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MIGRATION ACT 1958 - SECT 46

Valid visa application

Validity--general

  (1)   Subject to subsections   (1A), (2) and (2A), an application for a visa is valid if, and only if:

  (a)   it is for a visa of a class specified in the application; and

  (b)   it satisfies the criteria and requirements prescribed under this section; and

  (ba)   subject to the regulations providing otherwise, any visa application charge that the regulations require to be paid at the time when the application is made, has been paid; and

  (c)   any fees payable in respect of it under the regulations have been paid; and

  (d)   it is not prevented by any provision of this Act, or of any other law of the Commonwealth, including, without limitation, the following provisions of this Act:

  (i)   section   48 (visa refused or cancelled earlier);

  (ii)   section   48A (protection visa refused or cancelled earlier);

  (iii)   section   161 (criminal justice visa holders);

  (iv)   section   164D (enforcement visa holders);

  (v)   section   195 (detainee applying out of time);

  (vi)   section   501E (earlier refusal or cancellation on character grounds); and

  (e)   it is not invalid under any provision of this Act, or of any other law of the Commonwealth, including, without limitation, the following provisions of this Act:

  (i)   section   46AA (visa applications, and the grant of visas, for some Act - based visas);

  (ii)   section   46A (visa applications by unauthorised maritime arrivals);

  (iii)   section   46B (visa applications by transitory persons);

  (iv)   section   91E or 91G (CPA and safe third countries);

  (v)   section   91K (temporary safe haven visas).

  (1A)   Subject to subsection   (2), an application for a visa is invalid if:

  (a)   the applicant is in the migration zone; and

  (b)   since last entering Australia, the applicant has held a visa subject to a condition described in paragraph   41(2)(a); and

  (c)   the Minister has not waived that condition under subsection   41(2A); and

  (d)   the application is for a visa of a kind that, under that condition, the applicant is not or was not entitled to be granted.

  (2)   Subject to subsection   (2A), an application for a visa is valid if:

  (a)   it is an application for a visa of a class prescribed for the purposes of this subsection; and

  (b)   under the regulations, the application is taken to have been validly made.

Provision of personal identifiers

  (2A)   An application for a visa is invalid if:

  (aa)   the Minister has not waived the operation of this subsection in relation to the application for the visa; and

  (ab)   the applicant has been required to provide one or more personal identifiers under section   257A for the purposes of this subsection; and

  (b)   the applicant has not complied with the requirement.

Note:   An invalid application for a visa cannot give rise to an obligation under section   65 to grant a visa: see subsection   47(3).

Prescribed criteria for validity

  (3)   The regulations may prescribe criteria that must be satisfied for an application for a visa of a specified class to be a valid application.

  (4)   Without limiting subsection   (3), the regulations may also prescribe:

  (a)   the circumstances that must exist for an application for a visa of a specified class to be a valid application; and

  (b)   how an application for a visa of a specified class must be made; and

  (c)   where an application for a visa of a specified class must be made; and

  (d)   where an applicant must be when an application for a visa of a specified class is made.

  (5)   To avoid doubt, subsections   (3) and (4) do not require criteria to be prescribed in relation to the validity of visa applications, including, without limitation, applications for visas of the following classes:

  (a)   special category visas (see section   32);

  (b)   permanent protection visas (see subsection   35A(2));

  (c)   temporary protection visas (see subsection   35A(3));

  (ca)   safe haven enterprise visas (see subsection   35A(3A));

  (d)   bridging visas (see section   37);

  (e)   temporary safe haven visas (see section   37A);

  (f)   maritime crew visas (see section   38B).


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