(i) the Minister is not satisfied, on the balance of probabilities, that the non‑citizen poses a substantial risk of seriously harming any part of the Australian community by committing a serious offence; or
(ii) if the Minister is satisfied, on the balance of probabilities, that the non‑citizen poses the substantial risk mentioned in subparagraph (i)—the Minister is not satisfied, on the balance of probabilities, that the imposition of that condition, or those conditions, is reasonably necessary, and reasonably appropriate and adapted, for the purpose of protecting any part of the Australian community from serious harm by addressing that substantial risk.
Note: If the Minister grants the second visa, the first visa will cease to be in effect, and the visa period for the first visa will end, on the grant of the second visa (see subsections 68(4) and (5)).
(4A) In determining whether to grant a visa in accordance with subsection (4), the Minister must decide whether to impose each condition prescribed for the purposes of subsection (1) in the same order as required by the regulations.
(5) The Minister must give the non‑citizen written notice of the decision and the reasons for the decision.
(6) To avoid doubt, nothing in this section prevents the grant, from time to time, of a Subclass 070 (Bridging (Removal Pending)) visa to the non‑citizen.
(7) In this section:
serious offence has the same meaning as in Part 070 of Schedule 2 to the Migration Regulations 1994.
76F Powers of officers etc.
Powers relating to monitoring devices and related monitoring equipment
(1) An authorised officer may do all things necessary or convenient to be done for any of the following purposes in relation to a person who is subject to monitoring:
(a) installing, fitting, or removing the person’s monitoring device or related monitoring equipment for the person’s monitoring device;
(b) maintaining, repairing or otherwise keeping in good working order the person’s monitoring device or related monitoring equipment for the person’s monitoring device;
(c) operating or using the person’s monitoring device or related monitoring equipment for the person’s monitoring device;
(d) determining or monitoring the location of:
(i) the person; or
(ii) an object, or the status of an object, that relates to the person;
through the operation of a monitoring device or related monitoring equipment.
Collection, use and disclosure of information
(2) An authorised officer may collect, use, or disclose to any other person, information (including personal information) for any of the following purposes:
(a) determining whether a requirement of a condition of a visa held by a person who is subject to monitoring is being, or has been, complied with;
(b) determining whether a person who is subject to monitoring has committed an offence against this Act or the regulations;
(c) protecting the community in relation to persons who are subject to monitoring;
(d) facilitating the location of a person subject to monitoring who is suspected of having failed to comply with a requirement of a condition of a visa held by the person;
(e) facilitating the location of a person who is or has been subject to monitoring in the event that either or both of the following apply:
(i) there is a real prospect of the removal of the person from Australia becoming practicable in the reasonably foreseeable future;
(ii) a visa held by the person ceases to be in effect;
(f) facilitating the performance of functions, and exercise of powers, of authorised officers under this Act (including this section) and the regulations in relation to persons who are or have been subject to monitoring.
Powers may be exercised despite other laws
(3) An authorised officer may exercise a power under subsection (1) or (2) despite any other provision of:
(a) this Act or the regulations (other than regulations made for the purposes of subsection (4) of this section); or
(b) any other law of the Commonwealth, a State or a Territory (whether written or unwritten).
Powers are exercisable subject to regulations
(4) An authorised officer’s exercise of a power under subsection (1) or (2) is subject to any conditions, restrictions or other limitations that are prescribed by the regulations for the purposes of this subsection.
Other powers not limited
(5) The conferral of a power on an authorised officer by subsection (1) or (2) does not, by implication, limit any other powers that exist, or existed, for an authorised officer or any other person to do:
(a) a thing authorised by either of those subsections; or
(b) any other thing.
Definitions
(6) In this section:
authorised officer, when used in subsection (1) or (2), includes:
(a) a person who is authorised in writing by the Minister, the Secretary or the Australian Border Force Commissioner for the purposes of that provision; and
(b) a person who is included in a class of persons authorised in writing by the Minister, the Secretary or the Australian Border Force Commissioner for the purposes of that provision, including a person who becomes a member of the class after the authorisation is given.
Note: This definition does not limit the definition of authorised officer in subsection 5(1).
monitoring device has the same meaning as in section 76D.
related monitoring equipment, for a monitoring device, has the same meaning as in section 76D.
subject to monitoring: a person is subject to monitoring if the person holds a Subclass 070 (Bridging (Removal Pending)) visa that is subject to a condition requiring the person to wear a monitoring device at all times.
Subdivision AG—Other provisions about visas
77 Visas held during visa period
To avoid doubt, for the purposes of this Act, a non‑citizen holds a visa at all times during the visa period for the visa.
78 Children born in Australia
(1) If:
(a) a child born in Australia is a non‑citizen when born; and
(b) at the time of the birth:
(i) one of the child’s parents holds a visa (other than a special purpose visa); and
(ii) the other parent is, under section 83, included in that visa or does not hold a visa (other than a special purpose visa);
the child is taken to have been granted, at the time of the birth, a visa of the same kind and class and on the same terms and conditions (if any) as that visa.
(2) If:
(a) a child born in Australia is a non‑citizen when born; and
(b) at the time of the birth, each of the child’s parents holds a visa (other than a special purpose visa);
the child is taken to have been granted, at the time of the birth, visas of the same kind and class and on the same terms and conditions (if any) as each of those visas.
(3) Subdivisions AA, AB, AC (other than section 68) and AH do not apply in relation to visas granted under this section.
79 Effect on visa of leaving Australia
If the holder of a visa leaves Australia the holder may only re‑enter Australia because of the visa if:
(a) the visa is permission for the re‑entry; and
(b) the visa is in effect on re‑entry.
80 Certain persons taken not to leave Australia
A person is taken not to leave Australia if the person goes outside the migration zone on a vessel and:
(a) does not go (other than for transit purposes) to a foreign country; and
(b) remains a passenger, or a member of the crew, of that vessel while outside the migration zone; and
(c) is outside the migration zone for no longer than the prescribed period.
81 Extent of visa authority
(1) A visa to travel to Australia during a period is not permission to travel to it outside that period.
(2) A visa to enter Australia within a period is not permission to so enter outside that period.
(3) A visa to remain in Australia during a period is not permission to so remain outside that period.
82 When visas cease to be in effect
(1) A visa that is cancelled ceases to be in effect on cancellation.
(2) A substantive visa held by a non‑citizen ceases to be in effect if another substantive visa (other than a special purpose visa) for the non‑citizen comes into effect.
(2AA) Despite subsection (2):
(a) a maritime crew visa held by a non‑citizen does not cease to be in effect if a substantive visa for the non‑citizen that is of a class specified by the Minister, by legislative instrument, for the purposes of this subsection comes into effect; and
(b) a substantive visa held by a non‑citizen that is of a class specified by the Minister, by legislative instrument, for the purposes of this subsection does not cease to be in effect if a maritime crew visa for the non‑citizen comes into effect.
(2A) A temporary visa held by a non‑citizen ceases to be in effect if an enforcement visa for the non‑citizen comes into effect.
(3) A bridging visa held by a non‑citizen ceases to be in effect if another visa (other than a special purpose visa or a maritime crew visa) for the non‑citizen comes into effect.
(4) A visa ceases to be in effect when the holder leaves Australia because of a deportation order made under section 200.
(5) A visa to travel to and enter Australia (whether also a visa to remain in Australia) during a particular period or until a particular date ceases to be in effect at the end of that period or on that date unless the holder of the visa:
(a) has entered Australia in that period or on or before that date; and
(b) is in Australia at the end of that period or on that date.
(6) A visa to travel to and enter Australia (whether also a visa to remain in Australia) during a particular period or until a particular date ceases to be in effect if the holder leaves Australia after that period or date.
(7) A visa to remain in Australia (whether also a visa to travel to and enter Australia) during a particular period or until a particular date ceases to be in effect at the end of that period or on that date.
(7A) A bridging visa permitting the holder to remain in, or to travel to, enter and remain in, Australia until a specified event happens, ceases to be in effect the moment the event happens.
(8) A visa to remain in, but not re‑enter, Australia that is granted to a non‑citizen in Australia ceases to be in effect if the holder leaves Australia.
(9) This section does not affect the operation of other provisions of this Act under which a visa ceases to be in effect (such as sections 84E, 173 and 174).
(10) For the purposes of subsections (5), (6) and (7), particular date includes:
(a) the date an event, specified in the visa, happens; or
(b) the date the holder ceases to have a status specified in the visa or the regulations.
83 Certain persons taken to be included in spouse, de facto partner or parent’s visa
(1) Where:
(a) a person’s name is included in the passport or other document of identity of the person’s spouse or de facto partner; and
(b) the person accompanies his or her spouse or de facto partner to Australia (whether before or after the commencement of this section);
the person shall be taken to be included in any visa granted to the spouse or de facto partner evidence of which is endorsed on the passport or other document of identity if, and only if, the person’s name is included in the endorsement.
Note: Subsection 5(1) defines de facto partner and spouse. For the purposes of this section, those definitions apply only in relation to visas granted on or after 1 July 2009: see the Same‑Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Act 2008. This section as in force before the amendment of this Act by that Act continues to apply in relation to visas granted before 1 July 2009.
(2) Where:
(a) the name of a child is included in the passport or other document of identity of a parent of the child; and
(b) the child accompanies that parent to Australia (whether before or after the commencement of this section);
the child shall be taken to be included in any visa granted to the parent evidence of which is endorsed on the passport or other document of identity if, and only if, the child’s name is included in the endorsement.
Note: Subsection 5(1) defines child and parent. For the purposes of this section, those definitions apply only in relation to visas granted on or after 1 July 2009: see the Same‑Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Act 2008.
84 Minister may suspend processing of visa applications
(1) The Minister may, by legislative instrument, determine that dealing with applications for visas (including protection visas) of a specified class is to stop until a day specified in the determination (in this section called the resumption day).
(2) On and after the commencement of an instrument made under subsection (1), no act is to be done in relation to any application for a visa of the class concerned until the resumption day.
(3) A determination under this section does not have any effect in relation to an application for a visa made by a person on the ground that he or she is the spouse, de facto partner or dependent child of:
(a) an Australian citizen; or
(b) the holder of a permanent visa that is in effect; or
(c) a person who is usually resident in Australia and whose continued presence in Australia is not subject to a limitation as to time imposed by law.
(4) Nothing in this section prevents an act being done to implement a decision to grant or to refuse to grant a visa if the decision had been made before the date of the determination concerned.
(5) For the purposes of this section, a child of a person is a dependent child if the child:
(a) does not have a spouse or de facto partner; and
(b) either:
(i) is under 18; or
(ii) is 18, 19 or 20 and is dependent on the person for:
(A) financial and psychological support; or
(B) physical support.
(6) In this section:
act means an act connected with performing functions or exercising powers under or for the purposes of this Act.
Subdivision AGA—Arrival control determinations
84A Object of Subdivision
The object of this Subdivision is to allow temporary restrictions on the arrival of certain classes of temporary visa holders in Australia, where this is necessary to protect the integrity and sustainability of Australia’s immigration system, including when events or circumstances outside Australia mean that there is an increased risk that certain classes of temporary visa holders will not depart Australia when their visas cease to be in effect.
84B Minister may make arrival control determinations
(1) The Minister may, by legislative instrument, make a determination (an arrival control determination) specifying that section 84E (suspension of temporary visas held by non‑citizens) applies, either generally or in specified circumstances, to one or more specified classes of non‑citizens.
Note: Section 84F requires the Minister to cause a copy of an arrival control determination to be tabled in each House of the Parliament within 2 sitting days of that House after making the determination.
(2) Before making an arrival control determination, the Minister must be reasonably satisfied that:
(a) an event or circumstance has occurred, or is occurring, outside Australia; and
(b) one or both of the following apply:
(i) having regard to the event or circumstance, non‑citizens of a kind to whom the determination is to apply may, if they enter Australia on a temporary visa, remain in Australia after the visa ceases to be in effect;
(ii) if the event or circumstance had occurred, or had been occurring, at the time non‑citizens of a kind to whom the determination is to apply were to make an application for a temporary visa, the visa may not have been granted; and
(c) having regard to the object of this Subdivision, it is in the national interest to make the determination.
(3) Before making an arrival control determination, the Minister must obtain agreement in writing to the making of the determination from:
(a) the Prime Minister; and
(b) the Minister administering the Diplomatic Privileges and Immunities Act 1967.
(4) The Minister may, by legislative instrument, revoke an arrival control determination made under subsection (1).
When arrival control determination is in force
(5) An arrival control determination must specify the period for which the determination is in force, which must not be longer than the period that the Minister considers appropriate in all the circumstances.
Note: Under subsection (6), an arrival control determination cannot be in force longer than the period of 6 months beginning on the day after the day the determination commences.
(6) An arrival control determination is repealed at the earlier of the following times (unless revoked earlier under subsection (4)):
(a) the end of the period specified for the purposes of subsection (5);
(b) the end of the period of 6 months beginning on the day after the day the determination commences.
Personal power etc.
(7) The power under subsection (1) or (4) may only be exercised by the Minister personally.
(8) The rules of natural justice do not apply to an exercise of power under subsection (1) or (4).
(9) Subsection 33(3) of the Acts Interpretation Act 1901 does not apply to the power under subsection (1) of this section.
Note: An arrival control determination may not be varied or amended, but may be revoked under subsection (4) of this section.
(10) Nothing in this Act prevents the Minister from exercising the power in subsection (1) more than once in relation to:
(a) the same event or circumstance; or
(b) the same class of non‑citizens.
(11) An arrival control determination may make different provision with respect to different classes of non‑citizens.
(12) The Minister must ensure only one arrival control determination is in force in relation to a particular class of non‑citizens at any one time.
(13) Section 42 (disallowance) of the Legislation Act 2003 does not apply to: