(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B) However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
Ineligibility for grant of a protection visa
(2C) A non‑citizen is taken not to satisfy the criterion mentioned in paragraph (2)(aa) if:
(a) the Minister has serious reasons for considering that:
(i) the non‑citizen has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or
(ii) the non‑citizen committed a serious non‑political crime before entering Australia; or
(iii) the non‑citizen has been guilty of acts contrary to the purposes and principles of the United Nations; or
(b) the Minister considers, on reasonable grounds, that:
(i) the non‑citizen is a danger to Australia’s security; or
(ii) the non‑citizen, having been convicted by a final judgment of a particularly serious crime (including a crime that consists of the commission of a serious Australian offence or serious foreign offence), is a danger to the Australian community.
Protection obligations
(3) Australia is taken not to have protection obligations in respect of a non‑citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non‑citizen is a national.
(4) However, subsection (3) does not apply in relation to a country in respect of which:
(a) the non‑citizen has a well‑founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or
(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non‑citizen will suffer significant harm in relation to the country.
(5) Subsection (3) does not apply in relation to a country if the non‑citizen has a well‑founded fear that:
(a) the country will return the non‑citizen to another country; and
(b) the non‑citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.
(5A) Also, subsection (3) does not apply in relation to a country if:
(a) the non‑citizen has a well‑founded fear that the country will return the non‑citizen to another country; and
(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non‑citizen will suffer significant harm in relation to the other country.
Determining nationality
(6) For the purposes of subsection (3), the question of whether a non‑citizen is a national of a particular country must be determined solely by reference to the law of that country.
(7) Subsection (6) does not, by implication, affect the interpretation of any other provision of this Act.
36A Consideration of protection obligations
(1) In considering a valid application for a protection visa made by a non‑citizen, the Minister must consider and make a record of whether the Minister is satisfied of any of the following:
(a) the non‑citizen satisfies the criterion in paragraph 36(2)(a) with respect to a country and also satisfies the criterion in subsection 36(1C);
(b) the non‑citizen satisfies the criterion in paragraph 36(2)(aa) with respect to a country;
(c) the non‑citizen:
(i) satisfies the criterion in paragraph 36(2)(a) with respect to a country but does not satisfy the criterion in subsection 36(1C); and
(ii) would satisfy the criterion in paragraph 36(2)(aa) with respect to a country except that the non‑citizen is a non‑citizen mentioned in paragraph 36(2)(a).
(2) The Minister must do so:
(a) before deciding whether to grant or refuse to grant the visa; and
(b) before considering whether the non‑citizen satisfies any other criteria for the grant of the visa; and
(c) before considering whether the grant of the visa is prevented by any provision of the Act or regulations; and
(d) without regard to subsections 36(2C) and (3).
(3) Subsection (1) does not apply if:
(a) the non‑citizen (the family applicant) is a member of the same family unit as another non‑citizen (the family visa holder) who holds a protection visa of the same class as the visa the family applicant is applying for; and
(b) the family applicant’s application for a protection visa was made before the family visa holder was granted their visa; and
(c) the family visa holder is a non‑citizen mentioned in paragraph 36(2)(a) or (aa).
37 Bridging visas
There are classes of temporary visas, to be known as bridging visas, to be granted under Subdivision AF.
37A Temporary safe haven visas
(1) There is a class of temporary visas to travel to, enter and remain in Australia, to be known as temporary safe haven visas.
Note: A temporary safe haven visa is granted to a person to give the person temporary safe haven in Australia.
(2) The Minister may, by notice in the Gazette, extend the visa period of a temporary safe haven visa so that the visa ceases to be in effect on the day specified in the notice.
(3) The Minister may, by notice in the Gazette, shorten the visa period of a temporary safe haven visa so that the visa ceases to be in effect on the day specified in the notice if, in the Minister’s opinion, temporary safe haven in Australia is no longer necessary for the holder of the visa because of changes of a fundamental, durable and stable nature in the country concerned.
(4) If a notice under subsection (3) is published in the Gazette, the Minister must cause a copy of the notice to be laid before each House of the Parliament within 3 sitting days of that House after the publication of the notice, together with a statement that sets out the reasons for the notice, referring in particular to the Minister’s reasons for thinking that changes of a fundamental, durable and stable nature have occurred in the country concerned.
(5) If a notice under subsection (2) or (3) is published in the Gazette and has not been revoked, then the visa ceases to be in effect on the day specified in the notice, despite any other provision of this Act.
(6) The Minister does not have a duty to consider whether to exercise the power under subsection (2) in respect of any non‑citizen, whether he or she is requested to do so by the non‑citizen or by any other person, or in any other circumstances.
(7) In this section:
country concerned means the country or countries in which the circumstances exist that give rise to the grant of temporary safe haven visas.
38 Criminal justice visas
There is a class of temporary visas, to be known as criminal justice visas, to be granted under Subdivision D of Division 4.
38A Enforcement visas
There is a class of temporary visas to travel to, enter and remain in Australia, to be known as enforcement visas.
Note: Division 4A deals with these visas.
38B Maritime crew visas
(1) There is a class of temporary visas to travel to and enter Australia by sea, and to remain in Australia, to be known as maritime crew visas.
(2) Subject to subsection 43(1B), a maritime crew visa held by a non‑citizen does not grant the non‑citizen permission to travel to or enter Australia by air.
Note: However, a non‑citizen might also hold another class of visa that allows the non‑citizen to travel to and enter Australia by air.
(3) The Minister may make a written declaration, for the purposes of this section, that it is undesirable that a person, or any persons in a class of persons, travel to and enter Australia, or remain in Australia.
(4) If the Minister makes a declaration under subsection (3) in relation to a person, or a class of persons of which a person is a member, a maritime crew visa held by that person ceases to be in effect:
(a) if the Minister specifies a time in the declaration (which must be after the time when the declaration is made) as the time the declaration takes effect—at the time so specified; or
(b) if the Minister does not specify such a time in the declaration—at the end of the day on which the declaration is made.
Note: A maritime crew visa can also cease to be in effect under other sections (see for example section 82).
(5) If the Minister revokes a declaration made under subsection (4), the Minister is taken never to have made the declaration.
Note: Under subsection 33(3) of the Acts Interpretation Act 1901, the Minister may revoke a declaration made under subsection (4).
(6) Despite subsection (5), any detention of the non‑citizen that occurred during any part of the period:
(a) beginning when the Minister made the declaration; and
(b) ending at the time of the revocation of the declaration;
is lawful and the non‑citizen is not entitled to make any claim against the Commonwealth, an officer or any other person because of the detention.
39 Criterion limiting number of visas
(1) In spite of section 14 of the Legislation Act 2003, a prescribed criterion for visas of a class, other than protection visas, may be the criterion that the grant of the visa would not cause the number of visas of that class granted in a particular financial year to exceed whatever number is fixed by the Minister, by legislative instrument, as the maximum number of such visas that may be granted in that year (however the criterion is expressed).
(2) For the purposes of this Act, when a criterion allowed by subsection (1) prevents the grant in a financial year of any more visas of a particular class, any outstanding applications for the grant in that year of visas of that class are taken not to have been made.
39A Minimum annual numbers of Protection (Class XA) visas and Refugee and Humanitarian (Class XB) visas
(1) Despite any legislative instrument made for the purposes of section 39, the Minister must take all reasonably practicable measures to ensure the grant in a financial year of at least the minimum total number of Protection (Class XA) visas and Refugee and Humanitarian (Class XB) visas that is determined by the Minister under subsection (3) of this section for that year.
(2) Subsection (1) applies subject to this Act, and to any regulation or instrument made under or for the purposes of this Act (other than section 39 of this Act).
(3) The Minister may, by legislative instrument, determine a minimum total number of Protection (Class XA) visas and Refugee and Humanitarian (Class XB) visas for a financial year specified in the determination.
(4) Despite regulations made for the purposes of paragraph 44(2)(b) of the Legislation Act 2003, section 42 (disallowance) of that Act applies to a legislative instrument made under subsection (3) of this section.
(5) In this section:
Protection (Class XA) visas means visas classified by regulation as Protection (Class XA) visas.
Note: For this class of visas, see clause 1401 of Schedule 1 to the Migration Regulations 1994.
Refugee and Humanitarian (Class XB) visas means visas classified by regulation as Refugee and Humanitarian (Class XB) visas.
Note: For this class of visas, see clause 1402 of Schedule 1 to the Migration Regulations 1994.
40 Circumstances for granting visas
(1) The regulations may provide that visas or visas of a specified class may only be granted in specified circumstances.
(2) Without limiting subsection (1), the circumstances may be, or may include, that, when the person is granted the visa, the person:
(a) is outside Australia; or
(b) is in immigration clearance; or
(c) has been refused immigration clearance and has not subsequently been immigration cleared; or
(d) is in the migration zone and, on last entering Australia:
(i) was immigration cleared; or
(ii) bypassed immigration clearance and had not subsequently been immigration cleared.
(3) Without limiting subsection (1), the circumstances may be, or may include, that a person has complied with any requirement to provide one or more personal identifiers made under section 257A.
41 Conditions on visas
(1) The regulations may provide that visas, or visas of a specified class, are subject to specified conditions.
General rules about conditions
(2) Without limiting subsection (1), the regulations may provide that a visa, or visas of a specified class, are subject to:
(a) a condition that, despite anything else in this Act, the holder of the visa will not, after entering Australia, be entitled to be granted a substantive visa (other than a protection visa, or a temporary visa of a specified kind) while he or she remains in Australia; or
(b) a condition imposing restrictions about the work that may be done in Australia by the holder, which, without limiting the generality of this paragraph, may be restrictions on doing:
(i) any work; or
(ii) work other than specified work; or
(iii) work of a specified kind.
(2A) The Minister may, in prescribed circumstances, by writing, waive a condition of a kind described in paragraph (2)(a) to which a particular visa is subject under regulations made for the purposes of that paragraph or under subsection (3).
Conditions about offshore resources activity
(2B) In addition to any restrictions applying because of regulations made for the purposes of paragraph (2)(b), a condition of a visa that allows the holder of the visa to work is not taken to allow the holder to participate in, or support, an offshore resources activity in relation to any area unless the visa is:
(a) a permanent visa; or
(b) a visa prescribed by the regulations for the purposes of this subsection.
Note: For offshore resources activity, see subsection 9A(5).
(2C) To avoid doubt, for the purposes of subsection (2B), a person may participate in, or support, an offshore resources activity in relation to an area whether the person:
(a) is on an Australian resources installation in the area; or
(b) is, under section 9A, otherwise in the area to participate in, or support, the activity.
Additional conditions
(3) In addition to any conditions specified under subsection (1), or in subsection (2B), the Minister may specify that a visa is subject to such conditions as are permitted by the regulations for the purposes of this subsection.
42 Visa essential for travel
(1) Subject to subsections (2), (2A) and (3), a non‑citizen must not travel to Australia without a visa that is in effect.
Note: A maritime crew visa is generally permission to travel to Australia only by sea (see section 38B).
(2) Subsection (1) does not apply to an allowed inhabitant of the Protected Zone travelling to a protected area in connection with traditional activities.
(2A) Subsection (1) does not apply to a non‑citizen in relation to travel to Australia:
(a) if the travel is by a New Zealand citizen who holds and produces a New Zealand passport that is in force; or
(c) if:
(i) the non‑citizen is brought to the migration zone under subsection 245F(9) of this Act or under Division 7 or 8 of Part 3 of the Maritime Powers Act 2013; and
(ii) the non‑citizen is a person who would, if in the migration zone, be an unlawful non‑citizen; or
(ca) if the non‑citizen is brought to Australia under section 198B; or
(d) if:
(i) an attempt to remove the non‑citizen under section 198 to another country was made but the removal was not completed; and
(ii) the non‑citizen travels to Australia as a direct result of the removal not being completed; and
(iii) the non‑citizen is a person who would, if in the migration zone, be an unlawful non‑citizen; or
(da) if:
(i) the non‑citizen has been removed under section 198 to another country but the non‑citizen does not enter the other country; and
(ii) the non‑citizen travels to Australia as a direct result of not entering the other country; and
(iii) the non‑citizen is a person who would, if in the migration zone, be an unlawful non‑citizen; or
(e) if:
(i) the non‑citizen has been removed under section 198; and
(ii) before the removal the High Court, the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) had made an order in relation to the non‑citizen, or the Minister had given an undertaking to the High Court, the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) in relation to the non‑citizen; and
(iii) the non‑citizen’s travel to Australia is required in order to give effect to the order or undertaking; and
(iv) the Minister has made a declaration that this paragraph is to apply in relation to the non‑citizen’s travel; and
(v) the non‑citizen is a person who would, if in the migration zone, be an unlawful non‑citizen.
(3) The regulations may permit a specified non‑citizen or a non‑citizen in a specified class to travel to Australia without a visa that is in effect.
(4) Nothing in subsection (2A) or (3) is to be taken to affect the non‑citizen’s status in the migration zone as an unlawful non‑citizen.