Migration Act 1958

4A Application of the Criminal Code

5 Interpretation

5AAA Non‑citizen’s responsibility in relation to protection claims

5AA Meaning of unauthorised maritime arrival

5AB Sentencing for offences

5A Meaning of personal identifier

5B When personal identifier taken not to have been provided

5BA References to photograph or other image of person’s face

5BB Providing photographs and other images of faces to authorised systems

5BC Providing photographs and other images of faces to Minister and authorised officers

5C Meaning of character concern

5CA Child of a person

5CB De facto partner

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

5E Meaning of purported privative clause decision

5F Spouse

5G Relationships and family members

5H Meaning of refugee

5J Meaning of well‑founded fear of persecution

5K Membership of a particular social group consisting of family

5L Membership of a particular social group other than family

5LA Effective protection measures

5M Particularly serious crime

6 Effect of limited meaning of enter Australia etc.

7 Act to extend to certain Territories

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

8 Certain resources installations to be part of Australia

9 Certain sea installations to be part of Australia

9A Migration zone etc.—offshore resources activities

10 Certain children taken to enter Australia at birth

11 Visa applicable to 2 or more persons

11A When applications under this Act are finally determined

12 Application of Part VA of the Marriage Act

Part 2—Arrival, presence and departure of persons

Division 1—Immigration status

13 Lawful non‑citizens

14 Unlawful non‑citizens

15 Effect of cancellation of visa on status

16 Removal of immigration rights of inhabitant of Protected Zone

17 Pre‑cleared flights

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

18 Power to obtain information and documents about unlawful non‑citizens

19 Scales of expenses

20 Reasonable compensation

21 Failure to comply with section 18 notice

24 Information and documents that incriminate a person

25 Copies of documents

26 Minister may retain documents

27 Division binds the Crown

Division 3—Visas for non‑citizens

Subdivision A—General provisions about visas

28 Interpretation

29 Visas

30 Kinds of visas

31 Classes of visas

32 Special category visas

33 Special purpose visas

34 Absorbed person visas

35 Ex‑citizen visas

35A Protection visas—classes of visas

36 Protection visas—criteria provided for by this Act

36A Consideration of protection obligations

37 Bridging visas

37A Temporary safe haven visas

38 Criminal justice visas

38A Enforcement visas

38B Maritime crew visas

39 Criterion limiting number of visas

39A Minimum annual numbers of Protection (Class XA) visas and Refugee and Humanitarian (Class XB) visas

40 Circumstances for granting visas

41 Conditions on visas

42 Visa essential for travel

43 Visa holders must usually enter at a port

Subdivision AA—Applications for visas

44 Extent of following Subdivisions

45 Application for visa

45AA Application for one visa taken to be an application for a different visa

45A Visa application charge

45B Amount of visa application charge

45C Regulations about visa application charge

46 Valid visa application

46AA Visa applications, and the grant of visas, for some Act‑based visas

46A Visa applications by unauthorised maritime arrivals

46B Visa applications by transitory persons

46C Visa pre‑application process

47 Consideration of valid visa application

48 Non‑citizen refused a visa or whose visa cancelled may only apply for particular visas

48A No further applications for protection visa after refusal or cancellation

48B Minister may determine that section 48A does not apply to non‑citizen

49 Withdrawal of visa application

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

51 Order of consideration

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

51A Exhaustive statement of natural justice hearing rule

52 Communication with Minister

54 Minister must have regard to all information in application

55 Further information may be given

56 Further information may be sought

57 Certain information must be given to applicant

58 Invitation to give further information or comments

59 Interviews

60 Medical examination

61 Prescribed periods

62 Failure to receive information does not require action

63 When decision about visa may be made

64 Notice that visa application charge is payable

Subdivision AC—Grant of visas

65 Decision to grant or refuse to grant visa

66 Notification of decision

67 Grant and refusal of visa—how and when

68 When visa is in effect

69 Effect of compliance or non‑compliance

Subdivision AF—Bridging visas

72 Interpretation

73 Bridging visas

74 Further applications for bridging visa

75 When eligible non‑citizen in immigration detention granted visa

76 Bridging visa not affect visa applications

76AAA Cessation of certain bridging visas—holder has permission to enter and remain in another country

76A Cessation of certain bridging visas, and grant of new visas, for certain non‑citizens

76AA Effect of community safety order on visa held by non‑citizen etc.

76B Offence relating to monitoring conditions of certain bridging visas

76C Offence relating to requirement to remain at notified address

76D Offences relating to monitoring device and related monitoring equipment

76DAA Offence relating to requirement not to perform certain work etc.

76DAB Offence relating to requirement not to go within certain distance of a school etc.

76DAC Offence relating to requirement not to contact victim of offence etc.

76DA Mandatory 1 year imprisonment for offences

76E Rules of natural justice do not apply to decision to grant certain bridging visas

76F Powers of officers etc.

Subdivision AG—Other provisions about visas

77 Visas held during visa period

78 Children born in Australia

79 Effect on visa of leaving Australia

80 Certain persons taken not to leave Australia

81 Extent of visa authority

82 When visas cease to be in effect

83 Certain persons taken to be included in spouse, de facto partner or parent’s visa

84 Minister may suspend processing of visa applications

Subdivision AGA—Arrival control determinations

84A Object of Subdivision

84B Minister may make arrival control determinations

84C Arrival control determination does not apply in relation to certain kinds of non‑citizens

84D Minister may certify that arrival control determination does not apply in relation to a particular non‑citizen

84E Temporary visas of non‑citizens in class specified in arrival control determination cease to be in effect etc.

84F Statement relating to arrival control determination etc. to be laid before Parliament

Subdivision AH—Limit on visas

85 Limit on visas

86 Effect of limit

87 Limit does not prevent visas for certain persons

87A Limit does not prevent the grant of visas to certain people who are unable to meet health or character requirements before the limit applies because of circumstances beyond their control

88 Limit does not affect processing of applications

89 Determination of limit not to mean failure to decide

90 Order of dealing with limited visas

91 Order of dealing with visas

Subdivision AI—Safe third countries

91A Reason for Subdivision

91B Interpretation

91C Non‑citizens covered by Subdivision

91D Safe third countries

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

91F Minister may determine that section 91E does not apply to non‑citizen

91G Applications made before regulations take effect

Subdivision AJ—Temporary safe haven visas

91H Reason for this Subdivision

91J Non‑citizens to whom this Subdivision applies

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

91L Minister may determine that section 91K does not apply to a non‑citizen

Subdivision AL—Other provisions about protection visas

91V Verification of information

91W Evidence of identity and bogus documents

91WA Providing bogus documents or destroying identity documents

91WB Application for protection visa by member of same family unit

91X Names of applicants for protection visas not to be published by the High Court, Federal Court or Federal Circuit and Family Court of Australia (Division 2)

Subdivision B—The “points” system

92 Operation of Subdivision

93 Determination of applicant’s score

94 Initial application of “points” system

95 Applications in pool

95A Extension of period in pool

96 Minister may set pool mark and pass mark

Subdivision C—Visas based on incorrect information may be cancelled

97 Interpretation

97A Exhaustive statement of natural justice hearing rule

98 Completion of visa application

99 Information is answer

100 Incorrect answers

101 Visa applications to be correct

102 Passenger cards to be correct

103 Bogus documents not to be given etc.

104 Changes in circumstances to be notified

105 Particulars of incorrect answers to be given

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

107 Notice of incorrect applications

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

108 Decision about non‑compliance

109 Cancellation of visa if information incorrect

110 Cancellation provisions apply whatever source of knowledge of non‑compliance

111 Cancellation provisions apply whether or not non‑compliance deliberate

112 Action because of one non‑compliance does not prevent action because of other non‑compliance

113 No cancellation if full disclosure

114 Effect of setting aside decision to cancel visa

115 Application of Subdivision

Subdivision D—Visas may be cancelled on certain grounds

116 Power to cancel

117 When visa may be cancelled

118 Cancellation powers do not limit or affect each other

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

118A Exhaustive statement of natural justice hearing rule

119 Notice of proposed cancellation

120 Certain information must be given to visa holder

121 Invitation to give comments etc.

122 Prescribed periods

123 Failure to accept invitation not require action

124 When decision about visa cancellation may be made

125 Application of Subdivision to non‑citizen in immigration clearance

126 Application of Subdivision to non‑citizen in questioning detention

127 Notification of decision

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

127A Exhaustive statement of natural justice hearing rule

128 Cancellation of visas of people outside Australia

129 Notice of cancellation

130 Prescribed periods

131 Decision about revocation of cancellation

132 Notification of decision about revocation of cancellation

133 Effect of revocation of cancellation

Subdivision FA—Additional personal powers for Minister to cancel visas on section 109 or 116 grounds

133A Minister’s personal powers to cancel visas on section 109 grounds

133B Other provisions relating to the exercise of powers in section 133A

133C Minister’s personal powers to cancel visas on section 116 grounds

133D Cancellation under subsection 133A(1) or 133C(1)—method of satisfying Minister of matters

133E Cancellation under subsection 133A(1) or 133C(1)—notice of cancellation

133F Cancellation under subsection 133A(3) or 133C(3)—Minister may revoke cancellation in certain circumstances

Subdivision FB—Emergency cancellation on security grounds

134A Natural justice

134B Emergency cancellation on security grounds

134C Decision about revocation of emergency cancellation

134D Effect of revocation of cancellation

134E Notice of cancellation

134F Effect of cancellation on other visas

Subdivision G—Cancellation of business visas

134 Cancellation of business visas

135 Representations concerning cancellation of business visa

136 Review of decisions

137 Provision of information—holders of business visas

Subdivision GB—Automatic cancellation of student visas

137J Non‑complying students may have their visas automatically cancelled

137K Applying for revocation of cancellation

137L Dealing with the application

137M Notification of decision

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

137P Effect of revocation

Subdivision GC—Cancellation of regional sponsored employment visas

137Q Cancellation of regional sponsored employment visas

137R Representations concerning cancellation etc.

137S Notice of cancellation

137T Cancellation of other visas

Subdivision H—General provisions on cancellation

138 Cancellation and revocation of cancellation of visas—how and when

139 Visas held by 2 or more

140 Cancellation of visa results in other cancellation

Division 3A—Sponsorship

140A Division applies to prescribed kinds of visa

140AA Purposes of this Division

140AB Ministerial Advisory Council on Skilled Migration

Subdivision B—Approval of sponsors

140E Minister to approve work and family sponsors

140F Approval process

140G Terms of approval

140GA Variation of terms of approval

Subdivision BA—Approval of nominations made by approved work sponsors

140GB Minister to approve nominations

140GBA Labour market testing—condition

140GBB Labour market testing—major disaster exemption

140GBC Labour market testing—skill and occupational exemptions

140GC Work agreements

Subdivision C—Sponsorship obligations

140H Sponsorship obligations—general

140HA Sponsorship obligations—Minister’s responsibility

140J Amounts payable in relation to sponsorship obligations

Subdivision D—Enforcement

140K Sanctions for failing to satisfy sponsorship obligations

140L Regulations may prescribe circumstances in which sponsor may be barred or sponsor’s approval cancelled

140M Cancelling approval as a sponsor or barring a sponsor

140N Process for cancelling approval or barring approved sponsor

140O Waiving a bar

140P Process for waiving a bar

140Q Civil penalty—failing to satisfy sponsorship obligations

140RA Enforceable undertakings

140RB Compliance notices

Subdivision E—Liability and recovery of amounts

140S Liability to pay amounts

140SA Interest up to judgment

140SB Interest on judgment

140SC Certain plaintiffs may choose small claims procedure in magistrates courts

140T Notice regarding amount of debt or other amount

140U Liability is in addition to any other liability

Subdivision F—Inspector powers

140UA Exercise of inspector powers

140V Inspectors

140W Identity cards

140X Purpose for which powers of inspectors may be exercised

140XA When powers of inspectors may be exercised

140XB Power of inspectors to enter premises or places

140XC Powers of inspectors while on premises or at a place

140XD Persons assisting inspectors

140XE Power to ask for person’s name and address

140XF Power to require persons to produce records or documents

140XG Self‑incrimination

140XH Certain records and documents are inadmissible

140XI Power to keep records or documents

140XJ Disclosure of information by the Secretary or Australian Border Force Commissioner

Subdivision G—Application of Division to partnerships and unincorporated associations

140ZB Partnerships—sponsorship rights and obligations

140ZC Partnerships—offences and civil penalties

140ZD Partnership ceases to exist

140ZE Unincorporated associations—sponsorship rights and obligations

140ZF Unincorporated associations—offences and civil penalties

140ZG Unincorporated association ceases to exist

Subdivision H—Miscellaneous

140ZH Disclosure of personal information by Minister

140ZI Disclosure of personal information to Minister

140ZJ Unclaimed money

140ZK Other regulation making powers not limited

140ZL Division binds the Crown

Division 3B—Nominations

140ZM Nomination training contribution charge

140ZN Regulations about nomination training contribution charge

140ZO Recovery of nomination training contribution charge and late payment penalty

140ZP Notional application of nomination training contribution charge in relation to nominations by the Commonwealth

140ZQ Division binds the Crown

Division 4—Criminal justice visitors

141 Object of Division

142 Interpretation

143 Delegation by Minister

144 Authorised officials

Subdivision B—Criminal justice certificates for entry

145 Commonwealth criminal justice entry certificate

146 State criminal justice entry certificate

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

147 Commonwealth criminal justice stay certificate

148 State criminal justice stay certificate

149 Application for visa not to prevent certificate

150 Criminal justice stay certificates stay removal or deportation

151 Certain warrants stay removal or deportation

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

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

154 Officer not liable—criminal justice stay certificates or warrants

Subdivision D—Criminal justice visas

155 Criminal justice visas

156 Criterion for criminal justice entry visas

157 Criterion for criminal justice stay visas

158 Criteria for criminal justice visas

159 Procedure for obtaining criminal justice visa

160 Conditions of criminal justice visa

161 Effect of criminal justice visas

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

162 Criminal justice certificates to be cancelled

163 Stay warrant to be cancelled

164 Effect of cancellation etc. on criminal justice visa

Division 4A—Enforcement visas

164A Definitions

164B Grant of enforcement visas (fisheries matters)

164BA Grant of enforcement visas (environment matters)

164C When enforcement visa ceases to be in effect

164D Applying for other visas

Division 5—Immigration clearance

165 Interpretation

166 Persons entering to present certain evidence of identity etc.

167 When and where evidence to be presented

168 Section 166 not to apply

169 Section 166 not usually to apply

170 Certain persons to present evidence of identity

171 Assistance with evidence

172 Immigration clearance

173 Visa ceases if holder enters in way not permitted

174 Visa ceases if holder remains without immigration clearance

175 Departing person to present certain evidence etc.

175A Determinations relating to kinds of passports

175B Collection, access and disclosure of information

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

176 Reason for Division

177 Interpretation

178 Designated persons to be in immigration detention

179 Beginning of immigration detention of certain designated persons

180 Detention of designated person

181 Removal from Australia of designated persons

182 No immigration detention or removal after certain period

183 Courts must not release designated persons

185 Effect of Division on status etc.

186 Division applies despite other laws

187 Evidence

Division 7—Detention of unlawful non‑citizens

Subdivision A—General provisions

188 Lawful non‑citizen to give evidence of being so

189 Detention of unlawful non‑citizens

190 Non‑compliance with immigration clearance or requirement to provide personal identifier

191 End of certain detention

192 Detention of visa holders whose visas liable to cancellation

193 Application of law to certain non‑citizens while they remain in immigration detention

194 Detainee to be told of consequences of detention

195 Detainee may apply for visa

195A Minister may grant detainee visa (whether or not on application)

196 Duration of detention

197 Effect of escape from immigration detention

Subdivision B—Residence determinations

197AA Persons to whom Subdivision applies

197AB Minister may determine that person is to reside at a specified place rather than being held in detention centre etc.

197AC Effect of residence determination

197AD Revocation or variation of residence determination

197AE Minister not under duty to consider whether to exercise powers

197AF Minister to exercise powers personally

197AG Tabling of information relating to the making of residence determinations

Division 7A—Offences relating to immigration detention

197A Detainees must not escape from detention

197B Manufacture, possession etc. of weapons by detainees

Division 8—Removal of unlawful non‑citizens etc.

Subdivision A—Removal

197C Relevance of Australia’s non‑refoulement obligations to removal of unlawful non‑citizens under section 198

197D Decision that protection finding would no longer be made

197E Relevance of Ministerial intervention powers to removal of unlawful non‑citizens under section 198

198 Removal from Australia of unlawful non‑citizens

198AAA Collection, use and disclosure of information to foreign countries

Subdivision B—Regional processing

198AA Reason for Subdivision

198AB Regional processing country

198AC Documents to be laid before Parliament

198AD Taking unauthorised maritime arrivals to a regional processing country

198AE Ministerial determination that section 198AD does not apply

198AF No regional processing country

198AG Non‑acceptance by regional processing country

198AH Application of section 198AD to certain transitory persons

198AHA Power to take action etc. in relation to arrangement or regional processing functions of a country

198AHAA Rules of natural justice do not apply in relation to third country reception arrangements

198AHB Power to take action etc. in relation to third country reception arrangement

198AHC Relevance of Ministerial intervention powers to transfer of unauthorised maritime arrivals

198AI Ministerial report

198AJ Reports about unauthorised maritime arrivals

Subdivision C—Transitory persons etc.

198B Power to bring transitory persons to Australia

199 Dependants of removed non‑citizens

Subdivision D—Duty to cooperate in relation to removal and removal concern countries

199A Reason for Subdivision

199B Removal pathway non‑citizens—protection findings etc.

199C Minister may give removal pathway directions

199D Circumstances in which Minister must not give a removal pathway direction

199E Offence for non‑compliance with removal pathway direction

199F Designation of removal concern country

199G Visa applications by certain nationals of a removal concern country

Division 9—Deportation

200 Deportation of certain non‑citizens

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

202 Deportation of non‑citizens upon security grounds

203 Deportation of non‑citizens who are convicted of certain serious offences

204 Determination of time for sections 201 and 202

205 Dependants of deportee

206 Deportation order to be executed

206A Relevance of Ministerial intervention powers to deportation

Division 10—Costs etc. of removal and deportation

207 Interpretation

210 Removed or deported non‑citizen liable for costs of removal or deportation

212 Costs of removed or deported spouses, de facto partners and dependants

213 Carriers may be liable for costs of removal and deportation

214 Non‑citizens and carriers jointly liable

215 Costs are debts due to the Commonwealth

216 Use of existing ticket for removal or deportation

217 Vessels required to convey certain removees

218 Vessels required to convey deportees or other removees

219 Exemption from complying

220 Waiver of requirement

221 Cost of removal under notice

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

223 Secretary or Australian Border Force Commissioner may give direction about valuables of detained non‑citizens

224 Dealing with seized valuables

Division 11—Duties of masters in relation to crews

225 Production of identity documents and mustering of crew

226 Production of identity documents by persons on board resources installation

227 Production of identity documents by persons on board sea installation

228 Master to report absences

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

Subdivision A—People smuggling and related offences

228A Application of Subdivision

228B Circumstances in which a non‑citizen has no lawful right to come to Australia

229 Carriage of non‑citizens to Australia without documentation

230 Carriage of concealed persons to Australia

231 Master of vessel to comply with certain requests

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

233A Offence of people smuggling

233B Aggravated offence of people smuggling (danger of death or serious harm etc.)

233C Aggravated offence of people smuggling (at least 5 people)

233D Supporting the offence of people smuggling

233E Concealing and harbouring non‑citizens etc.

234 False documents and false or misleading information etc. relating to non‑citizens

234A Aggravated offence of false documents and false or misleading information etc. relating to non‑citizens (at least 5 people)

236 Offences relating to visas

236A No discharge without conviction for certain offences

236B Mandatory minimum penalties for certain offences

236C Time in immigration detention counts for sentencing etc.

236D Burden and standard of proof in relation to age

236E Evidentiary certificates in proceedings for offences

236F Evidentiary certificates—procedural matters

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

237 Reason for Subdivision

238 Interpretation

239 Application of Subdivision

240 Offence to arrange marriage to obtain permanent residence

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

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

245 Offences of making false or unsupported statements

Subdivision C—Offences and civil penalties in relation to work by non‑citizens

245AA Overview

245AAA Coercing etc. a lawful non‑citizen to work in breach of work‑related conditions

245AAB Coercing etc. an unlawful non‑citizen to work—adverse effect on presence in Australia

245AAC Coercing etc. a lawful non‑citizen to work—adverse effect on status etc.

245AB Allowing an unlawful non‑citizen to work

245AC Allowing a lawful non‑citizen to work in breach of a work‑related condition

245AD Aggravated offences if a person allows, or continues to allow, another person to work

245AE Referring an unlawful non‑citizen for work

245AEA Referring a lawful non‑citizen for work in breach of a work‑related condition

245AEB Aggravated offences if a person refers another person to a third person for work

245AF Circumstances in which this Subdivision does not apply

245AG Meaning of work and allows to work

245AGA Meaning of arrangement in relation to work

245AH Meaning of exploited

245AJ Criminal liability of executive officers of bodies corporate

245AK Civil liability of executive officers of bodies corporate

245AL Contravening civil penalty provisions

245ALA Enforceable undertakings

245AM Geographical scope of offence and civil penalty provisions

245AN Charge and trial for an aggravated offence

245AO Treatment of partnerships

245AP Treatment of unincorporated associations

245APA Effect of this Subdivision on the validity of certain contracts is to be disregarded

Subdivision D—Offences and civil penalties in relation to sponsored visas

245AQ Definitions

245AR Prohibition on asking for or receiving a benefit in return for the occurrence of a sponsorship‑related event

245AS Prohibition on offering to provide or providing a benefit in return for the occurrence of a sponsorship‑related event

245AT Criminal liability of executive officers of bodies corporate

245AU Civil liability of executive officers of bodies corporate

245AV Contravening civil penalty provisions

245AW Geographical scope of offence and civil penalty provisions

245AX Treatment of partnerships

245AY Treatment of unincorporated associations

Subdivision E—Prohibited employers

245AYAA Objects of this Subdivision

245AYA Overview

245AYB Definitions

245AYC Meaning of allows a non‑citizen to begin work

245AYD Meaning of prohibited employer

245AYE When a person is subject to a migrant worker sanction—bar placed on approved work sponsor etc.

245AYF When a person is subject to a migrant worker sanction—conviction of work‑related offence etc.

245AYG When a person is subject to a migrant worker sanction—contravention of certain civil penalty provisions etc.

245AYH When a person is subject to a migrant worker sanction—contravention of certain civil remedy provisions of the Fair Work Act 2009

245AYI When a person is subject to a migrant worker sanction—contravention of term of enforceable undertaking etc.

245AYJ When a person is subject to a migrant worker sanction—failure to comply with certain compliance notices

245AYK Declaration of person as prohibited employer

245AYL Prohibition on allowing additional non‑citizens to begin work

245AYM Publishing information about prohibited employers

245AYN Former prohibited employers to give certain information

245AYO Contravening civil penalty provisions

Subdivision F—Compliance notices for work‑related breaches

245AYP Compliance notices

Division 12A—Chasing, boarding etc. aircraft

245A Definitions

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

245F Power to board and search etc. aircraft

245FA Searches of people on certain ships or aircraft

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

245I Definitions

245J Approval of primary reporting systems

245K Approval of fall‑back reporting systems

245L Obligation to report on persons arriving in Australia

245LA Obligation to report on persons departing from Australia

245LB Dealing with information collected under this Division etc.

245M Approved fall‑back reporting systems may be used in certain circumstances

245N Offence for failure to comply with reporting obligations

Division 13—Examination, search, detention and identification

246 Appointment of boarding stations

247 Vessels to enter ports and be brought to boarding stations

248 Exemption

249 Certain persons may be prevented from entering or landing

250 Detention of suspected offenders

251 Powers of entry and search

251A Searches of detainees etc.—prohibited things

251AA Searches of detainees etc.—exercise of powers relating to prohibited things determined under paragraph 251A(2)(b)

251AB Searches of detainees etc.—access to alternative means of communication

251AC Further limits on certain powers—implied freedom of political communication

251B Searches of detainees etc.—exercise of powers generally

252 Searches of detainees etc.—general powers of personal search and seizure

252AA Searches of detainees—screening procedures

252A Searches of detainees—strip searches

252B Searches of detainees—rules for conducting a strip search

252BA Searches of certain immigration detention facilities—general

252BB Searches of certain immigration detention facilities—authorised officers’ assistants

252C Screening and strip searches of detainees and searches of facilities—seizure (general)

252CA Screening and strip searches of detainees and searches of facilities—seizure of certain prohibited things

252CB Screening and strip searches of detainees and searches of facilities—return of seized things

252D Retention of certain seized things for extended period—application for order by magistrate

252E Retention of certain seized things for extended period—order by magistrate

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

252G Persons entering immigration detention facilities—screening powers

253 Detention of deportee

254 Removees and deportees held in other custody

255 Prescribed authorities

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

257 Persons may be required to answer questions

257A Person may be required to provide personal identifiers

258 Minister may determine that specified persons are not to be required to provide personal identifiers etc.

258A When detainees must not be required to provide personal identifiers under section 257A

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

258D Regulations may prescribe manner for carrying out identification tests

258E General rules for carrying out identification tests

258F Person must not be required to provide personal identifiers in a cruel, inhuman or degrading way etc.

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

259 Detention of vessel for purpose of search

260 Detention of vessel pending recovery of penalty

261 Disposal of dilapidated vessels etc.

Division 13AA—Identification of immigration detainees

Subdivision A—Provision of personal identifiers

261AA Immigration detainees must provide personal identifiers

261AB Authorised officers must require and carry out identification tests

261AC Information to be provided before carrying out identification tests

Subdivision B—How identification tests are carried out

261AD General rules for carrying out identification tests

261AE Use of force in carrying out identification tests

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

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

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

261AI Independent person to be present

261AJ Recording of identification tests

261AK Retesting

Subdivision C—Obligations relating to video recordings of identification tests

261AKA Definitions

261AKB Accessing video recordings

261AKC Authorising access to video recordings

261AKD Providing video recordings

261AKE Unauthorised modification of video recordings

261AKF Unauthorised impairment of video recordings

261AKG Meanings of unauthorised modification and unauthorised impairment etc.

261AKH Destroying video recordings

Division 13AB—Identification of minors and incapable persons

261AL Minors

261AM Incapable persons

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

Subdivision A—Automatic forfeiture

261A Forfeiture of things used in certain offences

Subdivision B—Seizure

261B Seizure of things used in certain offences

Subdivision C—Dealing with things seized as automatically forfeited

261C Application of this Subdivision

261D Notice of seizure

261E Dealing with thing before it is condemned

261F Thing condemned if not claimed in time

261G Dealing with claim for thing

261H What happens if thing is claimed

261I Dealing with thing after it is condemned

Subdivision D—Operation of Division

261J Operation of Division

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

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

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

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.

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

 (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.

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:

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).

arrival control determination has the meaning given by section 84B.

ART means the Administrative Review Tribunal.

ART Act means the Administrative Review Tribunal Act 2024.

ART Act migration decision: see section 474A.

ART member means a member of the ART.

ART practice directions means practice directions made under section 36 of the ART Act.

ART Principal Registrar means the Principal Registrar within the meaning of the ART Act.

ASIO means the Australian Security Intelligence Organisation.

ASIO Act means the Australian Security Intelligence Organisation Act 1979.

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

assessment, in relation to ASIO, has the same meaning as in subsection 35(1) of the ASIO Act.

association: a person has an association, for the purposes of subsections 5C(1A), 500A(1A) and 501(6A), with an organisation if the person meets or communicates with the organisation.

Note: The association may consist of a single meeting or communication.

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 history information means information about an individual’s criminal history, and includes information about:

 (a) any charge against the individual for an offence against a law of the Commonwealth, a State or a Territory, whether or not the individual has been found to have committed the offence; and

 (b) any finding that the individual committed such an offence, whether or not the individual has been convicted of the offence; and

 (c) any conviction of the individual of such an offence, whether or not the conviction is spent (however described) under:

 (i) Part VIIC of the Crimes Act 1914; or

 (ii) a law of a State or Territory; and

 (d) any other result of a proceeding for the prosecution of the individual for such an offence.

criminal justice visa has the meaning given by section 38.

cruel or inhuman treatment or punishment means an act or omission by which:

 (a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

 (b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

 (c) that is not inconsistent with Article 7 of the Covenant; or

 (d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

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

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

de facto partner has the meaning given by section 5CB.

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

 (a) that is not inconsistent with Article 7 of the Covenant; or

 (b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

departure prohibition order means an order under subsection 14S(1) of the Taxation Administration Act 1953.

deportation means deportation from Australia.

deportation order means an order for the deportation of a person made under, or continued in force by, this Act.

deportee means a person in respect of whom a deportation order is in force.

detain means:

 (a) take into immigration detention; or

 (b) keep, or cause to be kept, in immigration detention;

and includes taking such action and using such force as are reasonably necessary to do so.

Note: This definition extends to persons covered by residence determinations (see section 197AC).

detainee means a person detained.

Note: This definition extends to persons covered by residence determinations (see section 197AC).

diplomatic or consular representative, in relation to a country other than Australia, means a person who has been appointed to, or is the holder of, a post or position in a diplomatic or consular mission of that country in Australia, not being a person who was ordinarily resident in Australia when he or she was appointed to be a member of the mission.

eligible court means:

 (a) the Federal Court; or

 (b) the Federal Circuit and Family Court of Australia (Division 2); or

 (c) a District, County or Local Court; or

 (d) a magistrates court; or

 (e) any other State or Territory court that is prescribed by the regulations.

enforcement visa has the meaning given by section 38A.

enter includes re‑enter.

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

entered includes re‑entered.

entry includes re‑entry.

environment detention offence means:

 (a) an offence against the Environment Protection and Biodiversity Conservation Act 1999, or against regulations made for the purposes of that Act; or

 (b) an offence against section 6 of the Crimes Act 1914 relating to an offence described in paragraph (a).

environment officer means an authorised officer, within the meaning of the Environment Protection and Biodiversity Conservation Act 1999, but does not include a person who is an authorised officer because of subsection 397(3) of that Act.

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

evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.

excised offshore place means any of the following:

 (a) the Territory of Christmas Island;

 (b) the Territory of Ashmore and Cartier Islands;

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

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

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

 (f) an Australian sea installation;

 (g) an Australian resources installation.

excision time, for an excised offshore place, means:

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

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

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

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

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

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

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

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

Fair Work Inspector has the same meaning as in the Fair Work Act 2009.

Federal Court means the Federal Court of Australia.

finally determined: for when an application under this Act is finally determined, see section 11A.

Finance Minister means the Minister who administers the Public Governance, Performance and Accountability Act 2013.

fisheries detention offence means:

 (a) an offence against section 99, 100, 100A, 100B, 101, 101A, 101AA, 101B, 105E, 105EA, 105H or 105I of the Fisheries Management Act 1991; or

 (b) an offence against section 45, 46A, 46B, 46C, 46D, 48, 49, 49A, 51 or 51A of the Torres Strait Fisheries Act 1984; or

 (c) an offence against section 6 of the Crimes Act 1914 relating to an offence described in paragraph (a) or (b).

fisheries officer means an officer as defined in the Fisheries Management Act 1991 or the Torres Strait Fisheries Act 1984.

foreign aircraft (environment matters) means an aircraft, within the meaning of the Environment Protection and Biodiversity Conservation Act 1999, that is not an Australian aircraft (within the meaning of that Act).

foreign vessel has the same meaning as in the Maritime Powers Act 2013.

hate crime has the same meaning as in section 114A.3 of the Criminal Code.

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

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

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

 (b) deals with:

 (i) a prescribed disease; or

 (ii) a prescribed kind of disease; or

 (iii) a prescribed physical or mental condition; or

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

 (v) a prescribed kind of examination; or

 (vi) a prescribed kind of treatment.

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

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

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

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

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

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

immigration detention means:

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

 (i) an officer; or

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

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

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

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

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

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

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

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

Note 1: Subsection 198AD(11) provides that being dealt with under subsection 198AD(3) does not amount to immigration detention.

Note 2: This definition extends to persons covered by residence determinations (see section 197AC).

immigration detention facility: see section 251A.

immigration detention facility risk: see section 251A.

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.

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:

 (a) in relation to a terrorist organisation—has the same meaning as in Division 102 of the Criminal Code; and

 (b) in relation to a state sponsor of terrorism—has the same meaning as in Division 110 of the Criminal Code; and

 (c) in relation to a prohibited hate group—has the same meaning as in Division 114A of the Criminal Code.

member of the crew means:

 (a) in relation to a vessel other than an aircraft—the master of the vessel, or a person whose name is on the articles of the vessel as a member of the crew; or

 (b) in relation to an aircraft—the master of the aircraft, or a person employed by the operator of the aircraft and whose name is included in a list of members of the crew of the aircraft furnished by the master as prescribed.

member of the family unit of a person has the meaning given by the regulations made for the purposes of this definition.

member of the same family unit: one person is a member of the same family unit as another if either is a member of the family unit of the other or each is a member of the family unit of a third person.

migration decision means:

 (a) a privative clause decision; or

 (b) a purported privative clause decision; or

 (c) a non‑privative clause decision; or

 (d) an ART Act migration decision.

migration law means:

 (a) this Act; and

 (b) the regulations; and

 (c) any legislative instrument made under this Act or the regulations.

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.

Ministerial intervention power means a power exercisable personally by the Minister under any one or more of the following provisions:

 (a) subsection 46A(2) (about visa applications by unauthorised maritime arrivals);

 (b) subsection 46B(2) (about visa applications by transitory persons);

 (c) subsection 48B(1) (about further applications for a protection visa after refusal or cancellation);

 (d) paragraph 72(1)(c) (about bridging visas for eligible non‑citizens);

 (e) subsection 91F(1) (about non‑citizens for whom there is a safe third country);

 (f) subsection 91L(1) (about holders of temporary safe haven visas);

 (g) subsection 137N(1) (about revocation of visa cancellation on the Minister’s initiative);

 (h) subsection 195A(2) (about grant of visas to detainees);

 (i) subsection 198AE(1) (about Minister’s power to determine that section 198AD does not apply);

 (j) subsection 351(1) (about Minister’s power to substitute certain ART decisions);

 (k) subsection 501J(1) (about Minister’s power to substitute ART protection visa decision).

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

movement records means information stored in a notified data base.

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

nomination training contribution charge means nomination training contribution charge imposed by section 7 of the Migration (Skilling Australians Fund) Charges Act 2018.

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

non‑disclosable information means information or matter:

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

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

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

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

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

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

non‑political crime:

 (a) subject to paragraph (b), means a crime where a person’s motives for committing the crime were wholly or mainly non‑political in nature; and

 (b) includes an offence that, under paragraph (a), (b) or (c) of the definition of political offence in section 5 of the Extradition Act 1988, is not a political offence in relation to a country for the purposes of that Act.

non‑privative clause decision has the meaning given by subsection 474(6).

non‑refoulement obligations includes, but is not limited to:

 (a) non‑refoulement obligations that may arise because Australia is a party to:

 (i) the Refugees Convention; or

 (ii) the Covenant; or

 (iii) the Convention Against Torture; and

 (b) any obligations accorded by customary international law that are of a similar kind to those mentioned in paragraph (a).

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

offence against this Act includes:

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

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

officer means:

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

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

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

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

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

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

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

offshore resources activity has the meaning given by subsection 9A(5).

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

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

 (b) was issued before 1 September 1994; and

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

parent: without limiting who is a parent of a person for the purposes of this Act, someone is the parent of a person if the person is his or her child because of the definition of child in section 5CA.

passport includes a document of identity issued from official sources, whether in or outside Australia, and having the characteristics of a passport, but does not include a document, which may be a document called or purporting to be a passport, that the regulations declare is not to be taken to be a passport.

permanent visa has the meaning given by subsection 30(1).

permitted travel certificate has the meaning given by section 84D.

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).

prohibited hate group has the same meaning as in Division 114A of the Criminal Code.

prohibited thing: see section 251A.

protected area means an area that is:

 (a) part of the migration zone; and

 (b) in, or in an area in the vicinity of, the Protected Zone.

Protected Zone means the zone established under Article 10 of the Torres Strait Treaty, being the area bounded by the line described in Annex 9 to that treaty.

protection visa has the meaning given by section 35A.

Note: Section 35A covers the following:

(a) permanent protection visas (classified by the Migration Regulations 1994 as Protection (Class XA) visas when this definition commenced);

(b) other protection visas formerly provided for by subsection 36(1);

(ba) safe haven enterprise visas;

(c) temporary protection visas (classified by the Migration Regulations 1994 as Temporary Protection (Class XD) visas when this definition commenced);

(d) any additional classes of permanent or temporary visas that are prescribed as protection visas by the regulations.

 See also section 36 and Subdivision AL of Division 3 of Part 2.

purported privative clause decision has the meaning given by section 5E.

questioning detention means detention under section 192.

receiving country, in relation to a non‑citizen, means:

 (a) a country of which the non‑citizen is a national, to be determined solely by reference to the law of the relevant country; or

 (b) if the non‑citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non‑citizen to the country.

refugee has the meaning given by section 5H.

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

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

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

regional processing country means a country designated by the Minister under subsection 198AB(1) as a regional processing country.

Regulatory Powers Act means the Regulatory Powers (Standard Provisions) Act 2014.

relevant seizure power: see section 251B.

relevant workplace law has the meaning given by subsection 245APA(2).

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

removal concern country means a country designated as such by the Minister under subsection 199F(1).

removal pathway direction means a direction given under subsection 199C(1) or (2).

removal pathway non‑citizen means:

 (a) an unlawful non‑citizen:

 (i) who is required to be removed from Australia under section 198 as soon as reasonably practicable; or

 (ii) who would be required to be so removed except for the operation of subsection 197E(5); or

 (b) a lawful non‑citizen who holds a Subclass 070 (Bridging (Removal Pending)) visa; or

 (c) a lawful non‑citizen who:

 (i) holds a Subclass 050 (Bridging (General)) visa; and

 (ii) at the time the visa was granted, satisfied a criterion for the grant relating to the making of, or being subject to, acceptable arrangements to depart Australia; or

 (d) a lawful non‑citizen who:

 (i) holds a visa prescribed by the regulations for the purposes of this subparagraph; and

 (ii) at the time the visa was granted, satisfied a criterion for the grant relating to the making of, or being subject to, acceptable arrangements to depart Australia.

Note 1: For subparagraph (a)(ii), subsection 197E(5) temporarily suspends the duty to remove an unlawful non‑citizen under section 198 if the Minister decides to consider whether to exercise a Ministerial intervention power in relation to the non‑citizen. However, the suspension does not prevent other action being taken, or things being done, to facilitate or otherwise prepare for the removal of the non‑citizen under section 198 (see subsection 197E(10)).

Note 2: The effect of paragraph (c) is that only certain non‑citizens holding Subclass 050 (Bridging (General)) visas will be removal pathway non‑citizens.

remove means remove from Australia.

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

residence determination has the meaning given by subsection 197AB(1).

resources installation means:

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

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

reviewable migration decision: see section 338.

reviewable protection decision: see section 338A.

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

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

Sea Installations Act means the Sea Installations Act 1987.

Secretary means the Secretary of the Department.

serious Australian offence means an offence against a law in force in Australia, where:

 (a) the offence:

 (i) involves violence against a person; or

 (ii) is a serious drug offence; or

 (iii) involves serious damage to property; or

 (iv) is an offence against section 197A or 197B (offences relating to immigration detention); and

 (b) the offence is punishable by:

 (i) imprisonment for life; or

 (ii) imprisonment for a fixed term of not less than 3 years; or

 (iii) imprisonment for a maximum term of not less than 3 years.

serious foreign offence means an offence against a law in force in a foreign country, where:

 (a) the offence:

 (i) involves violence against a person; or

 (ii) is a serious drug offence; or

 (iii) involves serious damage to property; and

 (b) if it were assumed that the act or omission constituting the offence had taken place in the Australian Capital Territory, the act or omission would have constituted an offence (the Territory offence) against a law in force in that Territory, and the Territory offence would have been punishable by:

 (i) imprisonment for life; or

 (ii) imprisonment for a fixed term of not less than 3 years; or

 (iii) imprisonment for a maximum term of not less than 3 years.

significant harm means harm of a kind mentioned in subsection 36(2A).

special category visa has the meaning given by section 32.

special purpose visa has the meaning given by section 33.

spouse has the meaning given by section 5F.

state sponsor of terrorism has the same meaning as in Division 110 of the Criminal Code.

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.

terrorist organisation has the same meaning as in Division 102 of the Criminal Code.

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

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

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

 (a) for the purpose of obtaining from the person or from a third person information or a confession; or

 (b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

 (c) for the purpose of intimidating or coercing the person or a third person; or

 (d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

 (e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

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

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

transitory person means:

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

 (aa) a person who was taken to a regional processing country under section 198AD; or

 (b) a person who was taken to a place outside Australia under paragraph 245F(9)(b) of this Act, or under Division 7 or 8 of Part 3 of the Maritime Powers Act 2013; or

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

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

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

 (iii) disembarked in that other country; or

 (d) the child of a transitory person mentioned in paragraph (aa) or (b), if:

 (i) the child was born in a regional processing country to which the parent was taken as mentioned in the relevant paragraph; and

 (ii) the child was not an Australian citizen at the time of birth; or

 (e) the child of a transitory person mentioned in paragraph (aa) or (b), if:

 (i) the child was born in the migration zone; and

 (ii) the child was not an Australian citizen at the time of birth.

Note 1: For who is a child, see section 5CA.

Note 2: A transitory person who entered Australia by sea before being taken to a place outside Australia may also be an unauthorised maritime arrival: see section 5AA.

Note 3: Paragraphs (d) and (e) apply no matter when the child was born, whether before, on or after the commencement of those paragraphs. See the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014.

unauthorised maritime arrival has the meaning given by section 5AA.

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

vessel includes an aircraft or an installation.

vessel (environment matters) means a vessel, within the meaning of the Environment Protection and Biodiversity Conservation Act 1999.

visa has the meaning given by section 29 and includes an old visa.

visa applicant means an applicant for a visa and, in relation to a visa, means the applicant for the visa.

visa application charge means the charge payable under section 45A.

visa application charge limit is the amount determined under the Migration (Visa Application) Charge Act 1997.

visa holder means the holder of a visa and, in relation to a visa, means the holder of the visa.

visa period, in relation to a visa, means the period:

 (a) beginning when the visa is granted; and

 (b) ending:

 (i) in the case of a visa other than a bridging visa—when the visa ceases to be in effect otherwise than under section 84E; or

 (ii) in the case of a bridging visa—when the visa ceases to be in effect otherwise than under subsection 82(3) or section 84E.

Note: See subsection 68(6) for when certain bridging visas are to be taken to have ceased to be in effect otherwise than under subsection 82(3).

visa pre‑application process charge means charge imposed by the Migration (Visa Pre‑application Process) Charge Act 2023.

weapon or escape aid: see section 252.

well‑founded fear of persecution has the meaning given by section 5J.

work agreement means an agreement that satisfies the requirements prescribed by the regulations for the purposes of this definition.

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

work‑related condition means a condition:

 (a) prohibiting the holder of a visa from working in Australia; or

 (b) restricting the work that the holder of a visa may do in Australia.

work‑related offence means:

 (a) an offence against Subdivision C or E of Division 12 of Part 2; or

 (b) an offence against section 6 of the Crimes Act 1914 that relates to an offence against one of those Subdivisions; or

 (c) an ancillary offence (within the meaning of the Criminal Code) that is, or relates to, an offence against one of those Subdivisions.

work‑related provision means a civil penalty provision in Subdivision C, E or F of Division 12 of Part 2.

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

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

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

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

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

 (1B) The Minister or the Secretary has the power to give authorisations as provided by the definition of authorised system.

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

 (a) the person passes a test that:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 (i) is able to float or be floated;

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

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

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

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

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

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

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

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

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

 (a) the installation:

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

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

 (b) the installation:

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

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

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

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

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

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

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

 (b) has been in a particular locality:

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

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

  for:

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

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

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

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

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

for less than:

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

 (d) in any other case—5 days;

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

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

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

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

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

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

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

 (b) has been in a particular locality:

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

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

  for:

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

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

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

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

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

for less than:

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

 (d) in any other case—5 days;

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

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

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

5AAA  Non‑citizen’s responsibility in relation to protection claims

 (1) This section applies in relation to a non‑citizen who claims to be a person in respect of whom Australia has protection obligations (however arising).

 (2) For the purposes of this Act, it is the responsibility of the non‑citizen to specify all particulars of his or her claim to be such a person and to provide sufficient evidence to establish the claim.

 (3) The purposes of this Act include:

 (a) the purposes of a regulation or other instrument under this Act; and

 (b) the purposes of any administrative process that occurs in relation to:

 (i) this Act; or

 (ii) a regulation or instrument under this Act.

 (4) To remove doubt, the Minister does not have any responsibility or obligation to:

 (a) specify, or assist in specifying, any particulars of the non‑citizen’s claim; or

 (b) establish, or assist in establishing, the claim.

5AA  Meaning of unauthorised maritime arrival

 (1) For the purposes of this Act, a person is an unauthorised maritime arrival if:

 (a) the person entered Australia by sea:

 (i) at an excised offshore place at any time after the excision time for that place; or

 (ii) at any other place at any time on or after the commencement of this section; and

 (b) the person became an unlawful non‑citizen because of that entry; and

 (c) the person is not an excluded maritime arrival.

 (1A) For the purposes of this Act, a person is also an unauthorised maritime arrival if:

 (a) the person is born in the migration zone; and

 (b) a parent of the person is, at the time of the person’s birth, an unauthorised maritime arrival because of subsection (1) (no matter where that parent is at the time of the birth); and

 (c) the person is not an Australian citizen at the time of birth.

Note 1: For who is a parent of a person, see the definition in subsection 5(1) and section 5CA.

Note 2: A parent of the person may be an unauthorised maritime arrival even if the parent holds, or has held, a visa.

Note 3: A person to whom this subsection applies is an unauthorised maritime arrival even if the person is taken to have been granted a visa because of section 78 (which deals with the birth in Australia of non‑citizens).

Note 4: For when a person is an Australian citizen at the time of his or her birth, see section 12 of the Australian Citizenship Act 2007.

Note 5: This subsection applies even if the person was born before the commencement of the subsection. See the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014.

 (1AA) For the purposes of this Act, a person is also an unauthorised maritime arrival if:

 (a) the person is born in a regional processing country; and

 (b) a parent of the person is, at the time of the person’s birth, an unauthorised maritime arrival because of subsection (1) (no matter where that parent is at the time of the birth); and

 (c) the person is not an Australian citizen at the time of his or her birth.

Note 1: A parent of the person may be an unauthorised maritime arrival even if the parent holds, or has held, a visa.

Note 2: This Act may apply as mentioned in subsection (1AA) even if either or both parents of the person holds a visa, or is an Australian citizen or a citizen of the regional processing country, at the time of the person’s birth.

Note 3: This subsection applies even if the person was born before the commencement of the subsection. See the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014.

Entered Australia by sea

 (2) A person entered Australia by sea if:

 (a) the person entered the migration zone except on an aircraft that landed in the migration zone; or

 (b) the person entered the migration zone as a result of being found on a ship detained under section 245F (as in force before the commencement of section 69 of the Maritime Powers Act 2013) and being dealt with under paragraph 245F(9)(a) (as in force before that commencement); or

 (ba) the person entered the migration zone as a result of the exercise of powers under Division 7 or 8 of Part 3 of the Maritime Powers Act 2013; or

 (c) the person entered the migration zone after being rescued at sea.

Excluded maritime arrival

 (3) A person is an excluded maritime arrival if the person:

 (a) is a New Zealand citizen who holds and produces a New Zealand passport that is in force; or

 (b) is a non‑citizen who:

 (i) holds and produces a passport that is in force; and

 (ii) is ordinarily resident on Norfolk Island; or

 (c) is included in a prescribed class of persons.

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).

5AB  Sentencing for offences

  The provisions of this Act and the regulations apply no differently in relation to a single sentence imposed by a court in respect of 2 or more offences to the way in which those provisions apply in relation to a sentence imposed by a court in respect of a single offence.

Example: Paragraph 501(7)(c) applies in relation to a person sentenced to a term of imprisonment of 12 months or more. Because of this section, that paragraph applies in relation to a person sentenced to such a term, whether the sentence is imposed for a single offence or for 2 or more offences.

5A  Meaning of personal identifier

 (1) In this Act:

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

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

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

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

Note: See section 5BA.

 (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.

5BA  References to photograph or other image of person’s face

  A reference in the migration law to a photograph or other image of a person’s face includes a reference to a photograph or other image of:

 (a) the person’s face and all or part of the person’s neck; or

 (b) the person’s face and neck and all or part of the person’s shoulders.

5BB  Providing photographs and other images of faces to authorised systems

 (1) Subsections (2) and (3) apply if:

 (a) a provision of the migration law uses the expression “authorised system”; and

 (b) the provision requires a person to provide to an authorised system a photograph or other image of the person’s face; and

 (c) for the purposes of that requirement, the person submits to the authorised system collecting:

 (i) a photograph or other image of the person’s face; or

 (ii) a photograph or other image from which the authorised system can derive (such as by cropping) a photograph or other image of the person’s face.

 (2) For the purposes of the migration law, if the authorised system collects a photograph or other image of the person’s face, the person is taken to provide the photograph or other image to the authorised system for the purposes of the requirement mentioned in paragraph (1)(b).

 (3) For the purposes of the migration law, if:

 (a) the authorised system collects a photograph or other image from which the authorised system can derive (such as by cropping) a photograph or other image of the person’s face; and

 (b) the authorised system derives a photograph or other image of the person’s face (the derived image) from the photograph or other image that the authorised system collects;

the person is taken to provide the derived image to the authorised system for the purposes of the requirement mentioned in paragraph (1)(b).

 (4) When used in this section (other than in paragraph (1)(a) of this section), authorised system has the same meaning as when used in the provision mentioned in paragraph (1)(a).

5BC  Providing photographs and other images of faces to Minister and authorised officers

 (1) Subsection (3) applies if:

 (a) the migration law requires a person to provide a photograph or other image of the person’s face to the Minister; and

 (b) for the purposes of that requirement:

 (i) the person provides to the Minister (the recipient) a photograph or other image from which the Department can derive (such as by cropping) a photograph or other image of the person’s face; and

 (ii) the Department derives a photograph or other image of the person’s face (the derived image) from the photograph or other image that the person provides.

 (2) Subsection (3) also applies if:

 (a) a provision of the migration law uses the expression “authorised officer”; and

 (b) the provision requires a person to provide a photograph or other image of the person’s face to an authorised officer; and

 (c) for the purposes of that requirement:

 (i) the person provides to an authorised officer (the recipient) a photograph or other image from which the Department can derive (such as by cropping) a photograph or other image of the person’s face; and

 (ii) the Department derives a photograph or other image of the person’s face (the derived image) from the photograph or other image that the person provides.

 (3) For the purposes of the migration law, the person is taken to provide the derived image to the recipient for the purposes of the requirement mentioned in paragraph (1)(a) or (2)(b).

 (4) When used in this section (other than in paragraph (2)(a) of this section), authorised officer has the same meaning as when used in the provision mentioned in paragraph (2)(a).

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

 (bba) subsection (1A) applies to the non‑citizen (spreading hatred and extremism); 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 might:

 (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.

Spreading hatred and extremism

 (1A) This subsection applies to a non‑citizen if the Minister reasonably suspects that:

 (a) both of the following apply:

 (i) the non‑citizen is, or has been, a member of an organisation;

 (ii) at any time the non‑citizen was a member of the organisation, the organisation was a terrorist organisation, a state sponsor of terrorism or a prohibited hate group; or

 (i) the non‑citizen has, or has had, an association with an organisation;

 (ii) at any time during the non‑citizen’s association, the organisation was a terrorist organisation, a state sponsor of terrorism or a prohibited hate group;

 (iii) the non‑citizen intends, or intended, by the association, to support terrorism, extremism or hatred or to further acts of terrorism, extremism or hatred; or

 (c) the non‑citizen has been or is involved in conduct constituting a hate crime (whether or not the non‑citizen, or another person, has been convicted of an offence constituted by the conduct); or

 (d) both of the following apply:

 (i) the non‑citizen has made one or more public statements, or has endorsed a statement publicly, (whether in Australia or overseas, and including online statements) that involves the dissemination of ideas based on superiority over or hatred of other persons on the basis of race, colour, or national or ethnic origin;

 (ii) in the event the non‑citizen were allowed to enter or to remain in Australia, there is a risk of harm to the Australian community or to a segment of that community; or

 (e) both of the following apply:

 (i) the non‑citizen has encouraged one or more other persons to make a statement publicly (whether in Australia or overseas, and including an online statement) that involves the dissemination of ideas based on superiority over or hatred of other persons on the basis of race, colour, or national or ethnic origin;

 (ii) in the event the non‑citizen were allowed to enter or to remain in Australia, there is a risk of harm to the Australian community or to a segment of that community.

Note 1: Antisemitic statements are an example of statements that involve harmful ideas based on superiority over or hatred of other persons on the basis of ethnic origin, as mentioned in subparagraphs (d)(i) and (e)(i).

Note 2: See also subsection 5(1) for definitions of terms used in this subsection.

Limbs do not limit each other

 (1B) None of the limbs of subsection (1) or (1A) are intended to limit or otherwise affect each other.

Minister not required to determine whether membership or association is ongoing

 (1C) The Minister is not required to determine whether a person’s membership of or association with an organisation is continuing or has concluded when making a decision for the purposes of paragraph (1A)(a) or (b).

Substantial criminal record

 (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.

 (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

offshore resources activity, in relation to an area, means:

 (a) a regulated operation (within the meaning of section 7 of the Offshore Petroleum and Greenhouse Gas Storage Act 2006) that is being carried out, or is to be carried out, within the area, except an operation determined by the Minister under subsection (6); or

 (b) an activity performed under a licence or a special purpose consent (both within the meaning of section 4 of the Offshore Minerals Act 1994) that is being carried out, or is to be carried out, within the area, except an activity determined by the Minister under subsection (6); or

 (c) an activity, operation or undertaking (however described) that is being carried out, or is to be carried out:

 (i) under a law of the Commonwealth, a State or a Territory determined by the Minister under subsection (6); and

 (ii) within the area, as determined by the Minister under subsection (6).

 (6) The Minister may, in writing, make a determination for the purposes of the definition of offshore resources activity in subsection (5).

 (7) A determination made under subsection (6) is a legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 does not apply to the determination.

 (8) To avoid doubt, for the purposes of subsection (1), a person may participate in, or support, an offshore resources activity in relation to an area whether the person:

 (a) is on an Australian resources installation in the area; or

 (b) is otherwise in the area to participate in, or support, the activity.

10  Certain children taken to enter Australia at birth

  A child who:

 (a) was born in the migration zone; and

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

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

11  Visa applicable to 2 or more persons

  Where:

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

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

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

11A  When applications under this Act are finally determined

 (1) An application under this Act is finally determined when:

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

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

 (2) If a review of a decision that has been made in respect of an application under this Act is instituted by application to the ART under Part 5 as prescribed, the application is finally determined when a decision on review in respect of the application is taken to have been made as provided by the following provisions:

 (a) if the decision on review is made under section 105 of the ART Act or paragraph 368C(3)(b) or subsection 368C(5) of this Act—section 368 of this Act;

 (b) if the application for review is dismissed under the ART Act and an application for reinstatement cannot be made under section 368C of this Act—section 368B of this Act.

 (3) However, subsection (2) does not apply in relation to a decision of the ART to remit a reviewable migration decision or a reviewable protection decision under subsection 349(2).

12  Application of Part VA of the Marriage Act

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

Part 2—Arrival, presence and departure of persons

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.

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

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.