Migration Act 1958
Sections and provisions with full text and the judgments that cite each one.
Section 1 — Short title
This Act may be cited as the Migration Act 1958.
Section 2 — Commencement
The several Parts of this Act shall come into operation on such dates as are respectively fixed by Proclamation.
Section 3 — Repeal and savings
(1) The Acts specified in the Schedule to this Act are repealed. (2) Section 9 of the War Precautions Act Repeal Act 1920-1955 and the heading to that section, and the Schedule to that Act, are…
Section 3A — Act not to apply so as to exceed Commonwealth power
(1) Unless the contrary intention appears, if a provision of this Act: (a) would, apart from this section, have an invalid application; but (b) also has at least one valid application; it is the…
Section 3B — Compensation for acquisition of property
(1) If: (a) this Act would result in an acquisition of property; and (b) any provision of this Act would not be valid, apart from this section, because a particular person has not been compensated;…
Section 4 — Object of Act
(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…
Section 4A — Application of the Criminal Code
Chapter 2 of the Criminal Code (except Part 2.5) applies to all offences against this Act. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Section 4AA — Detention of minors a last resort
(1) The Parliament affirms as a principle that a minor shall only be detained as a measure of last resort. (2) For the purposes of subsection (1), the reference to a minor being detained does not…
Section 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…
Section 5A — Meaning of personal identifier
(1) In this Act: personal identifier means any of the following (including any of the following in digital form): (a) fingerprints or handprints of a person (including those taken using paper and ink…
Section 5AA — Meaning of unauthorised maritime arrival
(1) For the purposes of this Act, a person is an unauthorised maritime arrival if: (a) the person entered Australia by sea: (i) at an excised offshore place at any time after the excision time for…
Section 5AAA — Non-citizen’s responsibility in relation to protection claims
(1) This section applies in relation to a non-citizen who claims to be a person in respect of whom Australia has protection obligations (however arising). (2) For the purposes of this Act, it is the…
Section 5BA — References to photograph or other image of person’s face
A reference in the migration law to a photograph or other image of a person’s face includes a reference to a photograph or other image of: (a) the person’s face and all or part of the person’s neck;…
Section 5CA — Child of a person
(1) Without limiting who is a child of a person for the purposes of this Act, each of the following is the child of a person: (a) someone who is a child of the person within the meaning of the Family…
Section 5LA — Effective protection measures
(1) For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if: (a) protection…
Section 5AB — Sentencing for offences
The provisions of this Act and the regulations apply no differently in relation to a single sentence imposed by a court in respect of 2 or more offences to the way in which those provisions apply in…
Section 5B — When personal identifier taken not to have been provided
A person is taken, for the purposes of section 257A, not to have provided a personal identifier if: (a) the personal identifier that is provided is unusable; or (b) the Minister, an authorised…
Section 5BB — Providing photographs and other images of faces to authorised systems
(1) Subsections (2) and (3) apply if: (a) a provision of the migration law uses the expression “authorised system”; and (b) the provision requires a person to provide to an authorised system a…
Section 5CB — De facto partner
De facto partners (1) For the purposes of this Act, a person is the de facto partner of another person (whether of the same sex or a different sex) if, under subsection (2), the person is in a de…
Section 5BC — Providing photographs and other images of faces to Minister and authorised officers
(1) Subsection (3) applies if: (a) the migration law requires a person to provide a photograph or other image of the person’s face to the Minister; and (b) for the purposes of that requirement: (i)…
Section 5C — Meaning of character concern
(1) For the purposes of this Act, a non-citizen is of character concern if: (a) the non-citizen has a substantial criminal record (as defined by subsection (2)); or (b) the non-citizen has been…
Section 5D — Limiting the types of identification tests that authorised officers may carry out
(1) The Minister, Secretary or Australian Border Force Commissioner may, in an instrument authorising an officer as an authorised officer for the purposes of carrying out identification tests under…
Section 5E — Meaning of purported privative clause decision
(1) In this Act, purported privative clause decision means a decision purportedly made, proposed to be made, or required to be made, under this Act or under a regulation or other instrument made…
Section 5F — Spouse
(1) For the purposes of this Act, a person is the spouse of another person (whether of the same sex or a different sex) if, under subsection (2), the 2 persons are in a married relationship. (2) For…
Section 5G — Relationships and family members
(1) For the purposes of this Act, if one person is the child of another person because of the definition of child in section 5CA, relationships traced to or through that person are to be determined…
Section 5H — Meaning of refugee
(1) For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person: (a) in a case where the person has a nationality—is…
Section 5J — Meaning of well-founded fear of persecution
(1) For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if: (a) the person fears being persecuted for reasons…
Section 5K — Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well-founded fear of persecution for the…
Section 5L — Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:…
Section 5M — Particularly serious crime
For the purposes of the application of this Act and the regulations to a particular person, paragraph 36(1C)(b) has effect as if a reference in that paragraph to a particularly serious crime included…
Section 6 — Effect of limited meaning of enter Australia etc.
To avoid doubt, although subsection 5(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…
Section 7 — Act to extend to certain Territories
(1) In this section, prescribed Territory means Norfolk Island, the Coral Sea Islands Territory, the Territory of Cocos (Keeling) Islands, the Territory of Christmas Island and the Territory of…
Section 7A — Effect on executive power to protect Australia’s borders
The existence of statutory powers under this Act does not prevent the exercise of any executive power of the Commonwealth to protect Australia’s borders, including, where necessary, by ejecting…
Section 8 — Certain resources installations to be part of Australia
(1) For the purposes of this Act, a resources installation that: (a) becomes attached to the Australian seabed after the commencement of this subsection; or (b) at the commencement of this…
Section 9 — Certain sea installations to be part of Australia
(1) For the purposes of this Act, a sea installation that: (a) becomes installed in an adjacent area or in a coastal area after the commencement of this subsection; or (b) at the commencement of this…
Section 9A — Migration zone etc.—offshore resources activities
Migration zone etc. (1) For the purposes of this Act, a person is taken to be in the migration zone while he or she is in an area to participate in, or to support, an offshore resources activity in…
Section 10 — Certain children taken to enter Australia at birth
A child who: (a) was born in the migration zone; and (b) was a non-citizen when he or she was born; shall be taken to have entered Australia when he or she was born.
Section 11 — Visa applicable to 2 or more persons
Where: (a) 2 or more persons who are the holders of the same visa travel to Australia on board the same vessel; and (b) on entering Australia, one of those persons is in possession of evidence of…
Section 11A — When applications under this Act are finally determined
(1) An application under this Act is finally determined when: (a) a decision that has been made in respect of the application is not, or is no longer, subject to any form of review by application to…
Section 12 — Application of Part VA of the Marriage Act
For the purpose of deciding whether a marriage is to be recognised as valid for the purposes of this Act, Part VA of the Marriage Act 1961 applies as if section 88E of that Act were omitted.
Section 13 — Lawful non-citizens
(1) A non-citizen in the migration zone who holds a visa that is in effect is a lawful non-citizen. (2) An allowed inhabitant of the Protected Zone who is in a protected area in connection with the…
Section 14 — Unlawful non-citizens
(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 September 1994,…
Section 15 — Effect of cancellation of visa on status
To avoid doubt, subject to subsection 13(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…
Section 16 — Removal of immigration rights of inhabitant of Protected Zone
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.
Section 17 — Pre-cleared flights
(1) The Minister may, in writing, declare a specified flight by an aircraft on a specified day between a specified foreign country and Australia to be a pre-cleared flight for the purposes of this…
Section 18 — Power to obtain information and documents about unlawful non-citizens
(1) If the Minister has reason to believe that a person (in this subsection called the first person) is capable of giving information which the Minister has reason to believe is, or producing…
Section 19 — Scales of expenses
The regulations may prescribe scales of expenses to be allowed to persons required to give information or produce documents under this Division.
Section 20 — Reasonable compensation
A person is entitled to be paid by the Commonwealth reasonable compensation for complying with a requirement covered by paragraph 18(1)(c).
Section 21 — Failure to comply with section 18 notice
(1) A person must not refuse or fail to comply with a notice under subsection 18(1). (1A) Subsection (1) does not apply: (a) to the extent that the person is not capable of complying with the notice;…
Section 24 — Information and documents that incriminate a person
A person is not excused from giving information or producing a document or a copy of a document under this Division on the ground that the information or the production of the document or copy might…