MA Preliminary Provisions

The Migration Act 1958 governs Australia’s immigration system. It sets up Australia’s universal visa system, which includes temporary visas, migration program, and refugee and humanitarian program. Moreover, the Act provides for visas permitting non-citizens to enter or remain in Australia. 

This article will discuss the following MA preliminary provisions that will guide you in reading the other rules and provisions under the Migration Act:

1. Section 5AA – Unauthorised maritime arrival
2. Section 5AB – Sentencing for offences
3. Section 5A – Meaning of personal identifier 

MA Preliminary Provisions: Unauthorised Maritime Arrival

When is a person considered an unauthorised maritime arrival under the Migration Act? Section 5AA categorises such person if he or she:

1. Enters Australia by sea:
   • at an excised offshore place at any time after the excision time for that place; or
   • at any other place at any time on or after the commencement of this section; and
2. Became an unlawful non-citizen because of that entry; 
3. Is not an excluded maritime arrival;
4. Is born in the migration zone and was not an Australian citizen at that time. Moreover, the parent of such person is, at the time of the person’s birth, an unauthorised maritime arrival; and
5. Is born in a regional processing country.

A regional processing country is one that the Minister designates as such under the guidelines mentioned in Section 198AB (1) which are the following:

1. The Minister designates a country as such through a legislative instrument;
2. The instrument designates only one country; and 
3. It does not provide that the designation ceases to have effect.

Furthermore, s5AA classifies the following acts as “entering Australia by sea”:

1. the person entered the migration zone except on an aircraft that landed in the migration zone;
2. the person entered the migration zone as a result of:
   1. being found on a ship detained under section 245F (as in force before the commencement of section 69 of the Maritime Powers Act 2013 ) and 
   2. being dealt with under paragraph 245F(9)(a) (as in force before that commencement); or
3. the person entered the migration zone as a result of the exercise of powers under Division 7 or 8 of Part 3 of the Maritime Powers Act 2013 ; or
4. the person entered the migration zone after being rescued at sea.

MA Preliminary Provisions: Excluded Maritime Arrival

Lastly, this section mentions the term “excluded maritime arrival.” Who is considered as such? A person is an excluded maritime arrival if he or she is:

1. A New Zealand citizen who holds and produces a New Zealand passport that is in force; or
2. A non-citizen who:
   • holds and produces a passport that is in force; and
   • is ordinarily resident on Norfolk Island; or
3. is included in a prescribed class of persons.

MA Preliminary Provisions: Sentencing for Offences

Understanding Unauthorised Maritime Arrivals

Section 5AB of the Act deals with sentencing for offences. Specifically, it states that the provisions of the Act and the regulations apply no differently in relation to a single sentence imposed by a court in respect of two or more offences to the way they apply in relation to a sentence imposed for a single offence.

Put simply, if a person is convicted of several offences under the Migration Act but is given a single sentence for all offences, the Act treats them the same way as it would someone convicted of only one offence.

Here’s an example to illustrate:

Imagine convicting a person for both entering Australia without a valid visa and illegally working there, resulting in a single sentence of 12 months imprisonment.

Section 5AB mandates that the provisions of the Act for individuals sentenced to 12 months imprisonment for a single offence also apply to this individual, despite their conviction for two separate offences.

This section ensures that individuals committing multiple offences under the Migration Act face consequences that are not more lenient than those for individuals committing a single offence. It also helps to simplify the application of the Act by making it clear that the same rules apply regardless of the number of offences involved.

MA Preliminary Provisions: What Is a Personal Identifier?

Section 5A defines this term as any of the following (including any of the following in digital form):

1. fingerprints or handprints of a person (including those taken using paper and ink or digital livescanning technologies);
2. a measurement of a person’s height and weight;
3. a photograph or other image of a person’s face and shoulders;
4. an audio or a video recording of a person (other than a video recording under section 261AJ);
5. an iris scan;
6. a person’s signature;
7. any other identifier prescribed by the regulations, other than an identifier the obtaining of which would involve the carrying out of an intimate forensic procedure within the meaning of section 23WA of the Crimes Act 1914.

Purpose of Personal Identifiers

This section also lists the purposes for requiring personal identifiers. These are:

• To assist in identifying and authenticating the identity of any person required under this Act to provide a personal identifier;
• to assist in identifying, in the future, any such person; and
• to improve the integrity of entry programs; and
• to improve passenger processing at Australia’s border; and
• to facilitate a visa-holder’s access to his or her rights under this Act or the regulations; and
• to improve the procedures for determining visa applications; and
• to improve the procedures for determining claims from people seeking protection as refugees; and
• to assist in determining whether a person is an unlawful non-citizen or a lawful non-citizen; and
• to enhance the Department’s ability to identify non-citizens who have a criminal history or who are of character concern; and
• to assist in identifying persons who may be a security concern to Australia or a foreign country; and
• to combat document and identity fraud in immigration matters; and
• to detect forum shopping by applicants for visas; and
• to ascertain whether:
  • an applicant for a protection visa; or
  • an unauthorised maritime arrival who makes a claim for protection as a refugee; or
  • an unauthorised maritime arrival who makes a claim for protection on the basis that the person will suffer significant harm;
  • had sufficient opportunity to avail himself or herself of protection before arriving in Australia; and
• to inform the governments of foreign countries of the identity of non-citizens who are, or are to be, removed or deported from Australia.

We can summarise these purposes into five points: (a) verifying and authenticating identity; (b) enhancing border security and national safety; (c) streamlining processing and decision-making; (d) combating identity fraud and document forgery; and (e) facilitating integration and access to services.

Confused with Australian Immigration Laws?

From visa applications to sponsorship requirements, understanding the legalese and ever-changing policies can feel like understanding a cryptic code. This is where JB Solicitors can help you. 

Our skilled migration lawyers can ease your migration journey, advocate for your safe passage, and provide you invaluable peace of mind. Knowing you have a qualified expert by your side reduces stress and allows you to focus on the exciting possibilities that await you in Australia.  

Contact us today to know more about MA preliminary provisions.