(a) an arrival control determination made under subsection (1); or
(b) a revocation of an arrival control determination under subsection (4).
84C Arrival control determination does not apply in relation to certain kinds of non‑citizens
(1) An arrival control determination does not apply at a particular time in relation to a non‑citizen if, at that time, the non‑citizen holds:
(a) a protection visa that is a temporary visa; or
(b) a temporary safe haven visa; or
(c) a visa classified by the regulations as a Temporary (Humanitarian Concern) (Class UO) visa; or
(d) a bridging visa granted as a result of an application for a visa of a kind referred to in any of paragraphs (a), (b) or (c).
Note 1: A protection visa is a visa of a class provided for by section 35A. Examples of protection visas that are temporary visas include temporary protection visas (see subsection 35A(3)) and safe haven enterprise visas (see subsection 35A(3A)).
Note 2: An arrival control determination does not cause permanent visas to cease to be in effect (see subsection 84E(1)). As a result, permanent visas such as permanent protection visas, or visas classified by the regulations as a Refugee and Humanitarian (Class XB) visa are not affected by an arrival control determination.
(2) Subsection (1) has effect in relation to a visa holder regardless of whether the visa is granted before, on or after the time the determination comes into force.
(3) An arrival control determination does not apply at any time in relation to a non‑citizen if the non‑citizen is in the migration zone at the time the determination commences.
(4) An arrival control determination does not apply in relation to a non‑citizen at a particular time if, at that time, the non‑citizen is:
(a) the spouse, de facto partner or dependent child (within the meaning of the regulations) of:
(i) an Australian citizen; or
(ii) the holder of a permanent visa that is in effect; or
(iii) 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; or
(b) the parent of a child who is under 18 and who is in Australia; or
(c) the subject of a permitted travel certificate that is in force.
Note: An arrival control determination does not apply to a non‑citizen if the Minister issues a permitted travel certificate in relation to the non‑citizen (see subsection 84D(1)). Under subsection 84D(5), a permitted travel certificate may not be revoked while the non‑citizen is in the migration zone.
(5) Subsections (1), (3) and (4) apply despite anything in an arrival control determination.
84D Minister may certify that arrival control determination does not apply in relation to a particular non‑citizen
(1) The Minister may issue a certificate (a permitted travel certificate) providing that an arrival control determination does not apply in relation to a particular non‑citizen if the Minister is satisfied in all the circumstances that it is appropriate for the determination not to apply to that non‑citizen (whether or not the certificate is requested under subsection (2)).
(2) A non‑citizen, or a person authorised to act on behalf of the non‑citizen, may make a request in writing to the Minister for a permitted travel certificate in relation to the non‑citizen.
(3) If the Minister issues a permitted travel certificate in relation to a non‑citizen, the certificate has effect despite anything in the arrival control determination.
Note: An arrival control determination may specify 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.
(4) A permitted travel certificate must be in writing.
(5) The Minister may, in writing, revoke a permitted travel certificate in relation to a non‑citizen at a particular time if the non‑citizen is not in the migration zone at that time.
Other matters
(6) Each of the following is not a legislative instrument:
(a) a permitted travel certificate;
(b) a revocation under subsection (5).
(7) The rules of natural justice do not apply to an exercise of power under subsection (1) or (5).
(8) The Minister does not have a duty to consider whether to exercise the power to issue a permitted travel certificate in relation to a particular non‑citizen, whether the Minister is requested to do so under subsection (2), or in any other circumstances.
Report to Parliament
(9) The Minister must, as soon as practicable after the end of each period of 6 months beginning on 1 January or 1 July, cause a report to be laid before each House of the Parliament containing a statement of the number of permitted travel certificates issued under this section during the period.
84E Temporary visas of non‑citizens in class specified in arrival control determination cease to be in effect etc.
Temporary visa of non‑citizen not in the migration zone ceases to be in effect
(1) A temporary visa held by a non‑citizen ceases to be in effect if an arrival control determination that is in force applies to the non‑citizen.
Note 1: In general, non‑citizens must not travel to Australia without a visa that is in effect (see section 42). Visa holders are usually required to enter Australia at a port (see section 43). A person who enters Australia must provide evidence of their identity (see section 166).
Note 2: An arrival control determination does not apply in relation to certain non‑citizens, including a non‑citizen who is in the migration zone at the time the determination commences, or a non‑citizen who is the subject of a permitted travel certificate that is in force (see section 84C).
Note 3: Under subsection 84D(5), a permitted travel certificate may not be revoked while the non‑citizen is in the migration zone.
Temporary visa may come into effect again
(2) If a temporary visa held by a non‑citizen has ceased to be in effect under subsection (1), the visa comes into effect again at a particular time during the visa period for the visa if, at that time:
(a) the arrival control determination referred to in that subsection is revoked or otherwise ceases to be in effect; or
(b) the non‑citizen ceases to be in a class of non‑citizens specified in the determination mentioned in paragraph (a); or
(c) the non‑citizen becomes a non‑citizen to whom the determination mentioned in paragraph (a) does not apply.
Other cessation provisions not limited or otherwise affected
(3) This section does not limit, or otherwise affect, any other provision of this Act under which a visa ceases to be in effect.
Note: A non‑citizen’s visa may cease to be in effect under another provision of this Act. If that occurs, the visa period for the visa ends (see subparagraph (b)(i) of the definition of visa period in subsection 5(1)) and the non‑citizen will no longer hold the visa (see section 77).
84F Statement relating to arrival control determination etc. to be laid before Parliament
(1) If the Minister makes an arrival control determination, the Minister must cause to be laid before each House of the Parliament:
(a) a copy of the determination; and
(b) a statement of the Minister’s reasons for making the determination.
(2) The Minister must comply with subsection (1) within 2 sitting days of each House of the Parliament after the day on which the determination is made.
(3) A failure to comply with subsection (1) or (2) does not affect the validity of the determination.
Subdivision AH—Limit on visas
85 Limit on visas
(1) Subject to subsection (2), the Minister may, by legislative instrument, determine the maximum number of:
(a) the visas (including protection visas) of a specified class; or
(b) the visas (including protection visas) of specified classes;
that may be granted in a specified financial year.
(2) Subsection (1) does not apply in relation to temporary protection visas or safe haven enterprise visas.
86 Effect of limit
If:
(a) there is a determination of the maximum number of visas of a class or classes that may be granted in a financial year; and
(b) the number of visas of the class or classes granted in the year reaches that maximum number;
no more visas of the class or classes may be granted in the year.
87 Limit does not prevent visas for certain persons
(1) Section 86 does not prevent the grant of a visa to a person who applied for it 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.
(2) 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.
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
If:
(a) a person has applied, whether before or after the commencement of this section, for the grant of a visa; and
(b) a time was or is reached when the grant of the visa to the person in a particular financial year was or is prevented by section 86; and
(c) the person was requested by the Minister after that time to satisfy requirements for the grant of the visa that relate to health or character; and
(d) after the making of the request referred to in paragraph (c) the person satisfies the requirements referred to in that paragraph in a financial year subsequent to the financial year in which the time referred to in paragraph (b) occurred; and
(e) the grant of the visa to the person at the time when the requirements referred to in paragraph (c) are satisfied would, apart from this section, be prevented by section 86; and
(f) the person was unable to satisfy the requirements referred to in paragraph (c) at a time when, apart from this section, section 86 would not have prevented the grant of the visa to the person; and
(g) the Minister is satisfied that the person’s inability to satisfy the requirements referred to in paragraph (c) at a time mentioned in paragraph (e) was due to circumstances beyond the person’s control;
section 86 does not prevent the grant of the visa to the person.
88 Limit does not affect processing of applications
Section 86’s prevention of the grant of a visa does not prevent any other action related to the application for it.
89 Determination of limit not to mean failure to decide
The fact that the Minister has neither granted nor refused to grant a visa of a class or classes to which a determination under section 85 applies does not mean, for any purpose, that the Minister has failed to make a decision to grant or refuse to grant the visa.
90 Order of dealing with limited visas
The fact that an application for a visa of a class or classes to which a determination under section 85 applies has not been considered or disposed of although an application for another visa of the class or classes that was made later has been considered or disposed of does not mean, for any purpose, that the consideration or disposal of the earlier application is unreasonably delayed.
91 Order of dealing with visas
If a determination under section 85 applies, or has applied, to visas of a class or classes, the Minister may consider or, subject to section 86, dispose of outstanding and further applications for such visas in such order as he or she considers appropriate.
Subdivision AI—Safe third countries
91A Reason for Subdivision
This Subdivision is enacted because the Parliament considers that certain non‑citizens who are covered by the CPA, or in relation to whom there is a safe third country, should not be allowed to apply for a protection visa or, in some cases, any other visa. Any such non‑citizen who is an unlawful non‑citizen will be subject to removal under Division 8.
91B Interpretation
(1) In this Subdivision:
agreement includes a written arrangement or understanding, whether or not binding.
CPA means the Comprehensive Plan of Action approved by the International Conference on Indo‑Chinese Refugees, held at Geneva, Switzerland, from 13 to 14 June 1989.
(2) For the purposes of this Subdivision, if, apart from this section:
(a) a colony, overseas territory or protectorate of a foreign country; or
(b) an overseas territory for the international relations of which a foreign country is responsible;
is not a country in its own right, the colony, territory or protectorate is taken to be a country in its own right.
91C Non‑citizens covered by Subdivision
(1) This Subdivision applies to a non‑citizen at a particular time if:
(a) the non‑citizen is in Australia at that time; and
(b) at that time, the non‑citizen is covered by:
(i) the CPA; or
(ii) an agreement, relating to persons seeking asylum, between Australia and a country that is, or countries that include a country that is, at that time, a safe third country in relation to the non‑citizen (see section 91D); and
(c) the non‑citizen is not excluded by the regulations from the application of this Subdivision.
(2) To avoid doubt, a country does not need to be prescribed as a safe third country at the time that the agreement referred to in subparagraph (1)(b)(ii) is made.
91D Safe third countries
(1) A country is a safe third country in relation to a non‑citizen if:
(a) the country is prescribed as a safe third country in relation to the non‑citizen, or in relation to a class of persons of which the non‑citizen is a member; and
(b) the non‑citizen has a prescribed connection with the country.
(2) Without limiting paragraph (1)(b), the regulations may provide that a person has a prescribed connection with a country if:
(a) the person is or was present in the country at a particular time or at any time during a particular period; or
(b) the person has a right to enter and reside in the country (however that right arose or is expressed).
(3) The Minister must, within 2 sitting days after a regulation under paragraph (1)(a) is laid before a House of the Parliament, cause to be laid before that House a statement, covering the country, or each of the countries, prescribed as a safe third country by the regulation, about:
(a) the compliance by the country, or each of the countries, with relevant international law concerning the protection of persons seeking asylum; and
(b) the meeting by the country, or each of the countries, of relevant human rights standards for the persons in relation to whom the country is prescribed as a safe third country; and
(c) the willingness of the country, or each of the countries, to allow any person in relation to whom the country is prescribed as a safe third country:
(i) to go to the country; and
(ii) to remain in the country during the period in which any claim by the person for asylum is determined; and
(iii) if the person is determined to be a refugee while in the country—to remain in the country until a durable solution relating to the permanent settlement of the person is found.
(4) A regulation made for the purposes of paragraph (1)(a) ceases to be in force at the end of 2 years after the regulation commences.
91E Non‑citizens to which this Subdivision applies unable to make valid applications for certain visas
Despite any other provision of this Act, if this Subdivision applies to a non‑citizen at a particular time and, at that time, the non‑citizen applies, or purports to apply, for a protection visa then, subject to section 91F:
(a) if the non‑citizen has not been immigration cleared at that time—neither that application nor any other application made by the non‑citizen for a visa is a valid application; or
(b) if the non‑citizen has been immigration cleared at that time—neither that application nor any other application made by the non‑citizen for a protection visa is a valid application.
91F Minister may determine that section 91E does not apply to non‑citizen
(1) If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a particular non‑citizen, determine:
(a) that section 91E does not apply to an application for a visa made by the non‑citizen in the period starting when the notice is given and ending at the end of the seventh working day after the day that the notice is given; or
(b) that section 91G does not apply to an application for a visa made by the non‑citizen during the transitional period referred to in that section.
(2) The power under subsection (1) may only be exercised by the Minister personally.
(3) If the Minister makes a determination under subsection (1), he or she is to cause to be laid before each House of the Parliament a statement that:
(a) sets out the determination; and
(b) sets out the reasons for the determination, referring in particular to the Minister’s reasons for thinking that his or her actions are in the public interest.
(4) A statement under subsection (3) is not to include:
(a) the name of the non‑citizen; or
(b) any information that may identify the non‑citizen; or
(c) 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 or any information that may identify that other person.
(5) A statement under subsection (3) is to be laid before each House of the Parliament within 15 sitting days of that House after:
(a) if the determination is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or