s 5 — Interpretation — Migration Act 1958
Text of provision
5 Definitions
(1) In this Act, unless the contrary intention appears:
Australia, when used in a geographical sense, includes the external Territories.
citizen means an Australian citizen within the meaning of the Australian Citizenship Act 2007.
immigration clearance means clearance under section 166.
lawful non-citizen means a non-citizen in the migration zone who holds a visa that is in effect.
migration zone means the area consisting of the States, the Territories, Australian ships and Australian aircraft.
non-citizen means a person who is not an Australian citizen.
points-tested visa means a visa of a class that is prescribed to be a points-tested visa.
sponsor, in relation to an application for a visa, means the person (if any) who is specified in the application as the sponsor of the applicant, or who is taken, under the regulations, to be the sponsor of the applicant.
unlawful non-citizen means a non-citizen in the migration zone who is not a lawful non-citizen.
visa means a visa granted under this Act.
Plain English
Section 5 is the definitions section of the Migration Act 1958. It sets out what key terms mean throughout the entire Act. Several of these definitions are fundamental to understanding how Australian immigration law operates.
The distinction between a lawful non-citizen (a non-citizen who holds a valid visa) and an unlawful non-citizen (a non-citizen who does not hold a valid visa) is one of the most important divisions in the Act. This distinction determines whether a person is subject to mandatory detention under s 189.
The migration zone definition is also significant: the Act applies to non-citizens within Australian States, Territories, and on Australian ships and aircraft. Whether a person is within or outside the migration zone affects the type of visa required and certain procedural rights.
The term visa in this Act means only a visa granted under the Migration Act itself — not permissions granted under other laws.
Practical effect
The definitions in s 5 are the foundation for interpreting every other provision in the Act. Courts and tribunals apply these definitions strictly when determining a person's status.
For example, the definition of lawful non-citizen means that a person whose visa has been cancelled or has expired immediately becomes an unlawful non-citizen — regardless of whether they are aware of the change in status. This has direct consequences for mandatory detention under s 189.
The migration zone definition has been the subject of significant litigation, particularly regarding excised offshore places. Certain territories may be excised from the migration zone by regulation, affecting the rights of persons who arrive there.
Section 5 does not itself impose obligations or confer rights. Its effect flows through all other provisions that use the defined terms.