Commonwealth: Migration Reform Act 1992 (Cth)

Migration Reform Act 1992 No. 184 of 1992 An Act to reform the law relating to migration [Assented to 7 December 1992] The Parliament of Australia enacts: Short title etc. 1.(1) This Act may be cited as the Migration Reform Act 1992. (2) In this Act, "Principal Act" means the Migration Act 19581. Commencement 2.(1) Sections 1, 2 and 31 commence on the day on which this Act receives the Royal Assent. (2) Sections 6 and 32 commence on 1 July 1993. (3) The remaining provisions of this Act commence on 1 November 1993. 3. After section 3 of the Principal Act the following section is inserted: Object of Act "3A.(1) The object of this Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens. "(2) To advance its object, this Act provides for visas permitting non-citizens to enter or remain in Australia and the Parliament intends that this Act be the only source of the right of non-citizens to so enter or remain. "(3) To advance its object, this Act requires persons entering Australia to identify themselves so that the Commonwealth government can know who are the non-citizens so entering. "(4) To advance its object, this Act provides for the removal or deportation from Australia of non-citizens whose presence in Australia is not permitted by this Act.". Interpretation 4. Section 4 of the Principal Act is amended: (a) by omitting from subsection (1) the definitions of "accompanying child", "accompanying spouse", "holder", "port", "score" and "visa" and substituting respectively the following definitions: " 'holder', in relation to a visa, means, subject to section 26ZR (visas only held if in force) the person to whom it was granted or a person included in it; 'port' means: (a) a proclaimed port; or (b) a proclaimed airport; 'score', in relation to a visa applicant, means the total number of points given to the applicant under section 30 in the most recent assessment or re-assessment under Subdivision B of Division 2 of Part 2; 'Visa' has the meaning given by section 24 and includes an 'old visa';"; (b) by omitting from subsection (1) the definitions of "entry permit", "entry visa", "exempt non-citizen", "member", "period of grace", "permanent entry permit", "presiding member", "Principal Member", "processing area", "prohibited person", "properly endorsed valid entry permit", "properly endorsed valid entry visa", "refugee", "review authority", "reviewable decision", "review officer", "review under Part 3", "section 20 notice", "Senior Member", "statutory visitor", "stowaway", "temporary entry permit", "travel only visa", "Tribunal", "unprocessed person", "valid entry permit", "valid temporary entry permit", "valid permanent entry permit" and "valid visa"; (c) by inserting in subsection (1) the following definitions: " 'allowed inhabitant of the Protected Zone' means an inhabitant of the Protected Zone, other than such an inhabitant: (a) to whom a declaration under section 17 applies (presence declared undesirable); or (b) who is a behaviour concern non-citizen; or (c) who is a health concern non-citizen; 'approve', in relation to an application for a visa, means approve the grant of the visa; '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; 'bridging visa' has the meaning given by section 26C; 'bypass immigration clearance' has the meaning given by subsection 54HS(4); 'criminal justice visa' has the meaning given by section 26D; '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; 'detainee' means a person detained; 'enter Australia', in relation to a person, means enter the migration zone; '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 is satisfied if the applicant for the visa: (a) does not have a specified disease; or (b) does not have a specified physical or mental condition; or (c) has a specified physical or mental condition; or (d) has had a specified examination; or (e) has had specified treatment to prevent disease; 'immigration cleared' has the meaning given by subsection 54HS(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 to accompany and restrain the detainee; or (b) being held by, or on behalf of, an officer in: (i) a detention centre established under this Act; or (ii) a prison or remand centre of the Commonwealth, a State or a Territory; or (iii) a police station or watch house; or (iv) another place approved by the Minister in writing; 'Immigration Review Tribunal' means the Immigration Review Tribunal established by section 151; 'in immigration clearance' has the meaning given by subsection 54HS(2); 'internally-reviewable decision' has the meaning given by section 115A; 'IRT-reviewable decision' has the meaning given by section 116; 'judicially-reviewable decision' has the meaning given by section 166LA; 'lawful non-citizen' has the meaning given by section 14; 'leave Australia', in relation to a person, means, subject to section 26ZU (leaving without going to other country), leave the migration zone; '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 a Territory but not in a port; '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 to 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) that is information or matter that was given to the Minister or an officer in confidence; and includes any document containing, or any record of, such information or matter; 'old visa' means a visa, document, or notation, that: (a) permits a person to travel to Australia; and (b) was issued before 1 November 1993; and (c) has not been cancelled or otherwise stopped being in force; 'permanent visa' has the meaning given by subsection 25(1); '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; 'questioning detention' means detention under section 54Z; 'Refugee Review Tribunal' means the Refugee Review Tribunal established by section 166J; 'refused immigration clearance' has the meaning given by subsection 54HS(3); '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 4D of Part 2; 'RRT-reviewable decision' has the meaning given by section 166B; 'special category visa' has the meaning given by section 26A; 'substantive visa' means a visa other than a bridging visa or a criminal justice visa; 'temporary visa' has the meaning given by subsection 25(2); 'unlawful non-citizen' has the meaning given by section 15; 'visa' 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 holder' means the holder of a visa and, in relation to a visa, means the holder of the visa; 'visa tax' means tax under the Migration (Delayed Visa Applications) Tax Act 1992;"; (d) by omitting subsections (5), (5A), (8), (9), (10) and (10A); (e) by omitting from paragraph (12)(a) "Part 3" and substituting "Part 3 or 4A"; (f) by omitting from paragraph (12)(b) "Part III" and substituting "Part 3 or 4A"; (g) by omitting subsections (26) and (28).". 5. After section 4 of the Principal Act the following section is inserted: Effect of limited meaning of enter Australia etc. "4AA. To avoid doubt, although subsection 4(1) limits, for the purposes of this Act, the meanings of 'enter Australia', 'leave Australia' and 'remain in Australia' and as well, because of section 18A of the Acts Interpretation Act 1901, the meaning of parts of speech and grammatical forms of those phrases, this does not mean: (a) that, for those purposes, the meaning of 'in Australia', 'to Australia' or any other phrase is limited; or (b) that this Act does not extend to parts of Australia outside the migration zone; or (c) that this Act does not apply to persons in those parts.". Period of grace 6. Section 13 of the Principal Act is amended: (a) by inserting after paragraph (b) of the definition of "excluded day" in subsection (2) the following paragraph: "(ba) starting when the person applies to the Refugee Review Tribunal for a review of a decision refusing him or her an entry permit and ending when the person is notified of the decision on the review; or"; (b) by inserting ", a review by the Refugee Review Tribunal" after "Part 3" in paragraph (d) of the definition of "excluded day" in subsection (2); (c) by inserting ", (b)" after "(b)" in paragraph (d) of the definition of "excluded day" in subsection (2). 7. The headings to Part 2 and Division 1 of Part 2, and sections 14 to 18, of the Principal Act are repealed and the following headings and sections substituted: "PART 2—CONTROL OF ARRIVAL AND PRESENCE OF NON-CITIZENS "Division 1—Immigration status Lawful non-citizens "14.(1) A non-citizen in the migration zone who holds a visa is a lawful non-citizen. "(2) An allowed inhabitant of the Protected Zone who is in a protected area in connection with the performance of traditional activities is a lawful non-citizen. "(3) A non-citizen in the migration zone who: (a) on 2 April 1984 was in Australia; and (b) before that date, had ceased to be an immigrant; and (c) on or after that date, has not left Australia, where left Australia has the meaning it had in this Act before 1 November 1993; and (d) immediately before 1 November 1993, was not a person to whom section 20 of this Act as in force then applied; is a lawful non-citizen. Unlawful non-citizens "15.(1) A non-citizen in the migration zone who is not a lawful non-citizen is an unlawful non-citizen. "(2) To avoid doubt, a non-citizen in the migration zone who, immediately before 1 November 1993, was an illegal entrant within the meaning of the Migration Act as in force then became, on that date, an unlawful non-citizen. Effect of cancellation of visa on status "16. To avoid doubt, subject to subsection 14(2) (certain inhabitants of protected zone), if a visa is cancelled its former holder, if in the migration zone, becomes, on the cancellation, an unlawful non-citizen. Removal of immigration rights of inhabitant of Protected Zone "17. The Minister may declare, in writing, that it is undesirable that a specified inhabitant of the Protected Zone continue to be permitted to enter or remain in Australia.". Pre-cleared flights 8. Section 19 of the Principal Act is amended: (a) by omitting "section 17" and substituting "this Act"; (b) by adding at the end the following subsections: "(2) The Minister may declare, in writing, a specified class of flights conducted by a specified air transport enterprise or by another specified person to be pre-cleared flights for the purposes of this Act. "(3) A particular flight to which a declaration under subsection (1) or (2) applies is not a pre-cleared flight if an authorised officer decides, before the passengers on it disembark in Australia, that it is inappropriate to treat it as such.". Refugees 9. Division 1AA of Part 2 of the Principal Act is repealed. 10. The headings to Division 2 of Part 2 and Subdivision A of that Division, and sections 23 to 26, of the Principal Act are repealed and the following headings and sections are substituted: "Division 2—Visas for non-citizens "Subdivision A—General provisions about visas Interpretation "23. In this Division: 'specified period' includes the period until a specified date. Visas "24.(1) Subject to this Act, the Minister may grant a non-citizen permission, to be known as a visa, to do either or both of the following: (a) travel to and enter Australia; (b) remain in Australia. "(2) Without limiting subsection (1), a visa to travel to, enter and remain in Australia may be one to: (a) enter Australia during a specified period; and (b) if, and only if, the holder enters during that period, remain in Australia during a specified period or indefinitely. "(3) Without limiting subsection (1), a visa to travel to, enter and remain in Australia may be one to: (a) enter Australia during a specified period; and (b) if, and only if, the holder enters during that period: (i) remain in it during a specified period or indefinitely; and (ii) if the holder leaves Australia during a specified period, re-enter it during a specified period. "(4) Without limiting section 27 (person taken to be included in visa) or section 26ZS (newborn child included in visa), the regulations may provide for a visa being held by 2 or more persons. Kinds of visas "25.(1) A visa to remain in Australia (whether also a visa to travel to and enter Australia) may be a visa, to be known as a permanent visa, to remain indefinitely. "(2) A visa to remain in Australia (whether also a visa to travel to and enter Australia) may be a visa, to be known as a temporary visa, to remain: (a) during a specified period; or (b) until a specified event happens; or (c) while the holder has a specified status. Classes of visas "26.(1) There are to be prescribed classes of visas. "(2) As well as the prescribed classes, there are the classes provided for by sections 26A, 26B, 26C and 26D. "(3) The regulations may prescribe criteria for a visa or visas in a specified class (which, without limiting the generality of this subsection, may be a class provided for by section 26A, 26B or 26C but not by section 26D). Special category visas "26A.(1) There is a class of temporary visas to be known as special category visas. "(2) A criterion for a special category visa is that the applicant is: (a) a non-citizen: (i) who is a New Zealand citizen and holds, and has shown an officer, a New Zealand passport that is in force; and (ii) is neither a behaviour concern non-citizen nor a health concern non-citizen; or (b) a person declared by the regulations, to be a person for whom a visa in another class would be inappropriate; or (c) a person in a class of persons declared by the regulations, to be persons for whom a visa in another class would be inappropriate. Protection visas "26B.(1) There is a class of temporary visas to be known as protection visas. "(2) A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Bridging visas "26C. There is a class of temporary visas, to be known as bridging visas, to be granted under Subdivision AF. Criminal justice visas "26D. There is a class of temporary visas, to be known as criminal justice visas, to be granted under Subdivision D of Division 3. Criterion limiting number of visas "26E.(1) In spite of section 49A of the Acts Interpretation Act 1901, a prescribed criterion for visas in a class, other than protection visas, may be the criterion that the grant of the visa would not cause the number of visas in that class granted in a particular financial year to exceed whatever number is fixed by the Minister, by notice published in the Gazette, as the maximum number of such visas that may be granted in that year (however the criterion is expressed). "(2) For the purposes of this Act, when a criterion allowed by subsection (1) prevents the grant in a financial year of any more visas in a particular class, any outstanding applications for the grant in that year of visas in that class are taken not to have been made. Circumstances for granting visas "26F.(1) The regulations may provide that visas or visas in a specified class may only be granted in specified circumstances. "(2) Without limiting subsection (1), the circumstances may be that, when the person is granted the visa, the person: (a) is outside Australia; or (b) is in immigration clearance or has been refused immigration clearance; or (c) is in the migration zone and, on last entering Australia, was immigration cleared or bypassed immigration clearance. Conditions on visas "26G.(1) The regulations may provide that visas, or visas in a specified class, are subject to specified conditions. "(2) Without limiting subsection (1), the regulations may provide that a visa, or visas in a specified class, are subject to: (a) a condition that, despite anything else in this Act, the holder of the visa will not, after entering Australia, be entitled to be granted a visa while he or she remains in Australia; or (b) a condition imposing restrictions about the work that may be done in Australia by the holder, which, without limiting the generality of this paragraph, may be restrictions on doing: (i) any work; or (ii) work other than specified work; or (iii) work of a specified kind. Visas essential for travel "26H.(1) Subject to subsections (2) and (3), a non-citizen must not travel to Australia without a visa. "(2) Subsection (1) does not apply to an allowed inhabitant of the Protected Zone travelling to a protected area in connection with traditional activities. "(3) The regulations may permit a specified non-citizen or a non-citizen in a specified class to travel to Australia without a visa. Visa holders must usually enter at a port "26J. Subject to the regulations, a visa to enter Australia is permission for the holder to enter Australia: (a) at a port; or (b) on a pre-cleared flight; or (c) if the holder travels to Australia on a vessel and the health or safety of a person or a prescribed reason, make it necessary to enter in another way, that way; or (d) in a way authorised in writing by an authorised officer. "Subdivision AA—Applications for visas Extent of following Subdivisions "26K. This Subdivision and the later Subdivisions of this Division, other than this section, Subdivision AG and subsection 50E(1), do not apply to criminal justice visas. Application for visa "26L.(1) A non-citizen who wants a visa must apply for it. "(2) Without limiting subsection (1), the regulations may prescribe the way for making: (a) an application in specified circumstances; or (b) an application for a visa in a specified class; or (c) an application in specified circumstances for a visa in a specified class. "(3) Without limiting subsection (1), the regulations may provide that, when an application in a specified class is made, the applicant: (a) must be outside Australia; or (b) must be in immigration clearance or have been refused immigration clearance; or (c) must be in the migration zone and, on last entering Australia, been immigration cleared or bypassed immigration clearance. Valid visa application "26M. An application for a visa is valid if, and only if: (a) it is for a visa in a class specified in the application; and (b) it is made in the way required by subsection 26L(2), including any way required by subsection 26L(3); and (c) any fees payable in respect of it under the regulations have been paid; and (d) it is not prevented by section 26P (visa refused or cancelled earlier), 54HH (criminal justice) or 54ZC (detainees); and (e) in a case where the applicant is in the migration zone and the application is not for a protection visa or a bridging visa, the applicant has not, since last entering Australia, held a visa subject to a condition described in paragraph 26G(2)(a). Consideration of valid visa application "26N.(1) The Minister is to consider a valid application for a visa. "(2) The requirement to consider an application continues until: (a) it is withdrawn, approved or refused; or (b) the further consideration is prevented by section 26E (limiting number of visas) or 28 (suspension of consideration). "(3) To avoid doubt, the Minister is not to consider an application that is not a valid application. "(4) To avoid doubt, a decision by the Minister that an application is not valid and cannot be considered is not a decision to refuse the application. Non-citizens whose application refused or visa cancelled may only apply for particular visas "26P.(1) A non-citizen in Australia who: (a) does not hold a substantive visa; and (b) either: (i) made an application for a visa, other than a bridging visa, that was refused after he or she last entered Australia (whether or not the application has been finally determined); or (ii) held a visa that was cancelled under section 45 (incorrect information), 50AB (general power to cancel); or section 50A (business visas); may apply for a visa in a class prescribed for the purposes of this section or a bridging visa but not for any other visa. "(2) One of the criteria for a visa in a class prescribed for the purposes of this section is that there has been a prescribed change in circumstances since the refused application or cancellation. Withdrawal of visa application "26Q.(1) An applicant for a visa may, by written notice given to the Minister, withdraw the application. "(2) An application that is withdrawn is taken to have been disposed of. "(3) To avoid doubt, an application that is withdrawn before it is refused is not taken for the purposes of section 26P to have been refused. "(4) Subject to the regulations, fees payable in respect of an application that is withdrawn are not refundable. Only new information to be considered in later protection visa applications "26R. If a non-citizen who has made: (a) an application for a protection visa that has been refused and finally determined; or (b) applications for protection visas that have been refused and finally determined; makes a further application for a protection visa, the Minister, in considering the further application: (c) is not required to reconsider any information considered in the earlier application or an earlier application; and (d) may have regard to, and take to be correct, any decision that the Minister made about or because of that information. Order of consideration "26S.(1) The Minister may consider and dispose of applications for visas in such order as he or she considers appropriate. "(2) The fact that an application has not yet been considered or disposed of although an application that was made later has been considered or disposed of does not mean that the consideration or disposal of the earlier application is unreasonably delayed. "Subdivision AB—Code of procedure for dealing fairly, efficiently and quickly with visa applications Communication of applicant with Minister "26T.(1) A visa applicant must communicate with the Minister in the prescribed way. "(2) The regulations may prescribe different ways of communicating and specify the circumstances when communication is to be in a particular way. "(3) If the applicant purports to communicate anything to the Minister in a way that is not the prescribed way, the communication is taken not to have been received unless the Minister in fact receives it. Communication of Minister with applicant "26U.(1) A visa applicant is to tell the Minister the address at which the applicant intends to live while the application is being dealt with. "(2) If the applicant proposes to change the address at which he intends to live for at least 14 days, the applicant must tell the Minister the address and the period of proposed residence. "(3) If the Minister sends or leaves a notification to the applicant at the address for the applicant given under subsection (1) or (2), the notification is taken to have been received by the applicant even if it was not received. "(4) A visa applicant may tell the Minister that a specified person at a specified address may be given notifications for the applicant about the application. "(5) If the Minister has been given the name and address of a person under subsection (4), the Minister may give, but is not required to give, notifications to the applicant by giving them to that person at that address and a notification so given is taken to have been received by the applicant. "(6) If, in accordance with the regulations, 2 or more non-citizens apply for visas together, notifications given to any of them about the application are taken to be given to each of them. Application may be decided on basis of information in application "26V.(1) Subject to this Subdivision, a visa application may be decided on the basis of the information given in it. "(2) For the purposes of subsection (1), information is in an application if, and only if, the information is set out in the application or in a document attached to it when it is made. "(3) Without limiting subsection (1), a decision about an application may be made without giving the applicant an opportunity to make oral or written submissions. Further information may be given "26W.(1) Until the Minister has made a decision whether to approve or refuse an application for a visa, the applicant may give the Minister any additional relevant information and the Minister must have regard to that information in making the decision. "(2) Subsection (1) does not mean that the Minister is required to delay making a decision because the applicant might give, or has told the Minister that the applicant intends to give, further information. Further information may be sought "26X.(1) In considering an application for a visa, the Minister may, if he or she wants to, get any information that he or she considers relevant and may have regard to that information in making the decision about the application. "(2) Without limiting subsection (1), the Minister may invite, orally or in writing, the applicant for a visa to give additional information in a specified way. Certain information must be given to applicant "26Y.(1) Subject to subsection (2), if the Minister has. information, not being non-disclosable information, that he or she considers: (a) would be the reason, or part of the reason, for refusing the application for a visa; and (b) is specifically about the applicant or another person and not just about a class of persons of which the applicant or other person is a member; and (c) was not given by, or with the permission of, the applicant for the purpose of the application; the Minister is to: (d) give particulars of the information to the applicant; and (e) invite the applicant to comment on the information. "(2) This section does not apply to an application for a visa if: (a) the application is to be made when the applicant is outside Australia; and (b) this Act does not provide for an application in accordance with Part 3 or 4A for review of a decision to refuse the application for the visa. "(3) The particulars and invitation are to be given in the way that the Minister considers appropriate in the circumstances, which may be orally or in writing. "(4) The Minister is to ensure, as far as reasonably practicable, that the applicant understands why the information is relevant to the application. Invitation to give further information or comments "26Z.(1) If an applicant for a visa is: (a) invited under section 26X to give additional information; or (b) invited under section 26Y to comment on information; the invitation is to specify whether the additional information or the comments may be given: (c) in writing; or (d) at an interview between the applicant and an officer; or (e) by telephone. "(2) Subject to subsection (4), if the invitation is to give additional information or comments otherwise than at an interview, the information or comments are to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period. "(3) Subject to subsection (5), if the invitation is to give information or comments at an interview, the interview is to take place: (a) at a place specified in the invitation, being a prescribed place or if no place is prescribed, a reasonable place; and (b) at a time specified in the invitation, being a time within a prescribed period or, if no period is prescribed, a reasonable period. "(4) If a person is to respond to an invitation within a prescribed period, that period may be extended by the Minister for a prescribed further period, and then the response is to be made in the extended period. "(5) If a person is to respond to an invitation at an interview at a time within a prescribed period, that time may be changed by the Minister to: (a) a later time within that period; or (b) a time within that period as extended by the Minister for a prescribed further period; and then the response is to be made at an interview at the new time. Interviews "26ZA.(1) An applicant must make every reasonable effort to be available for, and attend, an interview. "(2) Section 26Z and this section do not mean that the Minister cannot obtain information from an applicant by telephone or in any other way. Medical examination "26ZB.(1) If the health or physical or mental condition of an applicant for a visa is relevant to the approval of the application, the Minister may require the applicant to visit, and be examined by, a specified person, being a person qualified to determine the applicant's health, physical condition or mental condition, at a specified reasonable time and specified reasonable place. "(2) An applicant for a visa must make every reasonable effort to be available for, and attend, an examination. Prescribed periods "26ZC. If this Subdivision requires or allows the regulations to prescribe a period or other time limit relating to a step in considering an application for a visa, the regulations may prescribe different limits relating to that step and specify when that specified limit is to apply, which, without limiting the generality of the power, may be to: (a) applications in a specified class; or (b) applications in specified circumstances; or (c) applicants in a specified class; or (d) applicants in a specified class in specified circumstances. Failure to receive information not require action "26ZD.(1) If an applicant for a visa: (a) is invited to give additional information; and (b) does not give the information before the time for giving it has passed; the Minister may make a decision about the application without taking any action to obtain the additional information. "(2) If an applicant for a visa: (a) is invited to comment on information; and (b) does not give the comments before the time for giving them has passed; the Minister may make the decision without taking any further action to obtain the applicant's views on the information. When decision about visa application may be made "26ZE.(1) Subject to sections 26Y (give applicant information) and 31 (delay under points system) and subsections (2) and (3), the Minister may approve, or refuse, an application for a visa at any time after the application has been made. "(2) The Minister is not to refuse an application after inviting the applicant to give information and before whichever of the following happens first: (a) the information is given; (b) the applicant tells the Minister that the applicant does not wish to give the information or does not have it; (c) the time in which the information may be given ends. "(3) The Minister is not to refuse an application after inviting the applicant to comment on information and before whichever of the following happens first: (a) the comments are given; (b) the applicant tells the Minister that the applicant does not wish to comment; (c) the time in which the comments are to be given ends. "Subdivision AC—Decision about application Decision about application "26ZF.(1) After considering a valid application for a visa, the Minister: (a) if satisfied that: (i) the health criteria for it (if any) have been satisfied; and (ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and (iii) the approval of the application is not prevented by this Act or another law of the Commonwealth; and (iv) any visa tax, any English Education Charge under the Immigration (Education) Charge Act 1992 and any charge under the Migration (Health Services) Charge Act 1991 payable in relation to the application if the application is approved have been paid; is to approve the application; or (b) if not so satisfied, is to refuse the application. "(2) To avoid doubt, an application set aside under section 31 is not taken for the purposes of subsection (1) to have been considered until it has been reconsidered under the regulations under subsection 31(4) for the last time. "(3) For the purposes of subparagraph (1)(a)(iv), visa tax in relation to an application for a visa is taken to be payable if the application is approved even though the tax might not become payable because of subsection 5(4) of the Migration (Delayed Visa Applications) Tax Act 1992 (not payable if applicant leaves Australia before grant). Notification of decision "26ZG.(1) When the Minister approves or refuses a visa application, he or she is to notify the applicant of the decision in the prescribed way. "(2) Notification of a decision to approve an application for a visa must, if there are any prescribed requirements or requirements under any other law of the Commonwealth for the grant that have to be met, include particulars of them and a statement that the visa will not be granted unless they are met within a specified time. "(3) A time specified for the purposes of subsection (2) must begin on the date of notification and not be longer than 12 months. "(4) Notification of a decision to refuse an application for a visa must: (a) if the visa was refused because the applicant did not satisfy a criterion for the visa—specify that criterion; and (b) if the visa was refused because a provision of this Act or the regulations prevented approval—specify that provision; and (c) unless subsection (5) applies to the application—give the reasons (not being non-disclosable information) why the criterion was not satisfied or the provision prevented approval; and (d) if the applicant has a right to have the decision reviewed under Part 3 or 4A or section 180—state: (i) that the decision can be reviewed; and (ii) the time in which the application for review may be made; and (iii) who can apply for the review; and (iv) where the application for review can be made. "(5) This subsection applies to an application for a visa if: (a) the application is to be made when the applicant is outside Australia; and (b) this Act does not provide for an application in accordance with Part 3 for review of a decision to refuse the application for the visa. "(6) Failure to give notification of a decision does not affect the validity of the decision. Effect of compliance or non-compliance "26ZH.(1) Non-compliance with Subdivision AA or AB in relation to a visa application does not mean that a decision to approve or refuse the application is not a valid decision but only means that the decision might have been the wrong one and might be set aside if reviewed. "(2) If the Minister deals with a visa application in a way that complies with Subdivision AA, AB and this Subdivision, the Minister is not required to take any other action in dealing with it. "Subdivision AD—Grant of visas Grant of visa "26ZI.(1) If: (a) the Minister has approved the application for a visa; and (b) any prescribed requirements or requirements under any other law of the Commonwealth for the grant have been met within the time for doing so specified in the notice of approval; and (c) the grant is not prevented by section 26F (circumstances when granted) or any other provision of this Act or any other law of the Commonwealth; the visa must be granted. "(2) To avoid doubt, if the time within which a visa can be granted ends without it being able to be granted, the visa cannot be granted and the application lapses and is taken to have been finally determined. "(3) To avoid doubt, the prevention by subsection (2) of the grant of a visa is not a decision to refuse the application for the visa. Way visa granted "26ZJ. A visa is to be granted by the Minister causing a record of it to be made. When visa operates "26ZK.(1) Subject to subsection (2), a visa has effect as soon as it is granted. "(2) A visa may provide that it is to have effect from a date specified in it, being a date after its grant. "Subdivision AE—Evidence of visas Evidence of visa "26ZL. Subject to the regulations, if a non-citizen is granted a visa, an officer is to give the non-citizen evidence of the visa. Ways of giving evidence "26ZM.(1) Evidence of a visa is to be given in a way prescribed for giving the evidence. "(2) The regulations may provide that the way in which evidence of a visa or a visa in a class is to be given is to depend on the circumstances in which it is given. "(3) If a regulation provides that evidence of a non-citizen's visa may be given by endorsing a valid passport or other valid travel document issued to the non-citizen or another non-citizen associated with him or her, the Minister may direct that a specified document is not to be taken to be a passport or travel document for the purposes of the regulation. (Australia does not recognise the issue of the document or other reason.) "Subdivision AF—Bridging visas Interpretation "26ZN. In this Subdivision: 'detention non-citizen' means a non-citizen who: (a) either: (i) has been immigration cleared; or (ii) is in a prescribed class; and (b) is a detainee, is liable to be detained or will become so liable within a prescribed period. Bridging visas "26ZO. The Minister may grant a detention non-citizen who satisfies the criteria for a bridging visa prescribed under subsection 26(3) a bridging visa permitting the non-citizen to remain in Australia: (a) during a specified period; or (b) until a specified event happens. Further applications for bridging visa "26ZP.(1) A detention non-citizen: (a) who is in immigration detention; and (b) who made an unsuccessful application for a bridging visa, whether before or after being detained; may make a further application for a bridging visa, but, unless the application is made in prescribed circumstances, not earlier than 30 days after: (c) if he or she did not make an application for review of the decision to refuse the application—the refusal; or (d) if he or she made an application for such review—the application was finally determined. Bridging visa not affect visa applications "26ZQ.(1) The fact that a non-citizen holds a bridging visa does not prevent or affect: (a) an application by the non-citizen for a visa in another class; or (b) the approval of such an application; or (c) the grant of such a visa. "(2) To avoid doubt, the holding by a non-citizen of a bridging visa is not to be taken to be, for the purposes of an application for a visa in another class, the holding of a visa. "Subdivision AG—Other provisions about visas Only visas in force are held "26ZR. To avoid doubt, for the purposes of this Act, a non-citizen does not hold a particular visa at a particular time unless the visa is in force at that time. Children born included in parents visa "26ZS.(1) If: (a) a child born in Australia is a non-citizen when born; and (b) at the time of the birth: (i) one of the child's parents holds a visa; and (ii) the other parent is, under section 27, included in that visa or does not hold a visa; the child is taken to be included in that visa. "(2) If: (a) a child born in Australia is a non-citizen when born; and (b) at the time of the birth, each of the child's parents holds a visa; the child is taken to be included in each of those visas. Effect on visa of leaving Australia "26ZT. If the holder of a visa leaves Australia the holder may only re-enter Australia because of the visa if: (a) the visa is permission for the re-entry; and (b) the visa is in force on re-entry. Certain persons taken not to leave Australia "26ZU. For the purposes of section 26ZT, a person is not taken to leave Australia if: (a) he or she goes outside the migration zone for no longer than a prescribed period; and (b) while outside, goes to neither a foreign country nor an external Territory to which this Act does not extend (fishermen and others). Extent of visa authority "26ZV.(1) A visa to travel to Australia during a period is not permission to travel to it outside that period. "(2) A visa to enter Australia within a period is not permission to so enter outside that period. "(3) A visa to remain in Australia during a period is not permission to so remain outside that period. When visas cease "26ZW.(1) A cancelled visa ceases to be in force on cancellation. "(2) A visa held by a non-citizen ceases to be in force if another visa for the non-citizen comes into force. "(3) A visa to enter Australia during a particular period or until a particular date ceases to be in force at the end of that period or on that date unless the holder of the visa: (a) has entered Australia in that period or on or before that date; and (b) is in Australia at the end of that period or on that date. "(4) A visa to enter Australia during a particular period or until a particular date ceases to be in force if the holder leaves Australia after that period or date. "(5) A visa to remain in Australia during a particular period or until a particular date ceases to be in force at the end of that period or on that date. "(6) A visa to remain in, but not re-enter, Australia that is granted to a non-citizen in Australia ceases to be in force if the holder leaves Australia. "(7) This section does not affect the operation of other provisions of this Act under which a visa ceases to be in force (such as sections 54HT and 54HU)". 11. The heading to Division 3 of Part 2, and sections 33 to 50 are repealed and the following headings and sections are substituted: "Subdivision C—Visas based on incorrect information may be cancelled Interpretation "33. In this Subdivision: 'application form', in relation to a non-citizen, means a form on which non-citizen applies for a visa, being a form that subsection 26L(2) allows to be used for making the application; '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; 'passenger card' has the meaning given by subsection 183(2) and, for the purposes of section 50AA, includes any document provided for by regulations under paragraph 181(1)(c). Completion of visa application "34. A non-citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf. Information is answer "35. Any information that a non-citizen gives, causes to be given or that is given on his or her behalf to the Minister, an officer or a person or Tribunal reviewing a decision under this Act in relation to the non-citizen's application for a visa is taken for the purposes of section 36, paragraphs 37(b) and 38(b) and sections 40 and 41 to be an answer to a question in the non-citizen's application form, whether the information is given orally or in writing and whether at an interview or otherwise. Incorrect answers "36. For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave the answer or caused the answer to be given did not know that it was incorrect. Visa applications to be correct "37.(1) A non-citizen must fill in his or her application form in such a way that: (a) all questions on it are answered; and (b) no incorrect answers are given. "(2) If a question on a non-citizen's application form is not answered, not only will the non-citizen have failed to comply with this section, but the question is to be taken to have been answered in the way that is most adverse for the application. Passenger cards to be correct "38.(1) A non-citizen must fill in his or her passenger card in such a way that: (a) all questions on it are answered; and (b) no incorrect answers are given. "(2) If a question on a non-citizen's passenger card is not answered, not only will the non-citizen have failed to comply with this section, but the question is to be taken to have been answered in the way that is most adverse for the non-citizen. Bogus documents not to be given "39. A non-citizen must not give an officer a bogus document or cause such a document to be so given. Changes in circumstances to be notified "40.(1) If circumstances change so that an answer to a question on a non-citizen's application form or an answer under this section is incorrect in the new circumstances, he or she must inform an officer on an approved form of the new circumstances and of the correct answer in them. "(2) If the application for the visa was made in Australia, subsection (1) only applies to changes in circumstance before the visa is granted. "(3) If the application for the visa was made outside Australia, subsection (1) only applies to changes in circumstances after the application and before the applicant is immigration cleared. "(4) If circumstances change so that an answer to a question on a non-citizen's passenger card is incorrect in the new circumstances, he or she must inform an officer on an approved form of the new circumstances and of the correct answer in them. "(5) Subsections (1) and (4) apply despite the grant of any visa. Particulars of incorrect answers to be given "41.(1) If a non-citizen becomes aware that: (a) an answer in his or her application form; or (b) an answer in his or her passenger card; or (c) information given by him or her under section 40 about the form or card; or (d) a response given by him or her under section 43; is incorrect, he or she must notify an officer, on an approved form, of the incorrectness and of the correct answer. "(2) Subsection (1) applies despite the grant of any visa. Obligations to give information is not affected by other sources of information "42. The requirement for a non-citizen to comply with sections 37, 38, 39, 40 and 41, is not removed or otherwise affected by the fact that the Minister or an officer had, or had access to: (a) any information given by the non-citizen for purposes unrelated to the non-citizen's visa application; or (b) any other information. Notice of incorrect applications "43.(1) If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 37, 38, 39, 40 or 41 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice: (a) giving particulars of the possible non-compliance; and (b) stating that, within 14 days, the holder may give the officer a written response to the notice that: (i) shows that there was compliance; or (ii) both: (A) gives reasons for the non-compliance; and (B) shows cause why the visa should not be cancelled; and (c) stating that, at the end of those 14 days, the officer will consider cancelling the visa; and (d) setting out the effect of sections 44, 45, 47 and 48; and (e) informing the holder that the holder's obligations under section 40 or 41 are not affected by the notice under this section. "(2) If the visa holder responds to the notice, he or she must do so without making any incorrect statement. Decision about non-compliance "44. The Minister is to: (a) consider any response given by a visa holder in the way required by paragraph 43(1)(b); and (b) decide whether there was non-compliance by the visa holder in the way described in the notice. Cancellation of visa if information incorrect "45.(1) The Minister, after: (a) deciding under section 44 that there was non-compliance by the holder of a visa; and (b) considering any response to the notice about the non-compliance given in a way required by paragraph 43(1)(b); and (c) having regard to any prescribed circumstances of the non-compliance; may cancel the visa. "(2) If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled. Cancellation provisions apply whatever source of knowledge of non-compliance "46. To avoid doubt, sections 43, 44 and 45 apply whether or not the officer became aware of the non-compliance because of information given by the holder. Cancellation provisions apply whether or not non-compliance deliberate "47. To avoid doubt, sections 43, 44 and 45 apply whether the non-compliance was deliberate or inadvertent. Action because of one non-compliance not prevent action because of other non-compliance "48.(1) A notice under section 43 to a person because of an instance of possible non-compliance does not prevent another notice under that section to that person because of another instance of possible non-compliance. "(2) The non-cancellation of a visa under section 45 despite an instance of non-compliance does not prevent the cancellation, or steps for the cancellation, of the visa because of another instance of non-compliance. No cancellation if full disclosure "49. If the holder of a visa who has been immigration cleared complied with sections 37, 38, 39, 40 and 41 in relation to the visa, it cannot be cancelled under this Subdivision because of any matter that was fully disclosed in so complying. Effect of setting aside decision to cancel visa "50.(1) If the Federal Court, the Administrative Appeals Tribunal, the Immigration Review Tribunal or the Refugee Review Tribunal, or a review officer within the meaning of Part 3, sets aside a decision under section 45 to cancel a person's visa, the visa is taken never to have been cancelled. "(2) In spite of subsection (1), any detention of the non-citizen between the purported cancellation of the visa and the decision to set aside the decision to cancel is lawful and the non-citizen is not entitled to make any claim against the Commonwealth or an officer because of the detention. Application of Subdivision "50AA.(1) This Subdivision applies to: (a) applications for visas made; and (b) passenger cards filled in; on or after 1 November 1993. "(2) This Subdivision, other than sections 37 and 38, applies to: (a) applications for visas, or entry permits, within the meaning of the Migration Act 1958 as in force before 1 November 1993, that under the regulations are taken to be applications for visas and that have not been finally determined before that date; and (b) passenger cards filled in before 1 November 1993. "(3) This Subdivision applies to a visa granted otherwise than because of an application on or after 1 November 1993 and does so as if: (a) this Subdivision had applied to: (i) the application for the visa; and (ii) passenger cards filled in before that date; and (b) the application for any other visa, or entry permit, (within the meaning of the Migration Act 1958 as in force immediately before that date) because of which the visa is held had been the application for the visa; and (c) for the purposes of sections 43 to 50, non-compliance by the holder of the visa with the sections referred to in section 43 included any action or condition of the holder because of which section 20 of that Act as so in force applied to the holder. "Subdivision D—Visas may be cancelled on certain grounds Power to cancel "50AB.(1) Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that: (a) any circumstances which permitted the approval of the application for the visa no longer exist; or (b) its holder has not complied with a condition of the visa; or (c) another person required to comply with a condition of the visa has not complied with that condition; or (d) if its holder has not entered Australia or has so entered but not been immigration cleared—it would be liable to be cancelled under Subdivision C (incorrect information given by holder) if its holder had so entered and been immigration cleared; or (e) the presence of its holder in Australia is, or would be, a risk to the health, safety or good order of the Australian community; or (f) the visa should not have been granted because the application for it, the approval of its grant or its grant was in contravention of this Act or of another law of the Commonwealth; or (g) a prescribed ground for cancelling a visa applies to the holder. "(2) The Minister is not to cancel a visa if there exist prescribed circumstances in which a visa is not to be cancelled. "(3) If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled. When visa may be cancelled "50AC.(1) Subject to subsection (2), a visa held by a non-citizen may be cancelled under section 50AB: (a) before the non-citizen enters Australia; or (b) when the non-citizen is in immigration clearance; or (c) when the non-citizen leaves Australia; or (d) while the non-citizen is in Australia. "(2) A permanent visa cannot be cancelled under section 50AB if the holder of the visa: (a) is in the migration zone; and (b) was immigration cleared on last entering Australia. Cancellation powers not limit each other "50AD. The powers to cancel a visa: (a) under section 50AB; or (b) under section 45 (incorrect information); or (c) under section 50A (business visas); are not limited, or otherwise affected, by each other. "Subdivision E—Procedure for cancelling visas under Subdivision D in or outside Australia Notice of proposed cancellation "50AE.(1) Subject to Subdivision F (non-citizens outside Australia), if the Minister is considering cancelling a visa, whether its holder is in or outside Australia, under section 50AB, the Minister must notify the holder that there appear to be grounds for cancelling it and: (a) give particulars of those grounds and of the information (not being non-disclosable information) because of which the grounds appear to exist; and (b) invite the holder to show within a specified time, being, subject to sections 50AK and 50AL, a prescribed time that: (i) those grounds do not exist; or (ii) there is a reason why it should not be cancelled. "(2) The holder is to be notified in the prescribed way or, if there is no prescribed way, a way that the Minister considers to be appropriate. "(3) The way of notifying the holder, whether prescribed or considered appropriate, may, without limiting the generality of subsection (2), be orally. "(4) The other provisions of this Subdivision do not apply to a cancellation: (a) under a provision other than section 50AB; or (b) to which Subdivision F applies. Certain information must be given to visa holder "50AF.(1) If the Minister has information, not being non-disclosable information, that he or she considers: (a) would be the reason, or part of the reason, for cancelling it; and (b) is specifically about the visa holder or another person and not just about a class of persons of which the holder or other person is a member; and (c) was not given by, or with the permission of, the visa holder for the purpose of considering cancellation; and (d) was not disclosed in the notification under section 50AG to the holder; the Minister is to: (e) give particulars of the information to the holder; and (f) invite the holder to comment on the information. "(2) The particulars and invitation are to be given in the way that the Minister considers appropriate in the circumstances. "(3) The Minister is to ensure, as far as reasonably practicable, that the holder understands why the information is relevant to the cancellation. Invitation to give comments etc. "50AG.(1) An invitation under paragraph 50AE(1)(b) or 50AF(1)(f) is to specify whether the response to the invitation may be given: (a) in writing; or (b) at an interview between the holder and an officer; or (c) by telephone. "(2) Subject to subsection (4), if the invitation is to respond otherwise than at an interview, the response is to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period. "(3) Subject to subsection (5), if the invitation is to respond at an interview, the interview is to take place: (a) at a place specified in the invitation, being a prescribed place or, if no place is prescribed, a reasonable place; and (b) at a time specified in the invitation, being a time within a prescribed period or, if no period is prescribed, within a reasonable period. "(4) If a person is to respond to an invitation within a prescribed period, that period may be extended by the Minister for a prescribed further period, and then the response is to be given in the extended period. "(5) If a person is to respond to an invitation at an interview at a time within a prescribed period, that time may be changed by the Minister to: (a) a later time within that period; or (b) a time within that period as extended by the Minister for a prescribed further period; and then the response is to be given at an interview at the new time. "(6) This section is subject to sections 50AK and 50AL. Prescribed periods "50AH. Regulations prescribing a period or other time limit relating to a step in considering the cancellation of a visa may prescribe different limits relating to that step and specify when a particular limit is to apply, which, without limiting the generality of the power, may be to: (a) visas in a specified class; or (b) visa holders in specified circumstances; or (c) visa holders in a specified class (which may be visa holders in a specified place); or (d) visa holders in a specified class (which may be visa holders in a specified place) in specified circumstances. Failure to accept invitation not require action "50AI. If a visa holder does not respond to an invitation under paragraph 50AE(1)(b) or 50AF(1)(f) before the time for giving it has passed or tells the Minister that the visa holder does not wish to respond, the Minister may make the decision about cancellation without taking any further action about the information. When decision about visa cancellation may be made "50AJ.(1) Subject to section 50AF (give information) and subsection (2), the Minister may cancel a visa at any time after notice about the cancellation has been given under section 50AE and after whichever one of the following happens first: (a) the holder responds to the notice; (b) the holder tells the Minister that the holder does not wish to respond; (c) the time for responding to the notice passes. "(2) The Minister is not to cancel a visa after inviting the visa holder to comment on information and before whichever one of the following happens first: (a) the comments are given; (b) the holder tells the Minister that the holder does not wish to comment; (c) the time for commenting passes. Application of Subdivision to non-citizen in immigration clearance "50AK. If a non-citizen in immigration clearance who is not taken into questioning detention is given an invitation under paragraph 50AE(1)(b) or 50AF(1)(f), the period within which he or she may respond to the invitation is to end when, or before, he or she ceases to be in immigration clearance. Application of Subdivision to non-citizen in questioning detention "50AL.(1) If a non-citizen in questioning detention who is not released before the end of the 4 hours for which he or she may be detained is given an invitation under paragraph 50AE(1)(b) or 50AF(1)(f), the period within which he or she may respond to the invitation is to end when, or before, those 4 hours end. "(2) If a non-citizen who has been given an invitation under paragraph 50AE(1)(b) or 50AF(1)(f) (whether in immigration clearance or otherwise) is taken into questioning detention and not released before the end of the 4 hours for which he or she may be detained, the period within which he or she is to respond to the invitation is to end when, or