Commonwealth Consolidated Acts Commonwealth Consolidated Acts1 Subsection 5(1) (at the end of the definition of transitory person )
Add:
; 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 .
2 After subsection 5AA(1)
Insert:
(1A) For the purposes of this Act, a person is also an unauthorised maritime arrival if:
(a) the person is born in the migration zone; and
(b) a parent of the person is, at the time of the person's birth, an unauthorised maritime arrival because of subsection (1) (no matter where that parent is at the time of the birth); and
(c) the person is not an Australian citizen at the time of birth.
Note 1: For who is a parent of a person, see the definition in subsection 5(1) and section 5CA.
Note 2: A parent of the person may be an unauthorised maritime arrival even if the parent holds, or has held, a visa.
Note 3: A person to whom this subsection applies is an unauthorised maritime arrival even if the person is taken to have been granted a visa because of section 78 (which deals with the birth in Australia of non - citizens).
Note 4: For when a person is an Australian citizen at the time of his or her birth, see section 12 of the Australian Citizenship Act 2007 .
Note 5: This subsection applies even if the person was born before the commencement of the subsection. See the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 .
(1AA) For the purposes of this Act, a person is also an unauthorised maritime arrival if:
(a) the person is born in a regional processing country; and
(b) a parent of the person is, at the time of the person's birth, an unauthorised maritime arrival because of subsection (1) (no matter where that parent is at the time of the birth); and
(c) the person is not an Australian citizen at the time of his or her birth.
Note 1: A parent of the person may be an unauthorised maritime arrival even if the parent holds, or has held, a visa.
Note 2: This Act may apply as mentioned in subsection (1AA) even if either or both parents of the person holds a visa, or is an Australian citizen or a citizen of the regional processing country, at the time of the person's birth.
Note 3: This subsection applies even if the person was born before the commencement of the subsection. See the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 .
3 At the end of section 5AA
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Note: An unauthorised maritime arrival who has been taken to a place outside Australia may also be a transitory person: see the definition of transitory person in subsection 5(1).
4 Before subsection 198(1)
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Removal on request
5 Before subsection 198(1A)
Insert:
Removal of transitory persons brought to Australia for a temporary purpose
6 At the end of subsection 198(1A)
Add:
Note: Some unlawful non - citizens are transitory persons. Section 198B provides for transitory persons to be brought to Australia for a temporary purpose. See the definition of transitory person in subsection 5(1).
7 After subsection 198(1A)
Insert:
(1B) Subsection (1C) applies if:
(a) an unlawful non - citizen who is not an unauthorised maritime arrival has been brought to Australia under section 198B for a temporary purpose; and
(b) the non - citizen gives birth to a child while the non - citizen is in Australia; and
(c) the child is a transitory person within the meaning of paragraph (e) of the definition of transitory person in subsection 5(1).
(1C) An officer must remove the non - citizen and the child as soon as reasonably practicable after the non - citizen no longer needs to be in Australia for that purpose (whether or not that purpose has been achieved).
Removal of unlawful non - citizens in other circumstances
8 After subsection 198AD(2)
Insert:
(2A) However, subsection (2) does not apply in relation to a person who is an unauthorised maritime arrival only because of subsection 5AA(1A) or (1AA) if the person's parent mentioned in the relevant subsection entered Australia before 13 August 2012.
Note 1: Under subsection 5AA(1A) or (1AA) a person born in Australia or in a regional processing country may be an unauthorised maritime arrival in some circumstances.
Note 2: This section does not apply in relation to a person who entered Australia by sea before 13 August 2012: see the Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 .
9 Subsection 198AH(1)
Repeal the subsection, substitute:
(1) Section 198AD applies, subject to sections 198AE, 198AF and 198AG, to a transitory person if, and only if, the person is covered by subsection (1A) or (1B).
(1A) A transitory person is covered by this subsection if:
(a) the person is an unauthorised maritime arrival who is brought to Australia from a regional processing country under section 198B for a temporary purpose; and
(b) the person is detained under section 189; and
(c) the person no longer needs to be in Australia for the temporary purpose (whether or not the purpose has been achieved).
(1B) A transitory person (a transitory child ) is covered by this subsection if:
(a) a transitory person covered by subsection (1A) gives birth to the transitory child while in Australia; and
(b) the transitory child is detained under section 189; and
(c) the transitory child is a transitory person because of paragraph (e) of the definition of transitory person in subsection 5(1).
Part 2 -- Application of amendments
10 Definitions
In this Part:
applicable matter has the meaning given by item 11 (retrospective application of Part 1 amendments) .
commencement day means the day this Schedule commences.
Part 1 amendments means the amendments of the Migration Act 1958 made by Part 1 of this Schedule.
11 Retrospective application of Part 1 amendments
The Part 1 amendments apply on and after the commencement day, and are taken to have applied before that day, subject to this Part, in relation to each of the following matters (an applicable matter ):
(a) the entry of a person into Australia at any time, whether before, on or after the commencement day (or that entry as it is taken to have occurred on birth under section 10 of the Migration Act 1958 );
(b) the status of a person as an unauthorised maritime arrival or a transitory person at any time:
(i) whether before, on or after the commencement day; and
(ii) whether the person is born before, on or after the commencement day;
(c) the status of a person as an unlawful non - citizen at any time, whether before, on or after the commencement day;
(d) the detention of a person at any time, whether before, on or after the commencement day, and the performance or exercise of a function, duty or power in relation to such detention;
(e) the performance or exercise of a function, duty or power in relation to a person under Division 8 of Part 2 of that Act at any time, whether before, on or after the commencement day;
(f) an application for a visa by a person made at any time, whether before, on or after the commencement day, including the performance or exercise of a function, duty or power in relation to such an application.
Note 1: The Part 1 amendments provide for a person to be an unauthorised maritime arrival or a transitory person, in some circumstances, if a parent of the person is an unauthorised maritime arrival or a transitory person for the purposes of the Migration Act 1958 .
Note 2: Division 8 of Part 2 of the Migration Act 1958 provides for:
(a) the removal of unlawful non - citizens from Australia to a place outside Australia (Subdivision A); and
(b) the taking of unauthorised maritime arrivals from Australia to a regional processing country (Subdivision B); and
(c) transitory persons to be brought to Australia from a place outside Australia (Subdivision C).
12 Applications under the Migration Act 1958 that are finally determined
The Part 1 amendments do not apply, and are not taken to have applied, in relation to an application under the Migration Act 1958 concerning (or consisting of) an applicable matter if the application was finally determined, within the meaning of that Act, before the commencement day.
13 Retrospective application of section 46A (visa applications by unauthorised maritime arrivals)
Scope
(1) This item applies if the operation of item 11 (retrospective application of Part 1 amendments) results in a person being taken to have been an unauthorised maritime arrival at a particular time.
Subsection 46A(1) taken to apply despite the holding of certain visas
(2) Subsection 46A(1) of the Migration Act 1958 is taken to have applied in relation to the person at that time despite the fact that the person was a lawful non - citizen at the time, if the person was a lawful non - citizen only because he or she held one or more of the following visas:
(a) a bridging visa;
(b) a temporary safe haven visa;
(c) a temporary (humanitarian concern) visa;
(d) a temporary protection visa granted before 2 December 2013.
Note: Subsection 46A(1) of that Act prevents visa applications by unauthorised maritime arrivals in Australia who are unlawful non - citizens, unless the Minister makes a determination under subsection 46A(2).
Determinations under section 46A made for parent
(3) Subsection 46A(1) of the Migration Act 1958 does not apply in relation to an application for a visa by the person (the child ) if:
(a) the application is made at any time, whether before, on or after the commencement day; and
(b) the Minister has made a determination under subsection 46A(2) of that Act in relation to an application by a parent of the child, made before the commencement day, for the same kind of visa.
14 Retrospective application of section 46B (visa applications by transitory persons)
Scope
(1) This item applies if the operation of item 11 (retrospective application of Part 1 amendments) results in a person being taken to have been a transitory person at a particular time.
Subsection 46B(1) taken to apply despite the holding of certain visas
(2) Subsection 46B(1) of the Migration Act 1958 is taken to have applied in relation to the person at that time despite the fact that the person was a lawful non - citizen at the time, if the person was a lawful non - citizen only because he or she held one or more of the following visas:
(a) a bridging visa;
(b) a temporary safe haven visa;
(c) a temporary (humanitarian concern) visa;
(d) a temporary protection visa granted before 2 December 2013.
Note: Subsection 46B(1) of the Migration Act 1958 prevents visa applications by transitory persons in Australia who are unlawful non - citizens, unless the Minister makes a determination under subsection 46B(2).
Determinations under section 46B made for parent
(3) Subsection 46B(1) of the Migration Act 1958 does not apply in relation to an application for a visa by the person (the child ) if:
(a) the application is made at any time, whether before, on or after the commencement day; and
(b) the Minister has made a determination under subsection 46B(2) of that Act in relation to an application by a parent of the child, made before the commencement day, for the same kind of visa.
15 Prospective application for some matters
(1) The Part 1 amendments apply on and after the commencement day in relation to any matter apart from an applicable matter (for applicable matters, see item 11).
(2) For the purposes of the application of the Part 1 amendments on and after the commencement day under subitem (1):
(a) a person may be an unauthorised maritime arrival because of subsection 5AA(1A) or (1AA) of the Migration Act 1958 no matter when the person was born, whether before, on or after the commencement day; and
(b) a person may be a transitory person because of paragraph (d) or (e) of the definition of transitory person in subsection 5(1) of that Act no matter when the person was born, whether before, on or after the commencement day.
(3) The Part 1 amendments apply on and after the commencement day in relation to the status of a person as an unauthorised maritime arrival for the purposes of section 336F of the Migration Act 1958 .
Note: Section 336F of the Migration Act 1958 deals with the disclosure of information to some foreign countries and to some bodies.