Contents
Part 1—Preliminary 1
1............................ Short title............................................................................ 1
2............................ Commencement.................................................................. 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
4AA...................... Detention of minors a last resort......................................... 4
4A......................... Application of the Criminal Code....................................... 4
5............................ Interpretation....................................................................... 4
5AA...................... Meaning of unauthorised maritime arrival...................... 29
5A......................... Meaning of personal identifier......................................... 30
5B.......................... When personal identifier taken not to have been provided 32
5C.......................... Meaning of character concern......................................... 32
5CA....................... Child of a person.............................................................. 33
5CB....................... De facto partner................................................................ 34
5D......................... Limiting the types of identification tests that authorised officers may carry out 35
5E.......................... Meaning of purported privative clause decision............... 35
5F.......................... Spouse.............................................................................. 36
5G......................... Relationships and family members................................... 36
6............................ Effect of limited meaning of enter Australia etc................ 37
7............................ Act to extend to certain Territories.................................... 37
7A......................... Effect on executive power to protect Australia’s borders.. 37
8............................ Certain resources installations to be part of Australia....... 37
9............................ Certain sea installations to be part of Australia................. 38
10.......................... Certain children taken to enter Australia at birth............... 39
11.......................... Visa applicable to 2 or more persons................................ 39
12.......................... Application of Part VA of the Marriage Act..................... 39
Part 2—Control of arrival and presence of non‑citizens 40
Division 1—Immigration status 40
13.......................... Lawful non‑citizens.......................................................... 40
14.......................... Unlawful non‑citizens....................................................... 40
15.......................... Effect of cancellation of visa on status.............................. 40
16.......................... Removal of immigration rights of inhabitant of Protected Zone 40
17.......................... Pre‑cleared flights............................................................. 41
Division 2—Power to obtain information and documents about unlawful non‑citizens 42
18.......................... Power to obtain information and documents about unlawful non‑citizens 42
19.......................... Scales of expenses............................................................ 42
20.......................... Reasonable compensation................................................. 42
21.......................... Failure to comply with section 18 notice........................... 43
24.......................... Information and documents that incriminate a person....... 43
25.......................... Copies of documents........................................................ 44
26.......................... Minister may retain documents......................................... 44
27.......................... Division binds the Crown................................................. 44
Division 3—Visas for non‑citizens 45
Subdivision A—General provisions about visas 45
28.......................... Interpretation..................................................................... 45
29.......................... Visas................................................................................. 45
30.......................... Kinds of visas................................................................... 46
31.......................... Classes of visas................................................................ 46
32.......................... Special category visas....................................................... 46
33.......................... Special purpose visas........................................................ 47
34.......................... Absorbed person visas..................................................... 50
35.......................... Ex‑citizen visas................................................................. 50
36.......................... Protection visas................................................................. 50
37.......................... Bridging visas................................................................... 53
37A....................... Temporary safe haven visas.............................................. 53
38.......................... Criminal justice visas........................................................ 54
38A....................... Enforcement visas............................................................. 54
38B........................ Maritime crew visas.......................................................... 55
39.......................... Criterion limiting number of visas.................................... 56
40.......................... Circumstances for granting visas...................................... 56
41.......................... Conditions on visas.......................................................... 58
42.......................... Visa essential for travel..................................................... 59
43.......................... Visa holders must usually enter at a port.......................... 61
Subdivision AA—Applications for visas 63
44.......................... Extent of following Subdivisions..................................... 63
45.......................... Application for visa.......................................................... 63
45A....................... Visa application charge..................................................... 63
45B........................ Amount of visa application charge.................................... 63
45C........................ Regulations about visa application charge......................... 64
46.......................... Valid visa application........................................................ 64
46A....................... Visa applications by unauthorised maritime arrivals......... 68
46B........................ Visa applications by transitory persons............................ 69
47.......................... Consideration of valid visa application............................. 70
48.......................... Non‑citizen refused a visa or whose visa cancelled may only apply for particular visas 70
48A....................... Non‑citizen refused a protection visa may not make further application for protection visa 71
48B........................ Minister may determine that section 48A does not apply to non‑citizen 72
49.......................... Withdrawal of visa application.......................................... 73
50.......................... Only new information to be considered in later protection visa applications 74
51.......................... Order of consideration...................................................... 74
Subdivision AB—Code of procedure for dealing fairly, efficiently and quickly with visa applications 74
51A....................... Exhaustive statement of natural justice hearing rule.......... 74
52.......................... Communication with Minister.......................................... 75
54.......................... Minister must have regard to all information in application 75
55.......................... Further information may be given..................................... 76
56.......................... Further information may be sought................................... 76
57.......................... Certain information must be given to applicant................. 76
58.......................... Invitation to give further information or comments........... 77
59.......................... Interviews......................................................................... 78
60.......................... Medical examination......................................................... 78
61.......................... Prescribed periods............................................................ 78
62.......................... Failure to receive information not require action............... 79
63.......................... When decision about visa may be made............................ 79
64.......................... Notice that visa application charge is payable................... 80
Subdivision AC—Grant of visas 81
65.......................... Decision to grant or refuse to grant visa........................... 81
65A....................... Period within which Minister must make decision on protection visas 81
66.......................... Notification of decision..................................................... 82
67.......................... Way visa granted.............................................................. 83
68.......................... When visa is in effect........................................................ 83
69.......................... Effect of compliance or non‑compliance........................... 83
Subdivision AE—Evidence of visas 84
70.......................... Request for evidence of a visa.......................................... 84
71.......................... Liability to pay visa evidence charge................................. 84
71A....................... Officer must give evidence of a visa................................. 85
71B........................ Regulations about visa evidence charge............................ 85
Subdivision AF—Bridging visas 86
72.......................... Interpretation..................................................................... 86
73.......................... Bridging visas................................................................... 87
74.......................... Further applications for bridging visa............................... 87
75.......................... When eligible non‑citizen in immigration detention granted visa 88
76.......................... Bridging visa not affect visa applications.......................... 88
Subdivision AG—Other provisions about visas 89
77.......................... Visas held during visa period........................................... 89
78.......................... Children born in Australia................................................ 89
79.......................... Effect on visa of leaving Australia.................................... 89
80.......................... Certain persons taken not to leave Australia..................... 90
81.......................... Extent of visa authority..................................................... 90
82.......................... When visas cease to be in effect........................................ 90
83.......................... Certain persons taken to be included in spouse, de facto partner or parent’s visa 92
84.......................... Minister may suspend processing of visa applications..... 92
Subdivision AH—Limit on visas 93
85.......................... Limit on visas................................................................... 93
86.......................... Effect of limit.................................................................... 94
87.......................... Limit does not prevent visas for certain persons............... 94
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 94
88.......................... Limit does not affect processing of applications............... 95
89.......................... Determination of limit not to mean failure to decide.......... 95
90.......................... Order of dealing with limited visas................................... 95
91.......................... Order of dealing with visas............................................... 96
Subdivision AI—Safe third countries 96
91A....................... Reason for Subdivision.................................................... 96
91B........................ Interpretation..................................................................... 96
91C........................ Non‑citizens covered by Subdivision............................... 96
91D....................... Safe third countries........................................................... 97
91E........................ Non‑citizens to which this Subdivision applies unable to make valid applications for certain visas 98
91F........................ Minister may determine that section 91E does not apply to non‑citizen 98
91G....................... Applications made before regulations take effect.............. 99
Subdivision AJ—Temporary safe haven visas 101
91H....................... Reason for this Subdivision............................................ 101
91J......................... Non‑citizens to whom this Subdivision applies.............. 101
91K........................ Non‑citizens to whom this Subdivision applies are unable to make valid applications for certain visas 101
91L........................ Minister may determine that section 91K does not apply to a non‑citizen 101
Subdivision AK—Non‑citizens with access to protection from third countries 102
91M....................... Reason for this Subdivision............................................ 102
91N....................... Non‑citizens to whom this Subdivision applies.............. 103
91P........................ Non‑citizens to whom this Subdivision applies are unable to make valid applications for certain visas 104
91Q....................... Minister may determine that section 91P does not apply to a non‑citizen 105
Subdivision AL—Other provisions about protection visas 106
91R........................ Persecution..................................................................... 106
91S........................ Membership of a particular social group......................... 107
91T........................ Non‑political crime......................................................... 107
91U....................... Particularly serious crime................................................ 108
91V....................... Verification of information............................................. 108
91W....................... Documentary evidence of identity, nationality or citizenship 110
91X....................... Names of applicants for protection visas not to be published by the High Court, Federal Court or Federal Circuit Court................................................................... 111
91Y....................... Secretary’s obligation to report to Minister..................... 111
Subdivision B—The “points” system 114
92.......................... Operation of Subdivision................................................ 114
93.......................... Determination of applicant’s score.................................. 114
94.......................... Initial application of “points” system.............................. 114
95.......................... Applications in pool........................................................ 115
95A....................... Extension of period in pool............................................. 116
96.......................... Minister may set pool mark and pass mark..................... 116
Subdivision C—Visas based on incorrect information may be cancelled 117
97.......................... Interpretation................................................................... 117
97A....................... Exhaustive statement of natural justice hearing rule........ 117
98.......................... Completion of visa application........................................ 117
99.......................... Information is answer..................................................... 118
100........................ Incorrect answers............................................................ 118
101........................ Visa applications to be correct........................................ 118
102........................ Passenger cards to be correct.......................................... 118
103........................ Bogus documents not to be given etc.............................. 118
104........................ Changes in circumstances to be notified......................... 119
105........................ Particulars of incorrect answers to be given.................... 119
106........................ Obligations to give etc. information is not affected by other sources of information 119
107........................ Notice of incorrect applications....................................... 120
107A..................... Possible non‑compliances in connection with a previous visa may be grounds for cancellation of current visa........................................................................................ 121
108........................ Decision about non‑compliance...................................... 121
109........................ Cancellation of visa if information incorrect................... 122
110........................ Cancellation provisions apply whatever source of knowledge of non‑compliance 122
111........................ Cancellation provisions apply whether or not non‑compliance deliberate 122
112........................ Action because of one non‑compliance not prevent action because of other non‑compliance 122
113........................ No cancellation if full disclosure..................................... 123
114........................ Effect of setting aside decision to cancel visa.................. 123
115........................ Application of Subdivision............................................. 123
Subdivision D—Visas may be cancelled on certain grounds 124
116........................ Power to cancel............................................................... 124
117........................ When visa may be cancelled........................................... 125
118........................ Cancellation powers do not limit or affect each other...... 125
Subdivision E—Procedure for cancelling visas under Subdivision D in or outside Australia 126
118A..................... Exhaustive statement of natural justice hearing rule........ 126
119........................ Notice of proposed cancellation...................................... 126
120........................ Certain information must be given to visa holder............ 127
121........................ Invitation to give comments etc....................................... 127
122........................ Prescribed periods.......................................................... 128
123........................ Failure to accept invitation not require action.................. 129
124........................ When decision about visa cancellation may be made...... 129
125........................ Application of Subdivision to non‑citizen in immigration clearance 129
126........................ Application of Subdivision to non‑citizen in questioning detention 129
127........................ Notification of decision................................................... 130
Subdivision F—Other procedure for cancelling visas under Subdivision D outside Australia 130
127A..................... Exhaustive statement of natural justice hearing rule........ 130
128........................ Cancellation of visas of people outside Australia............ 131
129........................ Notice of cancellation...................................................... 131
130........................ Prescribed periods.......................................................... 131
131........................ Decision about revocation of cancellation....................... 132
132........................ Notification of decision about revocation of cancellation 132
133........................ Effect of revocation of cancellation................................. 132
Subdivision G—Cancellation of business visas 133
134........................ Cancellation of business visas........................................ 133
135........................ Representations concerning cancellation of business visa 137
136........................ Review of decisions........................................................ 138
137........................ Provision of information—holders of business visas..... 138
Subdivision GB—Automatic cancellation of student visas 139
137J....................... Non‑complying students may have their visas automatically cancelled 139
137K...................... Applying for revocation of cancellation.......................... 140
137L...................... Dealing with the application............................................ 141
137M..................... Notification of decision................................................... 141
137N..................... Minister may revoke cancellation on his or her own initiative 142
137P...................... Effect of revocation......................................................... 142
Subdivision GC—Cancellation of regional sponsored employment visas 143
137Q..................... Cancellation of regional sponsored employment visas.... 143
137R...................... Representations concerning cancellation etc.................... 144
137S...................... Notice of cancellation...................................................... 144
137T...................... Cancellation of other visas.............................................. 145
Subdivision H—General provisions on cancellation 145
138........................ Way visa cancelled or cancellation revoked.................... 145
139........................ Visas held by 2 or more.................................................. 145
140........................ Cancellation of visa results in other cancellation............. 145
Division 3A—Sponsorship 147
Subdivision A—Preliminary 147
140A..................... Division applies to prescribed kinds of visa................... 147
140AA.................. Division 3A—purposes.................................................. 147
140AB................... Ministerial Advisory Council on Skilled Migration........ 148
Subdivision B—Approving sponsors and nominations 148
140E...................... Minister to approve sponsor........................................... 148
140F...................... Process for approving sponsors..................................... 149
140G..................... Terms of approval as a sponsor...................................... 149
140GA.................. Variation of terms of approval as a sponsor................... 149
140GB................... Minister to approve nominations.................................... 150
140GBA................ Labour market testing—condition................................... 150
140GBB................ Labour market testing—major disaster exemption.......... 154
140GBC................ Labour market testing—skill and occupational exemptions 155
140GC................... Work agreements............................................................ 156
Subdivision C—Sponsorship obligations 156
140H..................... Sponsorship obligations—general.................................. 156
140HA.................. Sponsorship obligations—Minister’s responsibility....... 157
140J....................... Amounts payable in relation to sponsorship obligations. 158
Subdivision D—Enforcement 159
140K...................... Sanctions for failing to satisfy sponsorship obligations.. 159
140L...................... Regulations may prescribe circumstances in which sponsor may be barred or sponsor’s approval cancelled........................................................................................ 161
140M..................... Cancelling approval as a sponsor or barring a sponsor... 162
140N..................... Process for cancelling or barring approval as a sponsor. 162
140O..................... Waiving a bar.................................................................. 163
140P...................... Process for waiving a bar............................................... 163
140Q..................... Civil penalty—failing to satisfy sponsorship obligations 163
140RA................... Accepting undertakings.................................................. 164
140RB................... Enforcing undertakings................................................... 164
Subdivision E—Liability and recovery of amounts 165
140S...................... Liability to pay amounts.................................................. 165
140SA................... Interest up to judgment................................................... 165
140SB................... Interest on judgment....................................................... 166
140SC................... Certain plaintiffs may choose small claims procedure in magistrates courts 166
140T...................... Notice regarding amount of debt or other amount........... 167
140U..................... Liability is in addition to any other liability..................... 167
Subdivision F—Inspector powers 168
140UA.................. Exercise of inspector powers.......................................... 168
140V..................... Inspectors....................................................................... 168
140W..................... Identity cards.................................................................. 169
140X..................... Purpose for which powers of inspectors may be exercised 170
140XA.................. When powers of inspectors may be exercised................ 170
140XB................... Power of inspectors to enter premises or places............. 170
140XC................... Powers of inspectors while on premises or at a place..... 171
140XD.................. Persons assisting inspectors........................................... 171
140XE................... Power to ask for person’s name and address.................. 172
140XF................... Power to require persons to produce records or documents 172
140XG.................. Self‑incrimination........................................................... 173
140XH.................. Certain records and documents are inadmissible............. 173
140XI.................... Power to keep records or documents.............................. 174
140XJ.................... Disclosure of information by the Secretary..................... 174
Subdivision G—Application of Division to partnerships and unincorporated associations 175
140ZB................... Partnerships—sponsorship rights and obligations.......... 175
140ZC................... Partnerships—offences and civil penalties...................... 175
140ZD................... Partnership ceases to exist.............................................. 176
140ZE.................... Unincorporated associations—sponsorship rights and obligations 177
140ZF.................... Unincorporated associations—offences and civil penalties 177
140ZG................... Unincorporated association ceases to exist..................... 178
Subdivision H—Miscellaneous 178
140ZH................... Disclosure of personal information by Minister............. 178
140ZI..................... Disclosure of personal information to Minister.............. 180
140ZJ.................... Unclaimed money........................................................... 181
140ZK................... Other regulation making powers not limited................... 181
Division 4—Criminal justice visitors 182
Subdivision A—Preliminary 182
141........................ Object of Division.......................................................... 182
142........................ Interpretation................................................................... 182
143........................ Delegation by Attorney‑General..................................... 183
144........................ Authorised officials........................................................ 183
Subdivision B—Criminal justice certificates for entry 184
145........................ Commonwealth criminal justice entry certificate............. 184
146........................ State criminal justice entry certificate.............................. 184
Subdivision C—Criminal justice certificates etc. staying removal or deportation 185
147........................ Commonwealth criminal justice stay certificate............... 185
148........................ State criminal justice stay certificate................................ 186
149........................ Application for visa not to prevent certificate.................. 186
150........................ Criminal justice stay certificates stay removal or deportation 186
151........................ Certain warrants stay removal or deportation.................. 187
152........................ Certain subjects of stay certificates and stay warrants may be detained etc. 187
153........................ Removal or deportation not contempt etc. if no stay certificate or warrant 187
154........................ Officer not liable—criminal justice stay certificates or warrants 188
Subdivision D—Criminal justice visas 188
155........................ Criminal justice visas...................................................... 188
156........................ Criterion for criminal justice entry visas......................... 188
157........................ Criterion for criminal justice stay visas........................... 188
158........................ Criteria for criminal justice visas..................................... 188
159........................ Procedure for obtaining criminal justice visa.................. 189
160........................ Conditions of criminal justice visa.................................. 189
161........................ Effect of criminal justice visas........................................ 190
Subdivision E—Cancellation etc. of criminal justice certificates and criminal justice visas 190
162........................ Criminal justice certificates to be cancelled..................... 190
163........................ Stay warrant to be cancelled............................................ 191
164........................ Effect of cancellation etc. on criminal justice visa........... 191
Division 4A—Enforcement visas 193
164A..................... Definitions...................................................................... 193
164B...................... Grant of enforcement visas (fisheries matters)................ 193
164BA................... Grant of enforcement visas (environment matters)......... 196
164C...................... When enforcement visa ceases to be in effect................. 198
164D..................... Applying for other visas................................................. 199
Division 5—Immigration clearance 200
165........................ Interpretation................................................................... 200
166........................ Persons entering to present certain evidence of identity etc. 200
167........................ When and where evidence to be presented...................... 202
168........................ Section 166 not to apply................................................. 203
169........................ Section 166 not usually to apply..................................... 204
170........................ Certain persons to present evidence of identity............... 205
171........................ Assistance with evidence................................................ 206
172........................ Immigration clearance..................................................... 207
173........................ Visa ceases if holder enters in way not permitted........... 208
174........................ Visa ceases if holder remains without immigration clearance.. 209
175........................ Departing person to present certain evidence etc............. 209
175A..................... Determinations relating to kinds of passports................. 211
Division 6—Certain non‑citizens to be kept in immigration detention 212
176........................ Reason for Division........................................................ 212
177........................ Interpretation................................................................... 212
178........................ Designated persons to be in immigration detention......... 213
179........................ Beginning of immigration detention of certain designated persons 213
180........................ Detention of designated person....................................... 213
181........................ Removal from Australia of designated persons.............. 214
182........................ No immigration detention or removal after certain period 215
183........................ Courts must not release designated persons.................... 217
185........................ Effect of Division on status etc....................................... 217
186........................ Division applies despite other laws................................. 217
187........................ Evidence......................................................................... 217
Division 7—Detention of unlawful non‑citizens 218
Subdivision A—General provisions 218
188........................ Lawful non‑citizen to give evidence of being so............. 218
189........................ Detention of unlawful non‑citizens................................. 219
190........................ Non‑compliance with immigration clearance or section 192 basis of detention 220
191........................ End of certain detention.................................................. 221
192........................ Detention of visa holders whose visas liable to cancellation 222
192A..................... Authorisation of identification tests in certain cases........ 224
193........................ Application of law to certain non‑citizens while they remain in immigration detention 225
194........................ Detainee to be told of consequences of detention............ 227
195........................ Detainee may apply for visa............................................ 227
195A..................... Minister may grant detainee visa (whether or not on application) 227
196........................ Duration of detention...................................................... 229
197........................ Effect of escape from immigration detention................... 230
Subdivision B—Residence determinations 230
197AA.................. Persons to whom Subdivision applies............................ 230
197AB................... Minister may determine that person is to reside at a specified place rather than being held in detention centre etc................................................................................... 230
197AC................... Effect of residence determination.................................... 231
197AD.................. Revocation or variation of residence determination......... 232
197AE................... Minister not under duty to consider whether to exercise powers 233
197AF................... Minister to exercise powers personally........................... 233
197AG.................. Tabling of information relating to the making of residence determinations 233
Division 7A—Offences relating to immigration detention 235
197A..................... Detainees must not escape from detention...................... 235
197B...................... Manufacture, possession etc. of weapons by detainees.. 235
Division 8—Removal of unlawful non‑citizens etc. 236
Subdivision A—Removal 236
198........................ Removal from Australia of unlawful non‑citizens.......... 236
Subdivision B—Regional processing 239
198AA.................. Reason for Subdivision.................................................. 239
198AB................... Regional processing country.......................................... 239
198AC................... Documents to be laid before Parliament.......................... 241
198AD.................. Taking unauthorised maritime arrivals to a regional processing country 242
198AE................... Ministerial determination that section 198AD does not apply 244
198AF................... No regional processing country...................................... 245
198AG.................. Non‑acceptance by regional processing country............. 245
198AH.................. Application of section 198AD to certain transitory persons 245
198AI.................... Ministerial report............................................................ 246
198AJ.................... Reports about unauthorised maritime arrivals................. 246
Subdivision C—Transitory persons etc. 247
198B...................... Power to bring transitory persons to Australia............... 247
199........................ Dependants of removed non‑citizens.............................. 247
Division 9—Deportation 249
200........................ Deportation of certain non‑citizens................................. 249
201........................ Deportation of non‑citizens in Australia for less than 10 years who are convicted of crimes 249
202........................ Deportation of non‑citizens upon security grounds........ 249
203........................ Deportation of non‑citizens who are convicted of certain serious offences 251
204........................ Determination of time for sections 201 and 202............. 253
205........................ Dependants of deportee.................................................. 254
206........................ Deportation order to be executed.................................... 254
Division 10—Costs etc. of removal and deportation 255
207........................ Interpretation................................................................... 255
210........................ Removed or deported non‑citizen liable for costs of removal or deportation 255
212........................ Costs of removed or deported spouses, de facto partners and dependants 255
213........................ Carriers may be liable for costs of removal and deportation 256
214........................ Non‑citizens and carriers jointly liable............................ 257
215........................ Costs are debts due to the Commonwealth..................... 257
216........................ Use of existing ticket for removal or deportation............ 257
217........................ Vessels required to convey certain removees.................. 257
218........................ Vessels required to convey deportees or other removees 258
219........................ Exemption from complying............................................ 258
220........................ Waiver of requirement.................................................... 259
221........................ Cost of removal under notice.......................................... 259
222........................ Orders restraining certain non‑citizens from disposing etc. of property 259
223........................ Secretary may give direction about valuables of detained non‑citizens 261
224........................ Dealing with seized valuables......................................... 264
Division 11—Duties of masters in relation to crews 266
225........................ Production of identity documents and mustering of crew 266
226........................ Production of identity documents by persons on board resources installation 266
227........................ Production of identity documents by persons on board sea installation 267
228........................ Master to report absences............................................... 268
Division 12—Offences etc. in relation to entry into, and remaining in, Australia 270
Subdivision A—People smuggling and related offences 270
228A..................... Application of Subdivision............................................. 270
228B...................... Circumstances in which a non‑citizen has no lawful right to come to Australia 270
229........................ Carriage of non‑citizens to Australia without documentation 270
230........................ Carriage of concealed persons to Australia..................... 272
231........................ Master of vessel to comply with certain requests............ 273
232........................ Penalty on master, owner, agent and charterer of vessel. 274
233A..................... Offence of people smuggling.......................................... 275
233B...................... Aggravated offence of people smuggling (danger of death or serious harm etc.) 276
233C...................... Aggravated offence of people smuggling (at least 5 people) 276
233D..................... Supporting the offence of people smuggling.................. 277
233E...................... Concealing and harbouring non‑citizens etc.................... 278
234........................ False documents and false or misleading information etc. relating to non‑citizens 278
234A..................... Aggravated offence of false documents and false or misleading information etc. relating to non‑citizens (at least 5 people)................................................................. 279
235........................ Offences in relation to work........................................... 280
236........................ Offences relating to visas................................................ 282
236A..................... No discharge without conviction for certain offences..... 283
236B...................... Mandatory minimum penalties for certain offences........ 283
236C...................... Time in immigration detention counts for sentencing etc. 284
236D..................... Burden and standard of proof in relation to age.............. 284
236E...................... Evidentiary certificates in proceedings for offences........ 285
236F...................... Evidentiary certificates—procedural matters................... 286
Subdivision B—Offences relating to abuse of laws allowing spouses etc. of Australian citizens or of permanent residents to become permanent residents 287
237........................ Reason for Subdivision.................................................. 287
238........................ Interpretation................................................................... 288
239........................ Application of Subdivision............................................. 288
240........................ Offence to arrange marriage to obtain permanent residence 288
241........................ Offence to arrange pretended de facto relationship to obtain permanent residence 289
243........................ Offences relating to application for permanent residence because of marriage or de facto relationship 289
245........................ Offences of making false or unsupported statements...... 290
Subdivision C—Offences and civil penalties in relation to work by non‑citizens 291
245AA.................. Overview........................................................................ 291
245AB................... Allowing an unlawful non‑citizen to work..................... 291
245AC................... Allowing a lawful non‑citizen to work in breach of a work‑related condition 292
245AD.................. Aggravated offences if a person allows, or continues to allow, another person to work 293
245AE................... Referring an unlawful non‑citizen for work.................... 294
245AEA................ Referring a lawful non‑citizen for work in breach of a work‑related condition 295
245AEB................ Aggravated offences if a person refers another person to a third person for work 296
245AF................... Circumstances in which this Subdivision does not apply 298
245AG.................. Meaning of work and allows to work............................. 298
245AH.................. Meaning of exploited...................................................... 299
245AJ.................... Criminal liability of executive officers of bodies corporate 299
245AK................... Civil liability of executive officers of bodies corporate... 300
245AL................... Contravening civil penalty provisions............................. 302
245AM.................. Geographical scope of offence and civil penalty provisions 302
245AN.................. Charge and trial for an aggravated offence...................... 305
245AO.................. Treatment of partnerships............................................... 306
245AP................... Treatment of unincorporated associations....................... 307
Division 12A—Chasing, boarding etc. ships and aircraft 308
245A..................... Definitions...................................................................... 308
245B...................... Request to board a ship................................................... 309
245C...................... Power to chase foreign ships for boarding..................... 312
245D..................... Power to chase Australian ships for boarding................ 314
245E...................... Identifying an aircraft and requesting it to land for boarding 314
245F...................... Power to board and search etc. ships and aircraft........... 316
245FA................... Searches of people on certain ships or aircraft................ 323
245FB................... Returning persons to ships............................................. 324
245G..................... Boarding of certain ships on the high seas...................... 324
245H..................... Moving or destroying hazardous ships etc..................... 326
Division 12B—Reporting on passengers and crew of aircraft and ships 329
245I....................... Definitions...................................................................... 329
245J....................... Approval of primary reporting systems.......................... 330
245K...................... Approval of fall‑back reporting systems......................... 331
245L...................... Obligation to report on passengers and crew.................. 331
245M..................... Approved fall‑back reporting systems may be used in certain circumstances 333
245N..................... Offence for failure to comply with reporting obligations 334
Division 13—Examination, search and detention 335
246........................ Appointment of boarding stations................................... 335
247........................ Vessels to enter ports and be brought to boarding stations 335
248........................ Exemption....................................................................... 337
249........................ Certain persons may be prevented from entering or landing 337
250........................ Detention of suspected offenders.................................... 338
251........................ Powers of entry and search............................................. 339
252........................ Searches of persons........................................................ 340
252AA.................. Power to conduct a screening procedure......................... 342
252A..................... Power to conduct a strip search...................................... 343
252B...................... Rules for conducting a strip search................................. 345
252C...................... Possession and retention of certain things obtained during a screening procedure or strip search 347
252D..................... Authorised officer may apply for a thing to be retained for a further period 348
252E...................... Magistrate may order that thing be retained.................... 349
252F...................... Detainees held in State or Territory prisons or remand centres 349
252G..................... Powers concerning entry to a detention centre................ 350
253........................ Detention of deportee...................................................... 351
254........................ Removees and deportees held in other custody............... 353
255........................ Prescribed authorities...................................................... 354
256........................ Person in immigration detention may have access to certain advice, facilities etc. 354
257........................ Persons may be required to answer questions................ 355
258........................ Minister may determine that personal identifiers are not required 355
258A..................... When non‑citizen cannot be required to provide personal identifier 356
258B...................... Information to be provided—authorised officers carrying out identification tests 356
258C...................... Information to be provided—authorised officers not carrying out identification tests 357
258D..................... Regulations may prescribe manner for carrying out identification tests 357
258E...................... General rules for carrying out identification tests............ 358
258F...................... Identification tests not to be carried out in cruel, inhuman or degrading manner etc. 358
258G..................... Authorised officer may get help to carry out identification tests 358
259........................ Detention of vessel for purpose of search....................... 359
260........................ Detention of vessel pending recovery of penalty............ 359
261........................ Disposal of dilapidated vessels etc.................................. 360
Division 13AA—Identification of immigration detainees 362
Subdivision A—Provision of personal identifiers 362
261AA.................. Immigration detainees must provide personal identifiers 362
261AB................... Authorised officers must require and carry out identification tests 363
261AC................... Information to be provided before carrying out identification tests 363
Subdivision B—How identification tests are carried out 364
261AD.................. General rules for carrying out identification tests............ 364
261AE................... Use of force in carrying out identification tests............... 364
261AF................... Identification tests not to be carried out in cruel, inhuman or degrading manner etc. 366
261AG.................. Authorised officer may get help to carry out identification tests 366
261AH.................. Identification tests to be carried out by authorised officer of same sex as non‑citizen 366
261AI.................... Independent person to be present.................................... 366
261AJ.................... Recording of identification tests...................................... 367
261AK................... Retesting......................................................................... 367
Subdivision C—Obligations relating to video recordings of identification tests 369
261AKA................ Definitions...................................................................... 369
261AKB................ Accessing video recordings............................................ 370
261AKC................ Authorising access to video recordings.......................... 370
261AKD................ Providing video recordings............................................. 371
261AKE................ Unauthorised modification of video recordings.............. 372
261AKF................ Unauthorised impairment of video recordings................ 372
261AKG................ Meanings of unauthorised modification and unauthorised impairment etc. 373
261AKH................ Destroying video recordings........................................... 373
Division 13AB—Identification of minors and incapable persons 374
261AL................... Minors............................................................................ 374
261AM.................. Incapable persons........................................................... 375
Division 13A—Automatic forfeiture of things used in certain offences 376
Subdivision A—Automatic forfeiture 376
261A..................... Forfeiture of things used in certain offences................... 376
Subdivision B—Seizure 377
261B...................... Seizure of things used in certain offences....................... 377
Subdivision C—Dealing with things seized as automatically forfeited 377
261C...................... Application of this Subdivision...................................... 377
261D..................... Notice of seizure............................................................. 377
261E...................... Dealing with thing before it is condemned...................... 378
261F...................... Thing condemned if not claimed in time......................... 378
261G..................... Dealing with claim for thing........................................... 379
261H..................... What happens if thing is claimed.................................... 380
261I....................... Dealing with thing after it is condemned......................... 381
Subdivision D—Operation of Division 381
261J....................... Operation of Division..................................................... 381
Subdivision E—Minister’s order that a thing not be condemned as forfeited 382
261K...................... Minister’s order that a thing not be condemned.............. 382
An Act relating to the entry into, and presence in, Australia of aliens, and the departure or deportation from Australia of aliens and certain other persons
Part 1—Preliminary
1 Short title
This Act may be cited as the Migration Act 1958.
2 Commencement
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.
(5) To advance its object, this Act provides for the taking of unauthorised maritime arrivals from Australia to a regional processing country.
4AA Detention of minors a last resort
(1) The Parliament affirms as a principle that a minor shall only be detained as a measure of last resort.
(2) For the purposes of subsection (1), the reference to a minor being detained does not include a reference to a minor residing at a place in accordance with a residence determination.
4A Application of the Criminal Code
Chapter 2 of the Criminal Code (except Part 2.5) applies to all offences against this Act.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
5 Interpretation
(1) In this Act, unless the contrary intention appears:
absorbed person visa has the meaning given by section 34.
adjacent area means an adjacent area in respect of a State, of the Northern Territory, of the Territory of Ashmore and Cartier Islands, of the Territory of Cocos (Keeling) Islands or of the Territory of Christmas Island, as determined in accordance with section 5 of the Sea Installations Act.
adoption has the same meaning as in the regulations.
allowed inhabitant of the Protected Zone means an inhabitant of the Protected Zone, other than an inhabitant to whom a declaration under section 16 (presence declared undesirable) applies.
applicable pass mark, in relation to a visa of a particular class, means the number of points specified as the pass mark for that class in a notice, under section 96, in force at the time concerned.
applicable pool mark, in relation to a visa of a particular class, means the number of points specified as the pool mark for that class in a notice under section 96 in force at the time concerned.
appointed inspector has the meaning given by section 140V.
approved form, when used in a provision of this Act, means a form approved by the Minister in writing for the purposes of that provision.
approved sponsor means:
(a) a person:
(i) who has been approved by the Minister under section 140E in relation to a class prescribed by the regulations for the purpose of subsection 140E(2); and
(ii) whose approval has not been cancelled under section 140M, or otherwise ceased to have effect under section 140G, in relation to that class; or
(b) a person (other than a Minister) who is a party to a work agreement.
Note: A partnership or an unincorporated association may be an approved sponsor: see subsections 140ZB(1) and 140ZE(1) respectively.
area in the vicinity of the Protected Zone means an area in respect of which a notice is in force under subsection (8).
assessed score, in relation to an applicant for a visa, means the total number of points given to the applicant in an assessment under section 93.
Australian passport means a passport issued under the Australian Passports Act 2005.
Australian resources installation means a resources installation that is deemed to be part of Australia because of the operation of section 8.
Australian seabed means so much of the seabed adjacent to Australia (other than the seabed within the Joint Petroleum Development Area) as is:
(a) within the area comprising:
(i) the areas described in Schedule 1 to the Offshore Petroleum and Greenhouse Gas Storage Act 2006; and
(ii) the Coral Sea area; and
(b) part of:
(i) the continental shelf of Australia;
(ii) the seabed beneath the territorial sea of Australia (including the territorial sea adjacent to any island forming part of Australia); or
(iii) the seabed beneath waters of the sea that are on the landward side of the territorial sea of Australia and are not within the limits of a State or Territory.
Australian sea installation means a sea installation that is deemed to be part of Australia because of the operation of section 9.
Australian waters means:
(a) in relation to a resources installation—waters above the Australian seabed; and
(b) in relation to a sea installation—waters comprising all of the adjacent areas and the coastal area.
authorised officer, when used in a provision of this Act, means an officer authorised in writing by the Minister or the Secretary for the purposes of that provision.
Note: Section 5D can affect the meaning of this term for the purposes of carrying out identification tests.
authorised system, when used in a provision of this Act, means an automated system authorised in writing by the Minister or the Secretary for the purposes of that provision.
behaviour concern non‑citizen means a non‑citizen who:
(a) has been convicted of a crime and sentenced to death or to imprisonment, for at least one year; or
(b) has been convicted of 2 or more crimes and sentenced to imprisonment, for periods that add up to at least one year if:
(i) any period concurrent with part of a longer period is disregarded; and
(ii) any periods not disregarded that are concurrent with each other are treated as one period;
whether or not:
(iii) the crimes were of the same kind; or
(iv) the crimes were committed at the same time; or
(v) the convictions were at the same time; or
(vi) the sentencings were at the same time; or
(vii) the periods were consecutive; or
(c) has been charged with a crime and either:
(i) found guilty of having committed the crime while of unsound mind; or
(ii) acquitted on the ground that the crime was committed while the person was of unsound mind;
(d) has been removed or deported from Australia or removed or deported from another country; or
(e) has been excluded from another country in prescribed circumstances;
where sentenced to imprisonment includes ordered to be confined in a corrective institution.
bridging visa has the meaning given by section 37.
brought into physical contact has the same meaning as in the Sea Installations Act.
bypass immigration clearance has the meaning given by subsection 172(4).
certified printout means a printout certified by an authorised officer to be a printout of information kept in the movement records.
character concern has the meaning given by section 5C.
child of a person has a meaning affected by section 5CA.
civil penalty order has the meaning given by subsection 486R(4).
civil penalty provision means a subsection, or a section that is not divided into subsections, that has set out at its foot the words “civil penalty” and one or more amounts in penalty units.
clearance authority has the meaning given by section 165.
clearance officer has the meaning given by section 165.
coastal area has the same meaning as in the Customs Act 1901.
committee of management of an unincorporated association means a body (however described) that governs, manages or conducts the affairs of the association.
Coral Sea area has the same meaning as in section 7 of the Offshore Petroleum and Greenhouse Gas Storage Act 2006.
Covenant means the International Covenant on Civil and Political Rights, a copy of the English text of which is set out in Schedule 2 to the Australian Human Rights Commission Act 1986.
crime includes any offence.
criminal justice visa has the meaning given by section 38.
cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
data base (except in Part 4A) means a discrete body of information stored by means of a computer.
Note: Section 336A defines this term differently for the purposes of Part 4A.
de facto partner has the meaning given by section 5CB.
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
departure prohibition order means an order under subsection 14S(1) of the Taxation Administration Act 1953.
deportation means deportation from Australia.
deportation order means an order for the deportation of a person made under, or continued in force by, this Act.
deportee means a person in respect of whom a deportation order is in force.
detain means:
(a) take into immigration detention; or
(b) keep, or cause to be kept, in immigration detention;
and includes taking such action and using such force as are reasonably necessary to do so.
Note: This definition extends to persons covered by residence determinations (see section 197AC).
detainee means a person detained.
Note: This definition extends to persons covered by residence determinations (see section 197AC).
diplomatic or consular representative, in relation to a country other than Australia, means a person who has been appointed to, or is the holder of, a post or position in a diplomatic or consular mission of that country in Australia, not being a person who was ordinarily resident in Australia when he or she was appointed to be a member of the mission.
eligible court means:
(a) the Federal Court; or
(b) the Federal Circuit Court; or
(c) a District, County or Local Court; or
(d) a magistrates court; or
(e) any other State or Territory court that is prescribed by the regulations.
enforcement visa has the meaning given by section 38A.
enter includes re‑enter.
enter Australia, in relation to a person, means enter the migration zone.
entered includes re‑entered.
entry includes re‑entry.
environment detention offence means:
(a) an offence against the Environment Protection and Biodiversity Conservation Act 1999, or against regulations made for the purposes of that Act; or
(b) an offence against section 6 of the Crimes Act 1914 relating to an offence described in paragraph (a).
environment officer means an authorised officer, within the meaning of the Environment Protection and Biodiversity Conservation Act 1999, but does not include a person who is an authorised officer because of subsection 397(3) of that Act.
environment related activity has the same meaning as in the Sea Installations Act.
evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.
excised offshore place means any of the following:
(a) the Territory of Christmas Island;
(b) the Territory of Ashmore and Cartier Islands;
(c) the Territory of Cocos (Keeling) Islands;
(d) any other external Territory that is prescribed by the regulations for the purposes of this paragraph;
(e) any island that forms part of a State or Territory and is prescribed for the purposes of this paragraph;
(f) an Australian sea installation;
(g) an Australian resources installation.
excision time, for an excised offshore place, means:
(a) for the Territory of Christmas Island—2 pm on 8 September 2001 by legal time in the Australian Capital Territory; or
(b) for the Territory of Ashmore and Cartier Islands—2 pm on 8 September 2001 by legal time in the Australian Capital Territory; or
(c) for the Territory of Cocos (Keeling) Islands—12 noon on 17 September 2001 by legal time in the Australian Capital Territory; or
(d) for any other external Territory that is prescribed by the regulations for the purposes of the definition of excised offshore place—the time when the regulations commence; or
(e) for any island that forms part of a State or Territory and is prescribed by the regulations for the purposes of the definition of excised offshore place—the time when the regulations commence; or
(f) for an Australian sea installation—the commencement of the Migration Amendment (Excision from Migration Zone) Act 2001; or
(g) for an Australian resources installation—the commencement of the Migration Amendment (Excision from Migration Zone) Act 2001.
ex‑citizen visa has the meaning given by section 35.
Fair Work Inspector has the same meaning as in the Fair Work Act 2009.
Federal Circuit Court means the Federal Circuit Court of Australia.
Federal Court means the Federal Court of Australia.
fisheries detention offence means:
(a) an offence against section 99, 100, 100A, 100B, 101, 101A, 101AA, 101B, 105E, 105EA, 105H or 105I of the Fisheries Management Act 1991; or
(b) an offence against section 45, 46A, 46B, 46C, 46D, 48, 49, 49A, 51 or 51A of the Torres Strait Fisheries Act 1984; or
(c) an offence against section 6 of the Crimes Act 1914 relating to an offence described in paragraph (a) or (b).
fisheries officer means an officer as defined in the Fisheries Management Act 1991 or the Torres Strait Fisheries Act 1984.
foreign aircraft (environment matters) means an aircraft, within the meaning of the Environment Protection and Biodiversity Conservation Act 1999, that is not an Australian aircraft (within the meaning of that Act).
foreign boat has the same meaning as in the Fisheries Management Act 1991.
health concern non‑citizen means a non‑citizen who is suffering from a prescribed disease or a prescribed physical or mental condition.
health criterion, in relation to a visa, means a prescribed criterion for the visa that:
(a) relates to the applicant for the visa, or the members of the family unit of that applicant; and
(b) deals with:
(i) a prescribed disease; or
(ii) a prescribed kind of disease; or
(iii) a prescribed physical or mental condition; or
(iv) a prescribed kind of physical or mental condition; or
(v) a prescribed kind of examination; or
(vi) a prescribed kind of treatment.
holder, in relation to a visa, means, subject to section 77 (visas held during visa period) the person to whom it was granted or a person included in it.
identification test means a test carried out in order to obtain a personal identifier.
identity document, in relation to a member of the crew of a vessel, means:
(a) an identification card, in accordance with a form approved by the Minister, in respect of the member signed by the master of the vessel; or
(b) a document, of a kind approved by the Minister as an identity document for the purposes of this Act, in respect of the member.
immigration cleared has the meaning given by subsection 172(1).
immigration detention means:
(a) being in the company of, and restrained by:
(i) an officer; or
(ii) in relation to a particular detainee—another person directed by the Secretary to accompany and restrain the detainee; or
(b) being held by, or on behalf of, an officer:
(i) in a detention centre established under this Act; or
(ii) in a prison or remand centre of the Commonwealth, a State or a Territory; or
(iii) in a police station or watch house; or
(iv) in relation to a non‑citizen who is prevented, under section 249, from leaving a vessel—on that vessel; or
(v) in another place approved by the Minister in writing;
but does not include being restrained as described in subsection 245F(8A), or being dealt with under paragraph 245F(9)(b).
Note 1: Subsection 198AD(11) provides that being dealt with under subsection 198AD(3) does not amount to immigration detention.
Note 2: This definition extends to persons covered by residence determinations (see section 197AC).
incapable person means a person who is incapable of understanding the general nature and effect of, and purposes of, a requirement to provide a personal identifier.
independent person means a person (other than an officer or an authorised officer) who:
(a) is capable of representing the interests of a non‑citizen who is providing, or is to provide, a personal identifier; and
(b) as far as practicable, is acceptable to the non‑citizen who is providing, or is to provide, the personal identifier; and
(c) if the non‑citizen is a minor—is capable of representing the minor’s best interests.
inhabitant of the Protected Zone means a person who is a citizen of Papua New Guinea and who is a traditional inhabitant.
in immigration clearance has the meaning given by subsection 172(2).
inspector has the meaning given by section 140V.
installation means:
(a) a resources installation; or
(b) a sea installation.
Joint Petroleum Development Area has the same meaning as in the Petroleum (Timor Sea Treaty) Act 2003.
lawful non‑citizen has the meaning given by section 13.
lawyer means:
(a) a barrister; or
(b) a solicitor; or
(c) a barrister and solicitor; or
(d) a legal practitioner;
of the High Court or of the Supreme Court of a State or Territory.
leave Australia, in relation to a person, means, subject to section 80 (leaving without going to other country), leave the migration zone.
maritime crew visa has the meaning given by section 38B.
master, in relation to a vessel, means the person in charge or command of the vessel.
member of the crew means:
(a) in relation to a vessel other than an aircraft—the master of the vessel, or a person whose name is on the articles of the vessel as a member of the crew; or
(b) in relation to an aircraft—the master of the aircraft, or a person employed by the operator of the aircraft and whose name is included in a list of members of the crew of the aircraft furnished by the master as prescribed.
member of the family unit of a person has the meaning given by the regulations made for the purposes of this definition.
member of the same family unit: one person is a member of the same family unit as another if either is a member of the family unit of the other or each is a member of the family unit of a third person.
migration decision means:
(a) a privative clause decision; or
(b) a purported privative clause decision; or
(c) a non‑privative clause decision.
Migration Review Tribunal means the Migration Review Tribunal established by section 394.
migration zone means the area consisting of the States, the Territories, Australian resource installations and Australian sea installations and, to avoid doubt, includes:
(a) land that is part of a State or Territory at mean low water; and
(b) sea within the limits of both a State or a Territory and a port; and
(c) piers, or similar structures, any part of which is connected to such land or to ground under such sea;
but does not include sea within the limits of a State or Territory but not in a port.
minor means a person who is less than 18 years old.
movement records means information stored in a notified data base.
natural resources means the mineral and other non‑living resources of the seabed and its subsoil.
non‑citizen means a person who is not an Australian citizen.
non‑disclosable information means information or matter:
(a) whose disclosure would, in the Minister’s opinion, be contrary to the national interest because it would:
(i) prejudice the security, defence or international relations of Australia; or
(ii) involve the disclosure of deliberations or decisions of the Cabinet or of a committee of the Cabinet; or
(b) whose disclosure would, in the Minister’s opinion, be contrary to the public interest for a reason which could form the basis of a claim by the Crown in right of the Commonwealth in judicial proceedings; or
(c) whose disclosure would found an action by a person, other than the Commonwealth, for breach of confidence;
and includes any document containing, or any record of, such information or matter.
non‑political crime:
(a) subject to paragraph (b), means a crime where a person’s motives for committing the crime were wholly or mainly non‑political in nature; and
(b) includes an offence that, under paragraph (a), (b) or (c) of the definition of political offence in section 5 of the Extradition Act 1988, is not a political offence in relation to a country for the purposes of that Act.
non‑privative clause decision has the meaning given by subsection 474(6).
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.
old visa means a visa, document, or notation, that:
(a) permits a person to travel to Australia; and
(b) was issued before 1 September 1994; and
(c) has not been cancelled or otherwise stopped being in effect.
parent: without limiting who is a parent of a person for the purposes of this Act, someone is the parent of a person if the person is his or her child because of the definition of child in section 5CA.
passport includes a document of identity issued from official sources, whether in or outside Australia, and having the characteristics of a passport, but does not include a document, which may be a document called or purporting to be a passport, that the regulations declare is not to be taken to be a passport.
penalty unit has the meaning given by section 4AA of the Crimes Act 1914.
permanent visa has the meaning given by subsection 30(1).
personal identifier has the meaning given by section 5A.
personal information has the same meaning as in the Privacy Act 1988.
port means:
(a) a proclaimed port; or
(b) a proclaimed airport.
pre‑cleared flight means a flight declared under section 17 to be a pre‑cleared flight.
prescribed means prescribed by the regulations.
printout means a mechanically or electronically made reproduction of part or all of the movement records.
privative clause decision has the meaning given by subsection 474(2).
proclaimed airport means:
(a) an airport appointed under section 15 of the Customs Act 1901; or
(b) an airport appointed by the Minister under subsection (5).
proclaimed port means:
(a) a port appointed under section 15 of the Customs Act 1901; or
(b) a port appointed by the Minister under subsection (5).
protected area means an area that is:
(a) part of the migration zone; and
(b) in, or in an area in the vicinity of, the Protected Zone.
Protected Zone means the zone established under Article 10 of the Torres Strait Treaty, being the area bounded by the line described in Annex 9 to that treaty.
purported privative clause decision has the meaning given by section 5E.
questioning detention means detention under section 192.
receiving country, in relation to a non‑citizen, means:
(a) a country of which the non‑citizen is a national; or
(b) if the non‑citizen has no country of nationality—the country of which the non‑citizen is an habitual resident;
to be determined solely by reference to the law of the relevant country.
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).
regional processing country means a country designated by the Minister under subsection 198AB(1) as a regional processing country.
remain in Australia, in relation to a person, means remain in the migration zone.
remove means remove from Australia.
removee means an unlawful non‑citizen removed, or to be removed, under Division 8 of Part 2.
residence determination has the meaning given by subsection 197AB(1).
resources installation means:
(a) a resources industry fixed structure within the meaning of subsection (10); or
(b) a resources industry mobile unit within the meaning of subsection (11).
RRT‑reviewable decision has the meaning given by section 411.
score, in relation to a visa applicant, means the total number of points given to the applicant under section 93 in the most recent assessment or re‑assessment under Subdivision B of Division 3 of Part 2.
sea installation has the same meaning as in the Sea Installations Act.
Sea Installations Act means the Sea Installations Act 1987.
Secretary means the Secretary of the Department.
serious Australian offence means an offence against a law in force in Australia, where:
(a) the offence:
(i) involves violence against a person; or
(ii) is a serious drug offence; or
(iii) involves serious damage to property; or
(iv) is an offence against section 197A or 197B (offences relating to immigration detention); and
(b) the offence is punishable by:
(i) imprisonment for life; or
(ii) imprisonment for a fixed term of not less than 3 years; or
(iii) imprisonment for a maximum term of not less than 3 years.
serious foreign offence means an offence against a law in force in a foreign country, where:
(a) the offence:
(i) involves violence against a person; or
(ii) is a serious drug offence; or
(iii) involves serious damage to property; and
(b) if it were assumed that the act or omission constituting the offence had taken place in the Australian Capital Territory, the act or omission would have constituted an offence (the Territory offence) against a law in force in that Territory, and the Territory offence would have been punishable by:
(i) imprisonment for life; or
(ii) imprisonment for a fixed term of not less than 3 years; or
(iii) imprisonment for a maximum term of not less than 3 years.
significant harm means harm of a kind mentioned in subsection 36(2A).
special category visa has the meaning given by section 32.
special purpose visa has the meaning given by section 33.
spouse has the meaning given by section 5F.
student visa has the meaning given by the regulations.
substantive visa means a visa other than:
(a) a bridging visa; or
(b) a criminal justice visa; or
(c) an enforcement visa.
temporary visa has the meaning given by subsection 30(2).
Territory means:
(a) an internal Territory; or
(b) an external Territory to which this Act extends.
ticket includes a travel document in respect of the conveyance of a person from one place to another place.
Torres Strait Treaty means the Treaty between Australia and the Independent State of Papua New Guinea that was signed at Sydney on 18 December 1978.
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
traditional activities has the same meaning as in the Torres Strait Treaty.
traditional inhabitants has the same meaning as in the Torres Strait Fisheries Act 1984.
transitory person means:
(a) a person who was taken to another country under repealed section 198A; or
(aa) a person who was taken to a regional processing country under section 198AD; or
(b) a person who was taken to a place outside Australia under paragraph 245F(9)(b); 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.
unauthorised maritime arrival has the meaning given by section 5AA.
unlawful non‑citizen has the meaning given by section 14.
vessel includes an aircraft or an installation.
vessel (environment matters) means a vessel, within the meaning of the Environment Protection and Biodiversity Conservation Act 1999.
visa has the meaning given by section 29 and includes an old visa.
visa applicant means an applicant for a visa and, in relation to a visa, means the applicant for the visa.
visa application charge means the charge payable under section 45A.
visa application charge limit is the amount determined under the Migration (Visa Application) Charge Act 1997.
visa evidence charge means visa evidence charge imposed by the Migration (Visa Evidence) Charge Act 2012.
visa evidence charge limit for a request made under section 70 has the meaning given by the Migration (Visa Evidence) Charge Act 2012.
visa holder means the holder of a visa and, in relation to a visa, means the holder of the visa.
visa period, in relation to a visa, means the period:
(a) beginning when the visa is granted; and
(b) ending:
(i) in the case of a visa other than a bridging visa—when the visa ceases to be in effect; or
(ii) in the case of a bridging visa—when the visa ceases to be in effect otherwise than under subsection 82(3).
work agreement means an agreement that satisfies the requirements prescribed by the regulations for the purposes of this definition.
working day, in relation to a place, means any day that is not a Saturday, a Sunday or a public holiday in that place.
work‑related condition means a condition:
(a) prohibiting the holder of a visa from working in Australia; or
(b) restricting the work that the holder of a visa may do in Australia.
(1A) The Minister has power to give authorisations as provided by paragraphs (f) and (g) of the definition of officer in subsection (1) and, if such an authorisation is given:
(a) the Minister is to cause notice of the authorisation to be published in the Gazette; but
(b) without affecting the obligation of the Minister to cause a notice to be so published:
(i) the authorisation takes effect when it is given; and
(ii) the validity of the authorisation is not affected if such a notice is not published.
(1B) The Minister or the Secretary has the power to give authorisations as provided by the definition of authorised system.
(2) For the purposes of this Act, a person has functional English at a particular time if:
(a) the person passes a test that:
(i) is approved in writing by the Minister for the purposes of this subsection; and
(ii) is conducted by a person, or organisation, approved for the purposes of this subsection by the Minister by notice in the Gazette; or
(b) the person provides the Minister with prescribed evidence of the person’s English language proficiency.
(3) Any power that may be exercised by an authorized officer or by an officer under this Act may also be exercised by the Minister.
(4) Where, in any provision of this Act, reference is made to the exercise of a power by an authorized officer or by an officer and that power is a power which, by virtue of subsection (3), may also be exercised by the Minister, that reference shall be construed as including a reference to the exercise of that power by the Minister.
(4A) A reference in the definition of independent person in subsection (1) of this section, in sections 258 to 258G or in Division 13AB of Part 2 to a non‑citizen includes a reference to a person whom an officer, in the course of exercising or considering the exercising of his or her powers under section 188, reasonably suspects is a non‑citizen.
(5) The Minister may, by notice published in the Gazette:
(a) appoint ports in an external Territory to which this Act extends as proclaimed ports for the purposes of this Act and fix the limits of those ports; and
(b) appoint airports in an external Territory to which this Act extends as proclaimed airports for the purposes of this Act and fix the limits of those airports.
(6) For the purposes of this Act, where a resources installation that has been brought into Australian waters from a place outside the outer limits of Australian waters becomes attached to the Australian seabed:
(a) the installation shall be deemed to have entered Australia at the time when it becomes so attached;
(b) any person on board the installation at the time when it becomes so attached shall be deemed to have travelled to Australia on board that installation, to have entered Australia at that time and to have been brought into Australia at that time.
(7) For the purposes of this Act, where a sea installation that has been brought into Australian waters from a place outside the outer limits of Australian waters is installed in an adjacent area or in a coastal area:
(a) the installation shall be deemed to have entered Australia at the time that it becomes so installed; and
(b) any person on board the installation at the time that it becomes so installed shall be deemed to have travelled to Australia on board that installation, to have entered Australia at that time and to have been brought into Australia at that time.
(8) The Minister may, by notice published in the Gazette, declare an area adjacent to the Protected Zone and to the south of the line described in Annex 5 to the Torres Strait Treaty to be an area in the vicinity of the Protected Zone for the purposes of this Act.
(9) For the purposes of this Act, an application under this Act is finally determined when either:
(a) a decision that has been made in respect of the application is not, or is no longer, subject to any form of review under Part 5 or 7; or
(b) a decision that has been made in respect of the application was subject to some form of review under Part 5 or 7, but the period within which such a review could be instituted has ended without a review having been instituted as prescribed.
(10) A reference in this Act to a resources industry fixed structure shall be read as a reference to a structure (including a pipeline) that:
(a) is not able to move or be moved as an entity from one place to another; and
(b) is used or is to be used off‑shore in, or in any operations or activities associated with, or incidental to, exploring or exploiting natural resources.
(11) A reference in this Act to a resources industry mobile unit shall be read as a reference to:
(a) a vessel that is used or is to be used wholly or principally in:
(i) exploring or exploiting natural resources by drilling the seabed or its subsoil with equipment on or forming part of the vessel or by obtaining substantial quantities of material from the seabed or its subsoil with equipment of that kind; or
(ii) operations or activities associated with, or incidental to, activities of the kind referred to in subparagraph (i); or
(b) a structure (not being a vessel) that:
(i) is able to float or be floated;
(ii) is able to move or be moved as an entity from one place to another; and
(iii) is used or is to be used off‑shore wholly or principally in:
(A) exploring or exploiting natural resources by drilling the seabed or its subsoil with equipment on or forming part of the structure or by obtaining substantial quantities of material from the seabed or its subsoil with equipment of that kind; or
(B) operations or activities associated with, or incidental to, activities of the kind referred to in sub‑subparagraph (A).
(12) A vessel of a kind referred to in paragraph (11)(a) or a structure of a kind referred to in paragraph (11)(b) shall not be taken not to be a resources industry mobile unit by reason only that the vessel or structure is also used or to be used in, or in any operations or activities associated with, or incidental to, exploring or exploiting resources other than natural resources.
(13) The reference in subparagraph (11)(a)(ii) to a vessel that is used or is to be used wholly or principally in operations or activities associated with, or incidental to, activities of the kind referred to in subparagraph (11)(a)(i) shall be read as not including a reference to a vessel that is used or is to be used wholly or principally in:
(a) transporting persons or goods to or from a resources installation; or
(b) manoeuvring a resources installation, or in operations relating to the attachment of a resources installation to the Australian seabed.
(14) A resources installation shall be taken to be attached to the Australian seabed if:
(a) the installation:
(i) is in physical contact with, or is brought into physical contact with, a part of the Australian seabed; and
(ii) is used or is to be used, at that part of the Australian seabed, wholly or principally in or in any operations or activities associated with, or incidental to, exploring or exploiting natural resources; or
(b) the installation:
(i) is in physical contact with, or is brought into physical contact with, another resources installation that is taken to be attached to the Australian seabed by virtue of the operation of paragraph (a); and
(ii) is used or is to be used, at the place where it is brought into physical contact with the other installation, wholly or principally in or in any operations or activities associated with, or incidental to, exploring or exploiting natural resources.
(15) Subject to subsection (17), for the purposes of this Act, a sea installation shall be taken to be installed in an adjacent area if:
(a) the installation is in, or is brought into, physical contact with a part of the seabed in the adjacent area; or
(b) the installation is in, or is brought into, physical contact with another sea installation that is to be taken to be installed in the adjacent area because of paragraph (a).
(16) For the purposes of this Act, a sea installation shall be taken to be installed in an adjacent area at a particular time if the whole or part of the installation:
(a) is in that adjacent area at that time; and
(b) has been in a particular locality:
(i) that is circular and has a radius of 20 nautical miles; and
(ii) the whole or part of which is in that adjacent area;
for:
(iii) a continuous period, of at least 30 days, that immediately precedes that time; or
(iv) one or more periods, during the 60 days that immediately precede that time, that in sum amount to at least 40 days.
(17) Where a sea installation, being a ship or an aircraft:
(a) is brought into physical contact with a part of the seabed in an adjacent area; or
(b) is in, or is brought into, physical contact with another sea installation that is to be taken to be installed in an adjacent area;
for less than:
(c) in the case of a ship, or an aircraft, registered under the law of a foreign country—30 days; or
(d) in any other case—5 days;
it shall not be taken to be installed in that adjacent area under subsection (15).
(18) A sea installation shall not be taken to be installed in an adjacent area for the purposes of this Act unless it is to be taken to be so installed under this section.
(19) Subject to subsection (21), for the purposes of this Act, a sea installation shall be taken to be installed in a coastal area if:
(a) the installation is in, or is brought into, physical contact with a part of the seabed in the coastal area; or
(b) the installation is in, or is brought into, physical contact with another sea installation that is to be taken to be installed in the coastal area because of paragraph (a).
(20) For the purposes of this Act, a sea installation (other than an installation installed in an adjacent area) shall be taken to be installed at a particular time in a coastal area if the whole or part of the installation:
(a) is in that coastal area at that time; and
(b) has been in a particular locality:
(i) that is circular and has a radius of 20 nautical miles; and
(ii) the whole or part of which is in that coastal area;
for:
(iii) a continuous period, of at least 30 days, that immediately precedes that time; or
(iv) one or more periods, during the 60 days that immediately precede that time, that in sum amount to at least 40 days.
(21) Where a sea installation, being a ship or an aircraft:
(a) is brought into physical contact with a part of the seabed in a coastal area; or
(b) is in, or is brought into, physical contact with another sea installation that is to be taken to be installed in a coastal area;
for less than:
(c) in the case of a ship, or an aircraft, registered under the law of a foreign country—30 days; or
(d) in any other case—5 days;
it shall not be taken to be installed in that coastal area under subsection (19).
(22) A sea installation shall not be taken to be installed in a coastal area for the purposes of this Act unless it is to be taken to be so installed under this section.
(23) To avoid doubt, in this Act is taken, when followed by the infinitive form of a verb, has the same force and effect as is deemed when followed by the infinitive form of that verb.
5AA Meaning of unauthorised maritime arrival
(1) For the purposes of this Act, a person is an unauthorised maritime arrival if:
(a) the person entered Australia by sea:
(i) at an excised offshore place at any time after the excision time for that place; or
(ii) at any other place at any time on or after the commencement of this section; and
(b) the person became an unlawful non‑citizen because of that entry; and
(c) the person is not an excluded maritime arrival.
Entered Australia by sea
(2) A person entered Australia by sea if:
(a) the person entered the migration zone except on an aircraft that landed in the migration zone; or
(b) the person entered the migration zone as a result of being found on a ship detained under section 245F and being dealt with under paragraph 245F(9)(a); or
(c) the person entered the migration zone after being rescued at sea.
Excluded maritime arrival
(3) A person is an excluded maritime arrival if the person:
(a) is a New Zealand citizen who holds and produces a New Zealand passport that is in force; or
(b) is a non‑citizen who holds and produces a passport that is in force and is endorsed with an authority to reside indefinitely on Norfolk Island; or
(c) is included in a prescribed class of persons.
Definitions
(4) In this section:
aircraft has the same meaning as in section 245A.
ship has the meaning given by section 245A.
5A Meaning of personal identifier
(1) In this Act:
personal identifier means any of the following (including any of the following in digital form):
(a) fingerprints or handprints of a person (including those taken using paper and ink or digital livescanning technologies);
(b) a measurement of a person’s height and weight;
(c) a photograph or other image of a person’s face and shoulders;
(d) an audio or a video recording of a person (other than a video recording under section 261AJ);
(e) an iris scan;
(f) a person’s signature;
(g) any other identifier prescribed by the regulations, other than an identifier the obtaining of which would involve the carrying out of an intimate forensic procedure within the meaning of section 23WA of the Crimes Act 1914.
(2) Before the Governor‑General makes regulations for the purposes of paragraph (1)(g) prescribing an identifier, the Minister must be satisfied that:
(a) obtaining the identifier would not involve the carrying out of an intimate forensic procedure within the meaning of section 23WA of the Crimes Act 1914; and
(b) the identifier is an image of, or a measurement or recording of, an external part of the body; and
(c) obtaining the identifier will promote one or more of the purposes referred to in subsection (3).
(3) The purposes are:
(a) to assist in the identification of, and to authenticate the identity of, any person who can be required under this Act to provide a personal identifier; and
(b) to assist in identifying, in the future, any such person; and
(c) to improve the integrity of entry programs, including passenger processing at Australia’s border; and
(d) to facilitate a visa‑holder’s access to his or her rights under this Act or the regulations; and
(e) to improve the procedures for determining visa applications; and
(f) to improve the procedures for determining claims for protection under the Refugees Convention as amended by the Refugees Protocol; and
(g) to enhance the Department’s ability to identify non‑citizens who have a criminal history, who are of character concern or who are of national security concern; and
(h) to combat document and identity fraud in immigration matters; and
(i) to detect forum shopping by applicants for visas; and
(j) to ascertain whether:
(i) an applicant for a protection visa; or
(ii) an unauthorised maritime arrival who makes a claim for protection under the Refugees Convention as amended by the Refugees Protocol; or
(iii) an unauthorised maritime arrival who makes a claim for protection on the basis that the person will suffer significant harm;
had sufficient opportunity to avail himself or herself of protection before arriving in Australia; and
(k) to complement anti‑people smuggling measures; and
(l) to inform the governments of foreign countries of the identity of non‑citizens who are, or are to be, removed or deported from Australia.
5B When personal identifier taken not to have been provided
A person is taken, for the purposes of sections 40, 46, 166, 170, 175, 188 and 192, not to have provided a personal identifier if:
(a) the personal identifier that is provided is unusable; or
(b) an authorised officer or an officer is not satisfied:
(i) about the integrity of the personal identifier that is provided; or
(ii) about the procedure followed to obtain the personal identifier; or
(c) in a case to which subsection 40(5), 46(2C), 166(8), 170(5), 175(5), 188(7) or 192(2C) applies—the quality of the personal identifier that is provided does not satisfy an officer who uses the personal identifier for the purpose of making a decision under this Act or the regulations.
5C Meaning of character concern
(1) For the purposes of this Act, a non‑citizen is of character concern if:
(a) the non‑citizen has a substantial criminal record (as defined by subsection (2)); or
(b) the non‑citizen has or has had an association with someone else, or with a group or organisation, who is reasonably suspected of having been or being involved in criminal conduct; or
(c) having regard to either or both of the following:
(i) the non‑citizen’s past and present criminal conduct;
(ii) the non‑citizen’s past and present general conduct;
the non‑citizen is not of good character; or
(d) in the event that the non‑citizen were allowed to enter or to remain in Australia, there is a significant risk that the non‑citizen would:
(i) engage in criminal conduct in Australia; or
(ii) harass, molest, intimidate or stalk another person in Australia; or
(iii) vilify a segment of the Australian community; or
(iv) incite discord in the Australian community or in a segment of that community; or
(v) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.
(2) For the purposes of subsection (1), a non‑citizen has a substantial criminal record if:
(a) the non‑citizen has been sentenced to death; or
(b) the non‑citizen has been sentenced to imprisonment for life; or
(c) the non‑citizen has been sentenced to a term of imprisonment of 12 months or more; or
(d) the non‑citizen has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), and the total of those terms is 2 years or more; or
(e) the non‑citizen has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution.
5CA Child of a person
(1) Without limiting who is a child of a person for the purposes of this Act, each of the following is the child of a person:
(a) someone who is a child of the person within the meaning of the Family Law Act 1975 (other than someone who is an adopted child of the person within the meaning of that Act);
(b) someone who is an adopted child of the person within the meaning of this Act.
(2) The regulations may provide that, for the purposes of this Act, a person specified by the regulations is not a child of another person specified by the regulations in circumstances in which the person would, apart from this subsection, be the child of more than 2 persons for the purposes of this Act.
(3) Subsection (2), and regulations made for the purposes of that subsection, have effect whether the person specified as not being a child of another person would, apart from that subsection and those regulations, be the child of the other person because of subsection (1) or otherwise.
5CB De facto partner
De facto partners
(1) For the purposes of this Act, a person is the de facto partner of another person (whether of the same sex or a different sex) if, under subsection (2), the person is in a de facto relationship with the other person.
De facto relationship
(2) For the purposes of subsection (1), a person is in a de facto relationship with another person if they are not in a married relationship (for the purposes of section 5F) with each other but:
(a) they have a mutual commitment to a shared life to the exclusion of all others; and
(b) the relationship between them is genuine and continuing; and
(c) they:
(i) live together; or
(ii) do not live separately and apart on a permanent basis; and
(d) they are not related by family (see subsection (4)).
(3) The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.
Definition
(4) For the purposes of paragraph (2)(d), 2 persons are related by family if:
(a) one is the child (including an adopted child) of the other; or
(b) one is another descendant of the other (even if the relationship between them is traced through an adoptive parent); or
(c) they have a parent in common (who may be an adoptive parent of either or both of them).
For this purpose, disregard whether an adoption is declared void or has ceased to have effect.
5D Limiting the types of identification tests that authorised officers may carry out
(1) The Minister or Secretary may, in an instrument authorising an officer as an authorised officer for the purposes of carrying out identification tests under this Act, specify the types of identification tests that the authorised officer may carry out.
(2) Such an authorised officer is not an authorised officer in relation to carrying out an identification test that is not of a type so specified.
5E Meaning of purported privative clause decision
(1) In this Act, purported privative clause decision means a decision purportedly made, proposed to be made, or required to be made, under this Act or under a regulation or other instrument made under this Act (whether in purported exercise of a discretion or not), that would be a privative clause decision if there were not:
(a) a failure to exercise jurisdiction; or
(b) an excess of jurisdiction;
in the making of the decision.
(2) In this section, decision includes anything listed in subsection 474(3).
5F Spouse
(1) For the purposes of this Act, a person is the spouse of another person if, under subsection (2), the 2 persons are in a married relationship.
(2) For the purposes of subsection (1), persons are in a married relationship if:
(a) they are married to each other under a marriage that is valid for the purposes of this Act; and
(b) they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and
(c) the relationship between them is genuine and continuing; and
(d) they:
(i) live together; or
(ii) do not live separately and apart on a permanent basis.
(3) The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.
Note: Section 12 also affects the determination of whether the condition in paragraph (2)(a) of this section exists.
5G Relationships and family members
(1) For the purposes of this Act, if one person is the child of another person because of the definition of child in section 5CA, relationships traced to or through that person are to be determined on the basis that the person is the child of the other person.
(2) For the purposes of this Act, the members of a person’s family and relatives of a person are taken to include the following:
(a) a de facto partner of the person;
(b) someone who is the child of the person, or of whom the person is the child, because of the definition of child in section 5CA;
(c) anyone else who would be a member of the person’s family or a relative of the person if someone mentioned in paragraph (a) or (b) is taken to be a member of the person’s family or a relative of the person.
This does not limit who is a member of a person’s family or relative of a person.
6 Effect of limited meaning of enter Australia etc.
To avoid doubt, although subsection 5(1) limits, for the purposes of this Act, the meanings of enter Australia, leave Australia and remain in Australia and as well, because of section 18A of the Acts Interpretation Act 1901, the meaning of parts of speech and grammatical forms of those phrases, this does not mean:
(a) that, for those purposes, the meaning of in Australia, to Australia or any other phrase is limited; or
(b) that this Act does not extend to parts of Australia outside the migration zone; or
(c) that this Act does not apply to persons in those parts.
7 Act to extend to certain Territories
(1) In this section, prescribed Territory means the Coral Sea Islands Territory, the Territory of Cocos (Keeling) Islands, the Territory of Christmas Island and the Territory of Ashmore and Cartier Islands.
(2) This Act extends to a prescribed Territory.
(3) Subject to this Act, a prescribed Territory:
(a) shall be deemed to be part of Australia for the purposes of this Act; and
(b) shall be deemed not to be a place outside Australia.
7A Effect on executive power to protect Australia’s borders
The existence of statutory powers under this Act does not prevent the exercise of any executive power of the Commonwealth to protect Australia’s borders, including, where necessary, by ejecting persons who have crossed those borders.
8 Certain resources installations to be part of Australia
(1) For the purposes of this Act, a resources installation that:
(a) becomes attached to the Australian seabed after the commencement of this subsection; or
(b) at the commencement of this subsection, is attached to the Australian seabed;
shall, subject to subsection (2), be deemed to be part of Australia and shall be deemed not to be a place outside Australia.
(2) A resources installation that is deemed to be part of Australia by virtue of the operation of this section shall, for the purposes of this Act, cease to be part of Australia if:
(a) the installation is detached from the Australian seabed, or from another resources installation that is attached to the Australian seabed, for the purpose of being taken to a place outside the outer limits of Australian waters (whether or not the installation is to be taken to a place in Australia before being taken outside those outer limits); or
(b) after having been detached from the Australian seabed otherwise than for the purpose referred to in paragraph (a), the installation is moved for the purpose of being taken to a place outside the outer limits of Australian waters (whether or not the installation is to be taken to a place in Australia before being taken outside those outer limits).
9 Certain sea installations to be part of Australia
(1) For the purposes of this Act, a sea installation that:
(a) becomes installed in an adjacent area or in a coastal area after the commencement of this subsection; or
(b) at the commencement of this subsection, is installed in an adjacent area or in a coastal area;
shall, subject to subsection (2), be deemed to be part of Australia and shall be deemed not to be a place outside Australia.
(2) A sea installation that is deemed to be part of Australia because of the operation of this section shall, for the purposes of this Act, cease to be part of Australia if:
(a) the installation is detached from its location for the purpose of being taken to a place outside the outer limits of Australian waters; or
(b) after having been detached from its location otherwise than for the purpose referred to in paragraph (a), the installation is moved for the purpose of being taken to a place outside the outer limits of Australian waters.
10 Certain children taken to enter Australia at birth
A child who:
(a) was born in the migration zone; and
(b) was a non‑citizen when he or she was born;
shall be taken to have entered Australia when he or she was born.
11 Visa applicable to 2 or more persons
Where:
(a) 2 or more persons who are the holders of the same visa travel to Australia on board the same vessel; and
(b) on entering Australia, one of those persons is in possession of evidence of that visa;
each of them shall, for the purposes of this Act, be taken to be in possession of that evidence on entering Australia.
12 Application of Part VA of the Marriage Act
For the purpose of deciding whether a marriage is to be recognised as valid for the purposes of this Act, Part VA of the Marriage Act 1961 applies as if section 88E of that Act were omitted.
Part 2—Control of arrival and presence of non‑citizens
Division 1—Immigration status
13 Lawful non‑citizens
(1) A non‑citizen in the migration zone who holds a visa that is in effect is a lawful non‑citizen.
(2) An allowed inhabitant of the Protected Zone who is in a protected area in connection with the performance of traditional activities is a lawful non‑citizen.
14 Unlawful non‑citizens
(1) A non‑citizen in the migration zone who is not a lawful non‑citizen is an unlawful non‑citizen.
(2) To avoid doubt, a non‑citizen in the migration zone who, immediately before 1 September 1994, was an illegal entrant within the meaning of the Migration Act as in force then became, on that date, an unlawful non‑citizen.
15 Effect of cancellation of visa on status
To avoid doubt, subject to subsection 13(2) (certain inhabitants of protected zone), if a visa is cancelled its former holder, if in the migration zone, becomes, on the cancellation, an unlawful non‑citizen unless, immediately after the cancellation, the former holder holds another visa that is in effect.
16 Removal of immigration rights of inhabitant of Protected Zone
The Minister may declare, in writing, that it is undesirable that a specified inhabitant of the Protected Zone continue to be permitted to enter or remain in Australia.
17 Pre‑cleared flights
(1) The Minister may, in writing, declare a specified flight by an aircraft on a specified day between a specified foreign country and Australia to be a pre‑cleared flight for the purposes of this Act.
(2) The Minister may declare, in writing, a specified class of flights conducted by a specified air transport enterprise or by another specified person to be pre‑cleared flights for the purposes of this Act.
(3) A particular flight to which a declaration under subsection (1) or (2) applies is not a pre‑cleared flight if an authorised officer decides, before the passengers on it disembark in Australia, that it is inappropriate to treat it as such.
Division 2—Power to obtain information and documents about unlawful non‑citizens
18 Power to obtain information and documents about unlawful non‑citizens
(1) If the Minister has reason to believe that a person (in this subsection called the first person) is capable of giving information which the Minister has reason to believe is, or producing documents (including documents that are copies of other documents) which the Minister has reason to believe are, relevant to ascertaining the identity or whereabouts of another person whom the Minister has reason to believe is an unlawful non‑citizen, the Minister may, by notice in writing served on the first person, require the first person:
(a) to give to the Minister, within the period and in the manner specified in the notice, any such information; or
(b) to produce to the Minister, within the period and in the manner specified in the notice, any such documents; or
(c) to make copies of any such documents and to produce to the Minister, within the period and in the manner specified in the notice, those copies.
(2) A notice under subsection (1) must set out the effects of section 21 of this Act and sections 137.1 and 137.2 of the Criminal Code.
19 Scales of expenses
The regulations may prescribe scales of expenses to be allowed to persons required to give information or produce documents under this Division.
20 Reasonable compensation
A person is entitled to be paid by the Commonwealth reasonable compensation for complying with a requirement covered by paragraph 18(1)(c).
21 Failure to comply with section 18 notice
(1) A person must not refuse or fail to comply with a notice under subsection 18(1).
(1A) Subsection (1) does not apply:
(a) to the extent that the person is not capable of complying with the notice; or
(b) if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matters in subsection (1A) (see subsection 13.3(3) of the Criminal Code).
(2) The following are 2 of the reasonable excuses for refusing or failing to comply with a notice:
(a) the person whom the Minister had reason to believe was an unlawful non‑citizen was not an unlawful non‑citizen at the time the notice was given;
(b) the information or documents which the Minister had reason to believe were relevant to ascertaining the identity or whereabouts of a person were not relevant to ascertaining the identity or whereabouts of the person.
(3) An offence against subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
Penalty: Imprisonment for 6 months.
24 Information and documents that incriminate a person
A person is not excused from giving information or producing a document or a copy of a document under this Division on the ground that the information or the production of the document or copy might tend to incriminate the person, but:
(a) giving the information or producing the document or copy; or
(b) any information, document or thing obtained as a direct or indirect consequence of giving the information or producing the document or copy;
is not admissible in evidence against the person in any criminal proceedings other than a prosecution for:
(c) an offence against, or arising out of, this Division; or
(d) an offence against section 137.1 or 137.2 of the Criminal Code that relates to this Division.
25 Copies of documents
(1) The Minister may inspect a document or copy produced under this Division and may make and retain copies of, or take and retain extracts from, such a document or copy.
(2) The Minister may retain possession of a copy of a document produced in accordance with a requirement covered by paragraph 18(1)(c).
26 Minister may retain documents
(1) The Minister may, for the purposes of this Act, take, and retain for as long as is necessary for those purposes, possession of a document produced under this Division.
(2) The person otherwise entitled to possession of the document is entitled to be supplied, as soon as practicable, with a copy certified by the Minister to be a true copy.
(3) The certified copy must be received in all courts and tribunals as evidence as if it were the original.
(4) Until a certified copy is supplied, the Minister must, at such times and places as the Minister thinks appropriate, permit the person otherwise entitled to possession of the document, or a person authorised by that person, to inspect and make copies of, or take extracts from, the document.
27 Division binds the Crown
(1) This Division binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory.
(2) Nothing in this Division permits the Crown in right of the Commonwealth, of a State, of the Australian Capital Territory or of the Northern Territory to be prosecuted for an offence.
Division 3—Visas for non‑citizens
Subdivision A—General provisions about visas
28 Interpretation
In this Division:
specified period includes the period until a specified date.
29 Visas
(1) Subject to this Act, the Minister may grant a non‑citizen permission, to be known as a visa, to do either or both of the following:
(a) travel to and enter Australia;
(b) remain in Australia.
Note: A maritime crew visa is generally permission to travel to and enter Australia only by sea (as well as being permission to remain in Australia) (see section 38B).
(2) Without limiting subsection (1), a visa to travel to, enter and remain in Australia may be one to:
(a) travel to and enter Australia during a prescribed or specified period; and
(b) if, and only if, the holder travels to and enters during that period, remain in Australia during a prescribed or specified period or indefinitely.
(3) Without limiting subsection (1), a visa to travel to, enter and remain in Australia may be one to:
(a) travel to and enter Australia during a prescribed or specified period; and
(b) if, and only if, the holder travels to and enters during that period:
(i) remain in it during a prescribed or specified period or indefinitely; and
(ii) if the holder leaves Australia during a prescribed or specified period, travel to and re‑enter it during a prescribed or specified period.
(4) Without limiting section 83 (person taken to be included in visa), the regulations may provide for a visa being held by 2 or more persons.
30 Kinds of visas
(1) A visa to remain in Australia (whether also a visa to travel to and enter Australia) may be a visa, to be known as a permanent visa, to remain indefinitely.
(2) A visa to remain in Australia (whether also a visa to travel to and enter Australia) may be a visa, to be known as a temporary visa, to remain:
(a) during a specified period; or
(b) until a specified event happens; or
(c) while the holder has a specified status.
31 Classes of visas
(1) There are to be prescribed classes of visas.
(2) As well as the prescribed classes, there are the classes provided for by sections 32, 33, 34, 35, 36, 37, 37A, 38, 38A and 38B.
(3) The regulations may prescribe criteria for a visa or visas of a specified class (which, without limiting the generality of this subsection, may be a class provided for by section 32, 36, 37, 37A or 38B but not by section 33, 34, 35, 38 or 38A).
(4) The regulations may prescribe whether visas of a class are visas to travel to and enter Australia, or to remain in Australia, or both.
(5) A visa is a visa of a particular class if this Act or the regulations specify that it is a visa of that class.
32 Special category visas
(1) There is a class of temporary visas to be known as special category visas.
(2) A criterion for a special category visa is that the Minister is satisfied the applicant is:
(a) a non‑citizen:
(i) who is a New Zealand citizen and holds, and has presented to an officer or an authorised system, a New Zealand passport that is in force; and
(ii) is neither a behaviour concern non‑citizen nor a health concern non‑citizen; or
(b) a person declared by the regulations, to be a person for whom a visa of another class would be inappropriate; or
(c) a person in a class of persons declared by the regulations, to be persons for whom a visa of another class would be inappropriate.
(3) A person may comply with subparagraph (2)(a)(i) by presenting a New Zealand passport to an authorised system only if:
(a) the New Zealand passport is of a kind determined under section 175A to be an eligible passport for the purposes of Division 5 of Part 2; and
(c) before the person is granted a special category visa, neither the system nor an officer requires the person to present the passport to an officer.
33 Special purpose visas
(1) There is a class of temporary visas to travel to, enter and remain in Australia, to be known as special purpose visas.
(2) Subject to subsection (3), a non‑citizen is taken to have been granted a special purpose visa if:
(a) the non‑citizen:
(i) has a prescribed status; or
(ii) is a member of a class of persons that has a prescribed status; or
(b) the Minister declares, in writing, that:
(i) the non‑citizen is taken to have been granted a special purpose visa; or
(ii) persons of a class, of which the non‑citizen is a member, are taken to have been granted special purpose visas.
(3) A non‑citizen is not taken to have been granted a special purpose visa if a declaration under subsection (9) is in force in relation to the non‑citizen or a class of persons of which the non‑citizen is a member.
(4) A special purpose visa granted under subsection (2) is granted at the beginning of the later or latest of the following days:
(a) if paragraph (2)(a) applies:
(i) the day the non‑citizen commences to have the prescribed status;
(ii) the day the class of persons, of which the non‑citizen is a member, commences to have the prescribed status;
(iii) the day the non‑citizen commences to be a member of the class of persons that has a prescribed status;
(b) if paragraph (2)(b) applies:
(i) the day the declaration is made;
(ii) if a day is specified in the declaration as the day the visa comes into effect—that day;
(iii) the day the non‑citizen commences to be a member of the class of persons specified in the declaration.
(5) A special purpose visa ceases to be in effect at the earliest of the following times:
(a) if paragraph (2)(a) applies:
(i) if the non‑citizen ceases to have a prescribed status—the end of the day on which the non‑citizen so ceases; or
(ii) if the non‑citizen ceases to be a member of a class of persons that has a prescribed status—the end of the day on which the non‑citizen so ceases; or
(iii) if the Minister makes a declaration under subsection (9) in relation to the non‑citizen, or a class of persons of which the non‑citizen is a member—the time when that declaration takes effect;
(b) if paragraph (2)(b) applies:
(i) if a day is specified in the declaration as the day the visa ceases to be in effect—the end of that day; or
(ii) if an event is specified in the declaration as the event that causes the visa to cease to be in effect—the end of the day on which the event happens; or
(iii) if the non‑citizen ceases to be a member of a class of persons specified in the declaration—the end of the day on which the non‑citizen so ceases; or
(iv) if the declaration is revoked—the end of the day of the revocation; or
(v) if the Minister makes a declaration under subsection (9) in relation to the non‑citizen, or a class of persons of which the non‑citizen is a member—the time when that declaration takes effect.
(5A) For the purposes of subsection (5), the time when a declaration made by the Minister under subsection (9) takes effect is:
(a) if the Minister specifies a time in the declaration (which must be after the time when the declaration is made) as the time the declaration takes effect—the time so specified; or
(b) if the Minister does not specify such a time in the declaration—the end of the day on which the declaration is made.
(6) If the Minister makes a declaration under paragraph (2)(b), he or she is to cause to be laid before each House of the Parliament a statement that:
(a) sets out the contents of the declaration; and
(b) sets out the Minister’s reasons for the declaration.
(7) A statement under subsection (6) is not to include:
(a) the name of the non‑citizen; or
(b) if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned—the name of that other person.
(8) A statement under subsection (6) is to be laid before each House of the Parliament within 15 sitting days of that House after:
(a) if the declaration is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or
(b) if the declaration is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.
(9) The Minister may make a written declaration, for the purposes of this section, that it is undesirable that a person, or any persons in a class of persons, travel to and enter Australia or remain in Australia.
(10) Section 43 and Subdivisions AA, AB, AC (other than section 68), AE, AG, AH, C, D, E, F and H do not apply in relation to special purpose visas.
34 Absorbed person visas
(1) There is a class of permanent visas to remain in, but not re‑enter, Australia, to be known as absorbed person visas.
(2) A non‑citizen in the migration zone who:
(a) on 2 April 1984 was in Australia; and
(b) before that date, had ceased to be an immigrant; and
(c) on or after that date, has not left Australia, where left Australia has the meaning it had in this Act before 1 September 1994; and
(d) immediately before 1 September 1994, was not a person to whom section 20 of this Act as in force then applied;
is taken to have been granted an absorbed person visa on 1 September 1994.
(3) Subdivisions AA, AB, AC (other than section 68), AE and AH do not apply in relation to absorbed person visas.
35 Ex‑citizen visas
(1) There is a class of permanent visas to remain in, but not re‑enter, Australia, to be known as ex‑citizen visas.
(2) A person who:
(a) before 1 September 1994, ceased to be an Australian citizen while in the migration zone; and
(b) did not leave Australia after ceasing to be a citizen and before that date;
is taken to have been granted an ex‑citizen visa on that date.
(3) A person who, on or after 1 September 1994, ceases to be an Australian citizen while in the migration zone is taken to have been granted an ex‑citizen visa when that citizenship ceases.
(4) Subdivisions AA, AB, AC (other than section 68), AE and AH do not apply in relation to ex‑citizen visas.
36 Protection visas
(1) There is a class of visas to be known as protection visas.
Note: See also Subdivision AL.
(2) A criterion for a protection visa is that the applicant for the visa is:
(a) a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or
(aa) a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm; or
(b) a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:
(i) is mentioned in paragraph (a); and
(ii) holds a protection visa; or
(c) a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:
(i) is mentioned in paragraph (aa); and
(ii) holds a protection visa.
(2A) A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B) However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
Ineligibility for grant of a protection visa
(2C) A non‑citizen is taken not to satisfy the criterion mentioned in paragraph (2)(aa) if:
(a) the Minister has serious reasons for considering that:
(i) the non‑citizen has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or
(ii) the non‑citizen committed a serious non‑political crime before entering Australia; or
(iii) the non‑citizen has been guilty of acts contrary to the purposes and principles of the United Nations; or
(b) the Minister considers, on reasonable grounds, that:
(i) the non‑citizen is a danger to Australia’s security; or
(ii) the non‑citizen, having been convicted by a final judgment of a particularly serious crime (including a crime that consists of the commission of a serious Australian offence or serious foreign offence), is a danger to the Australian community.
Protection obligations
(3) Australia is taken not to have protection obligations in respect of a non‑citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non‑citizen is a national.
(4) However, subsection (3) does not apply in relation to a country in respect of which:
(a) the non‑citizen has a well‑founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or
(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non‑citizen will suffer significant harm in relation to the country.
(5) Subsection (3) does not apply in relation to a country if the non‑citizen has a well‑founded fear that:
(a) the country will return the non‑citizen to another country; and
(b) the non‑citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.
(5A) Also, subsection (3) does not apply in relation to a country if:
(a) the non‑citizen has a well‑founded fear that the country will return the non‑citizen to another country; and
(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non‑citizen will suffer significant harm in relation to the other country.
Determining nationality
(6) For the purposes of subsection (3), the question of whether a non‑citizen is a national of a particular country must be determined solely by reference to the law of that country.
(7) Subsection (6) does not, by implication, affect the interpretation of any other provision of this Act.
37 Bridging visas
There are classes of temporary visas, to be known as bridging visas, to be granted under Subdivision AF.
37A Temporary safe haven visas
(1) There is a class of temporary visas to travel to, enter and remain in Australia, to be known as temporary safe haven visas.
Note: A temporary safe haven visa is granted to a person to give the person temporary safe haven in Australia.
(2) The Minister may, by notice in the Gazette, extend the visa period of a temporary safe haven visa so that the visa ceases to be in effect on the day specified in the notice.
(3) The Minister may, by notice in the Gazette, shorten the visa period of a temporary safe haven visa so that the visa ceases to be in effect on the day specified in the notice if, in the Minister’s opinion, temporary safe haven in Australia is no longer necessary for the holder of the visa because of changes of a fundamental, durable and stable nature in the country concerned.
(4) If a notice under subsection (3) is published in the Gazette, the Minister must cause a copy of the notice to be laid before each House of the Parliament within 3 sitting days of that House after the publication of the notice, together with a statement that sets out the reasons for the notice, referring in particular to the Minister’s reasons for thinking that changes of a fundamental, durable and stable nature have occurred in the country concerned.
(5) If a notice under subsection (2) or (3) is published in the Gazette and has not been revoked, then the visa ceases to be in effect on the day specified in the notice, despite any other provision of this Act.
(6) The Minister does not have a duty to consider whether to exercise the power under subsection (2) in respect of any non‑citizen, whether he or she is requested to do so by the non‑citizen or by any other person, or in any other circumstances.
(7) In this section:
country concerned means the country or countries in which the circumstances exist that give rise to the grant of temporary safe haven visas.
38 Criminal justice visas
There is a class of temporary visas, to be known as criminal justice visas, to be granted under Subdivision D of Division 4.
38A Enforcement visas
There is a class of temporary visas to travel to, enter and remain in Australia, to be known as enforcement visas.
Note: Division 4A deals with these visas.
38B Maritime crew visas
(1) There is a class of temporary visas to travel to and enter Australia by sea, and to remain in Australia, to be known as maritime crew visas.
(2) Subject to subsection 43(1B), a maritime crew visa held by a non‑citizen does not grant the non‑citizen permission to travel to or enter Australia by air.
Note: However, a non‑citizen might also hold another class of visa that allows the non‑citizen to travel to and enter Australia by air.
(3) The Minister may make a written declaration, for the purposes of this section, that it is undesirable that a person, or any persons in a class of persons, travel to and enter Australia, or remain in Australia.
(4) If the Minister makes a declaration under subsection (3) in relation to a person, or a class of persons of which a person is a member, a maritime crew visa held by that person ceases to be in effect:
(a) if the Minister specifies a time in the declaration (which must be after the time when the declaration is made) as the time the declaration takes effect—at the time so specified; or
(b) if the Minister does not specify such a time in the declaration—at the end of the day on which the declaration is made.
Note: A maritime crew visa can also cease to be in effect under other sections (see for example section 82).
(5) If the Minister revokes a declaration made under subsection (4), the Minister is taken never to have made the declaration.
Note: Under subsection 33(3) of the Acts Interpretation Act 1901, the Minister may revoke a declaration made under subsection (4).
(6) Despite subsection (5), any detention of the non‑citizen that occurred during any part of the period:
(a) beginning when the Minister made the declaration; and
(b) ending at the time of the revocation of the declaration;
is lawful and the non‑citizen is not entitled to make any claim against the Commonwealth, an officer or any other person because of the detention.
39 Criterion limiting number of visas
(1) In spite of section 14 of the Legislative Instruments Act 2003, a prescribed criterion for visas of a class, other than protection visas, may be the criterion that the grant of the visa would not cause the number of visas of that class granted in a particular financial year to exceed whatever number is fixed by the Minister, by legislative instrument, as the maximum number of such visas that may be granted in that year (however the criterion is expressed).
(2) For the purposes of this Act, when a criterion allowed by subsection (1) prevents the grant in a financial year of any more visas of a particular class, any outstanding applications for the grant in that year of visas of that class are taken not to have been made.
40 Circumstances for granting visas
(1) The regulations may provide that visas or visas of a specified class may only be granted in specified circumstances.
(2) Without limiting subsection (1), the circumstances may be, or may include, that, when the person is granted the visa, the person:
(a) is outside Australia; or
(b) is in immigration clearance; or
(c) has been refused immigration clearance and has not subsequently been immigration cleared; or
(d) is in the migration zone and, on last entering Australia:
(i) was immigration cleared; or
(ii) bypassed immigration clearance and had not subsequently been immigration cleared.
(3) Without limiting subsection (1), if:
(a) prescribed circumstances exist; and
(b) the Minister has not waived the operation of this subsection in relation to granting the visa to the person;
the circumstances under subsection (1) may be, or may include, that the person has complied with any requirement of an officer to provide one or more personal identifiers in relation to the application for the visa.
(3A) An officer must not require, for the purposes of subsection (3), a person to provide a personal identifier other than:
(a) if the person is an applicant for a protection visa—any of the following (including any of the following in digital form):
(i) fingerprints or handprints of the person (including those taken using paper and ink or digital livescanning technologies);
(ii) a photograph or other image of the person’s face and shoulders;
(iii) an audio or a video recording of the person;
(iv) an iris scan;
(v) the person’s signature;
(vi) any other personal identifier contained in the person’s passport or other travel document;
(vii) any other personal identifier of a type prescribed for the purposes of paragraph (3C)(a); or
(b) if the person is an applicant for a temporary safe haven visa within the meaning of section 37A, or any other visa of a class that the regulations designate as a class of humanitarian visas—any of the following (including any of the following in digital form):
(i) fingerprints or handprints of the person (including those taken using paper and ink or digital livescanning technologies);
(ii) a photograph or other image of the person’s face and shoulders;
(iii) an iris scan;
(iv) the person’s signature;
(v) any other personal identifier contained in the person’s passport or other travel document;
(vi) any other personal identifier of a type prescribed for the purposes of paragraph (3C)(a); or
(c) if paragraphs (a) and (b) do not apply—any of the following (including any of the following in digital form):
(i) a photograph or other image of the person’s face and shoulders;
(ii) the person’s signature;
(iii) any other personal identifier contained in the person’s passport or other travel document;
(iv) any other personal identifier of a type prescribed for the purposes of paragraph (3C)(a).
Note: Division 13AB sets out further restrictions on the personal identifiers that minors and incapable persons can be required to provide.
(3B) In requiring, for the purposes of subsection (3), a person to provide a personal identifier, an officer must not contravene regulations made for the purposes of paragraph (3C)(b).
(3C) The regulations:
(a) may prescribe other types of personal identifiers; and
(b) may provide that a particular personal identifier referred to in subsection (3A), or a particular combination of such personal identifiers, must not be required except in the circumstances prescribed for the purposes of this paragraph.
(4) A person is taken not to have complied with a requirement referred to in subsection (3) unless the one or more personal identifiers are provided to an authorised officer by way of one or more identification tests carried out by an authorised officer.
Note: If the types of identification tests that the authorised officer may carry out are specified under section 5D, then each identification test must be of a type so specified.
(5) However, subsection (4) does not apply, in circumstances prescribed for the purposes of this subsection, if the personal identifier is of a prescribed type and the person:
(a) provides a personal identifier otherwise than by way of an identification test carried out by an authorised officer; and
(b) complies with any further requirements that are prescribed relating to the provision of the personal identifier.
41 Conditions on visas
(1) The regulations may provide that visas, or visas of a specified class, are subject to specified conditions.
(2) Without limiting subsection (1), the regulations may provide that a visa, or visas of a specified class, are subject to:
(a) a condition that, despite anything else in this Act, the holder of the visa will not, after entering Australia, be entitled to be granted a substantive visa (other than a protection visa, or a temporary visa of a specified kind) while he or she remains in Australia; or
(b) a condition imposing restrictions about the work that may be done in Australia by the holder, which, without limiting the generality of this paragraph, may be restrictions on doing:
(i) any work; or
(ii) work other than specified work; or
(iii) work of a specified kind.
(2A) The Minister may, in prescribed circumstances, by writing, waive a condition of a kind described in paragraph (2)(a) to which a particular visa is subject under regulations made for the purposes of that paragraph or under subsection (3).
(3) In addition to any conditions specified under subsection (1), the Minister may specify that a visa is subject to such conditions as are permitted by the regulations for the purposes of this subsection.
42 Visa essential for travel
(1) Subject to subsections (2), (2A) and (3), a non‑citizen must not travel to Australia without a visa that is in effect.
Note: A maritime crew visa is generally permission to travel to Australia only by sea (see section 38B).
(2) Subsection (1) does not apply to an allowed inhabitant of the Protected Zone travelling to a protected area in connection with traditional activities.
(2A) Subsection (1) does not apply to a non‑citizen in relation to travel to Australia:
(a) if the travel is by a New Zealand citizen who holds and produces a New Zealand passport that is in force; or
(b) if the travel is by a non‑citizen who holds and produces a passport that is in force and is endorsed with an authority to reside indefinitely on Norfolk Island; or
(c) if:
(i) the non‑citizen is brought to the migration zone under subsection 245F(9) of this Act or 185(3A) of the Customs Act 1901; and
(ii) the non‑citizen is a person who would, if in the migration zone, be an unlawful non‑citizen; or
(ca) the non‑citizen is brought to Australia under section 198B; or
(d) if:
(i) the non‑citizen has been removed under section 198 to another country but has been refused entry by that country; and
(ii) the non‑citizen travels to Australia as a direct result of that refusal; and
(iii) the non‑citizen is a person who would, if in the migration zone, be an unlawful non‑citizen; or
(e) if:
(i) the non‑citizen has been removed under section 198; and
(ii) before the removal the High Court, the Federal Court or the Federal Circuit 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 Circuit Court in relation to the non‑citizen; and
(iii) the non‑citizen’s travel to Australia is required in order to give effect to the order or undertaking; and
(iv) the Minister has made a declaration that this paragraph is to apply in relation to the non‑citizen’s travel; and
(v) the non‑citizen is a person who would, if in the migration zone, be an unlawful non‑citizen; or
(f) if:
(i) the travel is from Norfolk Island to Australia; and
(ii) the Minister has made a declaration that this paragraph is to apply in relation to the non‑citizen’s travel; and
(iii) the non‑citizen is a person who would, if in the migration zone, be an unlawful non‑citizen.
(3) The regulations may permit a specified non‑citizen or a non‑citizen in a specified class to travel to Australia without a visa that is in effect.
(4) Nothing in subsection (2A) or (3) is to be taken to affect the non‑citizen’s status in the migration zone as an unlawful non‑citizen.
Note: Section 189 provides that an unlawful non‑citizen in the migration zone must be detained.
43 Visa holders must usually enter at a port
(1) Subject to subsections (1A) and (3) and the regulations, a visa to travel to and enter Australia that is in effect is permission for the holder to enter Australia:
(a) at a port; or
(b) on a pre‑cleared flight; or
(c) if the holder travels to Australia on a vessel and the health or safety of a person or a prescribed reason, make it necessary to enter in another way, that way; or
(d) in a way authorised in writing by an authorised officer.
(1A) Subject to the regulations, a maritime crew visa that is in effect is permission for the holder to enter Australia:
(a) at a proclaimed port; or
(b) if the health or safety of a person, or a prescribed reason, make it necessary to enter Australia in another way, that way; or
(c) in a way authorised by an authorised officer.
(1B) Despite subsections 38B(1) and (2):
(a) the holder of a maritime crew visa may enter Australia as mentioned in paragraph (1A)(b) by air; and
(b) the authorised officer may, for the purposes of paragraph (1A)(c), authorise the holder to enter Australia by air.
(2) For the purposes of subsection (1), a holder who travels to and enters Australia on an aircraft is taken to have entered Australia when that aircraft lands.
(3) This section does not apply to:
(a) the holder of an enforcement visa; or
(b) an Australian resident entering Australia on a foreign boat as a result of a fisheries officer:
(i) making a requirement of the boat’s master under subparagraph 84(1)(k)(ii) or paragraph 84(1)(l) of the Fisheries Management Act 1991 or paragraph 42(1)(g) of the Torres Strait Fisheries Act 1984; or
(ii) exercising his or her power under paragraph 84(1)(m) of the Fisheries Management Act 1991 or paragraph 42(1)(h) of the Torres Strait Fisheries Act 1984 in relation to the boat;
because a fisheries officer had reasonable grounds to believe that the boat was used, or was intended to be used, in the commission of a fisheries detention offence; or
(c) an Australian resident entering Australia on a vessel (environment matters) as a result of an environment officer, or the person in command of a Commonwealth ship or a Commonwealth aircraft:
(i) exercising his or her power under paragraph 403(3)(a) of the Environment Protection and Biodiversity Conservation Act 1999 in relation to the vessel; or
(ii) making a requirement of the person in charge of the vessel under paragraph 403(3)(b) of the Environment Protection and Biodiversity Conservation Act 1999;
because the environment officer, or person in command, had reasonable grounds to suspect that the vessel had been used or otherwise involved in the commission of an environment detention offence.
Note: Subsection 33(10) also disapplies this section.
(4) In subsection (3):
Australian resident has the same meaning as in the Fisheries Management Act 1991.
Commonwealth aircraft has the same meaning as in the Environment Protection and Biodiversity Conservation Act 1999.
Commonwealth ship has the same meaning as in the Environment Protection and Biodiversity Conservation Act 1999.
master has the same meaning as in the Fisheries Management Act 1991.
(5) The references in subsection (3) to subparagraph 84(1)(k)(ii) and paragraphs 84(1)(l) and (m) of the Fisheries Management Act 1991 are to those provisions:
(a) as they apply of their own force; and
(b) as they apply because of section 87 or 87HA of that Act.
Subdivision AA—Applications for visas
44 Extent of following Subdivisions
(1) This Subdivision and the later Subdivisions of this Division, other than this section, Subdivision AG and subsection 138(1), do not apply to criminal justice visas.
(2) This Subdivision and the later Subdivisions of this Division, other than this section and Subdivision AG, do not apply to enforcement visas.
45 Application for visa
(1) Subject to this Act and the regulations, a non‑citizen who wants a visa must apply for a visa of a particular class.
45A Visa application charge
A non‑citizen who makes an application for a visa is liable to pay visa application charge if, assuming the charge were paid, the application would be a valid visa application.
45B Amount of visa application charge
(1) The amount of visa application charge is the amount, not exceeding the visa application charge limit, prescribed in relation to the application.
Note: The visa application charge limit is determined under the Migration (Visa Application) Charge Act 1997.
(2) The amount prescribed in relation to an application may be nil.
(3) The Minister must publish the Contributory Parent Visa Composite Index (within the meaning of the Migration (Visa Application) Charge Act 1997) for a financial year in the Gazette before the start of the financial year.
Note: The Contributory Parent Visa Composite Index affects the visa application charge limit in relation to contributory parent visas (within the meaning of the Migration (Visa Application) Charge Act 1997).
(4) If the Contributory Parent Visa Composite Index for a financial year is not published as required by subsection (3), it is not to be taken, merely because of that fact, to be invalid or to be a figure other than that published by the Australian Government Actuary for the financial year.
45C Regulations about visa application charge
(1) The regulations may:
(a) provide that visa application charge may be payable in instalments; and
(b) specify how those instalments are to be calculated; and
(c) specify when instalments are payable.
(2) The regulations may also:
(a) make provision for and in relation to:
(i) the recovery of visa application charge in relation to visa applications; or
(ii) the way, including the currency, in which visa application charge is to be paid; or
(iii) working out how much visa application charge is to be paid; or
(iv) the time when visa application charge is to be paid; or
(v) the persons who may be paid visa application charge on behalf of the Commonwealth; or
(b) make provision for the remission, refund or waiver of visa application charge or an amount of visa application charge; or
(c) make provision for exempting persons from the payment of visa application charge or an amount of visa application charge; or
(d) make provision for crediting visa application charge, or an amount of visa application charge, paid in respect of one application against visa application charge payable in respect of another application.
46 Valid visa application
(1) Subject to subsections (1A), (2) and (2A), an application for a visa is valid if, and only if:
(a) it is for a visa of a class specified in the application; and
(b) it satisfies the criteria and requirements prescribed under this section; and
(ba) subject to the regulations providing otherwise, any visa application charge that the regulations require to be paid at the time when the application is made, has been paid; and
(c) any fees payable in respect of it under the regulations have been paid; and
(d) it is not prevented by section 48 (visa refused or cancelled earlier), 48A (protection visa), 91E (CPA and safe third countries), 91K (temporary safe haven visa), 91P (non‑citizens with access to protection from third countries), 161 (criminal justice), 164D (enforcement visa), 195 (detainees) or 501E (visa refused or cancelled on character grounds).
(1A) Subject to subsection (2), an application for a visa is invalid if:
(a) the applicant is in the migration zone; and
(b) since last entering Australia, the applicant has held a visa subject to a condition described in paragraph 41(2)(a); and
(c) the Minister has not waived that condition under subsection 41(2A); and
(d) the application is for a visa of a kind that, under that condition, the applicant is not or was not entitled to be granted.
(2) Subject to subsection (2A), an application for a visa is valid if:
(a) it is an application for a visa of a class prescribed for the purposes of this subsection; and
(b) under the regulations, the application is taken to have been validly made.
(2A) An application for a visa is invalid if:
(a) prescribed circumstances exist; and
(aa) the Minister has not waived the operation of this subsection in relation to the application for the visa; and
(ab) the applicant has been required by an officer to provide one or more personal identifiers in relation to the application; and
(b) the applicant has not complied with the requirement.
Note: An invalid application for a visa cannot give rise to an obligation under section 65 to grant a visa: see subsection 47(3).
(2AA) An officer must not require, for the purposes of paragraph (2A)(ab), a person to provide a personal identifier other than:
(a) if the person is an applicant for a protection visa—any of the following (including any of the following in digital form):
(i) fingerprints or handprints of the person (including those taken using paper and ink or digital livescanning technologies);
(ii) a photograph or other image of the person’s face and shoulders;
(iii) an audio or a video recording of the person;
(iv) an iris scan;
(v) the person’s signature;
(vi) any other personal identifier contained in the person’s passport or other travel document;
(vii) any other personal identifier of a type prescribed for the purposes of paragraph (2AC)(a); or
(b) if the person is an applicant for a temporary safe haven visa within the meaning of section 37A, or any other visa of a class that the regulations designate as a class of humanitarian visas—any of the following (including any of the following in digital form):
(i) fingerprints or handprints of the person (including those taken using paper and ink or digital livescanning technologies);
(ii) a photograph or other image of the person’s face and shoulders;
(iii) an iris scan;
(iv) the person’s signature;
(v) any other personal identifier contained in the person’s passport or other travel document;
(vi) any other personal identifier of a type prescribed for the purposes of paragraph (2AC)(a); or
(c) if paragraphs (a) and (b) do not apply—any of the following (including any of the following in digital form):
(i) a photograph or other image of the person’s face and shoulders;
(ii) the person’s signature;
(iii) any other personal identifier contained in the person’s passport or other travel document;
(iv) any other personal identifier of a type prescribed for the purposes of paragraph (2AC)(a).
Note: Division 13AB sets out further restrictions on the personal identifiers that minors and incapable persons can be required to provide.
(2AB) In requiring, for the purposes of paragraph (2A)(ab), a person to provide a personal identifier, an officer must not contravene regulations made for the purposes of paragraph (2AC)(b).
(2AC) The regulations:
(a) may prescribe other types of personal identifiers; and
(b) may provide that a particular personal identifier referred to in subsection (2AA), or a particular combination of such personal identifiers, must not be required except in the circumstances prescribed for the purposes of this paragraph.
(2B) The applicant is taken not to have complied with a requirement referred to in paragraph (2A)(ab) unless the one or more personal identifiers are provided by way of one or more identification tests carried out by an authorised officer.
Note: If the types of identification tests that the authorised officer may carry out are specified under section 5D, then each identification test must be of a type so specified.
(2C) However, subsection (2B) does not apply, in circumstances prescribed for the purposes of this subsection, if the personal identifier is of a prescribed type and the applicant:
(a) provides a personal identifier otherwise than by way of an identification test carried out by an authorised officer; and
(b) complies with any further requirements that are prescribed relating to the provision of the personal identifier.
(3) The regulations may prescribe criteria that must be satisfied for an application for a visa of a specified class to be a valid application.
(4) Without limiting subsection (3), the regulations may also prescribe:
(a) the circumstances that must exist for an application for a visa of a specified class to be a valid application; and
(b) how an application for a visa of a specified class must be made; and
(c) where an application for a visa of a specified class must be made; and
(d) where an applicant must be when an application for a visa of a specified class is made.
46A Visa applications by unauthorised maritime arrivals
(1) An application for a visa is not a valid application if it is made by an unauthorised maritime arrival who:
(a) is in Australia; and
(b) 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 unauthorised maritime arrival, determine that subsection (1) does not apply to an application by the unauthorised maritime arrival for a visa of a class specified in the determination.
(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 unauthorised maritime arrival; or
(b) any information that may identify the unauthorised maritime arrival; or
(c) if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned—the name of that other person or any information that may identify that other person.
(6) A statement under subsection (4) must be laid before each House of the Parliament within 15 sitting days of that House after:
(a) if the determination is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or
(b) if the determination is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.
(7) The Minister does not have a duty to consider whether to exercise the power under subsection (2) in respect of any unauthorised maritime arrival whether the Minister is requested to do so by the unauthorised maritime arrival or by any other person, or in any other circumstances.
46B Visa applications by transitory persons
(1) An application for a visa is not a valid application if it is made by a transitory person who:
(a) is in Australia; and
(b) is an unlawful non‑citizen.
(2) If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a transitory person, determine that subsection (1) does not apply to an application by the person for a visa of a class specified in the determination.
(3) The power under subsection (2) may only be exercised by the Minister personally.
(4) If the Minister makes a determination under subsection (2), the Minister must cause to be laid before each House of the Parliament a statement that:
(a) sets out the determination; and
(b) sets out the reasons for the determination, referring in particular to the Minister’s reasons for thinking that the Minister’s actions are in the public interest.
(5) A statement under subsection (4) must not include:
(a) the name of the transitory person; or
(b) any information that may identify the transitory person; or
(c) if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned—the name of that other person or any information that may identify that other person.
(6) A statement under subsection (4) must be laid before each House of the Parliament within 15 sitting days of that House after:
(a) if the determination is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or
(b) if the determination is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.
(7) The Minister does not have a duty to consider whether to exercise the power under subsection (2) in respect of any transitory person whether the Minister is requested to do so by the transitory person or by any other person, or in any other circumstances.
47 Consideration of valid visa application
(1) The Minister is to consider a valid application for a visa.
(2) The requirement to consider an application for a visa continues until:
(a) the application is withdrawn; or
(b) the Minister grants or refuses to grant the visa; or
(c) the further consideration is prevented by section 39 (limiting number of visas) or 84 (suspension of consideration).
(3) To avoid doubt, the Minister is not to consider an application that is not a valid application.
(4) To avoid doubt, a decision by the Minister that an application is not valid and cannot be considered is not a decision to refuse to grant the visa.
48 Non‑citizen refused a visa or whose visa cancelled may only apply for particular visas
(1) A non‑citizen in the migration zone who:
(a) does not hold a substantive visa; and
(b) either:
(i) after last entering Australia, was refused a visa, other than a refusal of a bridging visa or a refusal under section 501, 501A or 501B, for which the non‑citizen had applied (whether or not the application has been finally determined); or
(ii) held a visa that was cancelled under section 109 (incorrect information), 116 (general power to cancel), 134 (business visas), 137J (student visas) or 137Q (regional sponsored employment visas);
may, subject to the regulations, apply for a visa of a class prescribed for the purposes of this section, but not for a visa of any other class.
(2) For the purposes of this section (which applies only in respect of applications made while a non‑citizen is in the migration zone), a non‑citizen who:
(a) has been removed from the migration zone under section 198; and
(b) is again in the migration zone as a result of travel to Australia that is covered by paragraph 42(2A)(d) or (e);
is taken to have been continuously in the migration zone despite the removal referred to in paragraph (a).
Note: Paragraphs 42(2A)(d) and (e) cover limited situations where people are returned to Australia despite their removal under section 198.
(3) For the purposes of this section (which applies only in respect of applications made while a non‑citizen is in the migration zone), a non‑citizen who, while holding a bridging visa, leaves and re‑enters the migration zone is taken to have been continuously in the migration zone despite that travel.
48A Non‑citizen refused a protection visa may not make further application for protection visa
(1) Subject to section 48B, a non‑citizen who, while in the migration zone, has made:
(a) an application for a protection visa, where the grant of the visa has been refused (whether or not the application has been finally determined); or
(b) applications for protection visas, where the grants of the visas have been refused (whether or not the applications have been finally determined);
may not make a further application for a protection visa while in the migration zone.
(1A) For the purposes of this section, a non‑citizen who:
(a) has been removed from the migration zone under section 198; and
(b) is again in the migration zone as a result of travel to Australia that is covered by paragraph 42(2A)(d) or (e);
is taken to have been continuously in the migration zone despite the removal referred to in paragraph (a).
Note: Paragraphs 42(2A)(d) and (e) cover limited situations where people are returned to Australia despite their removal under section 198.
(1B) Subject to section 48B, a non‑citizen in the migration zone who held a protection visa that was cancelled may not make a further application for a protection visa while in the migration zone.
(2) In this section:
application for a protection visa includes:
(aa) an application for a visa, a criterion for which is mentioned in paragraph 36(2)(a), (aa), (b) or (c); and
(a) an application for a visa, or entry permit (within the meaning of this Act as in force immediately before 1 September 1994), a criterion for which is that the applicant is a non‑citizen who has been determined to be a refugee under the Refugees Convention as amended by the Refugees Protocol; and
(b) an application for a decision that a non‑citizen is a refugee under the Refugees Convention as amended by the Refugees Protocol; and
(c) an application covered by paragraph (a) or (b) that is also covered by section 39 of the Migration Reform Act 1992.
48B Minister may determine that section 48A does not apply to non‑citizen
(1) If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a particular non‑citizen, determine that section 48A does not apply to prevent an application for a protection visa made by the non‑citizen in the period starting when the notice is given and ending at the end of the seventh working day after the day on which the notice is given.
(2) The power under subsection (1) may only be exercised by the Minister personally.
(3) If the Minister makes a determination under subsection (1), he or she is to cause to be laid before each House of the Parliament a statement that:
(a) sets out the determination; and
(b) sets out the reasons for the determination, referring in particular to the Minister’s reasons for thinking that his or her actions are in the public interest.
(4) A statement under subsection (3) is not to include:
(a) the name of the non‑citizen; or
(b) any information that may identify the non‑citizen; or
(c) if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned—the name of that other person or any information that may identify that other person.
(5) A statement under subsection (3) is to laid before each House of the Parliament within 15 sitting days of that House after:
(a) if the determination is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or
(b) if the determination is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.
(6) The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any non‑citizen, whether he or she is requested to do so by the non‑citizen or by any other person, or in any other circumstances.
49 Withdrawal of visa application
(1) An applicant for a visa may, by written notice given to the Minister, withdraw the application.
(2) An application that is withdrawn is taken to have been disposed of.
(3) For the purposes of sections 48 and 48A, the Minister is not taken to have refused to grant the visa if the application is withdrawn before the refusal.
(4) Subject to the regulations, fees payable in respect of an application that is withdrawn are not refundable.
50 Only new information to be considered in later protection visa applications
If a non‑citizen who has made:
(a) an application for a protection visa, where the grant of the visa has been refused and the application has been finally determined; or
(b) applications for protection visas, where the grants of the visas have been refused and the applications have been finally determined;
makes a further application for a protection visa, the Minister, in considering the further application:
(c) is not required to reconsider any information considered in the earlier application or an earlier application; and
(d) may have regard to, and take to be correct, any decision that the Minister made about or because of that information.
Note: Section 48A prevents repeat applications for protection visas in most circumstances where the applicant is in the migration zone.
51 Order of consideration
(1) The Minister may consider and dispose of applications for visas in such order as he or she considers appropriate.
(2) The fact that an application has not yet been considered or disposed of although an application that was made later has been considered or disposed of does not mean that the consideration or disposal of the earlier application is unreasonably delayed.
Subdivision AB—Code of procedure for dealing fairly, efficiently and quickly with visa applications
51A Exhaustive statement of natural justice hearing rule
(1) This Subdivision is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
(2) Sections 494A to 494D, in so far as they relate to this Subdivision, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.
52 Communication with Minister
(1) A visa applicant or interested person must communicate with the Minister in the prescribed way.
(2) The regulations may prescribe different ways of communicating and specify the circumstances when communication is to be in a particular way. For this purpose, a way of communicating includes any associated process for authenticating identity.
(3) If the applicant or interested person purports to communicate anything to the Minister in a way that is not the prescribed way, the communication is taken not to have been received unless the Minister in fact receives it.
(3A) A visa applicant must tell the Minister the address at which the applicant intends to live while the application is being dealt with.
(3B) If the applicant proposes to change the address at which he or she intends to live for a period of 14 days or more, the applicant must tell the Minister the address and the period of proposed residence.
(3C) If, in accordance with the regulations, 2 or more non‑citizens apply for visas together, notifications given to any of them about the application are taken to be given to each of them.
Note 1: If the Minister gives a person a document by a method specified in section 494B, the person is taken to have received the document at the time specified in section 494C in respect of that method.
Note 2: Section 494D deals with giving documents to a person’s authorised recipient.
(4) In this section, interested person means a person who wants, or who is requested, to give information about the applicant to the Minister.
54 Minister must have regard to all information in application
(1) The Minister must, in deciding whether to grant or refuse to grant a visa, have regard to all of the information in the application.
(2) For the purposes of subsection (1), information is in an application if the information is:
(a) set out in the application; or
(b) in a document attached to the application when it is made; or
(c) given under section 55.
(3) Without limiting subsection (1), a decision to grant or refuse to grant a visa may be made without giving the applicant an opportunity to make oral or written submissions.
55 Further information may be given
(1) Until the Minister has made a decision whether to grant or refuse to grant a visa, the applicant may give the Minister any additional relevant information and the Minister must have regard to that information in making the decision.
(2) Subsection (1) does not mean that the Minister is required to delay making a decision because the applicant might give, or has told the Minister that the applicant intends to give, further information.
56 Further information may be sought
(1) In considering an application for a visa, the Minister may, if he or she wants to, get any information that he or she considers relevant but, if the Minister gets such information, the Minister must have regard to that information in making the decision whether to grant or refuse the visa.
(2) Without limiting subsection (1), the Minister may invite, orally or in writing, the applicant for a visa to give additional information in a specified way.
57 Certain information must be given to applicant
(1) In this section, relevant information means information (other than non‑disclosable information) that the Minister considers:
(a) would be the reason, or a part of the reason, for refusing to grant a visa; and
(b) is specifically about the applicant or another person and is not just about a class of persons of which the applicant or other person is a member; and
(c) was not given by the applicant for the purpose of the application.
(2) Subject to subsection (3), the Minister must:
(a) give particulars of the relevant information to the applicant in the way that the Minister considers appropriate in the circumstances; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to consideration of the application; and
(c) invite the applicant to comment on it.
(3) This section does not apply in relation to an application for a visa unless:
(a) the visa can be granted when the applicant is in the migration zone; and
(b) this Act provides, under Part 5 or 7, for an application for review of a decision to refuse to grant the visa.
58 Invitation to give further information or comments
(1) If a person is:
(a) invited under section 56 to give additional information; or
(b) invited under section 57 to comment on information;
the invitation is to specify whether the additional information or the comments may be given:
(c) in writing; or
(d) at an interview between the applicant and an officer; or
(e) by telephone.
(2) Subject to subsection (4), if the invitation is to give additional information or comments otherwise than at an interview, the information or comments are to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period.
(3) Subject to subsection (5), if the invitation is to give information or comments at an interview, the interview is to take place:
(a) at a place specified in the invitation, being a prescribed place or if no place is prescribed, a reasonable place; and
(b) at a time specified in the invitation, being a time within a prescribed period or, if no period is prescribed, a reasonable period.
(4) If a person is to respond to an invitation within a prescribed period, that period may be extended by the Minister for a prescribed further period, and then the response is to be made in the extended period.
(5) If a person is to respond to an invitation at an interview at a time within a prescribed period, that time may be changed by the Minister to:
(a) a later time within that period; or
(b) a time within that period as extended by the Minister for a prescribed further period;
and then the response is to be made at an interview at the new time.
59 Interviews
(1) An applicant must make every reasonable effort to be available for, and attend, an interview.
(2) Section 58 and this section do not mean that the Minister cannot obtain information from an applicant by telephone or in any other way.
60 Medical examination
(1) If the health or physical or mental condition of an applicant for a visa is relevant to the grant of a visa, the Minister may require the applicant to visit, and be examined by, a specified person, being a person qualified to determine the applicant’s health, physical condition or mental condition, at a specified reasonable time and specified reasonable place.
(2) An applicant must make every reasonable effort to be available for, and attend, an examination.
61 Prescribed periods
If this Subdivision requires or allows the regulations to prescribe a period or other time limit relating to a step in considering an application for a visa, the regulations may prescribe different limits relating to that step and specify when that specified limit is to apply, which, without limiting the generality of the power, may be to:
(a) applications for a visa of a specified class; or
(b) applications in specified circumstances; or
(c) applicants in a specified class of persons; or
(d) applicants in a specified class of persons in specified circumstances.
62 Failure to receive information not require action
(1) If an applicant for a visa:
(a) is invited to give additional information; and
(b) does not give the information before the time for giving it has passed;
the Minister may make a decision to grant or refuse to grant the visa without taking any action to obtain the additional information.
(2) If an applicant for a visa:
(a) is invited to comment on information; and
(b) does not give the comments before the time for giving them has passed;
the Minister may make a decision to grant or refuse to grant the visa without taking any further action to obtain the applicant’s views on the information.
63 When decision about visa may be made
(1) Subject to sections 39 (criterion limiting number of visas), 57 (give applicant information), 84 (no further processing), 86 (effect of limit on visas) and 94 (put aside under points system) and subsections (2) and (3) of this section, the Minister may grant or refuse to grant a visa at any time after the application has been made.
(2) The Minister is not to refuse to grant a visa after inviting the applicant to give information and before whichever of the following happens first:
(a) the information is given;
(b) the applicant tells the Minister that the applicant does not wish to give the information or does not have it;
(c) the time in which the information may be given ends.
(3) The Minister is not to refuse to grant a visa after inviting the applicant to comment on information and before whichever of the following happens first:
(a) the comments are given;
(b) the applicant tells the Minister that the applicant does not wish to comment;
(c) the time in which the comments are to be given ends.
(4) The Minister is not to refuse to grant a visa after giving a notice under section 64 and before whichever of the following happens first:
(a) the applicant pays the visa application charge; or
(b) the applicant tells the Minister that the applicant does not intend to pay the visa application charge; or
(c) the end of the period set out in the notice.
64 Notice that visa application charge is payable
(1) This section applies to a valid application for a visa if the Minister, after considering the application, has made an assessment that:
(a) the health criteria for it (if any) have been satisfied; and
(b) the other criteria for it, prescribed by this Act or the regulations, have been satisfied.
(2) If this section applies and an amount of visa application charge is unpaid, the Minister must give the applicant written notice stating that:
(a) an amount of visa application charge is payable within the prescribed period; and
(b) subject to the regulations providing otherwise, a visa cannot be granted unless that amount is paid; and
(c) the Minister may refuse to grant the visa unless that amount is paid within the prescribed period.
(3) If, in accordance with the regulations, 2 or more non‑citizens apply for a visa together, the Minister may give notices under this section in the same document.
Subdivision AC—Grant of visas
65 Decision to grant or refuse to grant visa
(1) After considering a valid application for a visa, the Minister:
(a) if satisfied that:
(i) the health criteria for it (if any) have been satisfied; and
(ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and
(iii) the grant of the visa is not prevented by section 40 (circumstances when granted), 500A (refusal or cancellation of temporary safe haven visas), 501 (special power to refuse or cancel) or any other provision of this Act or of any other law of the Commonwealth; and
(iv) any amount of visa application charge payable in relation to the application has been paid;
is to grant the visa; or
(b) if not so satisfied, is to refuse to grant the visa.
Note: See also section 195A, under which the Minister has a non‑compellable power to grant a visa to a person in detention under section 189 (whether or not the person has applied for the visa). Subdivision AA, this Subdivision, Subdivision AF and the regulations do not apply to the Minister’s power under that section.
(2) To avoid doubt, an application put aside under section 94 is not taken for the purposes of subsection (1) to have been considered until it has been removed from the pool under subsection 95(3).
65A Period within which Minister must make decision on protection visas
(1) If an application for a protection visa:
(a) was validly made under section 46; or
(b) was remitted by any court or tribunal to the Minister for reconsideration;
then the Minister must make a decision under section 65 within 90 days starting on:
(c) the day on which the application for the protection visa was made or remitted; or
(d) in the circumstances prescribed by the regulations—the day prescribed by the regulations.
(2) Failure to comply with this section does not affect the validity of a decision made under section 65 on an application for a protection visa.
66 Notification of decision
(1) When the Minister grants or refuses to grant a visa, he or she is to notify the applicant of the decision in the prescribed way.
(2) Notification of a decision to refuse an application for a visa must:
(a) if the grant of the visa was refused because the applicant did not satisfy a criterion for the visa—specify that criterion; and
(b) if the grant of the visa was refused because a provision of this Act or the regulations prevented the grant of the visa—specify that provision; and
(c) unless subsection (3) applies to the application—give written reasons (other than non‑disclosable information) why the criterion was not satisfied or the provision prevented the grant of the visa; and
(d) if the applicant has a right to have the decision reviewed under Part 5 or 7 or section 500—state:
(i) that the decision can be reviewed; and
(ii) the time in which the application for review may be made; and
(iii) who can apply for the review; and
(iv) where the application for review can be made.
(3) This subsection applies to an application for a visa if:
(a) the visa is a visa that cannot be granted while the applicant is in the migration zone; and
(b) this Act does not provide, under Part 5 or 7, for an application for review of a decision to refuse to grant the visa.
(4) Failure to give notification of a decision does not affect the validity of the decision.
(5) This section does not apply to a decision under section 501, 501A, 501B or 501F to refuse to grant a visa to a person.
Note: Sections 501C and 501G provide for notification of a decision under section 501, 501A, 501B or 501F to refuse to grant a visa to a person.
67 Way visa granted
A visa is to be granted by the Minister causing a record of it to be made.
68 When visa is in effect
(1) Subject to subsection (2), a visa has effect as soon as it is granted.
(2) A visa may provide that it comes into effect at the beginning of a day, being a day after its grant:
(a) specified in the visa; or
(b) when an event, specified in the visa, happens.
(3) A visa can only be in effect during the visa period for the visa.
(4) A bridging visa (the reactivated bridging visa), held by a non‑citizen, that has ceased to be in effect under subsection 82(3), will come into effect again during the visa period for the visa if:
(a) the non‑citizen does not hold a substantive visa that is in effect; and
(b) either:
(i) the non‑citizen does not hold any other bridging visa; or
(ii) the reactivated bridging visa is determined, in accordance with the regulations, to be the most beneficial of the bridging visas held by the applicant.
69 Effect of compliance or non‑compliance
(1) Non‑compliance by the Minister with Subdivision AA or AB or section 494D in relation to a visa application does not mean that a decision to grant or refuse to grant the visa is not a valid decision but only means that the decision might have been the wrong one and might be set aside if reviewed.
(2) If the Minister deals with a visa application in a way that complies with Subdivision AA, AB and this Subdivision, the Minister is not required to take any other action in dealing with it.
Subdivision AE—Evidence of visas
70 Request for evidence of a visa
(1) Any of the following persons may request to be given a prescribed form of evidence of a visa at any time while the visa is in effect:
(a) the non‑citizen who holds the visa;
(b) a parent or guardian of the non‑citizen who holds the visa if the non‑citizen is a minor or the non‑citizen is incapable of managing his or her affairs;
(c) a person authorised, in writing, by the non‑citizen who holds the visa to make a request under this section on the non‑citizen’s behalf.
(2) The request must:
(a) be made in the prescribed way; and
(b) be lodged at the prescribed place; and
(c) be accompanied by the amount of visa evidence charge payable in relation to the request.
(3) The person may withdraw the request at any time before the prescribed form of evidence of the visa is given.
71 Liability to pay visa evidence charge
(1) A person who makes a request under section 70 is liable to pay visa evidence charge.
(2) The amount of visa evidence charge is the prescribed amount which must not exceed the visa evidence charge limit for the request.
(3) Without limiting subsection (2), regulations made for the purposes of that subsection may do any one or more of the following:
(a) specify a different amount of visa evidence charge for different prescribed forms of evidence of a visa;
(b) specify a different amount of visa evidence charge in relation to different classes of visas;
(c) specify a different amount of visa evidence charge for different methods of payment of the charge;
(d) specify a different amount of visa evidence charge where the person elects to have the request dealt with expeditiously;
(e) specify a different amount of visa evidence charge for requests made in different circumstances;
(f) specify circumstances in which the amount of the visa evidence charge is nil;
(g) specify a way for working out the amount of visa evidence charge.
71A Officer must give evidence of a visa
(1) If:
(a) a person makes a request under section 70 in relation to a visa; and
(b) the amount of visa evidence charge for the request has been paid;
an officer must, within a reasonable time after the request is made, give the person a prescribed form of evidence of the visa.
(2) Subsection (1) does not apply if:
(a) the request has been withdrawn; or
(b) the visa has ceased to be in effect.
71B Regulations about visa evidence charge
(1) The regulations may make provision for, or in relation to, any of the following matters relating to the visa evidence charge:
(a) the circumstances in which a prescribed form of evidence of a visa may be requested or given;
(b) the method of payment (including the currency in which the charge must be paid);
(c) the persons who may be paid the charge on behalf of the Commonwealth;
(d) the remission, refund or waiver (in whole or in part) of the charge;
(e) the exemption (in whole or in part) of a person from the liability to pay the charge.
(2) If the regulations provide that a prescribed form of evidence of a visa may be given by endorsing a valid passport, or other valid travel document, that has been issued to:
(a) a non‑citizen; or
(b) another non‑citizen associated with that non‑citizen;
the Minister may direct, in writing, that a specified document is not to be taken to be a passport or travel document for the purposes of the regulations.
(3) A direction under subsection (2) is not a legislative instrument.
Subdivision AF—Bridging visas
72 Interpretation
(1) In this Subdivision:
eligible non‑citizen means a non‑citizen who:
(a) has been immigration cleared; or
(b) is in a prescribed class of persons; or
(c) the Minister has determined to be an eligible non‑citizen.
(2) The Minister may make a determination under paragraph (1)(c) that a non‑citizen is an eligible non‑citizen if:
(a) the non‑citizen was an unlawful non‑citizen when he or she entered the migration zone; and
(b) the non‑citizen made a valid application for a protection visa after he or she arrived in Australia; and
(c) the non‑citizen has been in immigration detention for a period of more than 6 months after the application for a protection visa was made; and
(d) the Minister has not made a primary decision in relation to the application for a protection visa; and
(e) the Minister thinks that the determination would be in the public interest.
(3) The power to make a determination under paragraph (1)(c) may only be exercised by the Minister personally.
(4) If the Minister makes a determination under paragraph (1)(c), he or she is to cause to be laid before each House of the Parliament a statement that:
(a) sets out the determination; and
(b) sets out the reasons for the determination, referring in particular to the Minister’s reasons for thinking that his or her actions are in the public interest.
(5) A statement made under subsection (4) is not to include:
(a) the name of any non‑citizen who is the subject of the determination; or
(b) any information that may identify the non‑citizen; or
(c) if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned—the name of that other person, or any information that may identify the person.
(6) A statement under subsection (4) is to be laid before each House of the Parliament within 15 sitting days of that House after:
(a) if the determination is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or
(b) if the determination is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.
(7) The Minister does not have a duty to consider whether to make a determination under paragraph (1)(c) in respect of any non‑citizen, whether he or she is requested to do so by the non‑citizen or any other person, or in any other circumstances.
73 Bridging visas
If the Minister is satisfied that an eligible non‑citizen satisfies the criteria for a bridging visa as prescribed under subsection 31(3), the Minister may grant a bridging visa permitting the non‑citizen to remain in, or to travel to, enter and remain in Australia:
(a) during a specified period; or
(b) until a specified event happens.
74 Further applications for bridging visa
(1) Subject to subsection (2), if:
(a) an eligible non‑citizen who is in immigration detention makes an application for a bridging visa; and
(b) the Minister refuses to grant the visa;
the eligible non‑citizen may make a further application for a bridging visa.
(2) Unless the further application for a bridging visa is made in prescribed circumstances, the further application may be made not earlier than 30 days after:
(a) if the eligible non‑citizen did not make an application for review of the decision to refuse to grant the visa—the refusal; or
(b) if the eligible non‑citizen made an application for such review—the application is finally determined.
75 When eligible non‑citizen in immigration detention granted visa
(1) If:
(a) an eligible non‑citizen who is in immigration detention makes an application for a bridging visa of a prescribed class; and
(b) the Minister does not make a decision, within the prescribed period, to grant or refuse to grant the bridging visa;
the non‑citizen is taken to have been granted a bridging visa of the prescribed class on prescribed conditions (if any) at the end of that period.
(2) The period in subsection (1) may be extended in relation to a particular application by agreement between the applicant and the Minister.
76 Bridging visa not affect visa applications
(1) The fact that a non‑citizen holds a bridging visa does not prevent or affect:
(a) an application by the non‑citizen for a visa of another class; or
(b) the grant of such a visa.
(2) To avoid doubt, the holding by a non‑citizen of a bridging visa is not to be taken to be, for the purposes of an application for a visa of another class, the holding of a visa.
Subdivision AG—Other provisions about visas
77 Visas held during visa period
To avoid doubt, for the purposes of this Act, a non‑citizen holds a visa at all times during the visa period for the visa.
78 Children born in Australia
(1) If:
(a) a child born in Australia is a non‑citizen when born; and
(b) at the time of the birth:
(i) one of the child’s parents holds a visa (other than a special purpose visa); and
(ii) the other parent is, under section 83, included in that visa or does not hold a visa (other than a special purpose visa);
the child is taken to have been granted, at the time of the birth, a visa of the same kind and class and on the same terms and conditions (if any) as that visa.
(2) If:
(a) a child born in Australia is a non‑citizen when born; and
(b) at the time of the birth, each of the child’s parents holds a visa (other than a special purpose visa);
the child is taken to have been granted, at the time of the birth, visas of the same kind and class and on the same terms and conditions (if any) as each of those visas.
(3) Subdivisions AA, AB, AC (other than section 68), AE and AH do not apply in relation to visas granted under this section.
79 Effect on visa of leaving Australia
If the holder of a visa leaves Australia the holder may only re‑enter Australia because of the visa if:
(a) the visa is permission for the re‑entry; and
(b) the visa is in effect on re‑entry.
80 Certain persons taken not to leave Australia
A person is taken not to leave Australia if the person goes outside the migration zone on a vessel and:
(a) does not go (other than for transit purposes) to a foreign country; and
(b) remains a passenger, or a member of the crew, of that vessel while outside the migration zone; and
(c) is outside the migration zone for no longer than the prescribed period.
81 Extent of visa authority
(1) A visa to travel to Australia during a period is not permission to travel to it outside that period.
(2) A visa to enter Australia within a period is not permission to so enter outside that period.
(3) A visa to remain in Australia during a period is not permission to so remain outside that period.
82 When visas cease to be in effect
(1) A visa that is cancelled ceases to be in effect on cancellation.
(2) A substantive visa held by a non‑citizen ceases to be in effect if another substantive visa (other than a special purpose visa) for the non‑citizen comes into effect.
(2AA) Despite subsection (2):
(a) a maritime crew visa held by a non‑citizen does not cease to be in effect if a substantive visa for the non‑citizen that is of a class specified by the Minister, by legislative instrument, for the purposes of this subsection comes into effect; and
(b) a substantive visa held by a non‑citizen that is of a class specified by the Minister, by legislative instrument, for the purposes of this subsection does not cease to be in effect if a maritime crew visa for the non‑citizen comes into effect.
(2A) A temporary visa held by a non‑citizen ceases to be in effect if an enforcement visa for the non‑citizen comes into effect.
(3) A bridging visa held by a non‑citizen ceases to be in effect if another visa (other than a special purpose visa or a maritime crew visa) for the non‑citizen comes into effect.
(4) A visa ceases to be in effect when the holder leaves Australia because of a deportation order made under section 200.
(5) A visa to travel to and enter Australia (whether also a visa to remain in Australia) during a particular period or until a particular date ceases to be in effect at the end of that period or on that date unless the holder of the visa:
(a) has entered Australia in that period or on or before that date; and
(b) is in Australia at the end of that period or on that date.
(6) A visa to travel to and enter Australia (whether also a visa to remain in Australia) during a particular period or until a particular date ceases to be in effect if the holder leaves Australia after that period or date.
(7) A visa to remain in Australia (whether also a visa to travel to and enter Australia) during a particular period or until a particular date ceases to be in effect at the end of that period or on that date.
(7A) A bridging visa permitting the holder to remain in, or to travel to, enter and remain in, Australia until a specified event happens, ceases to be in effect the moment the event happens.
(8) A visa to remain in, but not re‑enter, Australia that is granted to a non‑citizen in Australia ceases to be in effect if the holder leaves Australia.
(9) This section does not affect the operation of other provisions of this Act under which a visa ceases to be in effect (such as sections 173 and 174).
(10) For the purposes of subsections (5), (6) and (7), particular date includes:
(a) the date an event, specified in the visa, happens; or
(b) the date the holder ceases to have a status specified in the visa or the regulations.
83 Certain persons taken to be included in spouse, de facto partner or parent’s visa
(1) Where:
(a) a person’s name is included in the passport or other document of identity of the person’s spouse or de facto partner; and
(b) the person accompanies his or her spouse or de facto partner to Australia (whether before or after the commencement of this section);
the person shall be taken to be included in any visa granted to the spouse or de facto partner evidence of which is endorsed on the passport or other document of identity if, and only if, the person’s name is included in the endorsement.
Note: Subsection 5(1) defines de facto partner and spouse. For the purposes of this section, those definitions apply only in relation to visas granted on or after 1 July 2009: see the Same‑Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Act 2008. This section as in force before the amendment of this Act by that Act continues to apply in relation to visas granted before 1 July 2009.
(2) Where:
(a) the name of a child is included in the passport or other document of identity of a parent of the child; and
(b) the child accompanies that parent to Australia (whether before or after the commencement of this section);
the child shall be taken to be included in any visa granted to the parent evidence of which is endorsed on the passport or other document of identity if, and only if, the child’s name is included in the endorsement.
Note: Subsection 5(1) defines child and parent. For the purposes of this section, those definitions apply only in relation to visas granted on or after 1 July 2009: see the Same‑Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Act 2008.
84 Minister may suspend processing of visa applications
(1) The Minister may, by notice in the Gazette, determine that dealing with applications for visas of a specified class is to stop until a day specified in the notice (in this section called the resumption day).
(2) Where a notice under subsection (1) is published in the Gazette, no act is to be done in relation to any application for a visa of the class concerned until the resumption day.
(3) A notice under this section does not have any effect in relation to an application for a visa made by a person on the ground that he or she is the spouse, de facto partner or dependent child of:
(a) an Australian citizen; or
(b) the holder of a permanent visa that is in effect; or
(c) a person who is usually resident in Australia and whose continued presence in Australia is not subject to a limitation as to time imposed by law.
(4) Nothing in this section prevents an act being done to implement a decision to grant or to refuse to grant a visa if the decision had been made before the date of the notice concerned.
(5) For the purposes of this section, a child of a person is a dependent child if the child:
(a) does not have a spouse or de facto partner; and
(b) either:
(i) is under 18; or
(ii) is 18, 19 or 20 and is dependent on the person for:
(A) financial and psychological support; or
(B) physical support.
(6) In this section:
act means an act connected with performing functions or exercising powers under or for the purposes of this Act.
Subdivision AH—Limit on visas
85 Limit on visas
The Minister may, by notice in the Gazette, determine the maximum number of:
(a) the visas of a specified class; or
(b) the visas of specified classes;
that may be granted in a specified financial year.
86 Effect of limit
If:
(a) there is a determination of the maximum number of visas of a class or classes that may be granted in a financial year; and
(b) the number of visas of the class or classes granted in the year reaches that maximum number;
no more visas of the class or classes may be granted in the year.
87 Limit does not prevent visas for certain persons
(1) Section 86 does not prevent the grant of a visa to a person who applied for it on the ground that he or she is the spouse, de facto partner or dependent child of:
(a) an Australian citizen; or
(b) the holder of a permanent visa that is in effect; or
(c) a person who is usually resident in Australia and whose continued presence in Australia is not subject to a limitation as to time imposed by law.
(2) For the purposes of this section, a child of a person is a dependent child if the child:
(a) does not have a spouse or de facto partner; and
(b) either:
(i) is under 18; or
(ii) is 18, 19 or 20 and is dependent on the person for:
(A) financial and psychological support; or
(B) physical support.
87A Limit does not prevent the grant of visas to certain people who are unable to meet health or character requirements before the limit applies because of circumstances beyond their control
If:
(a) a person has applied, whether before or after the commencement of this section, for the grant of a visa; and
(b) a time was or is reached when the grant of the visa to the person in a particular financial year was or is prevented by section 86; and
(c) the person was requested by the Minister after that time to satisfy requirements for the grant of the visa that relate to health or character; and
(d) after the making of the request referred to in paragraph (c) the person satisfies the requirements referred to in that paragraph in a financial year subsequent to the financial year in which the time referred to in paragraph (b) occurred; and
(e) the grant of the visa to the person at the time when the requirements referred to in paragraph (c) are satisfied would, apart from this section, be prevented by section 86; and
(f) the person was unable to satisfy the requirements referred to in paragraph (c) at a time when, apart from this section, section 86 would not have prevented the grant of the visa to the person; and
(g) the Minister is satisfied that the person’s inability to satisfy the requirements referred to in paragraph (c) at a time mentioned in paragraph (e) was due to circumstances beyond the person’s control;
section 86 does not prevent the grant of the visa to the person.
88 Limit does not affect processing of applications
Section 86’s prevention of the grant of a visa does not prevent any other action related to the application for it.
89 Determination of limit not to mean failure to decide
The fact that the Minister has neither granted nor refused to grant a visa of a class or classes to which a determination under section 85 applies does not mean, for any purpose, that the Minister has failed to make a decision to grant or refuse to grant the visa.
90 Order of dealing with limited visas
The fact that an application for a visa of a class or classes to which a determination under section 85 applies has not been considered or disposed of although an application for another visa of the class or classes that was made later has been considered or disposed of does not mean, for any purpose, that the consideration or disposal of the earlier application is unreasonably delayed.
91 Order of dealing with visas
If a determination under section 85 applies, or has applied, to visas of a class or classes, the Minister may consider or, subject to section 86, dispose of outstanding and further applications for such visas in such order as he or she considers appropriate.
Subdivision AI—Safe third countries
91A Reason for Subdivision
This Subdivision is enacted because the Parliament considers that certain non‑citizens who are covered by the CPA, or in relation to whom there is a safe third country, should not be allowed to apply for a protection visa or, in some cases, any other visa. Any such non‑citizen who is an unlawful non‑citizen will be subject to removal under Division 8.
91B Interpretation
(1) In this Subdivision:
agreement includes a written arrangement or understanding, whether or not binding.
CPA means the Comprehensive Plan of Action approved by the International Conference on Indo‑Chinese Refugees, held at Geneva, Switzerland, from 13 to 14 June 1989.