(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.
For the purposes of the application of this Act and the regulations to a particular person, paragraph 36(1C)(b) has effect as if a reference in that paragraph to a particularly serious crime included a reference to a crime that consists of the commission of:
(a) a serious Australian offence; or
(b) a serious foreign offence.
6 Effect of limited meaning of enter Australia etc.
To avoid doubt, although subsection 5(1) limits, for the purposes of this Act, the meanings of enter Australia, leave Australia and remain in Australia and as well, because of section 18A of the Acts Interpretation Act 1901, the meaning of parts of speech and grammatical forms of those phrases, this does not mean:
(a) that, for those purposes, the meaning of in Australia, to Australia or any other phrase is limited; or
(b) that this Act does not extend to parts of Australia outside the migration zone; or
(c) that this Act does not apply to persons in those parts.
Note: See also subsection 9A(3), which deals with when a person is taken to be in Australia, to travel to Australia, to enter Australia or to leave Australia. Section 9A concerns offshore resources activities.
7 Act to extend to certain Territories
(1) In this section, prescribed Territory means Norfolk Island, the Coral Sea Islands Territory, the Territory of Cocos (Keeling) Islands, the Territory of Christmas Island and the Territory of Ashmore and Cartier Islands.
(2) This Act extends to a prescribed Territory.
(3) Subject to this Act, a prescribed Territory:
(a) shall be deemed to be part of Australia for the purposes of this Act; and
(b) shall be deemed not to be a place outside Australia.
7A Effect on executive power to protect Australia’s borders
The existence of statutory powers under this Act does not prevent the exercise of any executive power of the Commonwealth to protect Australia’s borders, including, where necessary, by ejecting persons who have crossed those borders.
8 Certain resources installations to be part of Australia
(1) For the purposes of this Act, a resources installation that:
(a) becomes attached to the Australian seabed after the commencement of this subsection; or
(b) at the commencement of this subsection, is attached to the Australian seabed;
shall, subject to subsection (2), be deemed to be part of Australia and shall be deemed not to be a place outside Australia.
(2) A resources installation that is deemed to be part of Australia by virtue of the operation of this section shall, for the purposes of this Act, cease to be part of Australia if:
(a) the installation is detached from the Australian seabed, or from another resources installation that is attached to the Australian seabed, for the purpose of being taken to a place outside the outer limits of Australian waters (whether or not the installation is to be taken to a place in Australia before being taken outside those outer limits); or
(b) after having been detached from the Australian seabed otherwise than for the purpose referred to in paragraph (a), the installation is moved for the purpose of being taken to a place outside the outer limits of Australian waters (whether or not the installation is to be taken to a place in Australia before being taken outside those outer limits).
9 Certain sea installations to be part of Australia
(1) For the purposes of this Act, a sea installation that:
(a) becomes installed in an adjacent area or in a coastal area after the commencement of this subsection; or
(b) at the commencement of this subsection, is installed in an adjacent area or in a coastal area;
shall, subject to subsection (2), be deemed to be part of Australia and shall be deemed not to be a place outside Australia.
(2) A sea installation that is deemed to be part of Australia because of the operation of this section shall, for the purposes of this Act, cease to be part of Australia if:
(a) the installation is detached from its location for the purpose of being taken to a place outside the outer limits of Australian waters; or
(b) after having been detached from its location otherwise than for the purpose referred to in paragraph (a), the installation is moved for the purpose of being taken to a place outside the outer limits of Australian waters.
9A Migration zone etc.—offshore resources activities
Migration zone etc.
(1) For the purposes of this Act, a person is taken to be in the migration zone while he or she is in an area to participate in, or to support, an offshore resources activity in relation to that area.
Example 1: A person is taken to be in the migration zone under this section if the person is on a vessel in an area to participate in an offshore resources activity under the Offshore Petroleum and Greenhouse Gas Storage Act 2006 in that area by exploring for, or recovering, petroleum.
Example 2: A person who is a member of the crew of the vessel is also taken to be in the migration zone under this section if the person is supporting the offshore resources activity.
Example 3: Neither a stowaway on the vessel, nor a person on the vessel because the person was rescued at sea, is taken to be in the migration zone, because neither is participating in, or supporting, the offshore resources activity.
(2) To avoid doubt, a person may be taken to be in the migration zone under subsection (1):
(a) whether or not the person’s participation in, or support of, an offshore resources activity in the area concerned has started, is continuing or has concluded; and
(b) whether or not the offshore resources activity concerned has started, is continuing or has concluded.
(3) For the purposes of this Act:
(a) a person is taken to be in Australia while he or she is taken to be in the migration zone because of subsection (1); and
(b) a person is taken to travel to Australia if the person travels to an area in which the person is taken to be in the migration zone because of subsection (1); and
(c) a person is taken to enter Australia when the person enters an area in which the person is taken to be in the migration zone because of subsection (1); and
(d) subject to section 80—a person is taken to leave Australia when the person leaves an area in which the person is taken to be in the migration zone because of subsection (1).
(4) Unless a provision of this Act, or another Act, expressly provides otherwise, this section does not have the effect of extending, for the purposes of another Act, the circumstances in which a person:
(a) is in the migration zone or is taken to be in the migration zone; or
(b) is in Australia or is taken to be in Australia; or
(c) travels to Australia or is taken to travel to Australia; or
(d) enters Australia or is taken to enter Australia; or
(e) leaves Australia or is taken to leave Australia.
Meaning of offshore resources activity
(5) In this section:
offshore resources activity, in relation to an area, means:
(a) a regulated operation (within the meaning of section 7 of the Offshore Petroleum and Greenhouse Gas Storage Act 2006) that is being carried out, or is to be carried out, within the area, except an operation determined by the Minister under subsection (6); or
(b) an activity performed under a licence or a special purpose consent (both within the meaning of section 4 of the Offshore Minerals Act 1994) that is being carried out, or is to be carried out, within the area, except an activity determined by the Minister under subsection (6); or
(c) an activity, operation or undertaking (however described) that is being carried out, or is to be carried out:
(i) under a law of the Commonwealth, a State or a Territory determined by the Minister under subsection (6); and
(ii) within the area, as determined by the Minister under subsection (6).
(6) The Minister may, in writing, make a determination for the purposes of the definition of offshore resources activity in subsection (5).
(7) A determination made under subsection (6) is a legislative instrument, but section 42 (disallowance) of the Legislation Act 2003 does not apply to the determination.
(8) To avoid doubt, for the purposes of subsection (1), a person may participate in, or support, an offshore resources activity in relation to an area whether the person:
(a) is on an Australian resources installation in the area; or
(b) is otherwise in the area to participate in, or support, the activity.
10 Certain children taken to enter Australia at birth
A child who:
(a) was born in the migration zone; and
(b) was a non‑citizen when he or she was born;
shall be taken to have entered Australia when he or she was born.
11 Visa applicable to 2 or more persons
Where:
(a) 2 or more persons who are the holders of the same visa travel to Australia on board the same vessel; and
(b) on entering Australia, one of those persons is in possession of evidence of that visa;
each of them shall, for the purposes of this Act, be taken to be in possession of that evidence on entering Australia.
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.
Note: For strict liability, see section 6.1 of the Criminal Code.
Penalty: Imprisonment for 6 months.
24 Information and documents that incriminate a person