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MIGRATION ACT 1958 - SECT 5

Interpretation

             (1)  In this Act, unless the contrary intention appears:

"AAT Act migration decision " : see section 474A.

"absorbed person visa " has the meaning given by section 34.

"adjacent area " means an adjacent area in respect of a State, of the Northern Territory, of Norfolk Island, of the Territory of Ashmore and Cartier Islands, of the Territory of Cocos (Keeling) Islands or of the Territory of Christmas Island, as determined in accordance with section 5 of the Sea Installations Act.

"adoption " has the same meaning as in the regulations.

"allowed inhabitant of the Protected Zone " means an inhabitant of the Protected Zone, other than an inhabitant to whom a declaration under section 16 (presence declared undesirable) applies.

"applicable pass mark " , in relation to a visa of a particular class, means the number of points specified as the pass mark for that class in a notice, under section 96, in force at the time concerned.

"applicable pool mark " , in relation to a visa of a particular class, means the number of points specified as the pool mark for that class in a notice under section 96 in force at the time concerned.

"appointed inspector " has the meaning given by section 140V.

"approved form " , when used in a provision of this Act, means a form approved by the Minister in writing for the purposes of that provision.

"approved sponsor " means:

                     (a)  a person:

                              (i)  who has been approved by the Minister under section 140E in relation to a class prescribed by the regulations for the purpose of subsection 140E(2); and

                             (ii)  whose approval has not been cancelled under section 140M, or otherwise ceased to have effect under section 140G, in relation to that class; or

                     (b)  a person (other than a Minister) who is a party to a work agreement.

Note:          A partnership or an unincorporated association may be an approved sponsor: see subsections 140ZB(1) and 140ZE(1) respectively.

"area in the vicinity of the Protected Zone " means an area in respect of which a notice is in force under subsection (8).

"ASIO " means the Australian Security Intelligence Organisation.

"ASIO Act " means the Australian Security Intelligence Organisation Act 1979 .

"assessed score " , in relation to an applicant for a visa, means the total number of points given to the applicant in an assessment under section 93.

"assessment " , in relation to ASIO, has the same meaning as in subsection 35(1) of the ASIO Act.

"Australian Border Force Commissioner " has the same meaning as in the Australian Border Force Act 2015 .

"Australian passport " means a passport issued under the Australian Passports Act 2005 .

"Australian resources installation " means a resources installation that is deemed to be part of Australia because of the operation of section 8.

"Australian seabed " means so much of the seabed adjacent to Australia (other than the seabed within the Joint Petroleum Development Area) as is:

                     (a)  within the area comprising:

                              (i)  the areas described in Schedule 1 to the Offshore Petroleum and Greenhouse Gas Storage Act 2006 ; and

                             (ii)  the Coral Sea area; and

                     (b)  part of:

                              (i)  the continental shelf of Australia;

                             (ii)  the seabed beneath the territorial sea of Australia (including the territorial sea adjacent to any island forming part of Australia); or

                            (iii)  the seabed beneath waters of the sea that are on the landward side of the territorial sea of Australia and are not within the limits of a State or Territory.

"Australian sea installation " means a sea installation that is deemed to be part of Australia because of the operation of section 9.

"Australian waters " means:

                     (a)  in relation to a resources installation--waters above the Australian seabed; and

                     (b)  in relation to a sea installation--waters comprising all of the adjacent areas and the coastal area.

"authorised officer " , when used in a provision of this Act, means an officer authorised in writing by the Minister, the Secretary or the Australian Border Force Commissioner for the purposes of that provision.

Note:          Section 5D can affect the meaning of this term for the purposes of carrying out identification tests.

"authorised system " , when used in a provision of this Act, means an automated system authorised in writing by the Minister or the Secretary for the purposes of that provision.

"behaviour concern non-citizen " means a non-citizen who:

                     (a)  has been convicted of a crime and sentenced to death or to imprisonment, for at least one year; or

                     (b)  has been convicted of 2 or more crimes and sentenced to imprisonment, for periods that add up to at least one year if:

                              (i)  any period concurrent with part of a longer period is disregarded; and

                             (ii)  any periods not disregarded that are concurrent with each other are treated as one period;

                            whether or not:

                            (iii)  the crimes were of the same kind; or

                            (iv)  the crimes were committed at the same time; or

                             (v)  the convictions were at the same time; or

                            (vi)  the sentencings were at the same time; or

                           (vii)  the periods were consecutive; or

                     (c)  has been charged with a crime and either:

                              (i)  found guilty of having committed the crime while of unsound mind; or

                             (ii)  acquitted on the ground that the crime was committed while the person was of unsound mind;

                     (d)  has been removed or deported from Australia or removed or deported from another country; or

                     (e)  has been excluded from another country in prescribed circumstances;

where sentenced to imprisonment includes ordered to be confined in a corrective institution.

"bogus document " , in relation to a person, means a document that the Minister reasonably suspects is a document that:

                     (a)  purports to have been, but was not, issued in respect of the person; or

                     (b)  is counterfeit or has been altered by a person who does not have authority to do so; or

                     (c)  was obtained because of a false or misleading statement, whether or not made knowingly.

"bridging visa " has the meaning given by section 37.

"brought into physical contact " has the same meaning as in the Sea Installations Act.

"bypass immigration clearance " has the meaning given by subsection 172(4).

"certified printout " means a printout certified by an authorised officer to be a printout of information kept in the movement records.

"character concern " has the meaning given by section 5C.

"child " of a person has a meaning affected by section 5CA.

"civil penalty order " has the meaning given by subsection 486R(4).

"civil penalty provision " means a subsection, or a section that is not divided into subsections, that has set out at its foot the words "civil penalty" and one or more amounts in penalty units.

"clearance authority " has the meaning given by section 165.

"clearance officer " has the meaning given by section 165.

"coastal area " has the same meaning as in the Customs Act 1901 .

"committee of management " of an unincorporated association means a body (however described) that governs, manages or conducts the affairs of the association.

"Convention Against Torture " means the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment done at New York on 10 December 1984.

Note:          The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment is in Australian Treaty Series 1989 No. 21 ([1989] ATS 21) and could in 2014 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).

"Coral Sea area " has the same meaning as in section 7 of the Offshore Petroleum and Greenhouse Gas Storage Act 2006 .

"Covenant " means the International Covenant on Civil and Political Rights, a copy of the English text of which is set out in Schedule 2 to the Australian Human Rights Commission Act 1986 .

"crime " includes any offence.

"criminal justice visa " has the meaning given by section 38.

"cruel or inhuman treatment or punishment " means an act or omission by which:

                     (a)  severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

                     (b)  pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

                     (c)  that is not inconsistent with Article 7 of the Covenant; or

                     (d)  arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

"data base " (except in Part 4A) means a discrete body of information stored by means of a computer.

Note:          Section 336A defines this term differently for the purposes of Part 4A.

de facto partner has the meaning given by section 5CB.

"degrading treatment or punishment " means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

                     (a)  that is not inconsistent with Article 7 of the Covenant; or

                     (b)  that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

"departure prohibition order " means an order under subsection 14S(1) of the Taxation Administration Act 1953 .

"deportation " means deportation from Australia.

"deportation order " means an order for the deportation of a person made under, or continued in force by, this Act.

"deportee " means a person in respect of whom a deportation order is in force.

"detain " means:

                     (a)  take into immigration detention; or

                     (b)  keep, or cause to be kept, in immigration detention;

and includes taking such action and using such force as are reasonably necessary to do so.

Note:          This definition extends to persons covered by residence determinations (see section 197AC).

"detainee " means a person detained.

Note:          This definition extends to persons covered by residence determinations (see section 197AC).

"diplomatic or consular representative " , in relation to a country other than Australia, means a person who has been appointed to, or is the holder of, a post or position in a diplomatic or consular mission of that country in Australia, not being a person who was ordinarily resident in Australia when he or she was appointed to be a member of the mission.

"eligible court " means:

                     (a)  the Federal Court; or

                     (b)  the Federal Circuit Court; or

                     (c)  a District, County or Local Court; or

                     (d)  a magistrates court; or

                     (e)  any other State or Territory court that is prescribed by the regulations.

"enforcement visa " has the meaning given by section 38A.

"enter " includes re-enter.

"enter Australia " , in relation to a person, means enter the migration zone.

Note:          See also section 9A, which concerns offshore resources activities.

"entered " includes re-entered.

"entry " includes re-entry.

"environment detention offence " means:

                     (a)  an offence against the Environment Protection and Biodiversity Conservation Act 1999 , or against regulations made for the purposes of that Act; or

                     (b)  an offence against section 6 of the Crimes Act 1914 relating to an offence described in paragraph (a).

"environment officer " means an authorised officer, within the meaning of the Environment Protection and Biodiversity Conservation Act 1999 , but does not include a person who is an authorised officer because of subsection 397(3) of that Act.

"environment related activity " has the same meaning as in the Sea Installations Act.

"evidential burden " , in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.

"excised offshore place " means any of the following:

                     (a)  the Territory of Christmas Island;

                     (b)  the Territory of Ashmore and Cartier Islands;

                     (c)  the Territory of Cocos (Keeling) Islands;

                     (d)  any other external Territory that is prescribed by the regulations for the purposes of this paragraph;

                     (e)  any island that forms part of a State or Territory and is prescribed for the purposes of this paragraph;

                      (f)  an Australian sea installation;

                     (g)  an Australian resources installation.

"excision time " , for an excised offshore place, means:

                     (a)  for the Territory of Christmas Island--2 pm on 8 September 2001 by legal time in the Australian Capital Territory; or

                     (b)  for the Territory of Ashmore and Cartier Islands--2 pm on 8 September 2001 by legal time in the Australian Capital Territory; or

                     (c)  for the Territory of Cocos (Keeling) Islands--12 noon on 17 September 2001 by legal time in the Australian Capital Territory; or

                     (d)  for any other external Territory that is prescribed by the regulations for the purposes of the definition of excised offshore place --the time when the regulations commence; or

                     (e)  for any island that forms part of a State or Territory and is prescribed by the regulations for the purposes of the definition of excised offshore place --the time when the regulations commence; or

                      (f)  for an Australian sea installation--the commencement of the Migration Amendment (Excision from Migration Zone) Act 2001 ; or

                     (g)  for an Australian resources installation--the commencement of the Migration Amendment (Excision from Migration Zone) Act 2001 .

"ex-citizen visa " has the meaning given by section 35.

"excluded fast track review applicant " means a fast track applicant:

                     (a)  who, in the opinion of the Minister:

                              (i)  is covered by section 91C or 91N; or

                             (ii)  has previously entered Australia and who, while in Australia, made a claim for protection relying on a criterion mentioned in subsection 36(2) in an application that was refused or withdrawn; or

                            (iii)  has made a claim for protection in a country other than Australia that was refused by that country; or

                            (iv)  has made a claim for protection in a country other than Australia that was refused by the Office of the United Nations High Commissioner for Refugees in that country; or

                            (vi)  without reasonable explanation provides, gives or presents a bogus document to an officer of the Department or to the Minister (or causes such a document to be so provided, given or presented) in support of his or her application; or

                    (aa)  who makes a claim for protection relying on a criterion mentioned in subsection 36(2) in, or in connection with, his or her application, if, in the opinion of the Minister, the claim is manifestly unfounded because, without limiting what is a manifestly unfounded claim, the claim:

                              (i)  has no plausible or credible basis; or

                             (ii)  if the claim is based on conditions, events or circumstances in a particular country--is not able to be substantiated by any objective evidence; or

                            (iii)  is made for the sole purpose of delaying or frustrating the fast track applicant's removal from Australia; or

                     (b)  who is, or who is included in a class of persons who are, specified by legislative instrument made under paragraph (1AA)(a).

"Fair Work Inspector " has the same meaning as in the Fair Work Act 2009 .

"fast track applicant " means:

                     (a)  a person:

                              (i)  who is an unauthorised maritime arrival and who entered Australia on or after 13 August 2012, but before 1 January 2014, and who has not been taken to a regional processing country; and

                             (ii)  to whom the Minister has given a written notice under subsection 46A(2) determining that subsection 46A(1) does not apply to an application by the person for a protection visa; and

                            (iii)  who has made a valid application for a protection visa in accordance with the determination; or

                     (b)  a person who is, or who is included in a class of persons who are, specified by legislative instrument made under paragraph (1AA)(b).

Note:          Some unauthorised maritime arrivals born in Australia on or after 13 August 2012 may not be fast track applicants even if paragraph (a) applies: see subsection (1AC)

"fast track decision " means a decision to refuse to grant a protection visa to a fast track applicant, other than a decision to refuse to grant such a visa:

                     (a)  because the Minister or a delegate of the Minister is not satisfied that the applicant passes the character test under section 501; or

                     (b)  relying on:

                              (i)  subsection 5H(2); or

                             (ii)  subsection 36(1B) or (1C); or

                            (iii)  paragraph 36(2C)(a) or (b).

Note:          Some decisions made in the circumstances mentioned in paragraph (a), or subparagraph (b)(i) or (iii), of the definition of fast track decision are reviewable by the Administrative Appeals Tribunal in accordance with section 500.

"fast track reviewable decision " has the meaning given by section 473BB.

"fast track review applicant " means a fast track applicant who is not an excluded fast track review applicant.

"Federal Circuit Court " means the Federal Circuit Court of Australia.

"Federal Court " means the Federal Court of Australia.

"finally determined " : for when an application under this Act is finally determined , see subsections (9) and (9A).

"fisheries detention offence " means:

                     (a)  an offence against section 99, 100, 100A, 100B, 101, 101A, 101AA, 101B, 105E, 105EA, 105H or 105I of the Fisheries Management Act 1991 ; or

                     (b)  an offence against section 45, 46A, 46B, 46C, 46D, 48, 49, 49A, 51 or 51A of the Torres Strait Fisheries Act 1984 ; or

                     (c)  an offence against section 6 of the Crimes Act 1914 relating to an offence described in paragraph (a) or (b).

"fisheries officer " means an officer as defined in the Fisheries Management Act 1991 or the Torres Strait Fisheries Act 1984 .

"foreign aircraft (environment matters) " means an aircraft, within the meaning of the Environment Protection and Biodiversity Conservation Act 1999 , that is not an Australian aircraft (within the meaning of that Act).

"foreign vessel " has the same meaning as in the Maritime Powers Act 2013 .

"health concern non-citizen " means a non-citizen who is suffering from a prescribed disease or a prescribed physical or mental condition.

"health criterion " , in relation to a visa, means a prescribed criterion for the visa that:

                     (a)  relates to the applicant for the visa, or the members of the family unit of that applicant; and

                     (b)  deals with:

                              (i)  a prescribed disease; or

                             (ii)  a prescribed kind of disease; or

                            (iii)  a prescribed physical or mental condition; or

                            (iv)  a prescribed kind of physical or mental condition; or

                             (v)  a prescribed kind of examination; or

                            (vi)  a prescribed kind of treatment.

"holder " , in relation to a visa, means, subject to section 77 (visas held during visa period) the person to whom it was granted or a person included in it.

"identification test " means a test carried out in order to obtain a personal identifier.

"identity document " , in relation to a member of the crew of a vessel, means:

                     (a)  an identification card, in accordance with a form approved by the Minister, in respect of the member signed by the master of the vessel; or

                     (b)  a document, of a kind approved by the Minister as an identity document for the purposes of this Act, in respect of the member.

"Immigration Assessment Authority " means the Authority established by section 473JA.

"immigration cleared " has the meaning given by subsection 172(1).

"immigration detention " means:

                     (a)  being in the company of, and restrained by:

                              (i)  an officer; or

                             (ii)  in relation to a particular detainee--another person directed by the Secretary or Australian Border Force Commissioner to accompany and restrain the detainee; or

                     (b)  being held by, or on behalf of, an officer:

                              (i)  in a detention centre established under this Act; or

                             (ii)  in a prison or remand centre of the Commonwealth, a State or a Territory; or

                            (iii)  in a police station or watch house; or

                            (iv)  in relation to a non-citizen who is prevented, under section 249, from leaving a vessel--on that vessel; or

                             (v)  in another place approved by the Minister in writing;

but does not include being restrained as described in subsection 245F(8A), or being dealt with under paragraph 245F(9)(b).

Note 1:       Subsection 198AD(11) provides that being dealt with under subsection 198AD(3) does not amount to immigration detention .

Note 2:       This definition extends to persons covered by residence determinations (see section 197AC).

"incapable person " means a person who is incapable of understanding the general nature and effect of, and purposes of, a requirement to provide a personal identifier.

"independent person " means a person (other than an officer or an authorised officer) who:

                     (a)  is capable of representing the interests of a non-citizen who is providing, or is to provide, a personal identifier; and

                     (b)  as far as practicable, is acceptable to the non-citizen who is providing, or is to provide, the personal identifier; and

                     (c)  if the non-citizen is a minor--is capable of representing the minor's best interests.

"inhabitant of the Protected Zone " means a person who is a citizen of Papua New Guinea and who is a traditional inhabitant.

"in immigration clearance " has the meaning given by subsection 172(2).

"inspector " has the meaning given by section 140V.

"installation " means:

                     (a)  a resources installation; or

                     (b)  a sea installation.

"Joint Petroleum Development Area " has the same meaning as in the Petroleum (Timor Sea Treaty) Act 2003 .

"lawful non-citizen " has the meaning given by section 13.

"lawyer " means:

                     (a)  a barrister; or

                     (b)  a solicitor; or

                     (c)  a barrister and solicitor; or

                     (d)  a legal practitioner;

of the High Court or of the Supreme Court of a State or Territory.

"leave Australia " , in relation to a person, means, subject to section 80 (leaving without going to other country), leave the migration zone.

Note:          See also section 9A, which concerns offshore resources activities.

"maritime crew visa " has the meaning given by section 38B.

"maritime officer " has the same meaning as in the Maritime Powers Act 2013 .

"master " , in relation to a vessel, means the person in charge or command of the vessel.

"member of the crew " means:

                     (a)  in relation to a vessel other than an aircraft--the master of the vessel, or a person whose name is on the articles of the vessel as a member of the crew; or

                     (b)  in relation to an aircraft--the master of the aircraft, or a person employed by the operator of the aircraft and whose name is included in a list of members of the crew of the aircraft furnished by the master as prescribed.

"member of the family unit " of a person has the meaning given by the regulations made for the purposes of this definition.

"member of the same family unit " : one person is a member of the same family unit as another if either is a member of the family unit of the other or each is a member of the family unit of a third person.

"migration decision " means:

                     (a)  a privative clause decision; or

                     (b)  a purported privative clause decision; or

                     (c)  a non-privative clause decision; or

                     (d)  an AAT Act migration decision.

"migration zone " means the area consisting of the States, the Territories, Australian resource installations and Australian sea installations and, to avoid doubt, includes:

                     (a)  land that is part of a State or Territory at mean low water; and

                     (b)  sea within the limits of both a State or a Territory and a port; and

                     (c)  piers, or similar structures, any part of which is connected to such land or to ground under such sea;

but does not include sea within the limits of a State or Territory but not in a port.

Note:          See also section 9A, which concerns offshore resources activities.

"minor " means a person who is less than 18 years old.

"movement records " means information stored in a notified data base.

"natural resources " means the mineral and other non-living resources of the seabed and its subsoil.

"non-citizen " means a person who is not an Australian citizen.

"non-disclosable information " means information or matter:

                     (a)  whose disclosure would, in the Minister's opinion, be contrary to the national interest because it would:

                              (i)  prejudice the security, defence or international relations of Australia; or

                             (ii)  involve the disclosure of deliberations or decisions of the Cabinet or of a committee of the Cabinet; or

                     (b)  whose disclosure would, in the Minister's opinion, be contrary to the public interest for a reason which could form the basis of a claim by the Crown in right of the Commonwealth in judicial proceedings; or

                     (c)  whose disclosure would found an action by a person, other than the Commonwealth, for breach of confidence;

and includes any document containing, or any record of, such information or matter.

"non-political crime " :

                     (a)  subject to paragraph (b), means a crime where a person's motives for committing the crime were wholly or mainly non-political in nature; and

                     (b)  includes an offence that, under paragraph (a), (b) or (c) of the definition of political offence in section 5 of the Extradition Act 1988 , is not a political offence in relation to a country for the purposes of that Act.

"non-privative clause decision " has the meaning given by subsection 474(6).

"non-refoulement obligations " includes, but is not limited to:

                     (a)  non-refoulement obligations that may arise because Australia is a party to:

                              (i)  the Refugees Convention; or

                             (ii)  the Covenant; or

                            (iii)  the Convention Against Torture; and

                     (b)  any obligations accorded by customary international law that are of a similar kind to those mentioned in paragraph (a).

"notified data base " means a data base declared to be a notified data base under section 489.

"offence against this Act " includes:

                     (a)  an offence against section 6 of the Crimes Act 1914 that relates to an offence against a provision of this Act; and

                     (b)  an ancillary offence (within the meaning of the Criminal Code ) that is, or relates to, an offence against a provision of this Act.

"officer " means:

                     (a)  an officer of the Department, other than an officer specified by the Minister in writing for the purposes of this paragraph; or

                     (b)  a person who is an officer for the purposes of the Customs Act 1901 , other than such an officer specified by the Minister in writing for the purposes of this paragraph; or

                     (c)  a person who is a protective service officer for the purposes of the Australian Federal Police Act 1979 , other than such a person specified by the Minister in writing for the purposes of this paragraph; or

                     (d)  a member of the Australian Federal Police or of the police force of a State or an internal Territory; or

                     (e)  a member of the police force of an external Territory; or

                      (f)  a person who is authorised in writing by the Minister to be an officer for the purposes of this Act; or

                     (g)  any person who is included in a class of persons authorised in writing by the Minister to be officers for the purposes of this Act, including a person who becomes a member of the class after the authorisation is given.

"offshore resources activity " has the meaning given by subsection 9A(5).

"old visa " means a visa, document, or notation, that:

                     (a)  permits a person to travel to Australia; and

                     (b)  was issued before 1 September 1994; and

                     (c)  has not been cancelled or otherwise stopped being in effect.

"parent " : without limiting who is a parent of a person for the purposes of this Act, someone is the parent of a person if the person is his or her child because of the definition of child in section 5CA.

Part 5-reviewable decision : see section 338.

Part 7-reviewable decision : see section 411.

"passport " includes a document of identity issued from official sources, whether in or outside Australia, and having the characteristics of a passport, but does not include a document, which may be a document called or purporting to be a passport, that the regulations declare is not to be taken to be a passport.

"permanent visa " has the meaning given by subsection 30(1).

"personal identifier " has the meaning given by section 5A.

"personal information " has the same meaning as in the Privacy Act 1988 .

"port " means:

                     (a)  a proclaimed port; or

                     (b)  a proclaimed airport.

"pre-cleared flight " means a flight declared under section 17 to be a pre-cleared flight.

"prescribed " means prescribed by the regulations.

"printout " means a mechanically or electronically made reproduction of part or all of the movement records.

"privative clause decision " has the meaning given by subsection 474(2).

"proclaimed airport " means:

                     (a)  an airport appointed under section 15 of the Customs Act 1901 ; or

                     (b)  an airport appointed by the Minister under subsection (5).

"proclaimed port " means:

                     (a)  a port appointed under section 15 of the Customs Act 1901 ; or

                     (b)  a port appointed by the Minister under subsection (5).

"protected area " means an area that is:

                     (a)  part of the migration zone; and

                     (b)  in, or in an area in the vicinity of, the Protected Zone.

"Protected Zone " means the zone established under Article 10 of the Torres Strait Treaty, being the area bounded by the line described in Annex 9 to that treaty.

"protection visa " has the meaning given by section 35A.

Note:          Section 35A covers the following:

(a)    permanent protection visas (classified by the Migration Regulations 1994 as Protection (Class XA) visas when this definition commenced);

(b)    other protection visas formerly provided for by subsection 36(1);

(ba)  safe haven enterprise visas;

(c)    temporary protection visas (classified by the Migration Regulations 1994 as Temporary Protection (Class XD) visas when this definition commenced);

(d)    any additional classes of permanent or temporary visas that are prescribed as protection visas by the regulations.

                   See also section 36 and Subdivision AL of Division 3 of Part 2.

"purported privative clause decision " has the meaning given by section 5E.

"questioning detention " means detention under section 192.

"receiving country " , in relation to a non-citizen, means:

                     (a)  a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

                     (b)  if the non-citizen has no country of nationality--a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

"referred applicant " has the meaning given by section 473BB.

"refugee " has the meaning given by section 5H.

"Refugees Convention " means the Convention relating to the Status of Refugees done at Geneva on 28 July 1951.

"Refugees Protocol " means the Protocol relating to the Status of Refugees done at New York on 31 January 1967.

"refused immigration clearance " has the meaning given by subsection 172(3).

"regional processing country " means a country designated by the Minister under subsection 198AB(1) as a regional processing country.

"Regulatory Powers Act " means the Regulatory Powers (Standard Provisions) Act 2014 .

"remain in Australia " , in relation to a person, means remain in the migration zone.

"remove " means remove from Australia.

"removee " means an unlawful non-citizen removed, or to be removed, under Division 8 of Part 2.

"residence determination " has the meaning given by subsection 197AB(1).

"resources installation " means:

                     (a)  a resources industry fixed structure within the meaning of subsection (10); or

                     (b)  a resources industry mobile unit within the meaning of subsection (11).

"score " , in relation to a visa applicant, means the total number of points given to the applicant under section 93 in the most recent assessment or re-assessment under Subdivision B of Division 3 of Part 2.

"sea installation " has the same meaning as in the Sea Installations Act.

"Sea Installations Act " means the Sea Installations Act 1987 .

"Secretary " means the Secretary of the Department.

"serious Australian offence " means an offence against a law in force in Australia, where:

                     (a)  the offence:

                              (i)  involves violence against a person; or

                             (ii)  is a serious drug offence; or

                            (iii)  involves serious damage to property; or

                            (iv)  is an offence against section 197A or 197B (offences relating to immigration detention); and

                     (b)  the offence is punishable by:

                              (i)  imprisonment for life; or

                             (ii)  imprisonment for a fixed term of not less than 3 years; or

                            (iii)  imprisonment for a maximum term of not less than 3 years.

"serious foreign offence " means an offence against a law in force in a foreign country, where:

                     (a)  the offence:

                              (i)  involves violence against a person; or

                             (ii)  is a serious drug offence; or

                            (iii)  involves serious damage to property; and

                     (b)  if it were assumed that the act or omission constituting the offence had taken place in the Australian Capital Territory, the act or omission would have constituted an offence (the Territory offence ) against a law in force in that Territory, and the Territory offence would have been punishable by:

                              (i)  imprisonment for life; or

                             (ii)  imprisonment for a fixed term of not less than 3 years; or

                            (iii)  imprisonment for a maximum term of not less than 3 years.

"significant harm " means harm of a kind mentioned in subsection 36(2A).

"special category visa " has the meaning given by section 32.

"special purpose visa " has the meaning given by section 33.

"spouse " has the meaning given by section 5F.

"student visa " has the meaning given by the regulations.

"substantive visa " means a visa other than:

                     (a)  a bridging visa; or

                     (b)  a criminal justice visa; or

                     (c)  an enforcement visa.

"temporary visa " has the meaning given by subsection 30(2).

"Territory " means:

                     (a)  an internal Territory; or

                     (b)  an external Territory to which this Act extends.

"ticket " includes a travel document in respect of the conveyance of a person from one place to another place.

"Torres Strait Treaty " means the Treaty between Australia and the Independent State of Papua New Guinea that was signed at Sydney on 18 December 1978.

"torture " means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

                     (a)  for the purpose of obtaining from the person or from a third person information or a confession; or

                     (b)  for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

                     (c)  for the purpose of intimidating or coercing the person or a third person; or

                     (d)  for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

                     (e)  for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

"traditional activities " has the same meaning as in the Torres Strait Treaty.

"traditional inhabitants has the same meaning as in the Torres Strait" Fisheries Act 1984 .

"transitory person " means:

                     (a)  a person who was taken to another country under repealed section 198A; or

                    (aa)  a person who was taken to a regional processing country under section 198AD; or

                     (b)  a person who was taken to a place outside Australia under paragraph 245F(9)(b) of this Act, or under Division 7 or 8 of Part 3 of the Maritime Powers Act 2013 ; or

                     (c)  a person who, while a non-citizen and during the period from 27 August 2001 to 6 October 2001:

                              (i)  was transferred to the ship HMAS Manoora from the ship Aceng or the ship MV Tampa ; and

                             (ii)  was then taken by HMAS Manoora to another country; and

                            (iii)  disembarked in that other country; or

                     (d)  the child of a transitory person mentioned in paragraph (aa) or (b), if:

                              (i)  the child was born in a regional processing country to which the parent was taken as mentioned in the relevant paragraph; and

                             (ii)  the child was not an Australian citizen at the time of birth; or

                     (e)  the child of a transitory person mentioned in paragraph (aa) or (b), if:

                              (i)  the child was born in the migration zone; and

                             (ii)  the child was not an Australian citizen at the time of birth.

Note 1:       For who is a child, see section 5CA.

Note 2:       A transitory person who entered Australia by sea before being taken to a place outside Australia may also be an unauthorised maritime arrival: see section 5AA.

Note 3:       Paragraphs (d) and (e) apply no matter when the child was born, whether before, on or after the commencement of those paragraphs. See the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 .

"Tribunal " means the Administrative Appeals Tribunal.

"unauthorised maritime arrival " has the meaning given by section 5AA.

"unlawful non-citizen " has the meaning given by section 14.

"vessel " includes an aircraft or an installation.

"vessel (environment matters)" means a vessel, within the meaning of the Environment Protection and Biodiversity Conservation Act 1999 .

"visa " has the meaning given by section 29 and includes an old visa .

"visa applicant " means an applicant for a visa and, in relation to a visa, means the applicant for the visa.

"visa application charge " means the charge payable under section 45A.

"visa application charge limit " is the amount determined under the Migration (Visa Application) Charge Act 1997.

"visa holder " means the holder of a visa and, in relation to a visa, means the holder of the visa.

"visa period " , in relation to a visa, means the period:

                     (a)  beginning when the visa is granted; and

                     (b)  ending:

                              (i)  in the case of a visa other than a bridging visa--when the visa ceases to be in effect; or

                             (ii)  in the case of a bridging visa--when the visa ceases to be in effect otherwise than under subsection 82(3).

"well-founded fear of persecution " has the meaning given by section 5J.

"work agreement " means an agreement that satisfies the requirements prescribed by the regulations for the purposes of this definition.

"working day " , in relation to a place, means any day that is not a Saturday, a Sunday or a public holiday in that place.

"work-related condition " means a condition:

                     (a)  prohibiting the holder of a visa from working in Australia; or

                     (b)  restricting the work that the holder of a visa may do in Australia.

       (1AA)  The Minister may make a legislative instrument for the purposes of the following provisions:

                     (a)  paragraph (b) of the definition of excluded fast track review applicant in subsection (1);

                     (b)  paragraph (b) of the definition of fast track applicant in subsection (1).

       (1AB)  A legislative instrument made under subsection (1AA) may apply, adopt or incorporate, with or without modification, the provisions of any other legislative instrument, whether or not the other legislative instrument is disallowable, as in force at a particular time or as in force from time to time.

       (1AC)  A person is not a fast track applicant only because of paragraph (a) of the definition of fast track applicant in subsection (1) if:

                     (a)   the person is born in Australia on or after 13 August 2012; and

                     (b)  the person is the child of an unauthorised maritime arrival who entered Australia before 13 August 2012.

       (1AD)  Despite subsection 44(2) of the Legislative Instruments Act 2003 , section 42 (disallowance) of that Act applies to an instrument made under subsection (1AA).

          (1A)  The Minister has power to give authorisations as provided by paragraphs (f) and (g) of the definition of officer in subsection (1) and, if such an authorisation is given:

                     (a)  the Minister is to cause notice of the authorisation to be published in the Gazette ; but

                     (b)  without affecting the obligation of the Minister to cause a notice to be so published:

                              (i)  the authorisation takes effect when it is given; and

                             (ii)  the validity of the authorisation is not affected if such a notice is not published.

          (1B)  The Minister or the Secretary has the power to give authorisations as provided by the definition of authorised system .

             (2)  For the purposes of this Act, a person has functional English at a particular time if:

                     (a)  the person passes a test that:

                              (i)  is approved in writing by the Minister for the purposes of this subsection; and

                             (ii)  is conducted by a person, or organisation, approved for the purposes of this subsection by the Minister by notice in the Gazette ; or

                     (b)  the person provides the Minister with prescribed evidence of the person's English language proficiency.

             (3)  Any power that may be exercised by an authorized officer or by an officer under this Act may also be exercised by the Minister.

             (4)  Where, in any provision of this Act, reference is made to the exercise of a power by an authorized officer or by an officer and that power is a power which, by virtue of subsection (3), may also be exercised by the Minister, that reference shall be construed as including a reference to the exercise of that power by the Minister.

             (5)  The Minister may, by notice published in the Gazette :

                     (a)  appoint ports in an external Territory to which this Act extends as proclaimed ports for the purposes of this Act and fix the limits of those ports; and

                     (b)  appoint airports in an external Territory to which this Act extends as proclaimed airports for the purposes of this Act and fix the limits of those airports.

             (6)  For the purposes of this Act, where a resources installation that has been brought into Australian waters from a place outside the outer limits of Australian waters becomes attached to the Australian seabed:

                     (a)  the installation shall be deemed to have entered Australia at the time when it becomes so attached;

                     (b)  any person on board the installation at the time when it becomes so attached shall be deemed to have travelled to Australia on board that installation, to have entered Australia at that time and to have been brought into Australia at that time.

             (7)  For the purposes of this Act, where a sea installation that has been brought into Australian waters from a place outside the outer limits of Australian waters is installed in an adjacent area or in a coastal area:

                     (a)  the installation shall be deemed to have entered Australia at the time that it becomes so installed; and

                     (b)  any person on board the installation at the time that it becomes so installed shall be deemed to have travelled to Australia on board that installation, to have entered Australia at that time and to have been brought into Australia at that time.

             (8)  The Minister may, by notice published in the Gazette , declare an area adjacent to the Protected Zone and to the south of the line described in Annex 5 to the Torres Strait Treaty to be an area in the vicinity of the Protected Zone for the purposes of this Act.

             (9)  For the purposes of this Act, subject to subsection (9A), 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 under Part 5 or 7; or

                     (b)  a decision that has been made in respect of the application was subject to some form of review under Part 5 or 7, but the period within which such a review could be instituted has ended without a review having been instituted as prescribed; or

                     (c)  in relation to an application for a protection visa by an excluded fast track review applicant--a decision has been made in respect of the application.

          (9A)  If a review of a decision that has been made in respect of an application under this Act is instituted under Part 5, 7 or 7AA as prescribed, the application is finally determined when a decision on the review in respect of the application is taken to have been made as provided by any of the following provisions:

                     (a)  subsection 368(2) (written decisions about Part 5-reviewable decisions);

                     (b)  subsection 368D(1) (oral decisions about Part 5-reviewable decisions);

                     (c)  subsection 430(2) (written decisions about Part 7-reviewable decisions);

                     (d)  subsection 430D(1) (oral decisions about Part 7-reviewable decisions).

                     (e)  subsection 473EA(2) (Immigration Assessment Authority decisions).

          (9B)  However, subsection (9A) does not apply in relation to the following decisions:

                     (a)  a decision of the Tribunal to remit a Part 5-reviewable decision under paragraph 349(2)(c);

                     (b)  a decision of the Tribunal to remit a Part 7-reviewable decision under paragraph 415(2)(c);

                     (c)  a decision of the Immigration Assessment Authority under paragraph 473CC(2)(b).

           (10)  A reference in this Act to a resources industry fixed structure shall be read as a reference to a structure (including a pipeline) that:

                     (a)  is not able to move or be moved as an entity from one place to another; and

                     (b)  is used or is to be used off-shore in, or in any operations or activities associated with, or incidental to, exploring or exploiting natural resources.

           (11)  A reference in this Act to a resources industry mobile unit shall be read as a reference to:

                     (a)  a vessel that is used or is to be used wholly or principally in:

                              (i)  exploring or exploiting natural resources by drilling the seabed or its subsoil with equipment on or forming part of the vessel or by obtaining substantial quantities of material from the seabed or its subsoil with equipment of that kind; or

                             (ii)  operations or activities associated with, or incidental to, activities of the kind referred to in subparagraph (i); or

                     (b)  a structure (not being a vessel) that:

                              (i)  is able to float or be floated;

                             (ii)  is able to move or be moved as an entity from one place to another; and

                            (iii)  is used or is to be used off-shore wholly or principally in:

                                        (A)  exploring or exploiting natural resources by drilling the seabed or its subsoil with equipment on or forming part of the structure or by obtaining substantial quantities of material from the seabed or its subsoil with equipment of that kind; or

                                        (B)  operations or activities associated with, or incidental to, activities of the kind referred to in sub-subparagraph (A).

           (12)  A vessel of a kind referred to in paragraph (11)(a) or a structure of a kind referred to in paragraph (11)(b) shall not be taken not to be a resources industry mobile unit by reason only that the vessel or structure is also used or to be used in, or in any operations or activities associated with, or incidental to, exploring or exploiting resources other than natural resources.

           (13)  The reference in subparagraph (11)(a)(ii) to a vessel that is used or is to be used wholly or principally in operations or activities associated with, or incidental to, activities of the kind referred to in subparagraph (11)(a)(i) shall be read as not including a reference to a vessel that is used or is to be used wholly or principally in:

                     (a)  transporting persons or goods to or from a resources installation; or

                     (b)  manoeuvring a resources installation, or in operations relating to the attachment of a resources installation to the Australian seabed.

           (14)  A resources installation shall be taken to be attached to the Australian seabed if:

                     (a)  the installation:

                              (i)  is in physical contact with, or is brought into physical contact with, a part of the Australian seabed; and

                             (ii)  is used or is to be used, at that part of the Australian seabed, wholly or principally in or in any operations or activities associated with, or incidental to, exploring or exploiting natural resources; or

                     (b)  the installation:

                              (i)  is in physical contact with, or is brought into physical contact with, another resources installation that is taken to be attached to the Australian seabed by virtue of the operation of paragraph (a); and

                             (ii)  is used or is to be used, at the place where it is brought into physical contact with the other installation, wholly or principally in or in any operations or activities associated with, or incidental to, exploring or exploiting natural resources.

           (15)  Subject to subsection (17), for the purposes of this Act, a sea installation shall be taken to be installed in an adjacent area if:

                     (a)  the installation is in, or is brought into, physical contact with a part of the seabed in the adjacent area; or

                     (b)  the installation is in, or is brought into, physical contact with another sea installation that is to be taken to be installed in the adjacent area because of paragraph (a).

           (16)  For the purposes of this Act, a sea installation shall be taken to be installed in an adjacent area at a particular time if the whole or part of the installation:

                     (a)  is in that adjacent area at that time; and

                     (b)  has been in a particular locality:

                              (i)  that is circular and has a radius of 20 nautical miles; and

                             (ii)  the whole or part of which is in that adjacent area;

                            for:

                            (iii)  a continuous period, of at least 30 days, that immediately precedes that time; or

                            (iv)  one or more periods, during the 60 days that immediately precede that time, that in sum amount to at least 40 days.

           (17)  Where a sea installation, being a ship or an aircraft:

                     (a)  is brought into physical contact with a part of the seabed in an adjacent area; or

                     (b)  is in, or is brought into, physical contact with another sea installation that is to be taken to be installed in an adjacent area;

for less than:

                     (c)  in the case of a ship, or an aircraft, registered under the law of a foreign country--30 days; or

                     (d)  in any other case--5 days;

it shall not be taken to be installed in that adjacent area under subsection (15).

           (18)  A sea installation shall not be taken to be installed in an adjacent area for the purposes of this Act unless it is to be taken to be so installed under this section.

           (19)  Subject to subsection (21), for the purposes of this Act, a sea installation shall be taken to be installed in a coastal area if:

                     (a)  the installation is in, or is brought into, physical contact with a part of the seabed in the coastal area; or

                     (b)  the installation is in, or is brought into, physical contact with another sea installation that is to be taken to be installed in the coastal area because of paragraph (a).

           (20)  For the purposes of this Act, a sea installation (other than an installation installed in an adjacent area) shall be taken to be installed at a particular time in a coastal area if the whole or part of the installation:

                     (a)  is in that coastal area at that time; and

                     (b)  has been in a particular locality:

                              (i)  that is circular and has a radius of 20 nautical miles; and

                             (ii)  the whole or part of which is in that coastal area;

                            for:

                            (iii)  a continuous period, of at least 30 days, that immediately precedes that time; or

                            (iv)  one or more periods, during the 60 days that immediately precede that time, that in sum amount to at least 40 days.

           (21)  Where a sea installation, being a ship or an aircraft:

                     (a)  is brought into physical contact with a part of the seabed in a coastal area; or

                     (b)  is in, or is brought into, physical contact with another sea installation that is to be taken to be installed in a coastal area;

for less than:

                     (c)  in the case of a ship, or an aircraft, registered under the law of a foreign country--30 days; or

                     (d)  in any other case--5 days;

it shall not be taken to be installed in that coastal area under subsection (19).

           (22)  A sea installation shall not be taken to be installed in a coastal area for the purposes of this Act unless it is to be taken to be so installed under this section.

           (23)  To avoid doubt, in this Act is taken , when followed by the infinitive form of a verb, has the same force and effect as is deemed when followed by the infinitive form of that verb.



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