Section 5 — Interpretation

5 Interpretation

(1) In this Act, unless the contrary intention appears: 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. application to be reviewed on the papers: see subsections 367C(2) and (3). appointed inspector has the meaning given by section 140V. approved family sponsor means a person:

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

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

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) an approved family sponsor; or

(b) an approved work sponsor.

approved work sponsor means:

(a) a person:

(i) who has been approved under section 140E as a work sponsor 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 work 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). arrival control determination has the meaning given by section 84B. ART means the Administrative Review Tribunal. ART Act means the Administrative Review Tribunal Act 2024. ART Act migration decision: see section 474A. ART member means a member of the ART. ART practice directions means practice directions made under section 36 of the ART Act. ART Principal Registrar means the Principal Registrar within the meaning of the ART Act.

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. association: a person has an association, for the purposes of subsections 5C(1A), 500A(1A) and 501(6A), with an organisation if the person meets or communicates with the organisation. Note: The association may consist of a single meeting or communication.

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 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 history information means information about an individual’s criminal history, and includes information about:

(a) any charge against the individual for an offence against a law of the Commonwealth, a State or a Territory, whether or not the individual has been found to have committed the offence; and

(b) any finding that the individual committed such an offence, whether or not the individual has been convicted of the offence; and

(c) any conviction of the individual of such an offence, whether or not the conviction is spent (however described) under:

(i) Part VIIC of the Crimes Act 1914; or

(ii) a law of a State or Territory; and

(d) any other result of a proceeding for the prosecution of the individual for such an 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 and Family Court of Australia (Division 2); 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. Fair Work Inspector has the same meaning as in the Fair Work Act 2009. Federal Court means the Federal Court of Australia. finally determined: for when an application under this Act is finally determined, see section 11A. Finance Minister means the Minister who administers the Public Governance, Performance and Accountability Act 2013.

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. hate crime has the same meaning as in section 114A.3 of the Criminal Code. 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.

IGIS official (short for Inspector-General of Intelligence and Security official) means:

(a) the Inspector-General of Intelligence and Security; or

(b) any other person covered by subsection 32(1) of the Inspector-General of Intelligence and Security Act 1986.

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).

immigration detention facility: see section 251A. immigration detention facility risk: see section 251A. 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.

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:

(a) in relation to a terrorist organisation—has the same meaning as in Division 102 of the Criminal Code; and

(b) in relation to a state sponsor of terrorism—has the same meaning as in Division 110 of the Criminal Code; and

(c) in relation to a prohibited hate group—has the same meaning as in Division 114A of the Criminal Code.

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 ART Act migration decision.

migration law means:

(a) this Act; and

(b) the regulations; and

(c) any legislative instrument made under this Act or the regulations.

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.

Ministerial intervention power means a power exercisable personally by the Minister under any one or more of the following provisions:

(a) subsection 46A(2) (about visa applications by unauthorised maritime arrivals);

(b) subsection 46B(2) (about visa applications by transitory persons);

(c) subsection 48B(1) (about further applications for a protection visa after refusal or cancellation);

(d) paragraph 72(1)(c) (about bridging visas for eligible non-citizens);

(e) subsection 91F(1) (about non-citizens for whom there is a safe third country);

(f) subsection 91L(1) (about holders of temporary safe haven visas);

(g) subsection 137N(1) (about revocation of visa cancellation on the Minister’s initiative);

(h) subsection 195A(2) (about grant of visas to detainees);

(i) subsection 198AE(1) (about Minister’s power to determine that section 198AD does not apply);

(j) subsection 351(1) (about Minister’s power to substitute certain ART decisions);

(k) subsection 501J(1) (about Minister’s power to substitute ART protection visa decision).

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. nomination training contribution charge means nomination training contribution charge imposed by section 7 of the Migration (Skilling Australians Fund) Charges Act 2018. 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. 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). permitted travel certificate has the meaning given by section 84D. 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).

prohibited hate group has the same meaning as in Division 114A of the Criminal Code. prohibited thing: see section 251A. 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.

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. relevant seizure power: see section 251B. relevant workplace law has the meaning given by subsection 245APA(2). remain in Australia, in relation to a person, means remain in the migration zone. removal concern country means a country designated as such by the Minister under subsection 199F(1). removal pathway direction means a direction given under subsection 199C(1) or (2). removal pathway non-citizen means:

(a) an unlawful non-citizen:

(i) who is required to be removed from Australia under section 198 as soon as reasonably practicable; or

(ii) who would be required to be so removed except for the operation of subsection 197E(5); or

(b) a lawful non-citizen who holds a Subclass 070 (Bridging (Removal Pending)) visa; or

(c) a lawful non-citizen who:

(i) holds a Subclass 050 (Bridging (General)) visa; and

(ii) at the time the visa was granted, satisfied a criterion for the grant relating to the making of, or being subject to, acceptable arrangements to depart Australia; or

(d) a lawful non-citizen who:

(i) holds a visa prescribed by the regulations for the purposes of this subparagraph; and

(ii) at the time the visa was granted, satisfied a criterion for the grant relating to the making of, or being subject to, acceptable arrangements to depart Australia.

Note 1: For subparagraph (a)(ii), subsection 197E(5) temporarily suspends the duty to remove an unlawful non-citizen under section 198 if the Minister decides to consider whether to exercise a Ministerial intervention power in relation to the non-citizen. However, the suspension does not prevent other action being taken, or things being done, to facilitate or otherwise prepare for the removal of the non-citizen under section 198 (see subsection 197E(10)). Note 2: The effect of paragraph (c) is that only certain non-citizens holding Subclass 050 (Bridging (General)) visas will be removal pathway non-citizens.

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).

reviewable migration decision: see section 338. reviewable protection decision: see section 338A. 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. state sponsor of terrorism has the same meaning as in Division 110 of the Criminal Code. 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.

tax file number has the meaning given by subsection 995-1(1) of the Income Tax Assessment Act 1997. 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.

terrorist organisation has the same meaning as in Division 102 of the Criminal Code. 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.

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 otherwise than under section 84E; or

(ii) in the case of a bridging visa—when the visa ceases to be in effect otherwise than under subsection 82(3) or section 84E.

Note: See subsection 68(6) for when certain bridging visas are to be taken to have ceased to be in effect otherwise than under subsection 82(3).

visa pre-application process charge means charge imposed by the Migration (Visa Pre-application Process) Charge Act 2023. weapon or escape aid: see section 252. 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.

work-related offence means:

(a) an offence against Subdivision C or E of Division 12 of Part 2; or

(b) an offence against section 6 of the Crimes Act 1914 that relates to an offence against one of those Subdivisions; or

(c) an ancillary offence (within the meaning of the Criminal Code) that is, or relates to, an offence against one of those Subdivisions.

work-related provision means a civil penalty provision in Subdivision C, E or F of Division 12 of Part 2.

(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.

(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.