The migration zone
Overview
The migration zone is defined in the Migration Act 1958 (Cth) as Australia, the territorial waters of Australia, a place on the high seas that is on a ship flying the Australian flag, and an external territory (other than an excised offshore place). A person becomes subject to Australian immigration law when they enter the migration zone. Whether a person is in the migration zone determines key rights, including whether they can apply for a protection visa and whether they are subject to mandatory detention.
The migration zone concept is of critical importance in Australian refugee and immigration law. The existence and significance of the migration zone was dramatically altered by the 2001 legislation that "excised" many Australian territories from the migration zone — meaning that persons who arrive at excised offshore places cannot access the full suite of Australian immigration law protections, including the right to apply for a protection visa.
Legal basis
- Section 5(1) — definition of "migration zone": the area of Australia, the territorial sea of Australia, any ship or aircraft on the high seas, and external territories that are not excised offshore places
- Section 5(1) — definition of "excised offshore place": Christmas Island, Ashmore and Cartier Islands, Cocos (Keeling) Islands, and certain other external territories declared by regulation
- Section 46A — the interaction between excised offshore places and the prohibition on visa applications by certain persons who arrive at those places
- Section 5AA — definition of "unauthorised maritime arrival" (links to the migration zone concept)
How it works
What is in the migration zone?
The migration zone includes:
- The Australian mainland and Tasmania
- The Australian territorial sea (the 12 nautical mile zone)
- Australian ships on the high seas
- External territories that are not excised offshore places
Importantly, Australian airports are within the migration zone — international airports are not border-exempt zones.
Excised offshore places
The following are "excised offshore places" excluded from the migration zone for the purposes of protection visa applications:
- Christmas Island
- Ashmore and Cartier Islands
- Cocos (Keeling) Islands
- Australian installations (platforms etc.) in the Exclusive Economic Zone (EEZ)
- Other areas declared by regulation
The excision of these places means that persons arriving by boat at Christmas Island or Ashmore Reef cannot apply for a protection visa by virtue of their arrival. They are subject to the offshore processing framework instead.
Why does it matter?
The migration zone determines:
- Visa application rights: protection visa applications can only be made by persons physically in the migration zone
- Mandatory detention: the duty to detain unlawful non-citizens under s 189 applies within the migration zone
- Entry: unauthorised entry into the migration zone triggers immigration law consequences
- UMA status: the definition of "unauthorised maritime arrival" depends on the person entering the migration zone "by sea"
The practical significance of excision
The excision of Christmas Island and other territories was enacted specifically to prevent persons who arrived at those locations by boat from accessing the Australian protection visa system. A person who arrives at Christmas Island by boat and claims protection is not in the "migration zone" for the purpose of making a protection visa application — they are subject to offshore processing.