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...................................................................... 4
4AA...................... Detention of minors a last resort......................................... 4
4A......................... Application of the Criminal Code....................................... 4
5............................ Interpretation....................................................................... 5
5AAA................... Non‑citizen’s responsibility in relation to protection claims 38
5AA...................... Meaning of unauthorised maritime arrival...................... 38
5A......................... Meaning of personal identifier......................................... 41
5B.......................... When personal identifier taken not to have been provided 43
5C.......................... Meaning of character concern......................................... 43
5CA....................... Child of a person.............................................................. 46
5CB....................... De facto partner................................................................ 47
5D......................... Limiting the types of identification tests that authorised officers may carry out 48
5E.......................... Meaning of purported privative clause decision............... 48
5F.......................... Spouse.............................................................................. 48
5G......................... Relationships and family members................................... 49
5H......................... Meaning of refugee........................................................... 50
5J........................... Meaning of well‑founded fear of persecution................... 50
5K.......................... Membership of a particular social group consisting of family 52
5L.......................... Membership of a particular social group other than family 53
5LA....................... Effective protection measures........................................... 54
5M......................... Particularly serious crime.................................................. 54
6............................ Effect of limited meaning of enter Australia etc................ 54
7............................ Act to extend to certain Territories.................................... 55
7A......................... Effect on executive power to protect Australia’s borders.. 55
8............................ Certain resources installations to be part of Australia....... 55
9............................ Certain sea installations to be part of Australia................. 56
9A......................... Migration zone etc.—offshore resources activities........... 57
10.......................... Certain children taken to enter Australia at birth............... 59
11.......................... Visa applicable to 2 or more persons................................ 59
12.......................... Application of Part VA of the Marriage Act..................... 60
Part 2—Arrival, presence and departure of persons 61
Division 1—Immigration status 61
13.......................... Lawful non‑citizens.......................................................... 61
14.......................... Unlawful non‑citizens....................................................... 61
15.......................... Effect of cancellation of visa on status.............................. 61
16.......................... Removal of immigration rights of inhabitant of Protected Zone 61
17.......................... Pre‑cleared flights............................................................. 62
Division 2—Power to obtain information and documents about unlawful non‑citizens 63
18.......................... Power to obtain information and documents about unlawful non‑citizens 63
19.......................... Scales of expenses............................................................ 63
20.......................... Reasonable compensation................................................. 63
21.......................... Failure to comply with section 18 notice........................... 64
24.......................... Information and documents that incriminate a person....... 64
25.......................... Copies of documents........................................................ 65
26.......................... Minister may retain documents......................................... 65
27.......................... Division binds the Crown................................................. 66
Division 3—Visas for non‑citizens 67
Subdivision A—General provisions about visas 67
28.......................... Interpretation..................................................................... 67
29.......................... Visas................................................................................. 67
30.......................... Kinds of visas................................................................... 68
31.......................... Classes of visas................................................................ 68
32.......................... Special category visas....................................................... 70
33.......................... Special purpose visas........................................................ 70
34.......................... Absorbed person visas..................................................... 73
35.......................... Ex‑citizen visas................................................................. 74
35A....................... Protection visas—classes of visas.................................... 74
36.......................... Protection visas—criteria provided for by this Act........... 75
36A....................... Consideration of protection obligations............................ 79
37.......................... Bridging visas................................................................... 80
37A....................... Temporary safe haven visas.............................................. 80
38.......................... Criminal justice visas........................................................ 81
38A....................... Enforcement visas............................................................. 81
38B........................ Maritime crew visas.......................................................... 81
39.......................... Criterion limiting number of visas.................................... 82
39A....................... Minimum annual numbers of Protection (Class XA) visas and Refugee and Humanitarian (Class XB) visas.......................................................................................... 83
40.......................... Circumstances for granting visas...................................... 84
41.......................... Conditions on visas.......................................................... 84
42.......................... Visa essential for travel..................................................... 86
43.......................... Visa holders must usually enter at a port.......................... 87
Subdivision AA—Applications for visas 89
44.......................... Extent of following Subdivisions..................................... 89
45.......................... Application for visa.......................................................... 90
45AA.................... Application for one visa taken to be an application for a different visa 90
45A....................... Visa application charge..................................................... 93
45B........................ Amount of visa application charge.................................... 93
45C........................ Regulations about visa application charge......................... 94
46.......................... Valid visa application........................................................ 95
46AA.................... Visa applications, and the grant of visas, for some Act‑based visas 97
46A....................... Visa applications by unauthorised maritime arrivals......... 99
46B........................ Visa applications by transitory persons.......................... 101
47.......................... Consideration of valid visa application........................... 103
48.......................... Non‑citizen refused a visa or whose visa cancelled may only apply for particular visas 103
48A....................... No further applications for protection visa after refusal or cancellation 105
48B........................ Minister may determine that section 48A does not apply to non‑citizen 108
49.......................... Withdrawal of visa application........................................ 109
50.......................... Only new information to be considered in later protection visa applications 110
51.......................... Order of consideration.................................................... 110
Subdivision AB—Code of procedure for dealing fairly, efficiently and quickly with visa applications 111
51A....................... Exhaustive statement of natural justice hearing rule........ 111
52.......................... Communication with Minister........................................ 111
54.......................... Minister must have regard to all information in application 112
55.......................... Further information may be given................................... 112
56.......................... Further information may be sought................................. 113
57.......................... Certain information must be given to applicant............... 113
58.......................... Invitation to give further information or comments......... 114
59.......................... Interviews....................................................................... 115
60.......................... Medical examination....................................................... 115
61.......................... Prescribed periods.......................................................... 115
62.......................... Failure to receive information does not require action..... 116
63.......................... When decision about visa may be made.......................... 116
64.......................... Notice that visa application charge is payable................. 117
Subdivision AC—Grant of visas 118
65.......................... Decision to grant or refuse to grant visa......................... 118
66.......................... Notification of decision................................................... 119
67.......................... Grant and refusal of visa—how and when..................... 120
68.......................... When visa is in effect...................................................... 120
69.......................... Effect of compliance or non‑compliance......................... 121
Subdivision AF—Bridging visas 121
72.......................... Interpretation................................................................... 121
73.......................... Bridging visas................................................................. 123
74.......................... Further applications for bridging visa............................. 123
75.......................... When eligible non‑citizen in immigration detention granted visa 123
76.......................... Bridging visa not affect visa applications........................ 124
Subdivision AG—Other provisions about visas 124
77.......................... Visas held during visa period......................................... 124
78.......................... Children born in Australia.............................................. 124
79.......................... Effect on visa of leaving Australia.................................. 125
80.......................... Certain persons taken not to leave Australia................... 125
81.......................... Extent of visa authority................................................... 126
82.......................... When visas cease to be in effect...................................... 126
83.......................... Certain persons taken to be included in spouse, de facto partner or parent’s visa 128
84.......................... Minister may suspend processing of visa applications... 129
Subdivision AH—Limit on visas 130
85.......................... Limit on visas................................................................. 130
86.......................... Effect of limit.................................................................. 130
87.......................... Limit does not prevent visas for certain persons............. 130
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 131
88.......................... Limit does not affect processing of applications............. 132
89.......................... Determination of limit not to mean failure to decide........ 132
90.......................... Order of dealing with limited visas................................. 132
91.......................... Order of dealing with visas............................................. 132
Subdivision AI—Safe third countries 132
91A....................... Reason for Subdivision.................................................. 132
91B........................ Interpretation................................................................... 133
91C........................ Non‑citizens covered by Subdivision............................. 133
91D....................... Safe third countries......................................................... 134
91E........................ Non‑citizens to which this Subdivision applies unable to make valid applications for certain visas 135
91F........................ Minister may determine that section 91E does not apply to non‑citizen 135
91G....................... Applications made before regulations take effect............ 136
Subdivision AJ—Temporary safe haven visas 138
91H....................... Reason for this Subdivision............................................ 138
91J......................... Non‑citizens to whom this Subdivision applies.............. 138
91K........................ Non‑citizens to whom this Subdivision applies are unable to make valid applications for certain visas 138
91L........................ Minister may determine that section 91K does not apply to a non‑citizen 139
Subdivision AK—Non‑citizens with access to protection from third countries 140
91M....................... Reason for this Subdivision............................................ 140
91N....................... Non‑citizens to whom this Subdivision applies.............. 140
91P........................ Non‑citizens to whom this Subdivision applies are unable to make valid applications for certain visas 142
91Q....................... Minister may determine that section 91P does not apply to a non‑citizen 142
Subdivision AL—Other provisions about protection visas 144
91V....................... Verification of information............................................. 144
91W....................... Evidence of identity and bogus documents..................... 146
91WA.................... Providing bogus documents or destroying identity documents 147
91WB.................... Application for protection visa by member of same family unit 148
91X....................... Names of applicants for protection visas not to be published by the High Court, Federal Court or Federal Circuit Court................................................................... 148
Subdivision B—The “points” system 149
92.......................... Operation of Subdivision................................................ 149
93.......................... Determination of applicant’s score.................................. 149
94.......................... Initial application of “points” system.............................. 150
95.......................... Applications in pool........................................................ 150
95A....................... Extension of period in pool............................................. 151
96.......................... Minister may set pool mark and pass mark..................... 152
Subdivision C—Visas based on incorrect information may be cancelled 152
97.......................... Interpretation................................................................... 152
97A....................... Exhaustive statement of natural justice hearing rule........ 153
98.......................... Completion of visa application........................................ 153
99.......................... Information is answer..................................................... 153
100........................ Incorrect answers............................................................ 154
101........................ Visa applications to be correct........................................ 154
102........................ Passenger cards to be correct.......................................... 154
103........................ Bogus documents not to be given etc.............................. 154
104........................ Changes in circumstances to be notified......................... 154
105........................ Particulars of incorrect answers to be given.................... 155
106........................ Obligations to give etc. information is not affected by other sources of information 155
107........................ Notice of incorrect applications....................................... 155
107A..................... Possible non‑compliances in connection with a previous visa may be grounds for cancellation of current visa........................................................................................ 157
108........................ Decision about non‑compliance...................................... 157
109........................ Cancellation of visa if information incorrect................... 158
110........................ Cancellation provisions apply whatever source of knowledge of non‑compliance 158
111........................ Cancellation provisions apply whether or not non‑compliance deliberate 158
112........................ Action because of one non‑compliance does not prevent action because of other non‑compliance 158
113........................ No cancellation if full disclosure..................................... 159
114........................ Effect of setting aside decision to cancel visa.................. 159
115........................ Application of Subdivision............................................. 159
Subdivision D—Visas may be cancelled on certain grounds 160
116........................ Power to cancel............................................................... 160
117........................ When visa may be cancelled........................................... 163
118........................ Cancellation powers do not limit or affect each other...... 163
Subdivision E—Procedure for cancelling visas under Subdivision D in or outside Australia 164
118A..................... Exhaustive statement of natural justice hearing rule........ 164
119........................ Notice of proposed cancellation...................................... 164
120........................ Certain information must be given to visa holder............ 165
121........................ Invitation to give comments etc....................................... 166
122........................ Prescribed periods.......................................................... 167
123........................ Failure to accept invitation not require action.................. 167
124........................ When decision about visa cancellation may be made...... 167
125........................ Application of Subdivision to non‑citizen in immigration clearance 168
126........................ Application of Subdivision to non‑citizen in questioning detention 168
127........................ Notification of decision................................................... 168
Subdivision F—Other procedure for cancelling visas under Subdivision D outside Australia 169
127A..................... Exhaustive statement of natural justice hearing rule........ 169
128........................ Cancellation of visas of people outside Australia............ 169
129........................ Notice of cancellation...................................................... 170
130........................ Prescribed periods.......................................................... 170
131........................ Decision about revocation of cancellation....................... 171
132........................ Notification of decision about revocation of cancellation 171
133........................ Effect of revocation of cancellation................................. 171
Subdivision FA—Additional personal powers for Minister to cancel visas on section 109 or 116 grounds 172
133A..................... Minister’s personal powers to cancel visas on section 109 grounds 172
133B...................... Other provisions relating to the exercise of powers in section 133A 174
133C...................... Minister’s personal powers to cancel visas on section 116 grounds 175
133D..................... Cancellation under subsection 133A(1) or 133C(1)—method of satisfying Minister of matters 177
133E...................... Cancellation under subsection 133A(1) or 133C(1)—notice of cancellation 177
133F...................... Cancellation under subsection 133A(3) or 133C(3)—Minister may revoke cancellation in certain circumstances.................................................................. 177
Subdivision FB—Emergency cancellation on security grounds 179
134A..................... Natural justice................................................................. 179
134B...................... Emergency cancellation on security grounds.................. 179
134C...................... Decision about revocation of emergency cancellation..... 179
134D..................... Effect of revocation of cancellation................................. 180
134E...................... Notice of cancellation...................................................... 181
134F...................... Effect of cancellation on other visas................................ 181
Subdivision G—Cancellation of business visas 182
134........................ Cancellation of business visas........................................ 182
135........................ Representations concerning cancellation of business visa 187
136........................ Review of decisions........................................................ 188
137........................ Provision of information—holders of business visas..... 188
Subdivision GB—Automatic cancellation of student visas 189
137J....................... Non‑complying students may have their visas automatically cancelled 189
137K...................... Applying for revocation of cancellation.......................... 190
137L...................... Dealing with the application............................................ 191
137M..................... Notification of decision................................................... 191
137N..................... Minister may revoke cancellation on his or her own initiative 192
137P...................... Effect of revocation......................................................... 192
Subdivision GC—Cancellation of regional sponsored employment visas 193
137Q..................... Cancellation of regional sponsored employment visas.... 193
137R...................... Representations concerning cancellation etc.................... 194
137S...................... Notice of cancellation...................................................... 195
137T...................... Cancellation of other visas.............................................. 195
Subdivision H—General provisions on cancellation 195
138........................ Cancellation and revocation of cancellation of visas—how and when 195
139........................ Visas held by 2 or more.................................................. 196
140........................ Cancellation of visa results in other cancellation............. 196
Division 3A—Sponsorship 198
Subdivision A—Preliminary 198
140A..................... Division applies to prescribed kinds of visa................... 198
140AA.................. Purposes of this Division............................................... 198
140AB................... Ministerial Advisory Council on Skilled Migration........ 199
Subdivision B—Approval of sponsors 200
140E...................... Minister to approve work and family sponsors.............. 200
140F...................... Approval process............................................................ 200
140G..................... Terms of approval........................................................... 201
140GA.................. Variation of terms of approval........................................ 201
Subdivision BA—Approval of nominations made by approved work sponsors 202
140GB................... Minister to approve nominations.................................... 202
140GBA................ Labour market testing—condition................................... 203
140GBB................ Labour market testing—major disaster exemption.......... 206
140GBC................ Labour market testing—skill and occupational exemptions 207
140GC................... Work agreements............................................................ 209
Subdivision C—Sponsorship obligations 209
140H..................... Sponsorship obligations—general.................................. 209
140HA.................. Sponsorship obligations—Minister’s responsibility....... 210
140J....................... Amounts payable in relation to sponsorship obligations. 212
Subdivision D—Enforcement 213
140K...................... Sanctions for failing to satisfy sponsorship obligations.. 213
140L...................... Regulations may prescribe circumstances in which sponsor may be barred or sponsor’s approval cancelled........................................................................................ 215
140M..................... Cancelling approval as a sponsor or barring a sponsor... 216
140N..................... Process for cancelling approval or barring approved sponsor 217
140O..................... Waiving a bar.................................................................. 217
140P...................... Process for waiving a bar............................................... 217
140Q..................... Civil penalty—failing to satisfy sponsorship obligations 218
140RA................... Enforceable undertakings................................................ 218
Subdivision E—Liability and recovery of amounts 219
140S...................... Liability to pay amounts.................................................. 219
140SA................... Interest up to judgment................................................... 220
140SB................... Interest on judgment....................................................... 220
140SC................... Certain plaintiffs may choose small claims procedure in magistrates courts 221
140T...................... Notice regarding amount of debt or other amount........... 222
140U..................... Liability is in addition to any other liability..................... 222
Subdivision F—Inspector powers 222
140UA.................. Exercise of inspector powers.......................................... 222
140V..................... Inspectors....................................................................... 223
140W..................... Identity cards.................................................................. 224
140X..................... Purpose for which powers of inspectors may be exercised 225
140XA.................. When powers of inspectors may be exercised................ 225
140XB................... Power of inspectors to enter premises or places............. 225
140XC................... Powers of inspectors while on premises or at a place..... 226
140XD.................. Persons assisting inspectors........................................... 226
140XE................... Power to ask for person’s name and address.................. 227
140XF................... Power to require persons to produce records or documents 228
140XG.................. Self‑incrimination........................................................... 228
140XH.................. Certain records and documents are inadmissible............. 229
140XI.................... Power to keep records or documents.............................. 229
140XJ.................... Disclosure of information by the Secretary or Australian Border Force Commissioner 230
Subdivision G—Application of Division to partnerships and unincorporated associations 230
140ZB................... Partnerships—sponsorship rights and obligations.......... 230
140ZC................... Partnerships—offences and civil penalties...................... 231
140ZD................... Partnership ceases to exist.............................................. 232
140ZE.................... Unincorporated associations—sponsorship rights and obligations 232
140ZF.................... Unincorporated associations—offences and civil penalties 233
140ZG................... Unincorporated association ceases to exist..................... 234
Subdivision H—Miscellaneous 234
140ZH................... Disclosure of personal information by Minister............. 234
140ZI..................... Disclosure of personal information to Minister.............. 237
140ZJ.................... Unclaimed money........................................................... 238
140ZK................... Other regulation making powers not limited................... 239
140ZL.................... Division binds the Crown............................................... 239
Division 3B—Nominations 240
140ZM.................. Nomination training contribution charge......................... 240
140ZN................... Regulations about nomination training contribution charge 240
140ZO................... Recovery of nomination training contribution charge and late payment penalty 241
140ZP.................... Notional application of nomination training contribution charge in relation to nominations by the Commonwealth............................................................... 241
140ZQ................... Division binds the Crown............................................... 242
Division 4—Criminal justice visitors 243
Subdivision A—Preliminary 243
141........................ Object of Division.......................................................... 243
142........................ Interpretation................................................................... 243
143........................ Delegation by Minister................................................... 244
144........................ Authorised officials........................................................ 244
Subdivision B—Criminal justice certificates for entry 245
145........................ Commonwealth criminal justice entry certificate............. 245
146........................ State criminal justice entry certificate.............................. 245
Subdivision C—Criminal justice certificates etc. staying removal or deportation 246
147........................ Commonwealth criminal justice stay certificate............... 246
148........................ State criminal justice stay certificate................................ 247
149........................ Application for visa not to prevent certificate.................. 248
150........................ Criminal justice stay certificates stay removal or deportation 248
151........................ Certain warrants stay removal or deportation.................. 248
152........................ Certain subjects of stay certificates and stay warrants may be detained etc. 248
153........................ Removal or deportation not contempt etc. if no stay certificate or warrant 249
154........................ Officer not liable—criminal justice stay certificates or warrants 249
Subdivision D—Criminal justice visas 250
155........................ Criminal justice visas...................................................... 250
156........................ Criterion for criminal justice entry visas......................... 250
157........................ Criterion for criminal justice stay visas........................... 250
158........................ Criteria for criminal justice visas..................................... 250
159........................ Procedure for obtaining criminal justice visa.................. 251
160........................ Conditions of criminal justice visa.................................. 251
161........................ Effect of criminal justice visas........................................ 251
Subdivision E—Cancellation etc. of criminal justice certificates and criminal justice visas 252
162........................ Criminal justice certificates to be cancelled..................... 252
163........................ Stay warrant to be cancelled............................................ 253
164........................ Effect of cancellation etc. on criminal justice visa........... 254
Division 4A—Enforcement visas 255
164A..................... Definitions...................................................................... 255
164B...................... Grant of enforcement visas (fisheries matters)................ 255
164BA................... Grant of enforcement visas (environment matters)......... 257
164C...................... When enforcement visa ceases to be in effect................. 260
164D..................... Applying for other visas................................................. 261
Division 5—Immigration clearance 262
165........................ Interpretation................................................................... 262
166........................ Persons entering to present certain evidence of identity etc. 262
167........................ When and where evidence to be presented...................... 264
168........................ Section 166 not to apply................................................. 265
169........................ Section 166 not usually to apply..................................... 265
170........................ Certain persons to present evidence of identity............... 266
171........................ Assistance with evidence................................................ 267
172........................ Immigration clearance..................................................... 267
173........................ Visa ceases if holder enters in way not permitted........... 269
174........................ Visa ceases if holder remains without immigration clearance.. 270
175........................ Departing person to present certain evidence etc............. 270
175A..................... Determinations relating to kinds of passports................. 271
175B...................... Collection, access and disclosure of information............ 271
Division 6—Certain non‑citizens to be kept in immigration detention 273
176........................ Reason for Division........................................................ 273
177........................ Interpretation................................................................... 273
178........................ Designated persons to be in immigration detention......... 274
179........................ Beginning of immigration detention of certain designated persons 274
180........................ Detention of designated person....................................... 275
181........................ Removal from Australia of designated persons.............. 275
182........................ No immigration detention or removal after certain period 277
183........................ Courts must not release designated persons.................... 278
185........................ Effect of Division on status etc....................................... 278
186........................ Division applies despite other laws................................. 279
187........................ Evidence......................................................................... 279
Division 7—Detention of unlawful non‑citizens 280
Subdivision A—General provisions 280
188........................ Lawful non‑citizen to give evidence of being so............. 280
189........................ Detention of unlawful non‑citizens................................. 280
190........................ Non‑compliance with immigration clearance or requirement to provide personal identifier 281
191........................ End of certain detention.................................................. 282
192........................ Detention of visa holders whose visas liable to cancellation 283
193........................ Application of law to certain non‑citizens while they remain in immigration detention 284
194........................ Detainee to be told of consequences of detention............ 286
195........................ Detainee may apply for visa............................................ 286
195A..................... Minister may grant detainee visa (whether or not on application) 287
196........................ Duration of detention...................................................... 288
197........................ Effect of escape from immigration detention................... 289
Subdivision B—Residence determinations 290
197AA.................. Persons to whom Subdivision applies............................ 290
197AB................... Minister may determine that person is to reside at a specified place rather than being held in detention centre etc................................................................................... 290
197AC................... Effect of residence determination.................................... 290
197AD.................. Revocation or variation of residence determination......... 292
197AE................... Minister not under duty to consider whether to exercise powers 292
197AF................... Minister to exercise powers personally........................... 293
197AG.................. Tabling of information relating to the making of residence determinations 293
Division 7A—Offences relating to immigration detention 295
197A..................... Detainees must not escape from detention...................... 295
197B...................... Manufacture, possession etc. of weapons by detainees.. 295
Division 8—Removal of unlawful non‑citizens etc. 296
Subdivision A—Removal 296
197C...................... Relevance of Australia’s non‑refoulement obligations to removal of unlawful non‑citizens under section 198........................................................................................ 296
197D..................... Decision that protection finding would no longer be made 298
198........................ Removal from Australia of unlawful non‑citizens.......... 300
Subdivision B—Regional processing 305
198AA.................. Reason for Subdivision.................................................. 305
198AB................... Regional processing country.......................................... 305
198AC................... Documents to be laid before Parliament.......................... 307
198AD.................. Taking unauthorised maritime arrivals to a regional processing country 308
198AE................... Ministerial determination that section 198AD does not apply 310
198AF................... No regional processing country...................................... 312
198AG.................. Non‑acceptance by regional processing country............. 312
198AH.................. Application of section 198AD to certain transitory persons 312
198AHA............... Power to take action etc. in relation to arrangement or regional processing functions of a country 313
198AI.................... Ministerial report............................................................ 314
198AJ.................... Reports about unauthorised maritime arrivals................. 314
Subdivision C—Transitory persons etc. 315
198B...................... Power to bring transitory persons to Australia............... 315
199........................ Dependants of removed non‑citizens.............................. 316
Division 9—Deportation 317
200........................ Deportation of certain non‑citizens................................. 317
201........................ Deportation of non‑citizens in Australia for less than 10 years who are convicted of crimes 317
202........................ Deportation of non‑citizens upon security grounds........ 318
203........................ Deportation of non‑citizens who are convicted of certain serious offences 319
204........................ Determination of time for sections 201 and 202............. 321
205........................ Dependants of deportee.................................................. 322
206........................ Deportation order to be executed.................................... 323
Division 10—Costs etc. of removal and deportation 324
207........................ Interpretation................................................................... 324
210........................ Removed or deported non‑citizen liable for costs of removal or deportation 324
212........................ Costs of removed or deported spouses, de facto partners and dependants 324
213........................ Carriers may be liable for costs of removal and deportation 325
214........................ Non‑citizens and carriers jointly liable............................ 326
215........................ Costs are debts due to the Commonwealth..................... 326
216........................ Use of existing ticket for removal or deportation............ 326
217........................ Vessels required to convey certain removees.................. 327
218........................ Vessels required to convey deportees or other removees 327
219........................ Exemption from complying............................................ 328
220........................ Waiver of requirement.................................................... 328
221........................ Cost of removal under notice.......................................... 328
222........................ Orders restraining certain non‑citizens from disposing etc. of property 329
223........................ Secretary or Australian Border Force Commissioner may give direction about valuables of detained non‑citizens..................................................................... 331
224........................ Dealing with seized valuables......................................... 334
Division 11—Duties of masters in relation to crews 337
225........................ Production of identity documents and mustering of crew 337
226........................ Production of identity documents by persons on board resources installation 337
227........................ Production of identity documents by persons on board sea installation 338
228........................ Master to report absences............................................... 339
Division 12—Offences etc. in relation to entry into, and remaining in, Australia 341
Subdivision A—People smuggling and related offences 341
228A..................... Application of Subdivision............................................. 341
228B...................... Circumstances in which a non‑citizen has no lawful right to come to Australia 341
229........................ Carriage of non‑citizens to Australia without documentation 341
230........................ Carriage of concealed persons to Australia..................... 344
231........................ Master of vessel to comply with certain requests............ 345
232........................ Penalty on master, owner, agent and charterer of vessel. 345
233A..................... Offence of people smuggling.......................................... 347
233B...................... Aggravated offence of people smuggling (danger of death or serious harm etc.) 347
233C...................... Aggravated offence of people smuggling (at least 5 people) 348
233D..................... Supporting the offence of people smuggling.................. 349
233E...................... Concealing and harbouring non‑citizens etc.................... 349
234........................ False documents and false or misleading information etc. relating to non‑citizens 350
234A..................... Aggravated offence of false documents and false or misleading information etc. relating to non‑citizens (at least 5 people)................................................................. 351
235........................ Offences in relation to work........................................... 352
236........................ Offences relating to visas................................................ 354
236A..................... No discharge without conviction for certain offences..... 355
236B...................... Mandatory minimum penalties for certain offences........ 355
236C...................... Time in immigration detention counts for sentencing etc. 356
236D..................... Burden and standard of proof in relation to age.............. 357
236E...................... Evidentiary certificates in proceedings for offences........ 357
236F...................... Evidentiary certificates—procedural matters................... 359
Subdivision B—Offences relating to abuse of laws allowing spouses etc. of Australian citizens or of permanent residents to become permanent residents 360
237........................ Reason for Subdivision.................................................. 360
238........................ Interpretation................................................................... 360
239........................ Application of Subdivision............................................. 361
240........................ Offence to arrange marriage to obtain permanent residence 361
241........................ Offence to arrange pretended de facto relationship to obtain permanent residence 361
243........................ Offences relating to application for permanent residence because of marriage or de facto relationship 362
245........................ Offences of making false or unsupported statements...... 362
Subdivision C—Offences and civil penalties in relation to work by non‑citizens 364
245AA.................. Overview........................................................................ 364
245AB................... Allowing an unlawful non‑citizen to work..................... 364
245AC................... Allowing a lawful non‑citizen to work in breach of a work‑related condition 365
245AD.................. Aggravated offences if a person allows, or continues to allow, another person to work 367
245AE................... Referring an unlawful non‑citizen for work.................... 367
245AEA................ Referring a lawful non‑citizen for work in breach of a work‑related condition 369
245AEB................ Aggravated offences if a person refers another person to a third person for work 370
245AF................... Circumstances in which this Subdivision does not apply 371
245AG.................. Meaning of work and allows to work............................. 372
245AH.................. Meaning of exploited...................................................... 373
245AJ.................... Criminal liability of executive officers of bodies corporate 373
245AK................... Civil liability of executive officers of bodies corporate... 374
245AL................... Contravening civil penalty provisions............................. 376
245AM.................. Geographical scope of offence and civil penalty provisions 376
245AN.................. Charge and trial for an aggravated offence...................... 380
245AO.................. Treatment of partnerships............................................... 381
245AP................... Treatment of unincorporated associations....................... 381
Subdivision D—Offences and civil penalties in relation to sponsored visas 382
245AQ.................. Definitions...................................................................... 382
245AR................... Prohibition on asking for or receiving a benefit in return for the occurrence of a sponsorship‑related event........................................................................................ 384
245AS................... Prohibition on offering to provide or providing a benefit in return for the occurrence of a sponsorship‑related event............................................................................... 385
245AT................... Criminal liability of executive officers of bodies corporate 386
245AU.................. Civil liability of executive officers of bodies corporate... 386
245AV.................. Contravening civil penalty provisions............................. 388
245AW.................. Geographical scope of offence and civil penalty provisions 388
245AX.................. Treatment of partnerships............................................... 392
245AY.................. Treatment of unincorporated associations....................... 393
Division 12A—Chasing, boarding etc. aircraft 394
245A..................... Definitions...................................................................... 394
245E...................... Identifying an aircraft and requesting it to land for boarding 394
245F...................... Power to board and search etc. aircraft........................... 396
245FA................... Searches of people on certain ships or aircraft................ 401
Division 12B—Reporting on passengers and crew of aircraft and ships 404
245I....................... Definitions...................................................................... 404
245J....................... Approval of primary reporting systems.......................... 405
245K...................... Approval of fall‑back reporting systems......................... 406
245L...................... Obligation to report on persons arriving in Australia...... 406
245LA................... Obligation to report on persons departing from Australia 408
245LB................... Dealing with information collected under this Division etc. 410
245M..................... Approved fall‑back reporting systems may be used in certain circumstances 411
245N..................... Offence for failure to comply with reporting obligations 411
Division 13—Examination, search, detention and identification 413
246........................ Appointment of boarding stations................................... 413
247........................ Vessels to enter ports and be brought to boarding stations 413
248........................ Exemption....................................................................... 415
249........................ Certain persons may be prevented from entering or landing 415
250........................ Detention of suspected offenders.................................... 416
251........................ Powers of entry and search............................................. 417
252........................ Searches of persons........................................................ 419
252AA.................. Power to conduct a screening procedure......................... 421
252A..................... Power to conduct a strip search...................................... 422
252B...................... Rules for conducting a strip search................................. 424
252C...................... Possession and retention of certain things obtained during a screening procedure or strip search 426
252D..................... Authorised officer may apply for a thing to be retained for a further period 427
252E...................... Magistrate may order that thing be retained.................... 428
252F...................... Detainees held in State or Territory prisons or remand centres 429
252G..................... Powers concerning entry to a detention centre................ 429
253........................ Detention of deportee...................................................... 431
254........................ Removees and deportees held in other custody............... 433
255........................ Prescribed authorities...................................................... 434
256........................ Person in immigration detention may have access to certain advice, facilities etc. 435
257........................ Persons may be required to answer questions................ 435
257A..................... Person may be required to provide personal identifiers.. 436
258........................ Minister may determine that specified persons are not to be required to provide personal identifiers etc......................................................................................... 437
258A..................... When detainees must not be required to provide personal identifiers under section 257A 437
258B...................... Information to be provided—authorised officers carrying out identification tests 438
258D..................... Regulations may prescribe manner for carrying out identification tests 438
258E...................... General rules for carrying out identification tests............ 438
258F...................... Person must not be required to provide personal identifiers in a cruel, inhuman or degrading way etc. 439
258G..................... Authorised officer may get help to carry out identification tests 439
259........................ Detention of vessel for purpose of search....................... 439
260........................ Detention of vessel pending recovery of penalty............ 440
261........................ Disposal of dilapidated vessels etc.................................. 441
Division 13AA—Identification of immigration detainees 443
Subdivision A—Provision of personal identifiers 443
261AA.................. Immigration detainees must provide personal identifiers 443
261AB................... Authorised officers must require and carry out identification tests 444
261AC................... Information to be provided before carrying out identification tests 444
Subdivision B—How identification tests are carried out 445
261AD.................. General rules for carrying out identification tests............ 445
261AE................... Use of force in carrying out identification tests............... 446
261AF................... Identification tests not to be carried out in cruel, inhuman or degrading manner etc. 447
261AG.................. Authorised officer may get help to carry out identification tests 448
261AH.................. Identification tests to be carried out by authorised officer of same sex as non‑citizen 448
261AI.................... Independent person to be present.................................... 448
261AJ.................... Recording of identification tests...................................... 448
261AK................... Retesting......................................................................... 449
Subdivision C—Obligations relating to video recordings of identification tests 451
261AKA................ Definitions...................................................................... 451
261AKB................ Accessing video recordings............................................ 452
261AKC................ Authorising access to video recordings.......................... 452
261AKD................ Providing video recordings............................................. 453
261AKE................ Unauthorised modification of video recordings.............. 454
261AKF................ Unauthorised impairment of video recordings................ 454
261AKG................ Meanings of unauthorised modification and unauthorised impairment etc. 455
261AKH................ Destroying video recordings........................................... 455
Division 13AB—Identification of minors and incapable persons 457
261AL................... Minors............................................................................ 457
261AM.................. Incapable persons........................................................... 457
Division 13A—Automatic forfeiture of things used in certain offences 459
Subdivision A—Automatic forfeiture 459
261A..................... Forfeiture of things used in certain offences................... 459
Subdivision B—Seizure 460
261B...................... Seizure of things used in certain offences....................... 460
Subdivision C—Dealing with things seized as automatically forfeited 460
261C...................... Application of this Subdivision...................................... 460
261D..................... Notice of seizure............................................................. 460
261E...................... Dealing with thing before it is condemned...................... 461
261F...................... Thing condemned if not claimed in time......................... 462
261G..................... Dealing with claim for thing........................................... 462
261H..................... What happens if thing is claimed.................................... 463
261I....................... Dealing with thing after it is condemned......................... 465
Subdivision D—Operation of Division 465
261J....................... Operation of Division..................................................... 465
Subdivision E—Minister’s order that a thing not be condemned as forfeited 465
261K...................... Minister’s order that a thing not be condemned.............. 465
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 provides for non‑citizens and citizens to be required to provide personal identifiers for the purposes of this Act or the regulations.
(4) To advance its object, this Act provides for the removal or deportation from Australia of non‑citizens whose presence in Australia is not permitted by this Act.
(5) To advance its object, this Act provides for the taking of unauthorised maritime arrivals from Australia to a regional processing country.
4AA Detention of minors a last resort
(1) The Parliament affirms as a principle that a minor shall only be detained as a measure of last resort.
(2) For the purposes of subsection (1), the reference to a minor being detained does not include a reference to a minor residing at a place in accordance with a residence determination.
4A Application of the Criminal Code
Chapter 2 of the Criminal Code (except Part 2.5) applies to all offences against this Act.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
5 Interpretation
(1) In this Act, unless the contrary intention appears:
AAT Act migration decision: see section 474A.
absorbed person visa has the meaning given by section 34.
adjacent area means an adjacent area in respect of a State, of the Northern Territory, of Norfolk Island, of the Territory of Ashmore and Cartier Islands, of the Territory of Cocos (Keeling) Islands or of the Territory of Christmas Island, as determined in accordance with section 5 of the Sea Installations Act.
adoption has the same meaning as in the regulations.
allowed inhabitant of the Protected Zone means an inhabitant of the Protected Zone, other than an inhabitant to whom a declaration under section 16 (presence declared undesirable) applies.
applicable pass mark, in relation to a visa of a particular class, means the number of points specified as the pass mark for that class in a notice, under section 96, in force at the time concerned.
applicable pool mark, in relation to a visa of a particular class, means the number of points specified as the pool mark for that class in a notice under section 96 in force at the time concerned.
appointed inspector has the meaning given by section 140V.
approved family sponsor means a person:
(a) who has been approved under section 140E as a family sponsor in relation to a class prescribed by the regulations for the purpose of subsection 140E(2); and
(b) whose approval has not been cancelled under section 140M, or otherwise ceased to have effect under section 140G, in relation to that class.
approved form, when used in a provision of this Act, means a form approved by the Minister in writing for the purposes of that provision.
approved sponsor means:
(a) an approved family sponsor; or
(b) an approved work sponsor.
approved work sponsor means:
(a) a person:
(i) who has been approved under section 140E as a work sponsor in relation to a class prescribed by the regulations for the purpose of subsection 140E(2); and
(ii) whose approval has not been cancelled under section 140M, or otherwise ceased to have effect under section 140G, in relation to that class; or
(b) a person (other than a Minister) who is a party to a work agreement.
Note: A partnership or an unincorporated association may be an approved work sponsor: see subsections 140ZB(1) and 140ZE(1) respectively.
area in the vicinity of the Protected Zone means an area in respect of which a notice is in force under subsection (8).
ASIO means the Australian Security Intelligence Organisation.
ASIO Act means the Australian Security Intelligence Organisation Act 1979.
assessed score, in relation to an applicant for a visa, means the total number of points given to the applicant in an assessment under section 93.
assessment, in relation to ASIO, has the same meaning as in subsection 35(1) of the ASIO Act.
Australian Border Force Commissioner has the same meaning as in the Australian Border Force Act 2015.
Australian passport means a passport issued under the Australian Passports Act 2005.
Australian resources installation means a resources installation that is deemed to be part of Australia because of the operation of section 8.
Australian seabed means so much of the seabed adjacent to Australia as is:
(a) within the area comprising:
(i) the areas described in Schedule 1 to the Offshore Petroleum and Greenhouse Gas Storage Act 2006; and
(ii) the Coral Sea area; and
(b) part of:
(i) the continental shelf of Australia;
(ii) the seabed beneath the territorial sea of Australia (including the territorial sea adjacent to any island forming part of Australia); or
(iii) the seabed beneath waters of the sea that are on the landward side of the territorial sea of Australia and are not within the limits of a State or Territory.
Australian sea installation means a sea installation that is deemed to be part of Australia because of the operation of section 9.
Australian waters means:
(a) in relation to a resources installation—waters above the Australian seabed; and
(b) in relation to a sea installation—waters comprising all of the adjacent areas and the coastal area.
authorised officer, when used in a provision of this Act, means an officer authorised in writing by the Minister, the Secretary or the Australian Border Force Commissioner for the purposes of that provision.
Note: Section 5D can affect the meaning of this term for the purposes of carrying out identification tests.
authorised system, when used in a provision of this Act, means an automated system authorised in writing by the Minister or the Secretary for the purposes of that provision.
behaviour concern non‑citizen means a non‑citizen who:
(a) has been convicted of a crime and sentenced to death or to imprisonment, for at least one year; or
(b) has been convicted of 2 or more crimes and sentenced to imprisonment, for periods that add up to at least one year if:
(i) any period concurrent with part of a longer period is disregarded; and
(ii) any periods not disregarded that are concurrent with each other are treated as one period;
whether or not:
(iii) the crimes were of the same kind; or
(iv) the crimes were committed at the same time; or
(v) the convictions were at the same time; or
(vi) the sentencings were at the same time; or
(vii) the periods were consecutive; or
(c) has been charged with a crime and either:
(i) found guilty of having committed the crime while of unsound mind; or
(ii) acquitted on the ground that the crime was committed while the person was of unsound mind;
(d) has been removed or deported from Australia or removed or deported from another country; or
(e) has been excluded from another country in prescribed circumstances;
where sentenced to imprisonment includes ordered to be confined in a corrective institution.
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a) purports to have been, but was not, issued in respect of the person; or
(b) is counterfeit or has been altered by a person who does not have authority to do so; or
(c) was obtained because of a false or misleading statement, whether or not made knowingly.
bridging visa has the meaning given by section 37.
brought into physical contact has the same meaning as in the Sea Installations Act.
bypass immigration clearance has the meaning given by subsection 172(4).
certified printout means a printout certified by an authorised officer to be a printout of information kept in the movement records.
character concern has the meaning given by section 5C.
child of a person has a meaning affected by section 5CA.
civil penalty order has the meaning given by subsection 486R(4).
civil penalty provision means a subsection, or a section that is not divided into subsections, that has set out at its foot the words “civil penalty” and one or more amounts in penalty units.
clearance authority has the meaning given by section 165.
clearance officer has the meaning given by section 165.
coastal area has the same meaning as in the Customs Act 1901.
committee of management of an unincorporated association means a body (however described) that governs, manages or conducts the affairs of the association.
Convention Against Torture means the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment done at New York on 10 December 1984.
Note: The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment is in Australian Treaty Series 1989 No. 21 ([1989] ATS 21) and could in 2014 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).
Coral Sea area has the same meaning as in section 7 of the Offshore Petroleum and Greenhouse Gas Storage Act 2006.
Covenant means the International Covenant on Civil and Political Rights, a copy of the English text of which is set out in Schedule 2 to the Australian Human Rights Commission Act 1986.
crime includes any offence.
criminal justice visa has the meaning given by section 38.
cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
data base (except in Part 4A) means a discrete body of information stored by means of a computer.
Note: Section 336A defines this term differently for the purposes of Part 4A.
de facto partner has the meaning given by section 5CB.
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
departure prohibition order means an order under subsection 14S(1) of the Taxation Administration Act 1953.
deportation means deportation from Australia.
deportation order means an order for the deportation of a person made under, or continued in force by, this Act.
deportee means a person in respect of whom a deportation order is in force.
detain means:
(a) take into immigration detention; or
(b) keep, or cause to be kept, in immigration detention;
and includes taking such action and using such force as are reasonably necessary to do so.
Note: This definition extends to persons covered by residence determinations (see section 197AC).
detainee means a person detained.
Note: This definition extends to persons covered by residence determinations (see section 197AC).
diplomatic or consular representative, in relation to a country other than Australia, means a person who has been appointed to, or is the holder of, a post or position in a diplomatic or consular mission of that country in Australia, not being a person who was ordinarily resident in Australia when he or she was appointed to be a member of the mission.
eligible court means:
(a) the Federal Court; or
(b) the Federal Circuit 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.
Note: See also section 9A, which concerns offshore resources activities.
entered includes re‑entered.
entry includes re‑entry.
environment detention offence means:
(a) an offence against the Environment Protection and Biodiversity Conservation Act 1999, or against regulations made for the purposes of that Act; or
(b) an offence against section 6 of the Crimes Act 1914 relating to an offence described in paragraph (a).
environment officer means an authorised officer, within the meaning of the Environment Protection and Biodiversity Conservation Act 1999, but does not include a person who is an authorised officer because of subsection 397(3) of that Act.
environment related activity has the same meaning as in the Sea Installations Act.
evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.
excised offshore place means any of the following:
(a) the Territory of Christmas Island;
(b) the Territory of Ashmore and Cartier Islands;
(c) the Territory of Cocos (Keeling) Islands;
(d) any other external Territory that is prescribed by the regulations for the purposes of this paragraph;
(e) any island that forms part of a State or Territory and is prescribed for the purposes of this paragraph;
(f) an Australian sea installation;
(g) an Australian resources installation.
excision time, for an excised offshore place, means:
(a) for the Territory of Christmas Island—2 pm on 8 September 2001 by legal time in the Australian Capital Territory; or
(b) for the Territory of Ashmore and Cartier Islands—2 pm on 8 September 2001 by legal time in the Australian Capital Territory; or
(c) for the Territory of Cocos (Keeling) Islands—12 noon on 17 September 2001 by legal time in the Australian Capital Territory; or
(d) for any other external Territory that is prescribed by the regulations for the purposes of the definition of excised offshore place—the time when the regulations commence; or
(e) for any island that forms part of a State or Territory and is prescribed by the regulations for the purposes of the definition of excised offshore place—the time when the regulations commence; or
(f) for an Australian sea installation—the commencement of the Migration Amendment (Excision from Migration Zone) Act 2001; or
(g) for an Australian resources installation—the commencement of the Migration Amendment (Excision from Migration Zone) Act 2001.
ex‑citizen visa has the meaning given by section 35.
excluded fast track review applicant means a fast track applicant:
(a) who, in the opinion of the Minister:
(i) is covered by section 91C or 91N; or
(ii) has previously entered Australia and who, while in Australia, made a claim for protection relying on a criterion mentioned in subsection 36(2) in an application that was refused or withdrawn; or
(iii) has made a claim for protection in a country other than Australia that was refused by that country; or
(iv) has made a claim for protection in a country other than Australia that was refused by the Office of the United Nations High Commissioner for Refugees in that country; or
(vi) without reasonable explanation provides, gives or presents a bogus document to an officer of the Department or to the Minister (or causes such a document to be so provided, given or presented) in support of his or her application; or
(aa) who makes a claim for protection relying on a criterion mentioned in subsection 36(2) in, or in connection with, his or her application, if, in the opinion of the Minister, the claim is manifestly unfounded because, without limiting what is a manifestly unfounded claim, the claim:
(i) has no plausible or credible basis; or
(ii) if the claim is based on conditions, events or circumstances in a particular country—is not able to be substantiated by any objective evidence; or
(iii) is made for the sole purpose of delaying or frustrating the fast track applicant’s removal from Australia; or
(b) who is, or who is included in a class of persons who are, specified by legislative instrument made under paragraph (1AA)(a).
Fair Work Inspector has the same meaning as in the Fair Work Act 2009.
fast track applicant means:
(a) a person:
(i) who is an unauthorised maritime arrival and who entered Australia on or after 13 August 2012, but before 1 January 2014, and who has not been taken to a regional processing country; and
(ii) to whom the Minister has given a written notice under subsection 46A(2) determining that subsection 46A(1) does not apply to an application by the person for a protection visa; and
(iii) who has made a valid application for a protection visa in accordance with the determination; or
(b) a person who is, or who is included in a class of persons who are, specified by legislative instrument made under paragraph (1AA)(b).
Note: Some unauthorised maritime arrivals born in Australia on or after 13 August 2012 may not be fast track applicants even if paragraph (a) applies: see subsection (1AC).
fast track decision means a decision to refuse to grant a protection visa to a fast track applicant, other than a decision to refuse to grant such a visa:
(a) because the Minister or a delegate of the Minister is not satisfied that the applicant passes the character test under section 501; or
(b) relying on:
(i) subsection 5H(2); or
(ii) subsection 36(1B) or (1C); or
(iii) paragraph 36(2C)(a) or (b).
Note: Some decisions made in the circumstances mentioned in paragraph (a), or subparagraph (b)(i) or (iii), of the definition of fast track decision are reviewable by the Administrative Appeals Tribunal in accordance with section 500.
fast track reviewable decision has the meaning given by section 473BB.
fast track review applicant means a fast track applicant who is not an excluded fast track review applicant.
Federal Circuit Court means the Federal Circuit Court of Australia.
Federal Court means the Federal Court of Australia.
finally determined: for when an application under this Act is finally determined, see subsections (9) and (9A).
Finance Minister means the Minister who administers the Public Governance, Performance and Accountability Act 2013.
fisheries detention offence means:
(a) an offence against section 99, 100, 100A, 100B, 101, 101A, 101AA, 101B, 105E, 105EA, 105H or 105I of the Fisheries Management Act 1991; or
(b) an offence against section 45, 46A, 46B, 46C, 46D, 48, 49, 49A, 51 or 51A of the Torres Strait Fisheries Act 1984; or
(c) an offence against section 6 of the Crimes Act 1914 relating to an offence described in paragraph (a) or (b).
fisheries officer means an officer as defined in the Fisheries Management Act 1991 or the Torres Strait Fisheries Act 1984.
foreign aircraft (environment matters) means an aircraft, within the meaning of the Environment Protection and Biodiversity Conservation Act 1999, that is not an Australian aircraft (within the meaning of that Act).
foreign vessel has the same meaning as in the Maritime Powers Act 2013.
health concern non‑citizen means a non‑citizen who is suffering from a prescribed disease or a prescribed physical or mental condition.
health criterion, in relation to a visa, means a prescribed criterion for the visa that:
(a) relates to the applicant for the visa, or the members of the family unit of that applicant; and
(b) deals with:
(i) a prescribed disease; or
(ii) a prescribed kind of disease; or
(iii) a prescribed physical or mental condition; or
(iv) a prescribed kind of physical or mental condition; or
(v) a prescribed kind of examination; or
(vi) a prescribed kind of treatment.
holder, in relation to a visa, means, subject to section 77 (visas held during visa period) the person to whom it was granted or a person included in it.
identification test means a test carried out in order to obtain a personal identifier.
identity document, in relation to a member of the crew of a vessel, means:
(a) an identification card, in accordance with a form approved by the Minister, in respect of the member signed by the master of the vessel; or
(b) a document, of a kind approved by the Minister as an identity document for the purposes of this Act, in respect of the member.
Immigration Assessment Authority means the Authority established by section 473JA.
immigration cleared has the meaning given by subsection 172(1).
immigration detention means:
(a) being in the company of, and restrained by:
(i) an officer; or
(ii) in relation to a particular detainee—another person directed by the Secretary or Australian Border Force Commissioner to accompany and restrain the detainee; or
(b) being held by, or on behalf of, an officer:
(i) in a detention centre established under this Act; or
(ii) in a prison or remand centre of the Commonwealth, a State or a Territory; or
(iii) in a police station or watch house; or
(iv) in relation to a non‑citizen who is prevented, under section 249, from leaving a vessel—on that vessel; or
(v) in another place approved by the Minister in writing;
but does not include being restrained as described in subsection 245F(8A), or being dealt with under paragraph 245F(9)(b).
Note 1: Subsection 198AD(11) provides that being dealt with under subsection 198AD(3) does not amount to immigration detention.
Note 2: This definition extends to persons covered by residence determinations (see section 197AC).
incapable person means a person who is incapable of understanding the general nature and effect of, and purposes of, a requirement to provide a personal identifier.
independent person means a person (other than an officer or an authorised officer) who:
(a) is capable of representing the interests of a non‑citizen who is providing, or is to provide, a personal identifier; and
(b) as far as practicable, is acceptable to the non‑citizen who is providing, or is to provide, the personal identifier; and
(c) if the non‑citizen is a minor—is capable of representing the minor’s best interests.
inhabitant of the Protected Zone means a person who is a citizen of Papua New Guinea and who is a traditional inhabitant.
in immigration clearance has the meaning given by subsection 172(2).
inspector has the meaning given by section 140V.
installation means:
(a) a resources installation; or
(b) a sea installation.
lawful non‑citizen has the meaning given by section 13.
lawyer means:
(a) a barrister; or
(b) a solicitor; or
(c) a barrister and solicitor; or
(d) a legal practitioner;
of the High Court or of the Supreme Court of a State or Territory.
leave Australia, in relation to a person, means, subject to section 80 (leaving without going to other country), leave the migration zone.
Note: See also section 9A, which concerns offshore resources activities.
maritime crew visa has the meaning given by section 38B.
maritime officer has the same meaning as in the Maritime Powers Act 2013.
master, in relation to a vessel, means the person in charge or command of the vessel.
member of the crew means:
(a) in relation to a vessel other than an aircraft—the master of the vessel, or a person whose name is on the articles of the vessel as a member of the crew; or
(b) in relation to an aircraft—the master of the aircraft, or a person employed by the operator of the aircraft and whose name is included in a list of members of the crew of the aircraft furnished by the master as prescribed.
member of the family unit of a person has the meaning given by the regulations made for the purposes of this definition.
member of the same family unit: one person is a member of the same family unit as another if either is a member of the family unit of the other or each is a member of the family unit of a third person.
migration decision means:
(a) a privative clause decision; or
(b) a purported privative clause decision; or
(c) a non‑privative clause decision; or
(d) an AAT Act migration decision.
migration zone means the area consisting of the States, the Territories, Australian resource installations and Australian sea installations and, to avoid doubt, includes:
(a) land that is part of a State or Territory at mean low water; and
(b) sea within the limits of both a State or a Territory and a port; and
(c) piers, or similar structures, any part of which is connected to such land or to ground under such sea;
but does not include sea within the limits of a State or Territory but not in a port.
Note: See also section 9A, which concerns offshore resources activities.
minor means a person who is less than 18 years old.
movement records means information stored in a notified data base.
natural resources means the mineral and other non‑living resources of the seabed and its subsoil.
nomination training contribution charge means nomination training contribution charge imposed by section 7 of the Migration (Skilling Australians Fund) Charges Act 2018.
non‑citizen means a person who is not an Australian citizen.
non‑disclosable information means information or matter:
(a) whose disclosure would, in the Minister’s opinion, be contrary to the national interest because it would:
(i) prejudice the security, defence or international relations of Australia; or
(ii) involve the disclosure of deliberations or decisions of the Cabinet or of a committee of the Cabinet; or
(b) whose disclosure would, in the Minister’s opinion, be contrary to the public interest for a reason which could form the basis of a claim by the Crown in right of the Commonwealth in judicial proceedings; or
(c) whose disclosure would found an action by a person, other than the Commonwealth, for breach of confidence;
and includes any document containing, or any record of, such information or matter.
non‑political crime:
(a) subject to paragraph (b), means a crime where a person’s motives for committing the crime were wholly or mainly non‑political in nature; and
(b) includes an offence that, under paragraph (a), (b) or (c) of the definition of political offence in section 5 of the Extradition Act 1988, is not a political offence in relation to a country for the purposes of that Act.
non‑privative clause decision has the meaning given by subsection 474(6).
non‑refoulement obligations includes, but is not limited to:
(a) non‑refoulement obligations that may arise because Australia is a party to:
(i) the Refugees Convention; or
(ii) the Covenant; or
(iii) the Convention Against Torture; and
(b) any obligations accorded by customary international law that are of a similar kind to those mentioned in paragraph (a).
notified data base means a data base declared to be a notified data base under section 489.
offence against this Act includes:
(a) an offence against section 6 of the Crimes Act 1914 that relates to an offence against a provision of this Act; and
(b) an ancillary offence (within the meaning of the Criminal Code) that is, or relates to, an offence against a provision of this Act.
officer means:
(a) an officer of the Department, other than an officer specified by the Minister in writing for the purposes of this paragraph; or
(b) a person who is an officer for the purposes of the Customs Act 1901, other than such an officer specified by the Minister in writing for the purposes of this paragraph; or
(c) a person who is a protective service officer for the purposes of the Australian Federal Police Act 1979, other than such a person specified by the Minister in writing for the purposes of this paragraph; or
(d) a member of the Australian Federal Police or of the police force of a State or an internal Territory; or
(e) a member of the police force of an external Territory; or
(f) a person who is authorised in writing by the Minister to be an officer for the purposes of this Act; or
(g) any person who is included in a class of persons authorised in writing by the Minister to be officers for the purposes of this Act, including a person who becomes a member of the class after the authorisation is given.
offshore resources activity has the meaning given by subsection 9A(5).
old visa means a visa, document, or notation, that:
(a) permits a person to travel to Australia; and
(b) was issued before 1 September 1994; and
(c) has not been cancelled or otherwise stopped being in effect.
parent: without limiting who is a parent of a person for the purposes of this Act, someone is the parent of a person if the person is his or her child because of the definition of child in section 5CA.
Part 5‑reviewable decision: see section 338.
Part 7‑reviewable decision: see section 411.
passport includes a document of identity issued from official sources, whether in or outside Australia, and having the characteristics of a passport, but does not include a document, which may be a document called or purporting to be a passport, that the regulations declare is not to be taken to be a passport.
permanent visa has the meaning given by subsection 30(1).
personal identifier has the meaning given by section 5A.
personal information has the same meaning as in the Privacy Act 1988.
port means:
(a) a proclaimed port; or
(b) a proclaimed airport.
pre‑cleared flight means a flight declared under section 17 to be a pre‑cleared flight.
prescribed means prescribed by the regulations.
printout means a mechanically or electronically made reproduction of part or all of the movement records.
privative clause decision has the meaning given by subsection 474(2).
proclaimed airport means:
(a) an airport appointed under section 15 of the Customs Act 1901; or
(b) an airport appointed by the Minister under subsection (5).
proclaimed port means:
(a) a port appointed under section 15 of the Customs Act 1901; or
(b) a port appointed by the Minister under subsection (5).
protected area means an area that is:
(a) part of the migration zone; and
(b) in, or in an area in the vicinity of, the Protected Zone.
Protected Zone means the zone established under Article 10 of the Torres Strait Treaty, being the area bounded by the line described in Annex 9 to that treaty.
protection visa has the meaning given by section 35A.
Note: Section 35A covers the following:
(a) permanent protection visas (classified by the Migration Regulations 1994 as Protection (Class XA) visas when this definition commenced);
(b) other protection visas formerly provided for by subsection 36(1);
(ba) safe haven enterprise visas;
(c) temporary protection visas (classified by the Migration Regulations 1994 as Temporary Protection (Class XD) visas when this definition commenced);
(d) any additional classes of permanent or temporary visas that are prescribed as protection visas by the regulations.
See also section 36 and Subdivision AL of Division 3 of Part 2.
purported privative clause decision has the meaning given by section 5E.
questioning detention means detention under section 192.
receiving country, in relation to a non‑citizen, means:
(a) a country of which the non‑citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non‑citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non‑citizen to the country.
referred applicant has the meaning given by section 473BB.
refugee has the meaning given by section 5H.
Refugees Convention means the Convention relating to the Status of Refugees done at Geneva on 28 July 1951.
Refugees Protocol means the Protocol relating to the Status of Refugees done at New York on 31 January 1967.
refused immigration clearance has the meaning given by subsection 172(3).
regional processing country means a country designated by the Minister under subsection 198AB(1) as a regional processing country.
Regulatory Powers Act means the Regulatory Powers (Standard Provisions) Act 2014.
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).
score, in relation to a visa applicant, means the total number of points given to the applicant under section 93 in the most recent assessment or re‑assessment under Subdivision B of Division 3 of Part 2.
sea installation has the same meaning as in the Sea Installations Act.
Sea Installations Act means the Sea Installations Act 1987.
Secretary means the Secretary of the Department.
serious Australian offence means an offence against a law in force in Australia, where:
(a) the offence:
(i) involves violence against a person; or
(ii) is a serious drug offence; or
(iii) involves serious damage to property; or
(iv) is an offence against section 197A or 197B (offences relating to immigration detention); and
(b) the offence is punishable by:
(i) imprisonment for life; or
(ii) imprisonment for a fixed term of not less than 3 years; or
(iii) imprisonment for a maximum term of not less than 3 years.
serious foreign offence means an offence against a law in force in a foreign country, where:
(a) the offence:
(i) involves violence against a person; or
(ii) is a serious drug offence; or
(iii) involves serious damage to property; and
(b) if it were assumed that the act or omission constituting the offence had taken place in the Australian Capital Territory, the act or omission would have constituted an offence (the Territory offence) against a law in force in that Territory, and the Territory offence would have been punishable by:
(i) imprisonment for life; or
(ii) imprisonment for a fixed term of not less than 3 years; or
(iii) imprisonment for a maximum term of not less than 3 years.
significant harm means harm of a kind mentioned in subsection 36(2A).
special category visa has the meaning given by section 32.
special purpose visa has the meaning given by section 33.
spouse has the meaning given by section 5F.
student visa has the meaning given by the regulations.
substantive visa means a visa other than:
(a) a bridging visa; or
(b) a criminal justice visa; or
(c) an enforcement visa.
tax file number has the meaning given by subsection 995‑1(1) of the Income Tax Assessment Act 1997.
temporary visa has the meaning given by subsection 30(2).
Territory means:
(a) an internal Territory; or
(b) an external Territory to which this Act extends.
ticket includes a travel document in respect of the conveyance of a person from one place to another place.
Torres Strait Treaty means the Treaty between Australia and the Independent State of Papua New Guinea that was signed at Sydney on 18 December 1978.
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
traditional activities has the same meaning as in the Torres Strait Treaty.
traditional inhabitants has the same meaning as in the Torres Strait Fisheries Act 1984.
transitory person means:
(a) a person who was taken to another country under repealed section 198A; or
(aa) a person who was taken to a regional processing country under section 198AD; or
(b) a person who was taken to a place outside Australia under paragraph 245F(9)(b) of this Act, or under Division 7 or 8 of Part 3 of the Maritime Powers Act 2013; or
(c) a person who, while a non‑citizen and during the period from 27 August 2001 to 6 October 2001:
(i) was transferred to the ship HMAS Manoora from the ship Aceng or the ship MV Tampa; and
(ii) was then taken by HMAS Manoora to another country; and
(iii) disembarked in that other country; or
(d) the child of a transitory person mentioned in paragraph (aa) or (b), if:
(i) the child was born in a regional processing country to which the parent was taken as mentioned in the relevant paragraph; and
(ii) the child was not an Australian citizen at the time of birth; or
(e) the child of a transitory person mentioned in paragraph (aa) or (b), if:
(i) the child was born in the migration zone; and
(ii) the child was not an Australian citizen at the time of birth.
Note 1: For who is a child, see section 5CA.
Note 2: A transitory person who entered Australia by sea before being taken to a place outside Australia may also be an unauthorised maritime arrival: see section 5AA.
Note 3: Paragraphs (d) and (e) apply no matter when the child was born, whether before, on or after the commencement of those paragraphs. See the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014.
Tribunal means the Administrative Appeals Tribunal.
unauthorised maritime arrival has the meaning given by section 5AA.
unlawful non‑citizen has the meaning given by section 14.
vessel includes an aircraft or an installation.
vessel (environment matters) means a vessel, within the meaning of the Environment Protection and Biodiversity Conservation Act 1999.
visa has the meaning given by section 29 and includes an old visa.
visa applicant means an applicant for a visa and, in relation to a visa, means the applicant for the visa.
visa application charge means the charge payable under section 45A.
visa application charge limit is the amount determined under the Migration (Visa Application) Charge Act 1997.
visa holder means the holder of a visa and, in relation to a visa, means the holder of the visa.
visa period, in relation to a visa, means the period:
(a) beginning when the visa is granted; and
(b) ending:
(i) in the case of a visa other than a bridging visa—when the visa ceases to be in effect; or
(ii) in the case of a bridging visa—when the visa ceases to be in effect otherwise than under subsection 82(3).
well‑founded fear of persecution has the meaning given by section 5J.
work agreement means an agreement that satisfies the requirements prescribed by the regulations for the purposes of this definition.
working day, in relation to a place, means any day that is not a Saturday, a Sunday or a public holiday in that place.
work‑related condition means a condition:
(a) prohibiting the holder of a visa from working in Australia; or
(b) restricting the work that the holder of a visa may do in Australia.
(1AA) The Minister may make a legislative instrument for the purposes of the following provisions:
(a) paragraph (b) of the definition of excluded fast track review applicant in subsection (1);
(b) paragraph (b) of the definition of fast track applicant in subsection (1).
(1AB) A legislative instrument made under subsection (1AA) may apply, adopt or incorporate, with or without modification, the provisions of any other legislative instrument, whether or not the other legislative instrument is disallowable, as in force at a particular time or as in force from time to time.
(1AC) A person is not a fast track applicant only because of paragraph (a) of the definition of fast track applicant in subsection (1) if:
(a) the person is born in Australia on or after 13 August 2012; and
(b) the person is the child of an unauthorised maritime arrival who entered Australia before 13 August 2012.
(1AD) Despite regulations made for the purposes of paragraph 44(2)(b) of the Legislation Act 2003, section 42 (disallowance) of that Act applies to an instrument made under subsection (1AA).
(1A) The Minister has power to give authorisations as provided by paragraphs (f) and (g) of the definition of officer in subsection (1) and, if such an authorisation is given:
(a) the Minister is to cause notice of the authorisation to be published in the Gazette; but
(b) without affecting the obligation of the Minister to cause a notice to be so published:
(i) the authorisation takes effect when it is given; and
(ii) the validity of the authorisation is not affected if such a notice is not published.
(1B) The Minister or the Secretary has the power to give authorisations as provided by the definition of authorised system.
(2) For the purposes of this Act, a person has functional English at a particular time if:
(a) the person passes a test that:
(i) is approved in writing by the Minister for the purposes of this subsection; and
(ii) is conducted by a person, or organisation, approved for the purposes of this subsection by the Minister by notice in the Gazette; or
(b) the person provides the Minister with prescribed evidence of the person’s English language proficiency.
(3) Any power that may be exercised by an authorized officer or by an officer under this Act may also be exercised by the Minister.
(4) Where, in any provision of this Act, reference is made to the exercise of a power by an authorized officer or by an officer and that power is a power which, by virtue of subsection (3), may also be exercised by the Minister, that reference shall be construed as including a reference to the exercise of that power by the Minister.
(5) The Minister may, by notice published in the Gazette:
(a) appoint ports in an external Territory to which this Act extends as proclaimed ports for the purposes of this Act and fix the limits of those ports; and
(b) appoint airports in an external Territory to which this Act extends as proclaimed airports for the purposes of this Act and fix the limits of those airports.
(6) For the purposes of this Act, where a resources installation that has been brought into Australian waters from a place outside the outer limits of Australian waters becomes attached to the Australian seabed:
(a) the installation shall be deemed to have entered Australia at the time when it becomes so attached;
(b) any person on board the installation at the time when it becomes so attached shall be deemed to have travelled to Australia on board that installation, to have entered Australia at that time and to have been brought into Australia at that time.
(7) For the purposes of this Act, where a sea installation that has been brought into Australian waters from a place outside the outer limits of Australian waters is installed in an adjacent area or in a coastal area:
(a) the installation shall be deemed to have entered Australia at the time that it becomes so installed; and
(b) any person on board the installation at the time that it becomes so installed shall be deemed to have travelled to Australia on board that installation, to have entered Australia at that time and to have been brought into Australia at that time.
(8) The Minister may, by notice published in the Gazette, declare an area adjacent to the Protected Zone and to the south of the line described in Annex 5 to the Torres Strait Treaty to be an area in the vicinity of the Protected Zone for the purposes of this Act.
(9) For the purposes of this Act, subject to subsection (9A), an application under this Act is finally determined when:
(a) a decision that has been made in respect of the application is not, or is no longer, subject to any form of review 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; or
(c) in relation to an application for a protection visa by an excluded fast track review applicant—a decision has been made in respect of the application.
(9A) If a review of a decision that has been made in respect of an application under this Act is instituted under Part 5, 7 or 7AA as prescribed, the application is finally determined when a decision on the review in respect of the application is taken to have been made as provided by any of the following provisions:
(a) subsection 368(2) (written decisions about Part 5‑reviewable decisions);
(b) subsection 368D(1) (oral decisions about Part 5‑reviewable decisions);
(c) subsection 430(2) (written decisions about Part 7‑reviewable decisions);
(d) subsection 430D(1) (oral decisions about Part 7‑reviewable decisions).
(e) subsection 473EA(2) (Immigration Assessment Authority decisions).
(9B) However, subsection (9A) does not apply in relation to the following decisions:
(a) a decision of the Tribunal to remit a Part 5‑reviewable decision under paragraph 349(2)(c);
(b) a decision of the Tribunal to remit a Part 7‑reviewable decision under paragraph 415(2)(c);
(c) a decision of the Immigration Assessment Authority under paragraph 473CC(2)(b).
(10) A reference in this Act to a resources industry fixed structure shall be read as a reference to a structure (including a pipeline) that:
(a) is not able to move or be moved as an entity from one place to another; and
(b) is used or is to be used off‑shore in, or in any operations or activities associated with, or incidental to, exploring or exploiting natural resources.
(11) A reference in this Act to a resources industry mobile unit shall be read as a reference to:
(a) a vessel that is used or is to be used wholly or principally in:
(i) exploring or exploiting natural resources by drilling the seabed or its subsoil with equipment on or forming part of the vessel or by obtaining substantial quantities of material from the seabed or its subsoil with equipment of that kind; or
(ii) operations or activities associated with, or incidental to, activities of the kind referred to in subparagraph (i); or
(b) a structure (not being a vessel) that:
(i) is able to float or be floated;
(ii) is able to move or be moved as an entity from one place to another; and
(iii) is used or is to be used off‑shore wholly or principally in:
(A) exploring or exploiting natural resources by drilling the seabed or its subsoil with equipment on or forming part of the structure or by obtaining substantial quantities of material from the seabed or its subsoil with equipment of that kind; or
(B) operations or activities associated with, or incidental to, activities of the kind referred to in sub‑subparagraph (A).
(12) A vessel of a kind referred to in paragraph (11)(a) or a structure of a kind referred to in paragraph (11)(b) shall not be taken not to be a resources industry mobile unit by reason only that the vessel or structure is also used or to be used in, or in any operations or activities associated with, or incidental to, exploring or exploiting resources other than natural resources.
(13) The reference in subparagraph (11)(a)(ii) to a vessel that is used or is to be used wholly or principally in operations or activities associated with, or incidental to, activities of the kind referred to in subparagraph (11)(a)(i) shall be read as not including a reference to a vessel that is used or is to be used wholly or principally in:
(a) transporting persons or goods to or from a resources installation; or
(b) manoeuvring a resources installation, or in operations relating to the attachment of a resources installation to the Australian seabed.
(14) A resources installation shall be taken to be attached to the Australian seabed if:
(a) the installation:
(i) is in physical contact with, or is brought into physical contact with, a part of the Australian seabed; and
(ii) is used or is to be used, at that part of the Australian seabed, wholly or principally in or in any operations or activities associated with, or incidental to, exploring or exploiting natural resources; or
(b) the installation:
(i) is in physical contact with, or is brought into physical contact with, another resources installation that is taken to be attached to the Australian seabed by virtue of the operation of paragraph (a); and
(ii) is used or is to be used, at the place where it is brought into physical contact with the other installation, wholly or principally in or in any operations or activities associated with, or incidental to, exploring or exploiting natural resources.
(15) Subject to subsection (17), for the purposes of this Act, a sea installation shall be taken to be installed in an adjacent area if:
(a) the installation is in, or is brought into, physical contact with a part of the seabed in the adjacent area; or
(b) the installation is in, or is brought into, physical contact with another sea installation that is to be taken to be installed in the adjacent area because of paragraph (a).
(16) For the purposes of this Act, a sea installation shall be taken to be installed in an adjacent area at a particular time if the whole or part of the installation:
(a) is in that adjacent area at that time; and
(b) has been in a particular locality:
(i) that is circular and has a radius of 20 nautical miles; and
(ii) the whole or part of which is in that adjacent area;
for:
(iii) a continuous period, of at least 30 days, that immediately precedes that time; or
(iv) one or more periods, during the 60 days that immediately precede that time, that in sum amount to at least 40 days.
(17) Where a sea installation, being a ship or an aircraft:
(a) is brought into physical contact with a part of the seabed in an adjacent area; or
(b) is in, or is brought into, physical contact with another sea installation that is to be taken to be installed in an adjacent area;
for less than:
(c) in the case of a ship, or an aircraft, registered under the law of a foreign country—30 days; or
(d) in any other case—5 days;
it shall not be taken to be installed in that adjacent area under subsection (15).
(18) A sea installation shall not be taken to be installed in an adjacent area for the purposes of this Act unless it is to be taken to be so installed under this section.
(19) Subject to subsection (21), for the purposes of this Act, a sea installation shall be taken to be installed in a coastal area if:
(a) the installation is in, or is brought into, physical contact with a part of the seabed in the coastal area; or
(b) the installation is in, or is brought into, physical contact with another sea installation that is to be taken to be installed in the coastal area because of paragraph (a).
(20) For the purposes of this Act, a sea installation (other than an installation installed in an adjacent area) shall be taken to be installed at a particular time in a coastal area if the whole or part of the installation:
(a) is in that coastal area at that time; and
(b) has been in a particular locality:
(i) that is circular and has a radius of 20 nautical miles; and
(ii) the whole or part of which is in that coastal area;
for:
(iii) a continuous period, of at least 30 days, that immediately precedes that time; or
(iv) one or more periods, during the 60 days that immediately precede that time, that in sum amount to at least 40 days.
(21) Where a sea installation, being a ship or an aircraft:
(a) is brought into physical contact with a part of the seabed in a coastal area; or
(b) is in, or is brought into, physical contact with another sea installation that is to be taken to be installed in a coastal area;
for less than:
(c) in the case of a ship, or an aircraft, registered under the law of a foreign country—30 days; or
(d) in any other case—5 days;
it shall not be taken to be installed in that coastal area under subsection (19).
(22) A sea installation shall not be taken to be installed in a coastal area for the purposes of this Act unless it is to be taken to be so installed under this section.
(23) To avoid doubt, in this Act is taken, when followed by the infinitive form of a verb, has the same force and effect as is deemed when followed by the infinitive form of that verb.
5AAA Non‑citizen’s responsibility in relation to protection claims
(1) This section applies in relation to a non‑citizen who claims to be a person in respect of whom Australia has protection obligations (however arising).
(2) For the purposes of this Act, it is the responsibility of the non‑citizen to specify all particulars of his or her claim to be such a person and to provide sufficient evidence to establish the claim.
(3) The purposes of this Act include:
(a) the purposes of a regulation or other instrument under this Act; and
(b) the purposes of any administrative process that occurs in relation to:
(i) this Act; or
(ii) a regulation or instrument under this Act.
(4) To remove doubt, the Minister does not have any responsibility or obligation to:
(a) specify, or assist in specifying, any particulars of the non‑citizen’s claim; or
(b) establish, or assist in establishing, the claim.
5AA Meaning of unauthorised maritime arrival
(1) For the purposes of this Act, a person is an unauthorised maritime arrival if:
(a) the person entered Australia by sea:
(i) at an excised offshore place at any time after the excision time for that place; or
(ii) at any other place at any time on or after the commencement of this section; and
(b) the person became an unlawful non‑citizen because of that entry; and
(c) the person is not an excluded maritime arrival.
(1A) For the purposes of this Act, a person is also an unauthorised maritime arrival if:
(a) the person is born in the migration zone; and
(b) a parent of the person is, at the time of the person’s birth, an unauthorised maritime arrival because of subsection (1) (no matter where that parent is at the time of the birth); and
(c) the person is not an Australian citizen at the time of birth.
Note 1: For who is a parent of a person, see the definition in subsection 5(1) and section 5CA.
Note 2: A parent of the person may be an unauthorised maritime arrival even if the parent holds, or has held, a visa.
Note 3: A person to whom this subsection applies is an unauthorised maritime arrival even if the person is taken to have been granted a visa because of section 78 (which deals with the birth in Australia of non‑citizens).
Note 4: For when a person is an Australian citizen at the time of his or her birth, see section 12 of the Australian Citizenship Act 2007.
Note 5: This subsection applies even if the person was born before the commencement of the subsection. See the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014.
(1AA) For the purposes of this Act, a person is also an unauthorised maritime arrival if:
(a) the person is born in a regional processing country; and
(b) a parent of the person is, at the time of the person’s birth, an unauthorised maritime arrival because of subsection (1) (no matter where that parent is at the time of the birth); and
(c) the person is not an Australian citizen at the time of his or her birth.
Note 1: A parent of the person may be an unauthorised maritime arrival even if the parent holds, or has held, a visa.
Note 2: This Act may apply as mentioned in subsection (1AA) even if either or both parents of the person holds a visa, or is an Australian citizen or a citizen of the regional processing country, at the time of the person’s birth.
Note 3: This subsection applies even if the person was born before the commencement of the subsection. See the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014.
Entered Australia by sea
(2) A person entered Australia by sea if:
(a) the person entered the migration zone except on an aircraft that landed in the migration zone; or
(b) the person entered the migration zone as a result of being found on a ship detained under section 245F (as in force before the commencement of section 69 of the Maritime Powers Act 2013) and being dealt with under paragraph 245F(9)(a) (as in force before that commencement); or
(ba) the person entered the migration zone as a result of the exercise of powers under Division 7 or 8 of Part 3 of the Maritime Powers Act 2013; or
(c) the person entered the migration zone after being rescued at sea.
Excluded maritime arrival
(3) A person is an excluded maritime arrival if the person:
(a) is a New Zealand citizen who holds and produces a New Zealand passport that is in force; or
(b) is a non‑citizen who:
(i) holds and produces a passport that is in force; and
(ii) is ordinarily resident on Norfolk Island; or
(c) is included in a prescribed class of persons.
Definitions
(4) In this section:
aircraft has the same meaning as in section 245A.
ship has the meaning given by section 245A (as in force before the commencement of section 69 of the Maritime Powers Act 2013).
Note: An unauthorised maritime arrival who has been taken to a place outside Australia may also be a transitory person: see the definition of transitory person in subsection 5(1).
5A Meaning of personal identifier
(1) In this Act:
personal identifier means any of the following (including any of the following in digital form):
(a) fingerprints or handprints of a person (including those taken using paper and ink or digital livescanning technologies);
(b) a measurement of a person’s height and weight;
(c) a photograph or other image of a person’s face and shoulders;
(d) an audio or a video recording of a person (other than a video recording under section 261AJ);
(e) an iris scan;
(f) a person’s signature;
(g) any other identifier prescribed by the regulations, other than an identifier the obtaining of which would involve the carrying out of an intimate forensic procedure within the meaning of section 23WA of the Crimes Act 1914.
(2) Before the Governor‑General makes regulations for the purposes of paragraph (1)(g) prescribing an identifier, the Minister must be satisfied that:
(a) obtaining the identifier would not involve the carrying out of an intimate forensic procedure within the meaning of section 23WA of the Crimes Act 1914; and
(b) the identifier is an image of, or a measurement or recording of, an external part of the body; and
(c) obtaining the identifier will promote one or more of the purposes referred to in subsection (3).
(3) The purposes are:
(a) to assist in the identification of, and to authenticate the identity of, any person who can be required under this Act to provide a personal identifier; and
(b) to assist in identifying, in the future, any such person; and
(c) to improve the integrity of entry programs; and
(ca) to improve passenger processing at Australia’s border; and
(d) to facilitate a visa‑holder’s access to his or her rights under this Act or the regulations; and
(e) to improve the procedures for determining visa applications; and
(f) to improve the procedures for determining claims from people seeking protection as refugees; and
(fa) to assist in determining whether a person is an unlawful non‑citizen or a lawful non‑citizen; and
(g) to enhance the Department’s ability to identify non‑citizens who have a criminal history or who are of character concern; and
(ga) to assist in identifying persons who may be a security concern to Australia or a foreign country; and
(h) to combat document and identity fraud in immigration matters; and
(i) to detect forum shopping by applicants for visas; and
(j) to ascertain whether:
(i) an applicant for a protection visa; or
(ii) an unauthorised maritime arrival who makes a claim for protection as a refugee; or
(iii) an unauthorised maritime arrival who makes a claim for protection on the basis that the person will suffer significant harm;
had sufficient opportunity to avail himself or herself of protection before arriving in Australia; and
(k) to complement anti‑people smuggling measures; and
(l) to inform the governments of foreign countries of the identity of non‑citizens who are, or are to be, removed or deported from Australia.
5B When personal identifier taken not to have been provided
A person is taken, for the purposes of section 257A, not to have provided a personal identifier if:
(a) the personal identifier that is provided is unusable; or
(b) the Minister, an authorised officer or an officer is not satisfied:
(i) about the integrity or quality of the personal identifier that is provided; or
(ii) about the procedure followed to obtain the personal identifier.
5C Meaning of character concern
(1) For the purposes of this Act, a non‑citizen is of character concern if:
(a) the non‑citizen has a substantial criminal record (as defined by subsection (2)); or
(b) the non‑citizen has been convicted of an offence that was committed:
(i) while the non‑citizen was in immigration detention; or
(ii) during an escape by the non‑citizen from immigration detention; or
(iii) after the non‑citizen escaped from immigration detention but before the non‑citizen was taken into immigration detention again; or
(ba) the non‑citizen has been convicted of an offence against section 197A; or
(bb) the Minister reasonably suspects:
(i) that the non‑citizen has been or is a member of a group or organisation, or has had or has an association with a group, organisation or person; and
(ii) that the group, organisation or person has been or is involved in criminal conduct; or
(bc) the Minister reasonably suspects that the non‑citizen has been or is involved in conduct constituting one or more of the following:
(i) an offence under one or more of sections 233A to 234A (people smuggling);
(ii) an offence of trafficking in persons;
(iii) the crime of genocide, a crime against humanity, a war crime, a crime involving torture or slavery or a crime that is otherwise of serious international concern;
whether or not the non‑citizen, or another person, has been convicted of an offence constituted by the conduct; or
(c) having regard to either or both of the following:
(i) the non‑citizen’s past and present criminal conduct;
(ii) the non‑citizen’s past and present general conduct;
the non‑citizen is not of good character; or
(d) in the event that the non‑citizen were allowed to enter or to remain in Australia, there is a risk that the non‑citizen would:
(i) engage in criminal conduct in Australia; or
(ii) harass, molest, intimidate or stalk another person in Australia; or
(iii) vilify a segment of the Australian community; or
(iv) incite discord in the Australian community or in a segment of that community; or
(v) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way; or
(e) a court in Australia or a foreign country has:
(i) convicted the non‑citizen of one or more sexually based offences involving a child; or
(ii) found the non‑citizen guilty of such an offence, or found a charge against the non‑citizen proved for such an offence, even if the non‑citizen was discharged without a conviction; or
(f) the non‑citizen has, in Australia or a foreign country, been charged with or indicted for one or more of the following:
(i) the crime of genocide;
(ii) a crime against humanity;
(iii) a war crime;
(iv) a crime involving torture or slavery;
(v) a crime that is otherwise of serious international concern; or
(g) the non‑citizen has been assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979); or
(h) an Interpol notice in relation to the non‑citizen, from which it is reasonable to infer that the non‑citizen would present a risk to the Australian community or a segment of that community, is in force.
(2) For the purposes of subsection (1), a non‑citizen has a substantial criminal record if:
(a) the non‑citizen has been sentenced to death; or
(b) the non‑citizen has been sentenced to imprisonment for life; or
(c) the non‑citizen has been sentenced to a term of imprisonment of 12 months or more; or
(d) the non‑citizen has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or
(e) the non‑citizen has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution; or
(f) the non‑citizen has:
(i) been found by a court to not be fit to plead, in relation to an offence; and
(ii) the court has nonetheless found that on the evidence available the non‑citizen committed the offence; and
(iii) as a result, the non‑citizen has been detained in a facility or institution.
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, Secretary or Australian Border Force Commissioner may, in an instrument authorising an officer as an authorised officer for the purposes of carrying out identification tests under this Act, specify the types of identification tests that the authorised officer may carry out.
(2) Such an authorised officer is not an authorised officer in relation to carrying out an identification test that is not of a type so specified.
5E Meaning of purported privative clause decision
(1) In this Act, purported privative clause decision means a decision purportedly made, proposed to be made, or required to be made, under this Act or under a regulation or other instrument made under this Act (whether in purported exercise of a discretion or not), that would be a privative clause decision if there were not:
(a) a failure to exercise jurisdiction; or
(b) an excess of jurisdiction;
in the making of the decision.
(2) In this section, decision includes anything listed in subsection 474(3).
5F Spouse
(1) For the purposes of this Act, a person is the spouse of another person (whether of the same sex or a different sex) if, under subsection (2), the 2 persons are in a married relationship.
(2) For the purposes of subsection (1), persons are in a married relationship if:
(a) they are married to each other under a marriage that is valid for the purposes of this Act; and
(b) they have a mutual commitment to a shared life as a married couple to the exclusion of all others; and
(c) the relationship between them is genuine and continuing; and
(d) they:
(i) live together; or
(ii) do not live separately and apart on a permanent basis.
(3) The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.
Note: Section 12 also affects the determination of whether the condition in paragraph (2)(a) of this section exists.
5G Relationships and family members
(1) For the purposes of this Act, if one person is the child of another person because of the definition of child in section 5CA, relationships traced to or through that person are to be determined on the basis that the person is the child of the other person.
(2) For the purposes of this Act, the members of a person’s family and relatives of a person are taken to include the following:
(a) a de facto partner of the person;
(b) someone who is the child of the person, or of whom the person is the child, because of the definition of child in section 5CA;
(c) anyone else who would be a member of the person’s family or a relative of the person if someone mentioned in paragraph (a) or (b) is taken to be a member of the person’s family or a relative of the person.
This does not limit who is a member of a person’s family or relative of a person.
5H Meaning of refugee
(1) For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:
(a) in a case where the person has a nationality—is outside the country of his or her nationality and, owing to a well‑founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality—is outside the country of his or her former habitual residence and owing to a well‑founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well‑founded fear of persecution, see section 5J.
(2) Subsection (1) does not apply if the Minister has serious reasons for considering that:
(a) the person has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or
(b) the person committed a serious non‑political crime before entering Australia; or
(c) the person has been guilty of acts contrary to the purposes and principles of the United Nations.
5J Meaning of well‑founded fear of persecution
(1) For the purposes of the application of this Act and the regulations to a particular person, the person has a well‑founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2) A person does not have a well‑founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3) A person does not have a well‑founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i) alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii) conceal his or her true race, ethnicity, nationality or country of origin;
(iii) alter his or her political beliefs or conceal his or her true political beliefs;
(iv) conceal a physical, psychological or intellectual disability;
(v) enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi) alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4) If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5) Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6) In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i) the first person has ever experienced; or
(ii) any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i) the characteristic is an innate or immutable characteristic;
(ii) the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii) the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
(1) For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i) the relevant State; or
(ii) a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2) A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
5M Particularly serious crime
For the purposes of the application of this Act and the regulations to a particular person, paragraph 36(1C)(b) has effect as if a reference in that paragraph to a particularly serious crime included a reference to a crime that consists of the commission of:
(a) a serious Australian offence; or
(b) a serious foreign offence.
6 Effect of limited meaning of enter Australia etc.
To avoid doubt, although subsection 5(1) limits, for the purposes of this Act, the meanings of enter Australia, leave Australia and remain in Australia and as well, because of section 18A of the Acts Interpretation Act 1901, the meaning of parts of speech and grammatical forms of those phrases, this does not mean:
(a) that, for those purposes, the meaning of in Australia, to Australia or any other phrase is limited; or
(b) that this Act does not extend to parts of Australia outside the migration zone; or
(c) that this Act does not apply to persons in those parts.
Note: See also subsection 9A(3), which deals with when a person is taken to be in Australia, to travel to Australia, to enter Australia or to leave Australia. Section 9A concerns offshore resources activities.
7 Act to extend to certain Territories
(1) In this section, prescribed Territory means Norfolk Island, the Coral Sea Islands Territory, the Territory of Cocos (Keeling) Islands, the Territory of Christmas Island and the Territory of Ashmore and Cartier Islands.
(2) This Act extends to a prescribed Territory.
(3) Subject to this Act, a prescribed Territory:
(a) shall be deemed to be part of Australia for the purposes of this Act; and
(b) shall be deemed not to be a place outside Australia.
7A Effect on executive power to protect Australia’s borders
The existence of statutory powers under this Act does not prevent the exercise of any executive power of the Commonwealth to protect Australia’s borders, including, where necessary, by ejecting persons who have crossed those borders.
8 Certain resources installations to be part of Australia
(1) For the purposes of this Act, a resources installation that:
(a) becomes attached to the Australian seabed after the commencement of this subsection; or
(b) at the commencement of this subsection, is attached to the Australian seabed;
shall, subject to subsection (2), be deemed to be part of Australia and shall be deemed not to be a place outside Australia.
(2) A resources installation that is deemed to be part of Australia by virtue of the operation of this section shall, for the purposes of this Act, cease to be part of Australia if:
(a) the installation is detached from the Australian seabed, or from another resources installation that is attached to the Australian seabed, for the purpose of being taken to a place outside the outer limits of Australian waters (whether or not the installation is to be taken to a place in Australia before being taken outside those outer limits); or
(b) after having been detached from the Australian seabed otherwise than for the purpose referred to in paragraph (a), the installation is moved for the purpose of being taken to a place outside the outer limits of Australian waters (whether or not the installation is to be taken to a place in Australia before being taken outside those outer limits).
9 Certain sea installations to be part of Australia
(1) For the purposes of this Act, a sea installation that:
(a) becomes installed in an adjacent area or in a coastal area after the commencement of this subsection; or
(b) at the commencement of this subsection, is installed in an adjacent area or in a coastal area;
shall, subject to subsection (2), be deemed to be part of Australia and shall be deemed not to be a place outside Australia.
(2) A sea installation that is deemed to be part of Australia because of the operation of this section shall, for the purposes of this Act, cease to be part of Australia if:
(a) the installation is detached from its location for the purpose of being taken to a place outside the outer limits of Australian waters; or
(b) after having been detached from its location otherwise than for the purpose referred to in paragraph (a), the installation is moved for the purpose of being taken to a place outside the outer limits of Australian waters.
9A Migration zone etc.—offshore resources activities
Migration zone etc.
(1) For the purposes of this Act, a person is taken to be in the migration zone while he or she is in an area to participate in, or to support, an offshore resources activity in relation to that area.
Example 1: A person is taken to be in the migration zone under this section if the person is on a vessel in an area to participate in an offshore resources activity under the Offshore Petroleum and Greenhouse Gas Storage Act 2006 in that area by exploring for, or recovering, petroleum.
Example 2: A person who is a member of the crew of the vessel is also taken to be in the migration zone under this section if the person is supporting the offshore resources activity.
Example 3: Neither a stowaway on the vessel, nor a person on the vessel because the person was rescued at sea, is taken to be in the migration zone, because neither is participating in, or supporting, the offshore resources activity.
(2) To avoid doubt, a person may be taken to be in the migration zone under subsection (1):
(a) whether or not the person’s participation in, or support of, an offshore resources activity in the area concerned has started, is continuing or has concluded; and
(b) whether or not the offshore resources activity concerned has started, is continuing or has concluded.
(3) For the purposes of this Act:
(a) a person is taken to be in Australia while he or she is taken to be in the migration zone because of subsection (1); and
(b) a person is taken to travel to Australia if the person travels to an area in which the person is taken to be in the migration zone because of subsection (1); and
(c) a person is taken to enter Australia when the person enters an area in which the person is taken to be in the migration zone because of subsection (1); and
(d) subject to section 80—a person is taken to leave Australia when the person leaves an area in which the person is taken to be in the migration zone because of subsection (1).
(4) Unless a provision of this Act, or another Act, expressly provides otherwise, this section does not have the effect of extending, for the purposes of another Act, the circumstances in which a person:
(a) is in the migration zone or is taken to be in the migration zone; or
(b) is in Australia or is taken to be in Australia; or
(c) travels to Australia or is taken to travel to Australia; or
(d) enters Australia or is taken to enter Australia; or
(e) leaves Australia or is taken to leave Australia.
Meaning of offshore resources activity
(5) In this section:
offshore resources activity, in relation to an area, means:
(a) a regulated operation (within the meaning of section 7 of the Offshore Petroleum and Greenhouse Gas Storage Act 2006) that is being carried out, or is to be carried out, within the area, except an operation determined by the Minister under subsection (6); or
(b) an activity performed under a licence or a special purpose consent (both within the meaning of section 4 of the Offshore Minerals Act 1994) that is being carried out, or is to be carried out, within the area, except an activity determined by the Minister under subsection (6); or
(c) an activity, operation or undertaking (however described) that is being carried out, or is to be carried out:
(i) under a law of the Commonwealth, a State or a Territory determined by the Minister under subsection (6); and
(ii) within the area, as determined by the Minister under subsection (6).
(6) The Minister may, in writing, make a determination for the purposes of the definition of offshore resources activity in subsection (5).
(7) A determination made under subsection (6) is a legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 does not apply to the determination.
(8) To avoid doubt, for the purposes of subsection (1), a person may participate in, or support, an offshore resources activity in relation to an area whether the person:
(a) is on an Australian resources installation in the area; or
(b) is otherwise in the area to participate in, or support, the activity.
10 Certain children taken to enter Australia at birth
A child who:
(a) was born in the migration zone; and
(b) was a non‑citizen when he or she was born;
shall be taken to have entered Australia when he or she was born.
11 Visa applicable to 2 or more persons
Where:
(a) 2 or more persons who are the holders of the same visa travel to Australia on board the same vessel; and
(b) on entering Australia, one of those persons is in possession of evidence of that visa;
each of them shall, for the purposes of this Act, be taken to be in possession of that evidence on entering Australia.
12 Application of Part VA of the Marriage Act
For the purpose of deciding whether a marriage is to be recognised as valid for the purposes of this Act, Part VA of the Marriage Act 1961 applies as if section 88E of that Act were omitted.
Part 2—Arrival, presence and departure of persons
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.
Note: See also subsection 35A(4), which allows additional classes of permanent and temporary visas to be prescribed as protection visas by regulations made for the purposes of this subsection.
(2) As well as the prescribed classes, there are the classes provided for by the following provisions:
(a) section 32 (special category visas);
(b) section 33 (special purpose visas);
(c) section 34 (absorbed person visas);
(d) section 35 (ex‑citizen visas);
(e) subsection 35A(2) (permanent protection visas);
(f) subsection 35A(3) (temporary protection visas);
(fa) subsection 35A(3A) (safe haven enterprise visas);
(g) section 37 (bridging visas);
(h) section 37A (temporary safe haven visas);
(i) section 38 (criminal justice visas);
(j) section 38A (enforcement visas);
(k) section 38B (maritime crew visas).
(3) The regulations may prescribe criteria for a visa or visas of a specified class (which, without limiting the generality of this subsection, may be a class provided for by section 32, 35A, 37, 37A or 38B but not by section 33, 34, 35, 38 or 38A).
(3A) To avoid doubt, subsection (3) does not require criteria to be prescribed for a visa or visas including, without limitation, visas of the following classes:
(a) special category visas (see section 32);
(b) permanent protection visas (see subsection 35A(2));
(c) temporary protection visas (see subsection 35A(3));
(ca) safe haven enterprise visas (see subsection 35A(3A));
(d) bridging visas (see section 37);
(e) temporary safe haven visas (see section 37A);
(f) maritime crew visas (see section 38B).
Note 1: An application for any of these visas is invalid if criteria relating to both the application and the grant of the visa have not been prescribed (see subsection 46AA(2)).
Note 2: If criteria are prescribed by the regulations for any of these visas, the visa cannot be granted unless any criteria prescribed by this Act, as well as any prescribed by regulation, are satisfied (see subsection 46AA(4)).
(4) The regulations may prescribe whether visas of a class are visas to travel to and enter Australia, or to remain in Australia, or both.
(5) A visa is a visa of a particular class if this Act or the regulations specify that it is a visa of that class.
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), AG, AH, C, D, E, F, FA, FB 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) 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) and AH do not apply in relation to ex‑citizen visas.
35A Protection visas—classes of visas
(1) A protection visa is a visa of a class provided for by this section.
(2) There is a class of permanent visas to be known as permanent protection visas.
Note: These visas were classified by the Migration Regulations 1994 as Protection (Class XA) visas when this section commenced.
(3) There is a class of temporary visas to be known as temporary protection visas.
Note: These visas were classified by the Migration Regulations 1994 as Temporary Protection (Class XD) visas when this section commenced.
(3A) There is a class of temporary visas to be known as safe haven enterprise visas.
(3B) The purpose of safe haven enterprise visas is both to provide protection and to encourage enterprise through earning and learning while strengthening regional Australia.
Note: If a person satisfies the requirements for working, study and accessing social security prescribed for the purposes of paragraph 46A(1A)(c), section 46A will not bar the person from making a valid application for any of the onshore visas prescribed for the purposes of paragraph 46A(1A)(b). This does not include permanent protection visas.
(4) Regulations made for the purposes of subsection 31(1) may prescribe additional classes of permanent and temporary visas as protection visas.
(5) A class of visas that was formerly provided for by subsection 36(1), as that subsection was in force before the commencement of this section, is also a class of protection visas for the purposes of this Act and the regulations.
Example: An example of a class of visas for subsection (5) is the class of visas formerly classified by the Migration Regulations 1994 as Protection (Class AZ) visas. These visas can no longer be granted.
Note: This section commenced, and subsection 36(1) was repealed, on the commencement of Part 1 of Schedule 2 to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014.
(6) The criteria for a class of protection visas are:
(a) the criteria set out in section 36; and
(b) any other relevant criteria prescribed by regulation for the purposes of section 31.
Note: See also Subdivision AL.
36 Protection visas—criteria provided for by this Act
(1A) An applicant for a protection visa must satisfy:
(a) both of the criteria in subsections (1B) and (1C); and
(b) at least one of the criteria in subsection (2).
(1B) A criterion for a protection visa is that the applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979).
(1C) A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:
(a) is a danger to Australia’s security; or
(b) having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.
Note: For paragraph (b), see section 5M.
(2) A criterion for a protection visa is that the applicant for the visa is:
(a) a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm; or
(b) a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:
(i) is mentioned in paragraph (a); and
(ii) holds a protection visa of the same class as that applied for by the applicant; or
(c) a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:
(i) is mentioned in paragraph (aa); and
(ii) holds a protection visa of the same class as that applied for by the applicant.
(2A) A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B) However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
Ineligibility for grant of a protection visa
(2C) A non‑citizen is taken not to satisfy the criterion mentioned in paragraph (2)(aa) if:
(a) the Minister has serious reasons for considering that:
(i) the non‑citizen has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or
(ii) the non‑citizen committed a serious non‑political crime before entering Australia; or
(iii) the non‑citizen has been guilty of acts contrary to the purposes and principles of the United Nations; or
(b) the Minister considers, on reasonable grounds, that:
(i) the non‑citizen is a danger to Australia’s security; or
(ii) the non‑citizen, having been convicted by a final judgment of a particularly serious crime (including a crime that consists of the commission of a serious Australian offence or serious foreign offence), is a danger to the Australian community.
Protection obligations
(3) Australia is taken not to have protection obligations in respect of a non‑citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non‑citizen is a national.
(4) However, subsection (3) does not apply in relation to a country in respect of which:
(a) the non‑citizen has a well‑founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or
(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non‑citizen will suffer significant harm in relation to the country.
(5) Subsection (3) does not apply in relation to a country if the non‑citizen has a well‑founded fear that:
(a) the country will return the non‑citizen to another country; and
(b) the non‑citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.
(5A) Also, subsection (3) does not apply in relation to a country if:
(a) the non‑citizen has a well‑founded fear that the country will return the non‑citizen to another country; and
(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non‑citizen will suffer significant harm in relation to the other country.
Determining nationality
(6) For the purposes of subsection (3), the question of whether a non‑citizen is a national of a particular country must be determined solely by reference to the law of that country.
(7) Subsection (6) does not, by implication, affect the interpretation of any other provision of this Act.
36A Consideration of protection obligations
(1) In considering a valid application for a protection visa made by a non‑citizen, the Minister must consider and make a record of whether the Minister is satisfied of any of the following:
(a) the non‑citizen satisfies the criterion in paragraph 36(2)(a) with respect to a country and also satisfies the criterion in subsection 36(1C);
(b) the non‑citizen satisfies the criterion in paragraph 36(2)(aa) with respect to a country;
(c) the non‑citizen:
(i) satisfies the criterion in paragraph 36(2)(a) with respect to a country but does not satisfy the criterion in subsection 36(1C); and
(ii) would satisfy the criterion in paragraph 36(2)(aa) with respect to a country except that the non‑citizen is a non‑citizen mentioned in paragraph 36(2)(a).
(2) The Minister must do so:
(a) before deciding whether to grant or refuse to grant the visa; and
(b) before considering whether the non‑citizen satisfies any other criteria for the grant of the visa; and
(c) before considering whether the grant of the visa is prevented by any provision of the Act or regulations; and
(d) without regard to subsections 36(2C) and (3).
(3) Subsection (1) does not apply if:
(a) the non‑citizen (the family applicant) is a member of the same family unit as another non‑citizen (the family visa holder) who holds a protection visa of the same class as the visa the family applicant is applying for; and
(b) the family applicant’s application for a protection visa was made before the family visa holder was granted their visa; and
(c) the family visa holder is a non‑citizen mentioned in paragraph 36(2)(a) or (aa).
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 Legislation Act 2003, a prescribed criterion for visas of a class, other than protection visas, may be the criterion that the grant of the visa would not cause the number of visas of that class granted in a particular financial year to exceed whatever number is fixed by the Minister, by legislative instrument, as the maximum number of such visas that may be granted in that year (however the criterion is expressed).
(2) For the purposes of this Act, when a criterion allowed by subsection (1) prevents the grant in a financial year of any more visas of a particular class, any outstanding applications for the grant in that year of visas of that class are taken not to have been made.
39A Minimum annual numbers of Protection (Class XA) visas and Refugee and Humanitarian (Class XB) visas
(1) Despite any legislative instrument made for the purposes of section 39, the Minister must take all reasonably practicable measures to ensure the grant in a financial year of at least the minimum total number of Protection (Class XA) visas and Refugee and Humanitarian (Class XB) visas that is determined by the Minister under subsection (3) of this section for that year.
(2) Subsection (1) applies subject to this Act, and to any regulation or instrument made under or for the purposes of this Act (other than section 39 of this Act).
(3) The Minister may, by legislative instrument, determine a minimum total number of Protection (Class XA) visas and Refugee and Humanitarian (Class XB) visas for a financial year specified in the determination.
(4) Despite regulations made for the purposes of paragraph 44(2)(b) of the Legislation Act 2003, section 42 (disallowance) of that Act applies to a legislative instrument made under subsection (3) of this section.
(5) In this section:
Protection (Class XA) visas means visas classified by regulation as Protection (Class XA) visas.
Note: For this class of visas, see clause 1401 of Schedule 1 to the Migration Regulations 1994.
Refugee and Humanitarian (Class XB) visas means visas classified by regulation as Refugee and Humanitarian (Class XB) visas.
Note: For this class of visas, see clause 1402 of Schedule 1 to the Migration Regulations 1994.
40 Circumstances for granting visas
(1) The regulations may provide that visas or visas of a specified class may only be granted in specified circumstances.
(2) Without limiting subsection (1), the circumstances may be, or may include, that, when the person is granted the visa, the person:
(a) is outside Australia; or
(b) is in immigration clearance; or
(c) has been refused immigration clearance and has not subsequently been immigration cleared; or
(d) is in the migration zone and, on last entering Australia:
(i) was immigration cleared; or
(ii) bypassed immigration clearance and had not subsequently been immigration cleared.
(3) Without limiting subsection (1), the circumstances may be, or may include, that a person has complied with any requirement to provide one or more personal identifiers made under section 257A.
41 Conditions on visas
(1) The regulations may provide that visas, or visas of a specified class, are subject to specified conditions.
General rules about conditions
(2) Without limiting subsection (1), the regulations may provide that a visa, or visas of a specified class, are subject to:
(a) a condition that, despite anything else in this Act, the holder of the visa will not, after entering Australia, be entitled to be granted a substantive visa (other than a protection visa, or a temporary visa of a specified kind) while he or she remains in Australia; or
(b) a condition imposing restrictions about the work that may be done in Australia by the holder, which, without limiting the generality of this paragraph, may be restrictions on doing:
(i) any work; or
(ii) work other than specified work; or
(iii) work of a specified kind.
(2A) The Minister may, in prescribed circumstances, by writing, waive a condition of a kind described in paragraph (2)(a) to which a particular visa is subject under regulations made for the purposes of that paragraph or under subsection (3).
Conditions about offshore resources activity
(2B) In addition to any restrictions applying because of regulations made for the purposes of paragraph (2)(b), a condition of a visa that allows the holder of the visa to work is not taken to allow the holder to participate in, or support, an offshore resources activity in relation to any area unless the visa is:
(a) a permanent visa; or
(b) a visa prescribed by the regulations for the purposes of this subsection.
Note: For offshore resources activity, see subsection 9A(5).
(2C) To avoid doubt, for the purposes of subsection (2B), a person may participate in, or support, an offshore resources activity in relation to an area whether the person:
(a) is on an Australian resources installation in the area; or
(b) is, under section 9A, otherwise in the area to participate in, or support, the activity.
Additional conditions
(3) In addition to any conditions specified under subsection (1), or in subsection (2B), the Minister may specify that a visa is subject to such conditions as are permitted by the regulations for the purposes of this subsection.
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
(c) if:
(i) the non‑citizen is brought to the migration zone under subsection 245F(9) of this Act or under Division 7 or 8 of Part 3 of the Maritime Powers Act 2013; and
(ii) the non‑citizen is a person who would, if in the migration zone, be an unlawful non‑citizen; or
(ca) if the non‑citizen is brought to Australia under section 198B; or
(d) if:
(i) an attempt to remove the non‑citizen under section 198 to another country was made but the removal was not completed; and
(ii) the non‑citizen travels to Australia as a direct result of the removal not being completed; and
(iii) the non‑citizen is a person who would, if in the migration zone, be an unlawful non‑citizen; or
(da) if:
(i) the non‑citizen has been removed under section 198 to another country but the non‑citizen does not enter the other country; and
(ii) the non‑citizen travels to Australia as a direct result of not entering the other country; and
(iii) the non‑citizen is a person who would, if in the migration zone, be an unlawful non‑citizen; or
(e) if:
(i) the non‑citizen has been removed under section 198; and
(ii) before the removal the High Court, the Federal Court or the Federal Circuit 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.
(3) The regulations may permit a specified non‑citizen or a non‑citizen in a specified class to travel to Australia without a visa that is in effect.
(4) Nothing in subsection (2A) or (3) is to be taken to affect the non‑citizen’s status in the migration zone as an unlawful non‑citizen.
Note: Section 189 provides that an unlawful non‑citizen in the migration zone must be detained.
43 Visa holders must usually enter at a port
(1) Subject to subsections (1A) and (3) and the regulations, a visa to travel to and enter Australia that is in effect is permission for the holder to enter Australia:
(a) at a port; or
(b) on a pre‑cleared flight; or
(c) if the holder travels to Australia on a vessel and the health or safety of a person or a prescribed reason, make it necessary to enter in another way, that way; or
(d) in a way authorised in writing by an authorised officer.
(1A) Subject to the regulations, a maritime crew visa that is in effect is permission for the holder to enter Australia:
(a) at a proclaimed port; or
(b) if the health or safety of a person, or a prescribed reason, make it necessary to enter Australia in another way, that way; or
(c) in a way authorised by an authorised officer.
(1B) Despite subsections 38B(1) and (2):
(a) the holder of a maritime crew visa may enter Australia as mentioned in paragraph (1A)(b) by air; and
(b) the authorised officer may, for the purposes of paragraph (1A)(c), authorise the holder to enter Australia by air.
(2) For the purposes of subsection (1), a holder who travels to and enters Australia on an aircraft is taken to have entered Australia when that aircraft lands.
(3) This section does not apply to:
(a) the holder of an enforcement visa; or
(b) an Australian resident entering Australia on a foreign vessel as a result of the exercise of powers under section 69 of the Maritime Powers Act 2013 in relation to a fisheries detention offence; or
(c) an Australian resident entering Australia on a vessel (environment matters) as a result of an environment officer, maritime officer or other person in command of a Commonwealth ship or a Commonwealth aircraft:
(i) exercising his or her power under paragraph 403(3)(a) of the Environment Protection and Biodiversity Conservation Act 1999 in relation to the vessel; or
(ii) making a requirement of the person in charge of the vessel under paragraph 403(3)(b) of the Environment Protection and Biodiversity Conservation Act 1999; or
(iii) exercising powers under section 69 of the Maritime Powers Act 2013 in relation to the vessel;
because the environment officer, maritime officer or person in command had reasonable grounds to suspect that the vessel had been used or otherwise involved in the commission of an environment detention offence.
Note: Subsection 33(10) also disapplies this section.
(4) In subsection (3):
Australian resident has the same meaning as in the Fisheries Management Act 1991.
Commonwealth aircraft has the same meaning as in the Environment Protection and Biodiversity Conservation Act 1999.
Commonwealth ship has the same meaning as in the Environment Protection and Biodiversity Conservation Act 1999.
Subdivision AA—Applications for visas
44 Extent of following Subdivisions
(1) This Subdivision and the later Subdivisions of this Division, other than this section, Subdivision AG and subsection 138(1), do not apply to criminal justice visas.
(2) This Subdivision and the later Subdivisions of this Division, other than this section and Subdivision AG, do not apply to enforcement visas.
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.
45AA Application for one visa taken to be an application for a different visa
Situation in which conversion regulation can be made
(1) This section applies if:
(a) a person has made a valid application (a pre‑conversion application) for a visa (a pre‑conversion visa) of a particular class; and
(b) the pre‑conversion visa has not been granted to the person, whether or not a migration decision has been made in relation to the pre‑conversion application; and
(c) since the application was made, one or more of the following events has occurred:
(i) the requirements for making a valid application for that class of visa change;
(ii) the criteria for the grant of that class of visa change;
(iii) that class of visa ceases to exist; and
(d) had the application been made after the event (or events) occurred, because of that event (or those events):
(i) the application would not have been valid; or
(ii) that class of visa could not have been granted to the person.
(2) To avoid doubt, under subsection (1) this section may apply in relation to:
(a) classes of visas, including protection visas and any other classes of visas provided for by this Act or the regulations; and
(b) classes of applicants, including applicants having a particular status; and
(c) applicants for a visa who are taken to have applied for the visa by the operation of this Act or the regulations.
Example: If a non‑citizen applies for a visa, and then, before the application is decided, gives birth to a child, in some circumstances the child is taken, by the operation of the regulations, to have applied for a visa of the same class at the time the child is born (see regulation 2.08).
Conversion regulation
(3) For the purposes of this Act, a regulation (a conversion regulation) may provide that, despite anything else in this Act, the pre‑conversion application for the pre‑conversion visa:
(a) is taken not to be, and never to have been, a valid application for the pre‑conversion visa; and
(b) is taken to be, and always to have been, a valid application (a converted application) for a visa of a different class (specified by the conversion regulation) made by the applicant for the pre‑conversion visa.
Note: This section may apply in relation to a pre‑conversion application made before the commencement of the section (see the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014).
For example, a conversion regulation (made after the commencement of this section) could have the effect that a pre‑conversion application for a particular type of visa made on 1 August 2014 (before that commencement):
(a) is taken not to have been made on 1 August 2014 (or ever); and
(b) is taken to be, and always to have been, a converted application for another type of visa made on 1 August 2014.
(4) Without limiting subsection (3), a conversion regulation may:
(a) prescribe a class or classes of pre‑conversion visas; and
(b) prescribe a class of applicants for pre‑conversion visas; and
(c) prescribe a time (the conversion time) when the regulation is to start to apply in relation to a pre‑conversion application, including different conversion times depending on the occurrence of different events.
Visa application charge
(5) If an amount has been paid as the first instalment of the visa application charge for a pre‑conversion application, then, at and after the conversion time in relation to the application:
(a) that payment is taken not to have been paid as the first instalment of the visa application charge for the pre‑conversion application; and
(b) that payment is taken to be payment of the first instalment of the visa application charge for the converted application, even if the first instalment of the visa application charge that would otherwise be payable for the converted application is greater than the actual amount paid for the first instalment of the visa application charge for the pre‑conversion application; and
(c) in a case in which the first instalment of the visa application charge payable for the converted application is less than the actual amount paid for the first instalment of the visa application charge for the pre‑conversion application, no refund is payable in respect of the difference only for that reason.
Note: For the visa application charge, see sections 45A, 45B and 45C.
Effect on bridging visas
(6) For the purposes of this Act, if, immediately before the conversion time for a pre‑conversion application, a person held a bridging visa because the pre‑conversion application had not been finally determined, then, at and after the conversion time, the bridging visa has effect as if it had been granted because of the converted application.
(7) For the purposes of this Act, if, immediately before the conversion time for a pre‑conversion application, a person had made an application for a bridging visa because of the pre‑conversion application, but the bridging visa application had not been finally determined, then, at and after the conversion time:
(a) the bridging visa application is taken to have been applied for because of the converted application; and
(b) the bridging visa (if granted) has effect as if it were granted because of the converted application.
Note: This Act and the regulations would apply to a bridging visa to which subsection (6) or (7) applies, and to when the bridging visa would cease to have effect, in the same way as this Act and the regulations would apply in relation to any bridging visa.
For example, such a bridging visa would generally cease to be in effect under section 82 if and when the substantive visa is granted because of the converted application.
Conversion regulation may affect accrued rights etc.
(8) To avoid doubt:
(a) subsection 12(2) (retrospective application of legislative instruments) of the Legislation Act 2003 does not apply in relation to the effect of a conversion regulation (including a conversion regulation enacted by the Parliament); and
(b) subsection 7(2) of the Acts Interpretation Act 1901, including that subsection as applied by section 13 of the Legislation Act 2003, does not apply in relation to the enactment of this section or the making of a conversion regulation (including a conversion regulation enacted by the Parliament).
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
Validity—general
(1) Subject to subsections (1A), (2) and (2A), an application for a visa is valid if, and only if:
(a) it is for a visa of a class specified in the application; and
(b) it satisfies the criteria and requirements prescribed under this section; and
(ba) subject to the regulations providing otherwise, any visa application charge that the regulations require to be paid at the time when the application is made, has been paid; and
(c) any fees payable in respect of it under the regulations have been paid; and
(d) it is not prevented by any provision of this Act, or of any other law of the Commonwealth, including, without limitation, the following provisions of this Act:
(i) section 48 (visa refused or cancelled earlier);
(ii) section 48A (protection visa refused or cancelled earlier);
(iii) section 161 (criminal justice visa holders);
(iv) section 164D (enforcement visa holders);
(v) section 195 (detainee applying out of time);
(vi) section 501E (earlier refusal or cancellation on character grounds); and
(e) it is not invalid under any provision of this Act, or of any other law of the Commonwealth, including, without limitation, the following provisions of this Act:
(i) section 46AA (visa applications, and the grant of visas, for some Act‑based visas);
(ii) section 46A (visa applications by unauthorised maritime arrivals);
(iii) section 46B (visa applications by transitory persons);
(iv) section 91E or 91G (CPA and safe third countries);
(v) section 91K (temporary safe haven visas);
(vi) section 91P (non‑citizens with access to protection from third countries).
(1A) Subject to subsection (2), an application for a visa is invalid if:
(a) the applicant is in the migration zone; and
(b) since last entering Australia, the applicant has held a visa subject to a condition described in paragraph 41(2)(a); and
(c) the Minister has not waived that condition under subsection 41(2A); and
(d) the application is for a visa of a kind that, under that condition, the applicant is not or was not entitled to be granted.
(2) Subject to subsection (2A), an application for a visa is valid if:
(a) it is an application for a visa of a class prescribed for the purposes of this subsection; and
(b) under the regulations, the application is taken to have been validly made.
Provision of personal identifiers
(2A) An application for a visa is invalid if:
(aa) the Minister has not waived the operation of this subsection in relation to the application for the visa; and
(ab) the applicant has been required to provide one or more personal identifiers under section 257A for the purposes of this subsection; and
(b) the applicant has not complied with the requirement.
Note: An invalid application for a visa cannot give rise to an obligation under section 65 to grant a visa: see subsection 47(3).
Prescribed criteria for validity
(3) The regulations may prescribe criteria that must be satisfied for an application for a visa of a specified class to be a valid application.
(4) Without limiting subsection (3), the regulations may also prescribe:
(a) the circumstances that must exist for an application for a visa of a specified class to be a valid application; and
(b) how an application for a visa of a specified class must be made; and
(c) where an application for a visa of a specified class must be made; and
(d) where an applicant must be when an application for a visa of a specified class is made.
(5) To avoid doubt, subsections (3) and (4) do not require criteria to be prescribed in relation to the validity of visa applications, including, without limitation, applications for visas of the following classes:
(a) special category visas (see section 32);
(b) permanent protection visas (see subsection 35A(2));
(c) temporary protection visas (see subsection 35A(3));
(ca) safe haven enterprise visas (see subsection 35A(3A));
(d) bridging visas (see section 37);
(e) temporary safe haven visas (see section 37A);
(f) maritime crew visas (see section 38B).
46AA Visa applications, and the grant of visas, for some Act‑based visas
Visa classes covered by this section
(1) The following classes of visas are covered by this section:
(a) special category visas (see section 32);
(b) permanent protection visas (see subsection 35A(2));
(c) temporary protection visas (see subsection 35A(3));
(ca) safe haven enterprise visas (see subsection 35A(3A));
(d) bridging visas (see section 37);
(e) temporary safe haven visas (see section 37A);
(f) maritime crew visas (see section 38B).
Applications invalid if no prescribed criteria
(2) An application for a visa of any of the classes covered by this section is invalid if, when the application is made, both of the following conditions are satisfied:
(a) there are no regulations in effect prescribing criteria that must be satisfied for a visa of that particular class to be a valid application;
(b) there are no regulations in effect prescribing criteria that must be satisfied for a visa of that particular class to be granted.
Note: This subsection does not apply if regulations are in effect prescribing criteria mentioned in paragraph (a) or (b) (or both) for a visa.
(3) The criteria mentioned in subsection (2) do not include prescribed criteria that apply generally to visa applications or the granting of visas.
Example: The criteria mentioned in subsection (2) do not include the criteria set out in regulation 2.07 of the Migration Regulations 1994 (application for visa—general).
Criteria in the Act and the regulations
(4) If regulations are in effect prescribing criteria mentioned in paragraph (2)(a) or (b) (or both) for a visa of a class covered by this section:
(a) an application for the visa is invalid unless the application satisfies both:
(i) any applicable criteria under this Act that relate to applications for visas of that class; and
(ii) any applicable criteria prescribed by regulation that relate to applications for visas of that class; and
(b) the visa must not be granted unless the application satisfies both:
(i) any applicable criteria under this Act that relate to the grant of visas of that class; and
(ii) any applicable criteria prescribed by regulation that relate to the grant of visas of that class.
Note: For visa applications generally, see section 46. For the grant of a visa generally, see section 65.
46A Visa applications by unauthorised maritime arrivals
(1) An application for a visa is not a valid application if it is made by an unauthorised maritime arrival who:
(a) is in Australia; and
(b) either:
(i) is an unlawful non‑citizen; or
(ii) holds a bridging visa or a temporary protection visa, or a temporary visa of a kind (however described) prescribed for the purposes of this subparagraph.
Note: Temporary protection visas are provided for by subsection 35A(3).
(1A) Subsection (1) does not apply in relation to an application for a visa if:
(a) either:
(i) the applicant holds a safe haven enterprise visa (see subsection 35A(3A)); or
(ii) the applicant is a lawful non‑citizen who has ever held a safe haven enterprise visa; and
(b) the application is for a visa prescribed for the purposes of this paragraph; and
(c) the applicant satisfies any employment, educational or social security benefit requirements prescribed in relation to the safe haven enterprise visa for the purposes of this paragraph.
(2) If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to an unauthorised maritime arrival, determine that subsection (1) does not apply to an application by the unauthorised maritime arrival for a visa of a class specified in the determination.
(2A) A determination under subsection (2) may provide that it has effect only for the period specified in the determination and, if it does so, the determination ceases to have effect at the end of the specified period.
(2B) The period specified in a determination may be different for different classes of unauthorised maritime arrivals.
(2C) The Minister may, in writing, vary or revoke a determination made under subsection (2) if the Minister thinks that it is in the public interest to do so.
(3) The power under subsection (2) or (2C) may only be exercised by the Minister personally.
(4) If the Minister makes, varies or revokes a determination under this section, the Minister must cause to be laid before each House of the Parliament a statement that:
(a) sets out the determination, the determination as varied or the instrument of revocation; and
(b) sets out the reasons for the determination, variation or revocation, referring in particular to the Minister’s reasons for thinking that the Minister’s actions are in the public interest.
(5) A statement under subsection (4) must not include:
(a) the name of the unauthorised maritime arrival; or
(b) any information that may identify the unauthorised maritime arrival; or
(c) if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned—the name of that other person or any information that may identify that other person.
(6) A statement under subsection (4) must be laid before each House of the Parliament within 15 sitting days of that House after:
(a) if the determination is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or
(b) if the determination is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.
(7) The Minister does not have a duty to consider whether to exercise the power under subsection (2) or (2C) in respect of any unauthorised maritime arrival whether the Minister is requested to do so by the unauthorised maritime arrival or by any other person, or in any other circumstances.
46B Visa applications by transitory persons
(1) An application for a visa is not a valid application if it is made by a transitory person who:
(a) is in Australia; and
(b) either:
(i) is an unlawful non‑citizen; or
(ii) holds a bridging visa or a temporary protection visa, or a temporary visa of a kind (however described) prescribed for the purposes of this subparagraph.
Note: Temporary protection visas are provided for by subsection 35A(3).
(2) If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a transitory person, determine that subsection (1) does not apply to an application by the person for a visa of a class specified in the determination.
(2A) A determination under subsection (2) may provide that it has effect only for the period specified in the determination and, if it does so, the determination ceases to have effect at the end of the specified period.
(2B) The period specified in a determination may be different for different classes of transitory persons.
(2C) The Minister may, in writing, vary or revoke a determination made under subsection (2) if the Minister thinks that it is in the public interest to do so.
(3) The power under subsection (2) or (2C) may only be exercised by the Minister personally.
(4) If the Minister makes, varies or revokes a determination under this section, the Minister must cause to be laid before each House of the Parliament a statement that:
(a) sets out the determination, the determination as varied or the instrument of revocation; and
(b) sets out the reasons for the determination, variation or revocation, referring in particular to the Minister’s reasons for thinking that the Minister’s actions are in the public interest.
(5) A statement under subsection (4) must not include:
(a) the name of the transitory person; or
(b) an