may refuse to grant the visa unless that amount is paid within the prescribed period.

             (3)  If, in accordance with the regulations, 2 or more non-citizens apply for a visa together, the Minister may give notices under this section in the same document.

Subdivision ACGrant of visas

65  Decision to grant or refuse to grant visa

             (1)  After considering a valid application for a visa, the Minister:

                     (a)  if satisfied that:

                              (i)  the health criteria for it (if any) have been satisfied; and

                             (ii)  the other criteria for it prescribed by this Act or the regulations have been satisfied; and

                            (iii)  the grant of the visa is not prevented by section 40 (circumstances when granted), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and

                            (iv)  any amount of visa application charge payable in relation to the application has been paid;

                            is to grant the visa; or

                     (b)  if not so satisfied, is to refuse to grant the visa.

             (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).

66  Notification of decision

             (1)  When the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way.

             (2)  Notification of a decision to refuse an application for a visa must:

                     (a)  if the grant of the visa was refused because the applicant did not satisfy a criterion for the visa—specify that criterion; and

                     (b)  if the grant of the visa was refused because a provision of this Act or the regulations prevented the grant of the visa—specify that provision; and

                     (c)  unless subsection (3) applies to the application—give written reasons (other than non-disclosable information) why the criterion was not satisfied or the provision prevented the grant of the visa; and

                     (d)  if the applicant has a right to have the decision reviewed under Part 5 or 7 or section 500—state:

                              (i)  that the decision can be reviewed; and

                             (ii)  the time in which the application for review may be made; and

                            (iii)  who can apply for the review; and

                            (iv)  where the application for review can be made.

             (3)  This subsection applies to an application for a visa if:

                     (a)  the visa is a visa that cannot be granted while the applicant is in the migration zone; and

                     (b)  this Act does not provide, under Part 5 or 7, for an application for review of a decision to refuse to grant the visa.

             (4)  Failure to give notification of a decision does not affect the validity of the decision.

             (5)  This section does not apply to a decision under section 501, 501A, 501B or 501F to refuse to grant a visa to a person.

Note:          Sections 501C and 501G provide for notification of a decision under section 501, 501A, 501B or 501F to refuse to grant a visa to a person.

67  Way visa granted

                   A visa is to be granted by the Minister causing a record of it to be made.

68  When visa is in effect

             (1)  Subject to subsection (2), a visa has effect as soon as it is granted.

             (2)  A visa may provide that it comes into effect at the beginning of a day, being a day after its grant:

                     (a)  specified in the visa; or

                     (b)  when an event, specified in the visa, happens.

             (3)  A visa can only be in effect during the visa period for the visa.

             (4)  A bridging visa (the reactivated bridging visa), held by a non-citizen, that has ceased to be in effect under subsection 82(3), will come into effect again during the visa period for the visa if:

                     (a)  the non-citizen does not hold a substantive visa that is in effect; and

                     (b)  either:

                              (i)  the non-citizen does not hold any other bridging visa; or

                             (ii)  the reactivated bridging visa is determined, in accordance with the regulations, to be the most beneficial of the bridging visas held by the applicant.

69  Effect of compliance or non-compliance

             (1)  Non-compliance by the Minister with Subdivision AA or AB or section 494D in relation to a visa application does not mean that a decision to grant or refuse to grant the visa is not a valid decision but only means that the decision might have been the wrong one and might be set aside if reviewed.

             (2)  If the Minister deals with a visa application in a way that complies with Subdivision AA, AB and this Subdivision, the Minister is not required to take any other action in dealing with it.

Subdivision AEEvidence of visas

70  Evidence of visa

                   Subject to the regulations, if a non-citizen is granted a visa, an officer is to give the non-citizen evidence of the visa.

71  Ways of giving evidence

             (1)  Evidence of a visa is to be given in a way prescribed for giving the evidence.

             (2)  The regulations may provide that the way in which evidence of a visa or a visa of a class is to be given is to depend on the circumstances in which it is given.

             (3)  If a regulation provides that evidence of a non-citizen’s visa may be given by endorsing a valid passport or other valid travel document issued to the non-citizen or another non-citizen associated with him or her, the Minister may direct that a specified document is not to be taken to be a passport or travel document for the purposes of the regulation.

Subdivision AFBridging visas

72  Interpretation

             (1)  In this Subdivision:

eligible non-citizen means a non-citizen who:

                     (a)  has been immigration cleared; or

                     (b)  is in a prescribed class of persons; or

                     (c)  the Minister has determined to be an eligible non-citizen.

             (2)  The Minister may make a determination under paragraph (1)(c) that a non-citizen is an eligible non-citizen if:

                     (a)  the non-citizen was an unlawful non-citizen when he or she entered the migration zone; and

                     (b)  the non-citizen made a valid application for a protection visa after he or she arrived in Australia; and

                     (c)  the non-citizen has been in immigration detention for a period of more than 6 months after the application for a protection visa was made; and

                     (d)  the Minister has not made a primary decision in relation to the application for a protection visa; and

                     (e)  the Minister thinks that the determination would be in the public interest.

             (3)  The power to make a determination under paragraph (1)(c) may only be exercised by the Minister personally.

             (4)  If the Minister makes a determination under paragraph (1)(c), he or she is to cause to be laid before each House of the Parliament a statement that:

                     (a)  sets out the determination; and

                     (b)  sets out the reasons for the determination, referring in particular to the Minister’s reasons for thinking that his or her actions are in the public interest.

             (5)  A statement made under subsection (4) is not to include:

                     (a)  the name of any non-citizen who is the subject of the determination; or

                     (b)  any information that may identify the non-citizen; or

                     (c)  if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned—the name of that other person, or any information that may identify the person.

             (6)  A statement under subsection (4) is to be laid before each House of the Parliament within 15 sitting days of that House after:

                     (a)  if the determination is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or

                     (b)  if the determination is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.

             (7)  The Minister does not have a duty to consider whether to make a determination under paragraph (1)(c) in respect of any non-citizen, whether he or she is requested to do so by the non-citizen or any other person, or in any other circumstances.

73  Bridging visas

                   If the Minister is satisfied that an eligible non-citizen satisfies the criteria for a bridging visa as prescribed under subsection 31(3), the Minister may grant a bridging visa permitting the non-citizen to remain in, or to travel to, enter and remain in Australia:

                     (a)  during a specified period; or

                     (b)  until a specified event happens.

74  Further applications for bridging visa

             (1)  Subject to subsection (2), if:

                     (a)  an eligible non-citizen who is in immigration detention makes an application for a bridging visa; and

                     (b)  the Minister refuses to grant the visa;

the eligible non-citizen may make a further application for a bridging visa.

             (2)  Unless the further application for a bridging visa is made in prescribed circumstances, the further application may be made not earlier than 30 days after:

                     (a)  if the eligible non-citizen did not make an application for review of the decision to refuse to grant the visa—the refusal; or

                     (b)  if the eligible non-citizen made an application for such review—the application is finally determined.

75  When eligible non-citizen in immigration detention granted visa

             (1)  If:

                     (a)  an eligible non-citizen who is in immigration detention makes an application for a bridging visa of a prescribed class; and

                     (b)  the Minister does not make a decision, within the prescribed period, to grant or refuse to grant the bridging visa;

the non-citizen is taken to have been granted a bridging visa of the prescribed class on prescribed conditions (if any) at the end of that period.

             (2)  The period in subsection (1) may be extended in relation to a particular application by agreement between the applicant and the Minister.

76  Bridging visa not affect visa applications

             (1)  The fact that a non-citizen holds a bridging visa does not prevent or affect:

                     (a)  an application by the non-citizen for a visa of another class; or

                     (b)  the grant of such a visa.

             (2)  To avoid doubt, the holding by a non-citizen of a bridging visa is not to be taken to be, for the purposes of an application for a visa of another class, the holding of a visa.

Subdivision AGOther provisions about visas

77  Visas held during visa period

                   To avoid doubt, for the purposes of this Act, a non-citizen holds a visa at all times during the visa period for the visa.

78  Children born in Australia

             (1)  If:

                     (a)  a child born in Australia is a non-citizen when born; and

                     (b)  at the time of the birth:

                              (i)  one of the child’s parents holds a visa (other than a special purpose visa); and

                             (ii)  the other parent is, under section 83, included in that visa or does not hold a visa (other than a special purpose visa);

the child is taken to have been granted, at the time of the birth, a visa of the same kind and class and on the same terms and conditions (if any) as that visa.

             (2)  If:

                     (a)  a child born in Australia is a non-citizen when born; and

                     (b)  at the time of the birth, each of the child’s parents holds a visa (other than a special purpose visa);

the child is taken to have been granted, at the time of the birth, visas of the same kind and class and on the same terms and conditions (if any) as each of those visas.

             (3)  Subdivisions AA, AB, AC (other than section 68), AE and AH do not apply in relation to visas granted under this section.

79  Effect on visa of leaving Australia

                   If the holder of a visa leaves Australia the holder may only re-enter Australia because of the visa if:

                     (a)  the visa is permission for the re-entry; and

                     (b)  the visa is in effect on re-entry.

80  Certain persons taken not to leave Australia

                   A person is taken not to leave Australia if the person goes outside the migration zone on a vessel and:

                     (a)  does not go (other than for transit purposes) to a foreign country; and

                     (b)  remains a passenger, or a member of the crew, of that vessel while outside the migration zone; and

                     (c)  is outside the migration zone for no longer than the prescribed period.

81  Extent of visa authority

             (1)  A visa to travel to Australia during a period is not permission to travel to it outside that period.

             (2)  A visa to enter Australia within a period is not permission to so enter outside that period.

             (3)  A visa to remain in Australia during a period is not permission to so remain outside that period.

82  When visas cease to be in effect

             (1)  A visa that is cancelled ceases to be in effect on cancellation.

             (2)  A substantive visa held by a non-citizen ceases to be in effect if another substantive visa (other than a special purpose visa) for the non-citizen comes into effect.

          (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) 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.

             (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 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; and

                     (b)  the person accompanies his or her spouse 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 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.

             (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.

84  Minister may suspend processing of visa applications

             (1)  The Minister may, by notice in the Gazette, determine that dealing with applications for visas of a specified class is to stop until a day specified in the notice (in this section called the resumption day).

             (2)  Where a notice under subsection (1) is published in the Gazette, no act is to be done in relation to any application for a visa of the class concerned until the resumption day.

             (3)  A notice under this section does not have any effect in relation to an application for a visa made by a person on the ground that he or she is the spouse or dependent child of:

                     (a)  an Australian citizen; or

                     (b)  the holder of a permanent visa that is in effect; or

                     (c)  a person who is usually resident in Australia and whose continued presence in Australia is not subject to a limitation as to time imposed by law.

             (4)  Nothing in this section prevents an act being done to implement a decision to grant or to refuse to grant a visa if the decision had been made before the date of the notice concerned.

             (5)  For the purposes of this section, a child of a person is a dependent child if the child:

                     (a)  is unmarried; and

                     (b)  either:

                              (i)  is under 18; or

                             (ii)  is 18, 19 or 20 and is dependent on the person for:

                                        (A)  financial and psychological support; or

                                        (B)  physical support.

             (6)  In this section:

act means an act connected with performing functions or exercising powers under or for the purposes of this Act.

Subdivision AHLimit on visas

85  Limit on visas

                   The Minister may, by notice in the Gazette, determine the maximum number of:

                     (a)  the visas of a specified class; or

                     (b)  the visas of specified classes;

that may be granted in a specified financial year.

86  Effect of limit

                   If:

                     (a)  there is a determination of the maximum number of visas of a class or classes that may be granted in a financial year; and

                     (b)  the number of visas of the class or classes granted in the year reaches that maximum number;

no more visas of the class or classes may be granted in the year.

87  Limit does not prevent visas for certain persons

             (1)  Section 86 does not prevent the grant of a visa to a person who applied for it on the ground that he or she is the spouse 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)  is unmarried; and

                     (b)  either:

                              (i)  is under 18; or

                             (ii)  is 18, 19 or 20 and is dependent on the person for:

                                        (A)  financial and psychological support; or

                                        (B)  physical support.

87A  Limit does not prevent the grant of visas to certain people who are unable to meet health or character requirements before the limit applies because of circumstances beyond their control

                   If:

                     (a)  a person has applied, whether before or after the commencement of this section, for the grant of a visa; and

                     (b)  a time was or is reached when the grant of the visa to the person in a particular financial year was or is prevented by section 86; and

                     (c)  the person was requested by the Minister after that time to satisfy requirements for the grant of the visa that relate to health or character; and

                     (d)  after the making of the request referred to in paragraph (c) the person satisfies the requirements referred to in that paragraph in a financial year subsequent to the financial year in which the time referred to in paragraph (b) occurred; and

                     (e)  the grant of the visa to the person at the time when the requirements referred to in paragraph (c) are satisfied would, apart from this section, be prevented by section 86; and

                      (f)  the person was unable to satisfy the requirements referred to in paragraph (c) at a time when, apart from this section, section 86 would not have prevented the grant of the visa to the person; and

                     (g)  the Minister is satisfied that the person’s inability to satisfy the requirements referred to in paragraph (c) at a time mentioned in paragraph (e) was due to circumstances beyond the person’s control;

section 86 does not prevent the grant of the visa to the person.

88  Limit does not affect processing of applications

                   Section 86’s prevention of the grant of a visa does not prevent any other action related to the application for it.

89  Determination of limit not to mean failure to decide

                   The fact that the Minister has neither granted nor refused to grant a visa of a class or classes to which a determination under section 85 applies does not mean, for any purpose, that the Minister has failed to make a decision to grant or refuse to grant the visa.

90  Order of dealing with limited visas

                   The fact that an application for a visa of a class or classes to which a determination under section 85 applies has not been considered or disposed of although an application for another visa of the class or classes that was made later has been considered or disposed of does not mean, for any purpose, that the consideration or disposal of the earlier application is unreasonably delayed.

91  Order of dealing with visas

                   If a determination under section 85 applies, or has applied, to visas of a class or classes, the Minister may consider or, subject to section 86, dispose of outstanding and further applications for such visas in such order as he or she considers appropriate.

Subdivision AISafe third countries

91A  Reason for Subdivision

                   This Subdivision is enacted because the Parliament considers that certain non-citizens who are covered by the CPA, or in relation to whom there is a safe third country, should not be allowed to apply for a protection visa or, in some cases, any other visa. Any such non-citizen who is an unlawful non-citizen will be subject to removal under Division 8.

91B  Interpretation

             (1)  In this Subdivision:

agreement includes a written arrangement or understanding, whether or not binding.

CPA means the Comprehensive Plan of Action approved by the International Conference on Indo-Chinese Refugees, held at Geneva, Switzerland, from 13 to 14 June 1989.

             (2)  For the purposes of this Subdivision, if, apart from this section:

                     (a)  a colony, overseas territory or protectorate of a foreign country; or

                     (b)  an overseas territory for the international relations of which a foreign country is responsible;

is not a country in its own right, the colony, territory or protectorate is taken to be a country in its own right.

91C  Non-citizens covered by Subdivision

             (1)  This Subdivision applies to a non-citizen at a particular time if:

                     (a)  the non-citizen is in Australia at that time; and

                     (b)  at that time, the non-citizen is covered by:

                              (i)  the CPA; or

                             (ii)  an agreement, relating to persons seeking asylum, between Australia and a country that is, or countries that include a country that is, at that time, a safe third country in relation to the non-citizen (see section 91D); and

                     (c)  the non-citizen is not excluded by the regulations from the application of this Subdivision.

             (2)  To avoid doubt, a country does not need to be prescribed as a safe third country at the time that the agreement referred to in subparagraph (1)(b)(ii) is made.

91D  Safe third countries

             (1)  A country is a safe third country in relation to a non-citizen if:

                     (a)  the country is prescribed as a safe third country in relation to the non-citizen, or in relation to a class of persons of which the non-citizen is a member; and

                     (b)  the non-citizen has a prescribed connection with the country.

             (2)  Without limiting paragraph (1)(b), the regulations may provide that a person has a prescribed connection with a country if:

                     (a)  the person is or was present in the country at a particular time or at any time during a particular period; or

                     (b)  the person has a right to enter and reside in the country (however that right arose or is expressed).

             (3)  The Minister must, within 2 sitting days after a regulation under paragraph (1)(a) is laid before a House of the Parliament, cause to be laid before that House a statement, covering the country, or each of the countries, prescribed as a safe third country by the regulation, about:

                     (a)  the compliance by the country, or each of the countries, with relevant international law concerning the protection of persons seeking asylum; and

                     (b)  the meeting by the country, or each of the countries, of relevant human rights standards for the persons in relation to whom the country is prescribed as a safe third country; and

                     (c)  the willingness of the country, or each of the countries, to allow any person in relation to whom the country is prescribed as a safe third country:

                              (i)  to go to the country; and

                             (ii)  to remain in the country during the period in which any claim by the person for asylum is determined; and

                            (iii)  if the person is determined to be a refugee while in the country—to remain in the country until a durable solution relating to the permanent settlement of the person is found.

             (4)  A regulation made for the purposes of paragraph (1)(a) ceases to be in force at the end of 2 years after the regulation commences.

91E  Non-citizens to which this Subdivision applies unable to make valid applications for certain visas

                   Despite any other provision of this Act, if this Subdivision applies to a non-citizen at a particular time and, at that time, the non-citizen applies, or purports to apply, for a protection visa then, subject to section 91F:

                     (a)  if the non-citizen has not been immigration cleared at that time—neither that application nor any other application made by the non-citizen for a visa is a valid application; or

                     (b)  if the non-citizen has been immigration cleared at that
time—neither that application nor any other application made by the non-citizen for a protection visa is a valid application.

91F  Minister may determine that section 91E does not apply to non-citizen

             (1)  If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a particular non-citizen, determine:

                     (a)  that section 91E does not apply to an application for a visa made by the non-citizen in the period starting when the notice is given and ending at the end of the seventh working day after the day that the notice is given; or

                     (b)  that section 91G does not apply to an application for a visa made by the non-citizen during the transitional period referred to in that section.

             (2)  The power under subsection (1) may only be exercised by the Minister personally.

             (3)  If the Minister makes a determination under subsection (1), he or she is to cause to be laid before each House of the Parliament a statement that:

                     (a)  sets out the determination; and

                     (b)  sets out the reasons for the determination, referring in particular to the Minister’s reasons for thinking that his or her actions are in the public interest.

             (4)  A statement under subsection (3) is not to include:

                     (a)  the name of the non-citizen; or

                     (b)  any information that may identify the non-citizen; or

                     (c)  if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned—the name of that other person or any information that may identify that other person.

             (5)  A statement under subsection (3) is to be laid before each House of the Parliament within 15 sitting days of that House after:

                     (a)  if the determination is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or

                     (b)  if the determination is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.

             (6)  The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any non-citizen, whether he or she is requested to do so by the non-citizen or by any other person, or in any other circumstances.

91G  Applications made before regulations take effect

             (1)  Subject to section 91F and subsection (3), if:

                     (a)  this Subdivision applies to a non-citizen immediately after a regulation prescribing a country as a safe third country takes effect and did not apply to the non-citizen immediately before that time; and

                     (b)  the regulation prescribes a day as the cut off day; and

                     (c)  during the period (the transitional period) from the beginning of the cut off day until immediately before that regulation takes effect, the non-citizen made an application for a protection visa;

then:

                     (d)  if the non-citizen had not been immigration cleared at the time of making the application—that application, and any other application made by the non-citizen for a visa made during the transitional period, ceases to be a valid application when the regulation takes effect; and

                     (e)  if the non-citizen had been immigration cleared at the time of making the application—that application, and any other application made by the non-citizen for a protection visa made during the transitional period, ceases to be a valid application when the regulation takes effect; and

                      (f)  on and after the regulation takes effect, this Act applies as if the non-citizen had applied for a protection visa immediately after the regulation takes effect.

             (2)  To avoid doubt:

                     (a)  paragraphs (1)(d) and (e) apply even if an application referred to in the paragraph concerned, or a decision in relation to such an application, is the subject of a review by, or an appeal or application to, the Migration Review Tribunal, the Refugee Review Tribunal, the Administrative Appeals Tribunal, a Federal Court or any other body or court; and

                     (b)  no visa may be granted to the non-citizen as a direct, or indirect, result of such an application.

             (3)  Subsection (1) does not apply in relation to a non-citizen who, before the regulation referred to in that subsection takes effect, has:

                     (a)  been granted a substantive visa as a result of an application referred to in that subsection; or

                     (b)  been determined under this Act to be a non-citizen who satisfies the criterion mentioned in subsection 36(2).

             (4)  The cut off day specified in the regulation must not be:

                     (a)  before a day on which the Minister, by notice in the Gazette, announces that he or she intends that such a regulation will be made; or

                     (b)  more than 6 months before the regulation takes effect.

Subdivision AJTemporary safe haven visas

91H  Reason for this Subdivision

                   This Subdivision is enacted because the Parliament considers that a non-citizen who holds a temporary safe haven visa, or who has not left Australia since ceasing to hold such a visa, should not be allowed to apply for a visa other than another temporary safe haven visa. Any such non-citizen who ceases to hold a visa will be subject to removal under Division 8.

Note:          For temporary safe haven visas, see section 37A.

91J  Non-citizens to whom this Subdivision applies

                   This Subdivision applies to a non-citizen in Australia at a particular time if, at that time, the non-citizen:

                     (a)  holds a temporary safe haven visa; or

                     (b)  has not left Australia since ceasing to hold a temporary safe haven visa.

91K  Non-citizens to whom this Subdivision applies are unable to make valid applications for certain visas

                   Despite any other provision of this Act but subject to section 91L, if this Subdivision applies to a non-citizen at a particular time and, at that time, the non-citizen applies, or purports to apply, for a visa (other than a temporary safe haven visa), then that application is not a valid application.

91L  Minister may determine that section 91K does not apply to a non-citizen

             (1)  If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a particular non-citizen, determine that section 91K does not apply to an application for a visa made by the non-citizen in the period starting when the notice is given and ending at the end of the seventh working day after the day that the notice is given.

             (2)  The power under subsection (1) may only be exercised by the Minister personally.

             (3)  If the Minister makes a determination under subsection (1), he or she is to cause to be laid before each House of the Parliament a statement that:

                     (a)  sets out the determination; and

                     (b)  sets out the reasons for the determination, referring in particular to the Minister’s reasons for thinking that his or her actions are in the public interest.

             (4)  A statement under subsection (3) is not to include:

                     (a)  the name of the non-citizen; or

                     (b)  any information that may identify the non-citizen; or

                     (c)  if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned—the name of that other person or any information that may identify that other person.

             (5)  A statement under subsection (3) is to be laid before each House of the Parliament within 15 sitting days of that House after:

                     (a)  if the determination is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or

                     (b)  if the determination is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.

             (6)  The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any non-citizen, whether he or she is requested to do so by the non-citizen or by any other person, or in any other circumstances.

Subdivision AKNon-citizens with access to protection from third countries

91M  Reason for this Subdivision

                   This Subdivision is enacted because the Parliament considers that a non-citizen who can avail himself or herself of protection from a third country, because of nationality or some other right to re-enter and reside in the third country, should seek protection from the third country instead of applying in Australia for a protection visa, or, in some cases, any other visa. Any such non-citizen who is an unlawful non-citizen will be subject to removal under Division 8.

Note:          For protection visas, see section 36.

91N  Non-citizens to whom this Subdivision applies

             (1)  This Subdivision applies to a non-citizen at a particular time if, at that time, the non-citizen is a national of 2 or more countries.

             (2)  This Subdivision also applies to a non-citizen at a particular time if, at that time:

                     (a)  the non-citizen has a right to re-enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country (the available country) apart from:

                              (i)  Australia; or

                             (ii)  a country of which the non-citizen is a national; or

                            (iii)  if the non-citizen has no country of nationality—the country of which the non-citizen is an habitual resident; and

                     (b)  the non-citizen has ever resided in the available country for a continuous period of at least 7 days or, if the regulations prescribe a longer continuous period, for at least that longer period; and

                     (c)  a declaration by the Minister is in effect under subsection (3) in relation to the available country.

             (3)  The Minister may, after considering any advice received from the Office of the United Nations High Commissioner for Refugees:

                     (a)  declare in writing that a specified country:

                              (i)  provides access, for persons seeking asylum, to effective procedures for assessing their need for protection; and

                             (ii)  provides protection to persons to whom that country has protection obligations; and

                            (iii)  meets relevant human rights standards for persons to whom that country has protection obligations; or

                     (b)  in writing, revoke a declaration made under paragraph (a).

             (4)  A declaration made under paragraph (3)(a):

                     (a)  takes effect when it is made by the Minister; and

                     (b)  ceases to be in effect if and when it is revoked by the Minister under paragraph (3)(b).

             (5)  The Minister must cause a copy of a declaration, or of a revocation of a declaration, to be laid before each House of the Parliament within 2 sitting days of that House after the Minister makes the declaration or revokes the declaration.

Determining nationality

             (6)  For the purposes of this section, the question of whether a non-citizen is a national of a particular country must be determined solely by reference to the law of that country.

             (7)  Subsection (6) does not, by implication, affect the interpretation of any other provision of this Act.

91P  Non-citizens to whom this Subdivision applies are unable to make valid applications for certain visas

             (1)  Despite any other provision of this Act but subject to section 91Q, if:

                     (a)  this Subdivision applies to a non-citizen at a particular time; and

                     (b)  at that time, the non-citizen applies, or purports to apply, for a visa; and

                     (c)  the non-citizen is in the migration zone and has not been immigration cleared at that time;

neither that application, nor any other application the non-citizen makes for a visa while he or she remains in the migration zone, is a valid application.

             (2)  Despite any other provision of this Act but subject to section 91Q, if:

                     (a)  this Subdivision applies to a non-citizen at a particular time; and

                     (b)  at that time, the non-citizen applies, or purports to apply, for a protection visa; and

                     (c)  the non-citizen is in the migration zone and has been immigration cleared at that time;

neither that application, nor any other application made by the non-citizen for a protection visa while he or she remains in the migration zone, is a valid application.

91Q  Minister may determine that section 91P does not apply to a non-citizen

             (1)  If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a particular non-citizen, determine that section 91P does not apply to an application for a visa made by the non-citizen in the period starting when the notice is given and ending at the end of the seventh working day after the day that the notice is given.

             (2)  For the purposes of subsection (1), the matters that the Minister may consider include information that raises the possibility that, although the non-citizen satisfies the description set out in subsection 91N(1) or (2), the non-citizen might not be able to avail himself or herself of protection from the country, or any of the countries, by reference to which the non-citizen satisfies that description.

             (3)  The power under subsection (1) may only be exercised by the Minister personally.

             (4)  If the Minister makes a determination under subsection (1), he or she is to cause to be laid before each House of the Parliament a statement that:

                     (a)  sets out the determination; and

                     (b)  sets out the reasons for the determination, referring in particular to the Minister’s reasons for thinking that his or her actions are in the public interest.

             (5)  A statement under subsection (4) is not to include:

                     (a)  the name of the non-citizen; or

                     (b)  any information that may identify the non-citizen; or

                     (c)  if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned—the name of that other person or any information that may identify that other person.

             (6)  A statement under subsection (4) is to be laid before each House of the Parliament within 15 sitting days of that House after:

                     (a)  if the determination is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or

                     (b)  if the determination is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.

             (7)  The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any non-citizen, whether he or she is requested to do so by the non-citizen or by any other person, or in any other circumstances.

Subdivision ALOther provisions about protection visas

91R  Persecution

             (1)  For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:

                     (a)  that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and

                     (b)  the persecution involves serious harm to the person; and

                     (c)  the persecution involves systematic and discriminatory conduct.

             (2)  Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:

                     (a)  a threat to the person’s life or liberty;

                     (b)  significant physical harassment of the person;

                     (c)  significant physical ill-treatment of the person;

                     (d)  significant economic hardship that threatens the person’s capacity to subsist;

                     (e)  denial of access to basic services, where the denial threatens the person’s capacity to subsist;

                      (f)  denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

             (3)  For the purposes of the application of this Act and the regulations to a particular person:

                     (a)  in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;

disregard any conduct engaged in by the person in Australia unless:

                     (b)  the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.

91S  Membership of a particular social group

                   For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well-founded fear of being persecuted for the reason of membership of a particular social group that consists of the first person’s family:

                     (a)  disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol; and

                     (b)  disregard any fear of persecution, or any persecution, that:

                              (i)  the first person has ever experienced; or

                             (ii)  any other member or former member (whether alive or dead) of the family has ever experienced;

                            where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

91T  Non-political crime

             (1)  For the purposes of the application of this Act and the regulations to a particular person, Article 1F of the Refugees Convention as amended by the Refugees Protocol has effect as if the reference in that Article to a non-political crime were a reference to a crime where the person’s motives for committing the crime were wholly or mainly non-political in nature.

             (2)  Subsection (1) has effect subject to subsection (3).

             (3)  For the purposes of the application of this Act and the regulations to a particular person, Article 1F of the Refugees Convention as amended by the Refugees Protocol has effect as if the reference in that Article to a non-political crime included a reference to an offence that, under paragraph (a), (b), (c) or (d) of the definition of political offence in section 5 of the Extradition Act 1988, is not a political offence in relation to a country for the purposes of that Act.

91U  Particularly serious crime

             (1)  For the purposes of the application of this Act and the regulations to a particular person, Article 33(2) of the Refugees Convention as amended by the Refugees Protocol has effect as if a reference in that Article to a particularly serious crime included a reference to a crime that consists of the commission of:

                     (a)  a serious Australian offence (as defined by subsection (2)); or

                     (b)  a serious foreign offence (as defined by subsection (3)).

             (2)  For the purposes of this section, a serious Australian offence is an offence against a law in force in Australia, where:

                     (a)  the offence:

                              (i)  involves violence against a person; or

                             (ii)  is a serious drug offence; or

                            (iii)  involves serious damage to property; or

                            (iv)  is an offence against section 197A or 197B (offences relating to immigration detention); and

                     (b)  the offence is punishable by:

                              (i)  imprisonment for life; or

                             (ii)  imprisonment for a fixed term of not less than 3 years; or

                            (iii)  imprisonment for a maximum term of not less than 3 years.

             (3)  For the purposes of this section, a serious foreign offence is an offence against a law in force in a foreign country, where:

                     (a)  the offence:

                              (i)  involves violence against a person; or

                             (ii)  is a serious drug offence; or

                            (iii)  involves serious damage to property; and

                     (b)  if it were assumed that the act or omission constituting the offence had taken place in the Australian Capital Territory, the act or omission would have constituted an offence (the Territory offence) against a law in force in that Territory, and the Territory offence would have been punishable by:

                              (i)  imprisonment for life; or

                             (ii)  imprisonment for a fixed term of not less than 3 years; or

                            (iii)  imprisonment for a maximum term of not less than 3 years.

91V  Verification of information

Applicant for protection visa

             (1)  If an applicant for a protection visa has given information to the Minister or an officer in, or in connection with, the application for the visa, the Minister or an officer may, either orally or in writing, request the applicant to make an oral statement, on oath or affirmation, to the effect that the information is true.

             (2)  If:

                     (a)  the applicant has been given a request under subsection (1); and

                     (b)  the applicant refuses or fails to comply with the request; and

                     (c)  when the request was made, the applicant was given a warning, either orally or in writing, that the Minister may draw an inference unfavourable to the applicant’s credibility in the event that the applicant refuses or fails to comply with the request;

then, in making a decision whether to grant the protection visa to the applicant, the Minister may draw any reasonable inference unfavourable to the applicant’s credibility.

             (3)  If:

                     (a)  the applicant has been given a request under subsection (1); and

                     (b)  the applicant complies with the request; and

                     (c)  the Minister has reason to believe that, because of:

                              (i)  the manner in which the applicant complied with the request; or

                             (ii)  the applicant’s demeanour in relation to compliance with the request;

                            the applicant was not sincere;

then, in making a decision whether to grant the protection visa to the applicant, the Minister may draw any reasonable inference unfavourable to the applicant’s credibility.

Non-citizen refused immigration clearance

             (4)  If:

                     (a)  either:

                              (i)  a non-citizen gave information to an officer when the non-citizen was in immigration clearance, and the non-citizen is subsequently refused immigration clearance; or

                             (ii)  a non-citizen was refused immigration clearance and subsequently gave information to an officer; and

                     (b)  the information is relevant to the administration or enforcement of this Act or the regulations;

an officer may, either orally or in writing, request the non-citizen to make an oral statement, on oath or affirmation, to the effect that the information is true.

             (5)  If:

                     (a)  the non-citizen has been given a request under subsection (4); and

                     (b)  the non-citizen refuses or fails to comply with the request; and

                     (c)  when the request was made, the non-citizen was given a warning, either orally or in writing, that the Minister may draw an inference unfavourable to the non-citizen’s credibility in the event that the non-citizen refuses or fails to comply with the request;

then, in making a decision about the non-citizen under this Act or the regulations, the Minister may draw any reasonable inference unfavourable to the non-citizen’s credibility.

             (6)  If:

                     (a)  the non-citizen has been given a request under subsection (4); and

                     (b)  the non-citizen complies with the request; and

                     (c)  the Minister has reason to believe that, because of:

                              (i)  the manner in which the non-citizen complied with the request; or

                             (ii)  the non-citizen’s demeanour in relation to compliance with the request;

                            the non-citizen was not sincere;

then, in making a decision about the non-citizen under this Act or the regulations, the Minister may draw any reasonable inference unfavourable to the non-citizen’s credibility.

Officer

             (7)  A reference in this section to an officer includes a reference to a person who is a clearance officer within the meaning of section 165.

Oaths or affirmations

             (8)  The Minister or an officer may administer an oath or affirmation for the purposes of this section.

91W  Documentary evidence of identity, nationality or citizenship

             (1)  The Minister or an officer may, either orally or in writing, request an applicant for a protection visa to produce, for inspection by the Minister or the officer, documentary evidence of the applicant’s identity, nationality or citizenship.

             (2)  If:

                     (a)  the applicant has been given a request under subsection (1); and

                     (b)  the applicant refuses or fails to comply with the request; and

                     (c)  the applicant does not have a reasonable explanation for refusing or failing to comply with the request; and

                     (d)  when the request was made, the applicant was given a warning, either orally or in writing, that the Minister may draw an inference unfavourable to the applicant’s identity, nationality or citizenship in the event that the applicant refuses or fails to comply with the request;

then, in making a decision whether to grant the protection visa to the applicant, the Minister may draw any reasonable inference unfavourable to the applicant’s identity, nationality or citizenship.

91X  Names of applicants for protection visas not to be published by the High Court, the Federal Court or the Federal Magistrates Court

             (1)  This section applies to a proceeding before the High Court, the Federal Court or the Federal Magistrates Court if the proceeding relates to a person in the person’s capacity as:

                     (a)  a person who applied for a protection visa; or

                     (b)  a person who applied for a protection-related bridging visa; or

                     (c)  a person whose protection visa has been cancelled; or

                     (d)  a person whose protection-related bridging visa has been cancelled.

             (2)  The court must not publish (in electronic form or otherwise), in relation to the proceeding, the person’s name.

             (3)  In this section:

application for a protection-related bridging visa means an application for a bridging visa, where the applicant for the bridging visa is, or has been, an applicant for a protection visa.

proceeding means a proceeding in a court, whether between parties or not, and includes an incidental proceeding in the course of, or in connection with, a proceeding, and also includes an appeal.

protection-related bridging visa means a bridging visa granted as a result of an application for a protection-related bridging visa.

Subdivision BThe “points” system

92  Operation of Subdivision

                   This Subdivision has effect where one of the prescribed criteria in relation to a visa of a particular class is the criterion that the applicant receives the qualifying score when assessed as provided by this Subdivision.

93  Determination of applicant’s score

             (1)  The Minister shall make an assessment by giving the applicant the prescribed number of points for each prescribed qualification that is satisfied in relation to the applicant.

             (2)  In this section:

prescribed means prescribed by regulations in force at the time the assessment is made.

94  Initial application of “points” system

             (1)  An applicant whose assessed score is more than or equal to the applicable pass mark at the time when the score is assessed is taken to have received the qualifying score.

             (2)  An applicant whose assessed score is less than the applicable pool mark at the time when the score is assessed is taken not to have received the qualifying score.

             (3)  If an applicant’s assessed score is more than or equal to the applicable pool mark, but less than the applicable pass mark, at the time when the score is assessed:

                     (a)  the Minister must, unless the application is withdrawn, put the application aside and deal with it in accordance with section 95; and

                     (b)  if the Minister puts the application aside—the Minister is taken to have put the application into a pool.

             (4)  Where, in accordance with this section, the Minister puts an application aside, he or she shall be taken for all purposes not to have failed to make a decision to grant or refuse to grant a visa.

95  Applications in pool

When section applies

             (1)  This section applies if the Minister puts an application into a pool.

How applications to be dealt with

             (2)  If, within 12 months after the assessment of the applicant’s assessed score, the Minister gives a notice under section 96 varying the applicable pass mark or the applicable pool mark:

                     (a)  the Minister must, without re-assessing that score, compare that score with the applicable pass mark and the applicable pool mark; and

                     (b)  if that score is more than or equal to the applicable pass mark—the applicant is taken to have received the qualifying score; and

                     (c)  if that score is less than the applicable pool mark—the applicant is taken not to have received the qualifying score; and

                     (d)  if that score is more than or equal to the applicable pool mark but less than the applicable pass mark—the application remains in the pool until it is removed from the pool (see subsection (3)).

Removal of applications from pool

             (3)  An application in the pool is taken to have been removed from the pool at whichever is the earliest of the following times:

                     (a)  the end of 12 months after the assessment of the applicant’s assessed score;

                     (b)  the earliest time (if any) when the applicant is taken to have received the qualifying score as the result of the operation of subsection (2);

                     (c)  the earliest time (if any) when the applicant is taken not to have received the qualifying score as the result of the operation of subsection (2).

Removal from pool under paragraph (3)(a) treated as failure to receive qualifying score

             (4)  If an application is removed from the pool because of paragraph (3)(a), the applicant is taken not to have received the qualifying score.

Section to be subject to section 95A

             (5)  This section has effect subject to section 95A.

95A  Extension of period in pool

             (1)  This section applies to an application that:

                     (a)  is in the pool at the commencement of this section; or

                     (b)  is put in the pool after that commencement.

             (2)  Section 95 has effect in relation to the application as if references in subsections 95(2) and (3) to 12 months were references to 2 years.

96  Minister may set pool mark and pass mark

             (1)  The Minister may, from time to time, by notice in the Gazette, specify, in relation to a class of visas, the pool mark for the purposes of this Act and the regulations.

             (2)  The Minister may, from time to time, by notice in the Gazette, specify, in relation to applications for visas of a particular class, the pass mark for the purposes of this Act and the regulations.

             (3)  A notice under subsection (1) or (2) operates to revoke the previous notice under that subsection in relation to the same class of visas and also operates as a variation of the mark specified in the previous notice.

             (4)  The Minister shall cause copies of each notice under subsection (1) or (2) to be laid before each House of the Parliament within 15 sitting days of that House after the publication of the notice in the Gazette.

             (5)  This Act does not prevent a pool mark and a pass mark from being equal.

             (6)  This Act does not prevent a pool mark and a pass mark from being varied independently of each other.

Subdivision CVisas based on incorrect information may be cancelled

97  Interpretation

                   In this Subdivision:

application form, in relation to a non-citizen, means a form on which a non-citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

                     (a)  purports to have been, but was not, issued in respect of the person; or

                     (b)  is counterfeit or has been altered by a person who does not have authority to do so; or

                     (c)  was obtained because of a false or misleading statement, whether or not made knowingly.

passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

97A  Exhaustive statement of natural justice hearing rule

             (1)  This Subdivision is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

             (2)  Sections 494A to 494D, in so far as they relate to this Subdivision, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.

98  Completion of visa application

                   A non-citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

99  Information is answer

                   Any information that a non-citizen gives, causes to be given or that is given on his or her behalf to the Minister, an officer or a person or Tribunal reviewing a decision under this Act in relation to the non-citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non-citizen’s application form, whether the information is given orally or in writing and whether at an interview or otherwise.

100  Incorrect answers

                   For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave the answer or caused the answer to be given did not know that it was incorrect.

101  Visa applications to be correct

                   A non-citizen must fill in his or her application form in such a way that:

                     (a)  all questions on it are answered; and

                     (b)  no incorrect answers are given.

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

                   A non-citizen must not give an officer, the Minister, or a tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given.

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 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, 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 information is not affected by other sources of information

                   The requirement for a non-citizen to comply with sections 101, 102, 103, 104 and 105, is not removed or otherwise affected by the fact that the Minister or an officer had, or had access to:

                     (a)  any information given by the non-citizen for purposes unrelated to the non-citizen’s visa application; or

                     (b)  any other information.

107  Notice of incorrect applications

             (1)  If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

                     (a)  giving particulars of the possible non-compliance; and

                     (b)  stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

                              (i)  if the holder disputes that there was non-compliance:

                                        (A)  shows that there was compliance; and

                                        (B)  in case the Minister decides under section 108 that, in spite of the statement under sub-subparagraph (A), there was non-compliance—shows cause why the visa should not be cancelled; or

                             (ii)  if the holder accepts that there was non-compliance:

                                        (A)  give reasons for the non-compliance; and

                                        (B)  shows cause why the visa should not be cancelled; and

                     (c)  stating that the Minister will consider cancelling the visa:

                              (i)  if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

                             (ii)  if the holder gives the Minister a written response within that period—when the response is given; or

                            (iii)  otherwise—at the end of that period; and

                     (d)  setting out the effect of sections 108, 109, 111 and 112; and

                     (e)  informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

                      (f)  requiring the holder:

                              (i)  to tell the Minister the address at which the holder is living; and

                             (ii)  if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non-compliance by the holder—to tell the Minister the changed address.

          (1A)  The period to be stated in the notice under subsection (1) must be:

                     (a)  in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

                     (b)  otherwise—14 days.

          (1B)  Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

                     (a)  visas of a stated class; or

                     (b)  visa holders in stated circumstances; or

                     (c)  visa holders in a stated class of people (who may be visa holders in a particular place); or

                     (d)  visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

             (2)  If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

107A  Possible non-compliances in connection with a previous visa may be grounds for cancellation of current visa

                   The possible non-compliances that:

                     (a)  may be specified in a notice by the Minister under section 107 to a person who is the holder of a visa; and

                     (b)  if so specified, can constitute a ground for the cancellation of that visa under section 109;

include non-compliances that occurred at any time, including non-compliances in respect of any previous visa held by the person.

108  Decision about non-compliance

                   The Minister is to:

                     (a)  consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

                     (b)  decide whether there was non-compliance by the visa holder in the way described in the notice.

109  Cancellation of visa if information incorrect

             (1)  The Minister, after:

                     (a)  deciding under section 108 that there was non-compliance by the holder of a visa; and

                     (b)  considering any response to the notice about the non-compliance given in a way required by paragraph 107(1)(b); and

                     (c)  having regard to any prescribed circumstances;

may cancel the visa.

             (2)  If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

110  Cancellation provisions apply whatever source of knowledge of non-compliance

                   To avoid doubt, sections 107, 108 and 109 apply whether or not the Minister became aware of the non-compliance because of information given by the holder.

111  Cancellation provisions apply whether or not non-compliance deliberate

                   To avoid doubt, sections 107, 108 and 109 apply whether the non-compliance was deliberate or inadvertent.

112  Action because of one non-compliance not prevent action because of other non-compliance

             (1)  A notice under section 107 to a person because of an instance of possible non-compliance does not prevent another notice under that section to that person because of another instance of possible non-compliance.

             (2)  The non-cancellation of a visa under section 109 despite an instance of non-compliance does not prevent the cancellation, or steps for the cancellation, of the visa because of another instance of non-compliance.

113  No cancellation if full disclosure

                   If the holder of a visa who has been immigration cleared complied with sections 101, 102, 103, 104 and 105 in relation to the visa, it cannot be cancelled under this Subdivision because of any matter that was fully disclosed in so complying.

114  Effect of setting aside decision to cancel visa

             (1)  If the Federal Court, the Federal Magistrates Court, the Administrative Appeals Tribunal, the Migration Review Tribunal or the Refugee Review Tribunal sets aside a decision under section 109 to cancel a person’s visa, the visa is taken never to have been cancelled.

             (2)  In spite of subsection (1), any detention of the non-citizen between the purported cancellation of the visa and the decision to set aside the decision to cancel is lawful and the non-citizen is not entitled to make any claim against the Commonwealth or an officer because of the detention.

115  Application of Subdivision

             (1)  This Subdivision applies to:

                     (a)  applications for visas made; and

                     (b)  passenger cards filled in;

on or after 1 September 1994.

             (2)  This Subdivision, other than sections 101 and 102, applies to:

                     (a)  applications for visas, or entry permits, within the meaning of the Migration Act 1958 as in force before 1 September 1994, that under the regulations are taken to be applications for visas and that have not been finally determined before that date; and

                     (b)  passenger cards filled in before 1 September 1994.

             (3)  This Subdivision applies to a visa granted otherwise than because of an application on or after 1 September 1994 and does so as if:

                     (a)  this Subdivision had applied to:

                              (i)  the application for the visa; and

                             (ii)  passenger cards filled in before that date; and

                     (b)  the application for any other visa, or entry permit, (within the meaning of the Migration Act 1958 as in force immediately before that date) because of which the visa is held had been the application for the visa; and

                     (c)  for the purposes of sections 107 to 114, non-compliance by the holder of the visa with the sections referred to in section 107 included any action or condition of the holder because of which section 20 of that Act as so in force applied to the holder.

Subdivision DVisas may be cancelled on certain grounds

116  Power to cancel

             (1)  Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

                     (a)  any circumstances which permitted the grant of the visa no longer exist; or

                     (b)  its holder has not complied with a condition of the visa; or

                     (c)  another person required to comply with a condition of the visa has not complied with that condition; or

                     (d)  if its holder has not entered Australia or has so entered but has not been immigration cleared—it would be liable to be cancelled under Subdivision C (incorrect information given by holder) if its holder had so entered and been immigration cleared; or

                     (e)  the presence of its holder in Australia is, or would be, a risk to the health, safety or good order of the Australian community; or

                      (f)  the visa should not have been granted because the application for it or its grant was in contravention of this Act or of another law of the Commonwealth; or

                    (fa)  in the case of a student visa:

                              (i)  its holder is not, or is likely not to be, a genuine student; or

                             (ii)  its holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa; or

                     (g)  a prescribed ground for cancelling a visa applies to the holder.

          (1A)  The regulations may prescribe matters to which the Minister may have regard in determining whether he or she is satisfied as mentioned in paragraph (1)(fa). Such regulations do not limit the matters to which the Minister may have regard for that purpose.

             (2)  The Minister is not to cancel a visa if there exist prescribed circumstances in which a visa is not to be cancelled.

             (3)  If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.

117  When visa may be cancelled

             (1)  Subject to subsection (2), a visa held by a non-citizen may be cancelled under section 116:

                     (a)  before the non-citizen enters Australia; or

                     (b)  when the non-citizen is in immigration clearance (see section 172); or

                     (c)  when the non-citizen leaves Australia; or

                     (d)  while the non-citizen is in the migration zone.

             (2)  A permanent visa cannot be cancelled under section 116 if the holder of the visa:

                     (a)  is in the migration zone; and

                     (b)  was immigration cleared on last entering Australia.

118  Cancellation powers do not limit or affect each other

                   The powers to cancel a visa under:

                     (a)  section 109 (incorrect information); or

                     (b)  section 116 (general power to cancel); or

                     (c)  section 128 (when holder outside Australia); or

                     (d)  section 134 (cancellation of business visas); or

                    (da)  section 137Q (cancellation of regional sponsored employment visas); or

                     (e)  section 140 (consequential cancellation of other visas); or

                    (ea)  section 500A (refusal or cancellation of temporary safe haven visas); or

                      (f)  section 501, 501A or 501B (special power to refuse or cancel);

are not limited, or otherwise affected, by each other.

Subdivision EProcedure for cancelling visas under Subdivision D in or outside Australia

118A  Exhaustive statement of natural justice hearing rule

             (1)  This Subdivision is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

             (2)  Sections 494A to 494D, in so far as they relate to this Subdivision, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.

119  Notice of proposed cancellation

             (1)  Subject to Subdivision F (non-citizens outside Australia), if the Minister is considering cancelling a visa, whether its holder is in or outside Australia, under section 116, the Minister must notify the holder that there appear to be grounds for cancelling it and:

                     (a)  give particulars of those grounds and of the information (not being non-disclosable information) because of which the grounds appear to exist; and

                     (b)  invite the holder to show within a specified time that:

                              (i)  those grounds do not exist; or

                             (ii)  there is a reason why it should not be cancelled.

             (2)  The holder is to be notified in the prescribed way or, if there is no prescribed way, a way that the Minister considers to be appropriate.

             (3)  The way of notifying the holder, whether prescribed or considered appropriate, may, without limiting the generality of subsection (2), be orally.

             (4)  The other provisions of this Subdivision do not apply to a cancellation:

                     (a)  under a provision other than section 116; or

                     (b)  to which Subdivision F applies.

120  Certain information must be given to visa holder

             (1)  In this section, relevant information means information (other than non-disclosable information) that the Minister considers:

                     (a)  would be the reason, or a part of the reason, for cancelling a visa; and

                     (b)  is specifically about the holder or another person and is not just about a class of persons of which the holder or other person is a member; and

                     (c)  was not given by the holder; and

                     (d)  was not disclosed to the holder in the notification under section 119.

             (2)  The Minister must:

                     (a)  give particulars of the relevant information to the holder; and

                     (b)  ensure, as far as reasonably practicable, that the holder understands why it is relevant to the cancellation; and

                     (c)  invite the holder to comment on it.

             (3)  The particulars and invitation are to be given in the way that the Minister considers appropriate in the circumstances.

121  Invitation to give comments etc.

             (1)  An invitation under paragraph 119(1)(b) or 120(2)(c) is to specify whether the response to the invitation may be given:

                     (a)  in writing; or

                     (b)  at an interview between the holder and an officer; or

                     (c)  by telephone.

             (2)  Subject to subsection (4), if the invitation is to respond otherwise than at an interview, the response is to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period.

             (3)  Subject to subsection (5), if the invitation is to respond at an interview, the interview is to take place:

                     (a)  at a place specified in the invitation, being a prescribed place or, if no place is prescribed, a reasonable place; and

                     (b)  at a time specified in the invitation, being a time within a prescribed period or, if no period is prescribed, within a reasonable period.

             (4)  If a person is to respond to an invitation within a prescribed period, that period may be extended by the Minister for a prescribed further period, and then the response is to be given in the extended period.

             (5)  If a person is to respond to an invitation at an interview at a time within a prescribed period, that time may be changed by the Minister to:

                     (a)  a later time within that period; or

                     (b)  a time within that period as extended by the Minister for a prescribed further period;

and then the response is to be given at an interview at the new time.

             (6)  This section is subject to sections 125 and 126.

122  Prescribed periods

                   Regulations prescribing a period or other time limit relating to a step in considering the cancellation of a visa may prescribe different limits relating to that step and specify when a particular limit is to apply, which, without limiting the generality of the power, may be to:

                     (a)  visas of a specified class; or

                     (b)  visa holders in specified circumstances; or

                     (c)  visa holders in a specified class of persons (which may be visa holders in a specified place); or

                     (d)  visa holders in a specified class of persons (which may be visa holders in a specified place) in specified circumstances.

123  Failure to accept invitation not require action

                   If a visa holder does not respond to an invitation under paragraph 119(1)(b) or 120(2)(c) before the time for giving it has passed or tells the Minister that the visa holder does not wish to respond, the Minister may make the decision about cancellation without taking any further action about the information.

124  When decision about visa cancellation may be made

             (1)  Subject to section 120 (give information) and subsection (2), the Minister may cancel a visa at any time after notice about the cancellation has been given under section 119 and after whichever one of the following happens first:

                     (a)  the holder responds to the notice;

                     (b)  the holder tells the Minister that the holder does not wish to respond;

                     (c)  the time for responding to the notice passes.

             (2)  The Minister is not to cancel a visa after inviting the visa holder to comment on information and before whichever one of the following happens first:

                     (a)  the comments are given;

                     (b)  the holder tells the Minister that the holder does not wish to comment;

                     (c)  the time for commenting passes.

125  Application of Subdivision to non-citizen in immigration clearance

                   If a non-citizen in immigration clearance who is not taken into questioning detention is given an invitation under paragraph 119(1)(b) or 120(2)(c), the period within which he or she may respond to the invitation is to end when, or before, he or she ceases to be in immigration clearance.

126  Application of Subdivision to non-citizen in questioning detention

             (1)  If a non-citizen in questioning detention who is not released before the end of the 4 hours for which he or she may be detained is given an invitation under paragraph 119(1)(b) or 120(2)(c), the period within which he or she may respond to the invitation is to end when, or before, those 4 hours end.

             (2)  If a non-citizen who has been given an invitation under paragraph 119(1)(b) or 120(2)(c) (whether in immigration clearance or otherwise) is taken into questioning detention and not released before the end of the 4 hours for which he or she may be detained, the period within which he or she is to respond to the invitation is to end when, or before, those 4 hours end.

127  Notification of decision

             (1)  When the Minister decides to cancel a visa, he or she is to notify the visa holder of the decision in the prescribed way.

             (2)  Notification of a decision to cancel a visa must:

                     (a)  specify the ground for the cancellation; and

                     (b)  state whether the decision is reviewable under Part 5 or 7; and

                     (c)  if the former visa holder has a right to have the decision reviewed under Part 5 or 7—state:

                              (i)  that the decision can be reviewed; and

                             (ii)  the time in which the application for review may be made; and

                            (iii)  who can apply for the review; and

                            (iv)  where the application for review can be made.

             (3)  Failure to give notification of a decision does not affect the validity of the decision.

Subdivision FOther procedure for cancelling visas under Subdivision D outside Australia

127A  Exhaustive statement of natural justice hearing rule

             (1)  This Subdivision is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

             (2)  Sections 494A to 494D, in so far as they relate to this Subdivision, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.

128  Cancellation of visas of people outside Australia

                   If:

                     (a)  the Minister is satisfied that:

                              (i)  there is a ground for cancelling a visa under section 116; and

                             (ii)  it is appropriate to cancel in accordance with this Subdivision; and

                     (b)  the non-citizen is outside Australia;

the Minister may, without notice to the holder of the visa, cancel the visa.

129  Notice of cancellation

             (1)  If the Minister cancels a visa under section 128, he or she must give the former holder of the visa a notice:

                     (a)  stating the ground on which it was cancelled; and

                     (b)  giving particulars of that ground and of the information (not being non-disclosable information) because of which the ground was considered to exist; and

                     (c)  inviting the former holder to show, within a specified time, being a prescribed time, that:

                              (i)  that ground does not exist; or

                             (ii)  there is a reason why the visa should not have been cancelled; and

                     (d)  stating that, if the former holder shows, within the specified time, that the ground does not exist, the cancellation will be revoked; and

                     (e)  stating that, if the former holder shows that there is a reason why the visa should not have been cancelled, the cancellation might be revoked.

             (2)  The notice is to be given in the prescribed way.

             (3)  Failure to give notification of a decision does not affect the validity of the decision.

130  Prescribed periods

                   Regulations prescribing a period for the purpose of paragraph 129(1)(c) may prescribe different periods and specify when a particular period is to apply, which, without limiting the generality of the power, may be to:

                     (a)  visas of a specified class; or

                     (b)  former visa holders in specified circumstances; or

                     (c)  former visa holders in a specified class of persons (which may be former visa holders in a specified place); or

                     (d)  former visa holders in a specified class of persons (which may be former visa holders in a specified place) in specified circumstances.

131  Decision about revocation of cancellation

             (1)  Subject to subsection (2), after considering any response to a notice under section 129 of the cancellation of a visa, the Minister:

                     (a)  if not satisfied that there was a ground for the cancellation; or

                     (b)  if satisfied that there is another reason why the cancellation should be revoked;

is to revoke the cancellation.

             (2)  The Minister is not to revoke the cancellation of a visa if there exist prescribed circumstances in which the visa must be cancelled.

132  Notification of decision about revocation of cancellation

                   When, under section 131, the Minister revokes or does not revoke the cancellation of a visa, he or she is to notify the visa holder or former visa holder of the decision in the prescribed way.

133  Effect of revocation of cancellation

             (1)  If the cancellation of a visa is revoked, then, without limiting its operation before cancellation, it has effect as if it were granted on the revocation.

             (2)  Subject to subsection (1), if the cancellation of a visa is revoked, the Minister may vary the time the visa is to be in effect or any period in which, or date until which, the visa permits its holder to travel to, enter and remain in Australia, or to remain in Australia.

Subdivision GCancellation of business visas

134  Cancellation of business visas

             (1)  Subject to subsection (2) and to section 135, the Minister may cancel a business visa (other than an established business in Australia visa, an investment-linked visa or a family member’s visa), by written notice given to its holder, if the Minister is satisfied that its holder:

                     (a)  has not obtained a substantial ownership interest in an eligible business in Australia; or

                     (b)  is not utilising his or her skills in actively participating at a senior level in the day-to-day management of that business; or

                     (c)  does not intend to continue to:

                              (i)  hold a substantial ownership interest in; and

                             (ii)  utilise his or her skills in actively participating at a senior level in the day-to-day management of;

                            an eligible business in Australia.

             (2)  The Minister must not cancel a business visa under subsection (1) if the Minister is satisfied that its holder:

                     (a)  has made a genuine effort to obtain a substantial ownership interest in an eligible business in Australia; and

                     (b)  has made a genuine effort to utilise his or her skills in actively participating at a senior level in the day-to-day management of that business; and

                     (c)  intends to continue to make such genuine efforts.

             (3)  Without limiting the generality of matters that the Minister may take into account in determining whether a person has made the genuine effort referred to in subsection (2), the Minister may take into account any or all of the following matters:

                     (a)  business proposals that the person has developed;

                     (b)  the existence of partners or joint venturers for the business proposals;

                     (c)  research that the person has undertaken into the conduct of an eligible business in Australia;

                     (d)  the period or periods during which the person has been present in Australia;

                     (e)  the value of assets transferred to Australia by the person for use in obtaining an interest in an eligible business;

                      (f)  the value of ownership interest in eligible businesses in Australia that are, or have been, held by the person;

                     (g)  business activity that is, or has been, undertaken by the person;

                     (h)  whether the person has failed to comply with a notice under section 137;

                      (i)  if the person no longer holds a substantial ownership interest in a particular business or no longer utilises his or her skills in actively participating at a senior level of a day-to-day management of a business:

                              (i)  the length of time that the person held the ownership interest or participated in the management (as the case requires); and

                             (ii)  the reasons why the person no longer holds the interest or participates in the management (as the case requires).

          (3A)  Subject to section 135, the Minister may cancel an investment-linked visa (other than a family member’s visa), by written notice to its holder, if the Minister is satisfied that the person, or any of the persons, who held the relevant designated investment when the visa was granted has or have ceased, for any reason, to hold that investment within 3 years of that investment being made.

             (4)  Subject to subsection (5) and to section 135, if:

                     (a)  the Minister cancels a person’s business visa under subsection (1) or (3A); and

                     (b)  a business visa is held by another person who is or was a member of the family unit of the holder of the cancelled visa; and

                     (c)  the other person would not have held that business visa if he or she had never been a member of the family unit of the holder of the cancelled visa;

the Minister must cancel the other person’s business permit or business visa by giving written notice to that person.

             (5)  The Minister must not cancel the other person’s business visa under subsection (4) if the cancellation of that visa would result in extreme hardship to the person.

             (6)  The Minister is taken not to have cancelled a person’s business visa under subsection (4) if the Administrative Appeals Tribunal has set aside the decision of the Minister to cancel the business visa of the relevant person to whom paragraph (4)(a) applied.

             (7)  If the Minister cancels a business visa under this section, the Minister must include in the notice given to its holder:

                     (a)  the Minister’s reason for the cancellation; and

                     (b)  a statement to the effect that the holder may, within 28 days after receiving the notice, apply to the Administrative Appeals Tribunal for review of the cancellation.

             (8)  A cancellation under this section has effect on and from:

                     (a)  if the person applies to the Administrative Appeals Tribunal for a review of the decision to cancel the visa—the 28th day after the day on which the Administrative Appeals Tribunal gives its decision on that review; or

                     (b)  if:

                              (i)  the person’s visa was cancelled under subsection (4); and

                             (ii)  the relevant person to whom paragraph (4)(a) applied has applied to the Administrative Appeals Tribunal for a review of the decision to cancel that person’s visa;

                            the 28th day after the day on which the Administrative Appeals Tribunal gives its decision on that review; or

                     (c)  the 28th day after the day on which the