A person is not excused from giving information or producing a document or a copy of a document under this Division on the ground that the information or the production of the document or copy might tend to incriminate the person, but:
(a) giving the information or producing the document or copy; or
(b) any information, document or thing obtained as a direct or indirect consequence of giving the information or producing the document or copy;
is not admissible in evidence against the person in any criminal proceedings other than a prosecution for:
(c) an offence against, or arising out of, this Division; or
(d) an offence against section 137.1 or 137.2 of the Criminal Code that relates to this Division.
25 Copies of documents
(1) The Minister may inspect a document or copy produced under this Division and may make and retain copies of, or take and retain extracts from, such a document or copy.
(2) The Minister may retain possession of a copy of a document produced in accordance with a requirement covered by paragraph 18(1)(c).
26 Minister may retain documents
(1) The Minister may, for the purposes of this Act, take, and retain for as long as is necessary for those purposes, possession of a document produced under this Division.
(2) The person otherwise entitled to possession of the document is entitled to be supplied, as soon as practicable, with a copy certified by the Minister to be a true copy.
(3) The certified copy must be received in all courts and tribunals as evidence as if it were the original.
(4) Until a certified copy is supplied, the Minister must, at such times and places as the Minister thinks appropriate, permit the person otherwise entitled to possession of the document, or a person authorised by that person, to inspect and make copies of, or take extracts from, the document.
27 Division binds the Crown
(1) This Division binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory.
(2) Nothing in this Division permits the Crown in right of the Commonwealth, of a State, of the Australian Capital Territory or of the Northern Territory to be prosecuted for an offence.
Division 3—Visas for non‑citizens
Subdivision A—General provisions about visas
28 Interpretation
In this Division:
specified period includes the period until a specified date.
29 Visas
(1) Subject to this Act, the Minister may grant a non‑citizen permission, to be known as a visa, to do either or both of the following:
(a) travel to and enter Australia;
(b) remain in Australia.
Note: A maritime crew visa is generally permission to travel to and enter Australia only by sea (as well as being permission to remain in Australia) (see section 38B).
(2) Without limiting subsection (1), a visa to travel to, enter and remain in Australia may be one to:
(a) travel to and enter Australia during a prescribed or specified period; and
(b) if, and only if, the holder travels to and enters during that period, remain in Australia during a prescribed or specified period or indefinitely.
(3) Without limiting subsection (1), a visa to travel to, enter and remain in Australia may be one to:
(a) travel to and enter Australia during a prescribed or specified period; and
(b) if, and only if, the holder travels to and enters during that period:
(i) remain in it during a prescribed or specified period or indefinitely; and
(ii) if the holder leaves Australia during a prescribed or specified period, travel to and re‑enter it during a prescribed or specified period.
(4) Without limiting section 83 (person taken to be included in visa), the regulations may provide for a visa being held by 2 or more persons.
30 Kinds of visas
(1) A visa to remain in Australia (whether also a visa to travel to and enter Australia) may be a visa, to be known as a permanent visa, to remain indefinitely.
(2) A visa to remain in Australia (whether also a visa to travel to and enter Australia) may be a visa, to be known as a temporary visa, to remain:
(a) during a specified period; or
(b) until a specified event happens; or
(c) while the holder has a specified status.
31 Classes of visas
(1) There are to be prescribed classes of visas.
Note: See also subsection 35A(4), which allows additional classes of permanent and temporary visas to be prescribed as protection visas by regulations made for the purposes of this subsection.
(2) As well as the prescribed classes, there are the classes provided for by the following provisions:
(3) The regulations may prescribe criteria for a visa or visas of a specified class (which, without limiting the generality of this subsection, may be a class provided for by section 32, 35A, 37, 37A or 38B but not by section 33, 34, 35, 38 or 38A).
(3A) To avoid doubt, subsection (3) does not require criteria to be prescribed for a visa or visas including, without limitation, visas of the following classes:
(a) special category visas (see section 32);
(b) permanent protection visas (see subsection 35A(2));
(c) temporary protection visas (see subsection 35A(3));
(ca) safe haven enterprise visas (see subsection 35A(3A));
(d) bridging visas (see section 37);
(e) temporary safe haven visas (see section 37A);
(f) maritime crew visas (see section 38B).
Note 1: An application for any of these visas is invalid if criteria relating to both the application and the grant of the visa have not been prescribed (see subsection 46AA(2)).
Note 2: If criteria are prescribed by the regulations for any of these visas, the visa cannot be granted unless any criteria prescribed by this Act, as well as any prescribed by regulation, are satisfied (see subsection 46AA(4)).
(4) The regulations may prescribe whether visas of a class are visas to travel to and enter Australia, or to remain in Australia, or both.
(5) A visa is a visa of a particular class if this Act or the regulations specify that it is a visa of that class.
32 Special category visas
(1) There is a class of temporary visas to be known as special category visas.
(2) A criterion for a special category visa is that the Minister is satisfied the applicant is:
(a) a non‑citizen:
(i) who is a New Zealand citizen and holds, and has presented to an officer or an authorised system, a New Zealand passport that is in force; and
(ii) is neither a behaviour concern non‑citizen nor a health concern non‑citizen; or
(b) a person declared by the regulations, to be a person for whom a visa of another class would be inappropriate; or
(c) a person in a class of persons declared by the regulations, to be persons for whom a visa of another class would be inappropriate.
(3) A person may comply with subparagraph (2)(a)(i) by presenting a New Zealand passport to an authorised system only if:
(a) the New Zealand passport is of a kind determined under section 175A to be an eligible passport for the purposes of Division 5 of Part 2; and
(c) before the person is granted a special category visa, neither the system nor an officer requires the person to present the passport to an officer.
33 Special purpose visas
(1) There is a class of temporary visas to travel to, enter and remain in Australia, to be known as special purpose visas.
(2) Subject to subsection (3), a non‑citizen is taken to have been granted a special purpose visa if:
(a) the non‑citizen:
(i) has a prescribed status; or
(ii) is a member of a class of persons that has a prescribed status; or
(b) the Minister declares, in writing, that:
(i) the non‑citizen is taken to have been granted a special purpose visa; or
(ii) persons of a class, of which the non‑citizen is a member, are taken to have been granted special purpose visas.
(3) A non‑citizen is not taken to have been granted a special purpose visa if a declaration under subsection (9) is in force in relation to the non‑citizen or a class of persons of which the non‑citizen is a member.
(4) A special purpose visa granted under subsection (2) is granted at the beginning of the later or latest of the following days:
(a) if paragraph (2)(a) applies:
(i) the day the non‑citizen commences to have the prescribed status;
(ii) the day the class of persons, of which the non‑citizen is a member, commences to have the prescribed status;
(iii) the day the non‑citizen commences to be a member of the class of persons that has a prescribed status;
(b) if paragraph (2)(b) applies:
(i) the day the declaration is made;
(ii) if a day is specified in the declaration as the day the visa comes into effect—that day;
(iii) the day the non‑citizen commences to be a member of the class of persons specified in the declaration.
(5) A special purpose visa ceases to be in effect at the earliest of the following times:
(a) if paragraph (2)(a) applies:
(i) if the non‑citizen ceases to have a prescribed status—the end of the day on which the non‑citizen so ceases; or
(ii) if the non‑citizen ceases to be a member of a class of persons that has a prescribed status—the end of the day on which the non‑citizen so ceases; or
(iii) if the Minister makes a declaration under subsection (9) in relation to the non‑citizen, or a class of persons of which the non‑citizen is a member—the time when that declaration takes effect;
(b) if paragraph (2)(b) applies:
(i) if a day is specified in the declaration as the day the visa ceases to be in effect—the end of that day; or
(ii) if an event is specified in the declaration as the event that causes the visa to cease to be in effect—the end of the day on which the event happens; or
(iii) if the non‑citizen ceases to be a member of a class of persons specified in the declaration—the end of the day on which the non‑citizen so ceases; or
(iv) if the declaration is revoked—the end of the day of the revocation; or
(v) if the Minister makes a declaration under subsection (9) in relation to the non‑citizen, or a class of persons of which the non‑citizen is a member—the time when that declaration takes effect.
(5A) For the purposes of subsection (5), the time when a declaration made by the Minister under subsection (9) takes effect is:
(a) if the Minister specifies a time in the declaration (which must be after the time when the declaration is made) as the time the declaration takes effect—the time so specified; or
(b) if the Minister does not specify such a time in the declaration—the end of the day on which the declaration is made.
(6) If the Minister makes a declaration under paragraph (2)(b), he or she is to cause to be laid before each House of the Parliament a statement that:
(a) sets out the contents of the declaration; and
(b) sets out the Minister’s reasons for the declaration.
(7) A statement under subsection (6) is not to include:
(a) the name of the non‑citizen; or
(b) if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned—the name of that other person.
(8) A statement under subsection (6) is to be laid before each House of the Parliament within 15 sitting days of that House after:
(a) if the declaration is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or
(b) if the declaration is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.
(9) The Minister may make a written declaration, for the purposes of this section, that it is undesirable that a person, or any persons in a class of persons, travel to and enter Australia or remain in Australia.
(10) Section 43 and Subdivisions AA, AB, AC (other than section 68), AG, AH, C, D, E, F, FA, FB and H do not apply in relation to special purpose visas.
34 Absorbed person visas
(1) There is a class of permanent visas to remain in, but not re‑enter, Australia, to be known as absorbed person visas.
(2) A non‑citizen in the migration zone who:
(a) on 2 April 1984 was in Australia; and
(b) before that date, had ceased to be an immigrant; and
(c) on or after that date, has not left Australia, where left Australia has the meaning it had in this Act before 1 September 1994; and
(d) immediately before 1 September 1994, was not a person to whom section 20 of this Act as in force then applied;
is taken to have been granted an absorbed person visa on 1 September 1994.
(3) Subdivisions AA, AB, AC (other than section 68) and AH do not apply in relation to absorbed person visas.
35 Ex‑citizen visas
(1) There is a class of permanent visas to remain in, but not re‑enter, Australia, to be known as ex‑citizen visas.
(2) A person who:
(a) before 1 September 1994, ceased to be an Australian citizen while in the migration zone; and
(b) did not leave Australia after ceasing to be a citizen and before that date;
is taken to have been granted an ex‑citizen visa on that date.
(3) A person who, on or after 1 September 1994, ceases to be an Australian citizen while in the migration zone is taken to have been granted an ex‑citizen visa when that citizenship ceases.
(4) Subdivisions AA, AB, AC (other than section 68) and AH do not apply in relation to ex‑citizen visas.
35A Protection visas—classes of visas
(1) A protection visa is a visa of a class provided for by this section.
(2) There is a class of permanent visas to be known as permanent protection visas.
Note: These visas were classified by the Migration Regulations 1994 as Protection (Class XA) visas when this section commenced.
(3) There is a class of temporary visas to be known as temporary protection visas.
Note: These visas were classified by the Migration Regulations 1994 as Temporary Protection (Class XD) visas when this section commenced.
(3A) There is a class of temporary visas to be known as safe haven enterprise visas.
(3B) The purpose of safe haven enterprise visas is both to provide protection and to encourage enterprise through earning and learning while strengthening regional Australia.
Note: If a person satisfies the requirements for working, study and accessing social security prescribed for the purposes of paragraph 46A(1A)(c), section 46A will not bar the person from making a valid application for any of the onshore visas prescribed for the purposes of paragraph 46A(1A)(b). This does not include permanent protection visas.
(4) Regulations made for the purposes of subsection 31(1) may prescribe additional classes of permanent and temporary visas as protection visas.
(5) A class of visas that was formerly provided for by subsection 36(1), as that subsection was in force before the commencement of this section, is also a class of protection visas for the purposes of this Act and the regulations.
Example: An example of a class of visas for subsection (5) is the class of visas formerly classified by the Migration Regulations 1994 as Protection (Class AZ) visas. These visas can no longer be granted.
Note: This section commenced, and subsection 36(1) was repealed, on the commencement of Part 1 of Schedule 2 to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014.
(6) The criteria for a class of protection visas are:
(a) the criteria set out in section 36; and
(b) any other relevant criteria prescribed by regulation for the purposes of section 31.
Note: See also Subdivision AL.
36 Protection visas—criteria provided for by this Act
(1A) An applicant for a protection visa must satisfy:
(a) both of the criteria in subsections (1B) and (1C); and
(b) at least one of the criteria in subsection (2).
(1B) A criterion for a protection visa is that the applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979).
(1C) A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:
(a) is a danger to Australia’s security; or
(b) having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.
Note: For paragraph (b), see section 5M.
(2) A criterion for a protection visa is that the applicant for the visa is:
(a) a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm; or
(b) a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:
(i) is mentioned in paragraph (a); and
(ii) holds a protection visa of the same class as that applied for by the applicant; or
(c) a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:
(i) is mentioned in paragraph (aa); and
(ii) holds a protection visa of the same class as that applied for by the applicant.
(2A) A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or