5ACertain non‑citizens to be permanent residents for the purposes of Act

#### 5A Certain non‑citizens to be permanent residents for the purposes of Act (1) A person who is not an Australian citizen shall be taken to be, or to have been, a permanent resident for the purposes of this Act: (a) in relation to a period before 2 April 1984 during which the person was present in Australia (other than a prescribed Territory), if: (i) the person’s continued presence in Australia (other than a prescribed Territory) was not, during that period, subject to any limitation as to time imposed by law; (ii) the person was not, during that period, a prohibited immigrant; and (iii) the person was not, during that period, a person who, if an event of the kind referred to in paragraph 8(3)(a), (b), (c) or (d) of the Migration Act 1958 as in force from time to time during that period had occurred, would have become a prohibited immigrant by virtue of subsection 8(3) of that Act as so in force, or, in a case where he or she was such a person, he or she was, during that period, a person to whom a declaration in force under subsection (2) applies; (b) in relation to a period on or after 2 April 1984 and before the prescribed date during which the person was present in Australia (other than a prescribed Territory), if: (i) the person’s continued presence in Australia (other than a prescribed Territory) was not, during that period, subject to any limitation as to time imposed by law; (ii) the person was not, during that period, a prohibited non‑citizen; and (iii) the person was not, during that period, a person who, if an event of the kind referred to in paragraph 8(3)(a), (b), (c) or (d) of the Migration Act 1958 as in force from time to time during that period had occurred, would have become a prohibited non‑citizen by virtue of subsection 8(3) of that Act as so in force or, in a case where he or she was such a person, he or she was, during that period, a person to whom a declaration in force under subsection (2) applies; (ba) in relation to a period on or after the prescribed date and before 1 September 1994 during which the person was present in Australia (other than a prescribed Territory), if: (i) the person’s continued presence in Australia (other than a prescribed Territory) was not during that period, subject to any limitation as to time imposed by law; (ii) the person was not, during that period, an illegal entrant; and (iii) the person was not, during that period, a person who, if an event of the kind referred to in paragraph 9(a), (b), (c), (d), (e) or (g) of the Migration Act 1958 as in force from time to time during that period had occurred, would have become an illegal entrant because of subsection 14(4) of that Act as so in force or, in a case where he or she was such a person, he or she was, during that period, a person to whom a declaration in force under subsection (2) applies; (bb) in relation to a period on or after 1 September 1994 if: (i) the person was present in Australia and held a permanent visa; or (ii) a declaration under subsection (2) applied to the person; (c) in relation to a period during which the person was present in a prescribed Territory, if: (i) the person’s continued presence in that Territory was not, during that period, subject to any limitation as to time imposed by law, or, in a case where the person’s continued presence in that Territory was subject to such a limitation, he or she would have been a permanent resident for the purposes of this Act if he or she had been present in Australia (other than a prescribed Territory), or if he or she had been present in the other prescribed Territory, during that period; and (ii) the person’s presence in that Territory during that period was not in contravention of a law of that Territory; or (d) in relation to a period during which the person was not present in Australia, if the person was, during that period: (i) the holder of, or deemed to be included in: (A) a valid visa that is in a class of visas prescribed for the purposes of this sub‑subparagraph or a return endorsement that was in force; or (B) a document or endorsement in force under a law of a prescribed Territory, being a document or endorsement that, under the regulations, is to be treated as, or having been during a specified period, the equivalent of a visa referred to in sub‑subparagraph (A) or a return endorsement during that period; or (ii) a person included in a class of persons declared by the regulations to be, or to have been during a specified period, permanent residents for the purposes of this Act, being persons who have, or have had, an association with a prescribed Territory. (2) The Minister may, by instrument in writing, declare that persons included in a specified class of persons, being persons (other than Australian citizens) who: (a) if an event of the kind referred to in paragraph 8(3)(d) of the Migration Act 1958, as in force from time to time before 2 April 1984, had occurred, would have become prohibited immigrants by virtue of subsection 8(3) of that Act as so in force; (b) if an event of the kind referred to in paragraph 8(3)(d) of the Migration Act 1958, as in force from time to time on or after 2 April 1984 but before the prescribed date, had occurred, would have become prohibited non‑citizens by virtue of subsection 8(3) of that Act as so in force; or (c) if an event of the kind referred to in paragraph 9(e) of the Migration Act 1958, as in force from time to time on or after the prescribed date but before 1 September 1994, had occurred, would have become illegal entrants because of subsection 14(4) of that Act as so in force; or (d) are the holders of special category visas or special purpose visas; or (e) are, or have been, the holders of special category visas and who are either: (i) ordinarily resident in Australia; or (ii) the spouse, widow or widower of an Australian citizen; shall be taken to be, or to have been during a specified period, persons to whom this subsection applies. (3) Regulations made by virtue of subsection (1) or a declaration under subsection (2) may be expressed to relate to a period commencing on a date earlier than the date on which those regulations were made or that declaration was made. (4) A copy of an instrument under subsection (2) shall be published in the Gazette. (5) Notwithstanding the preceding provisions of this section, where a person who has travelled to Australia by virtue of a statutory visitor’s visa has entered into Australia, the person shall not be taken by virtue of this section to be a permanent resident for the purposes of this Act at any time when: (a) the relevant certificate issued under that section is in force; and (b) the person is not the holder of a valid permanent entry permit. (5A) In spite of anything in this section, if a person who has travelled to Australia by virtue of a criminal justice visa has entered Australia, the person is not to be taken, under this section, to be a permanent resident for the purpose of this Act at any time when: (a) the criminal justice visa is in effect; and (b) the person is not the holder of a permanent visa. (6) In this section: > criminal justice visa has the same meaning as in the Migration Act 1958. > statutory visitor’s visa means: (a) a visa granted before the prescribed date under section 11AB of the Migration Act 1958 as in force from time to time before the prescribed date; or (b) a visa granted on or after the prescribed date under section 51 of the Migration Act 1958 as in force from time to time on or after the prescribed date and before 1 September 1994.