Note: Section 189 provides that an unlawful non‑citizen in the migration zone must be detained.
43 Visa holders must usually enter at a port
(1) Subject to subsections (1A) and (3) and the regulations, a visa to travel to and enter Australia that is in effect is permission for the holder to enter Australia:
(a) at a port; or
(b) on a pre‑cleared flight; or
(c) if the holder travels to Australia on a vessel and the health or safety of a person or a prescribed reason, make it necessary to enter in another way, that way; or
(d) in a way authorised in writing by an authorised officer.
(1A) Subject to the regulations, a maritime crew visa that is in effect is permission for the holder to enter Australia:
(a) at a proclaimed port; or
(b) if the health or safety of a person, or a prescribed reason, make it necessary to enter Australia in another way, that way; or
(c) in a way authorised by an authorised officer.
(1B) Despite subsections 38B(1) and (2):
(a) the holder of a maritime crew visa may enter Australia as mentioned in paragraph (1A)(b) by air; and
(b) the authorised officer may, for the purposes of paragraph (1A)(c), authorise the holder to enter Australia by air.
(2) For the purposes of subsection (1), a holder who travels to and enters Australia on an aircraft is taken to have entered Australia when that aircraft lands.
(3) This section does not apply to:
(a) the holder of an enforcement visa; or
(b) an Australian resident entering Australia on a foreign vessel as a result of the exercise of powers under section 69 of the Maritime Powers Act 2013 in relation to a fisheries detention offence; or
(c) an Australian resident entering Australia on a vessel (environment matters) as a result of an environment officer, maritime officer or other person in command of a Commonwealth ship or a Commonwealth aircraft:
(i) exercising his or her power under paragraph 403(3)(a) of the Environment Protection and Biodiversity Conservation Act 1999 in relation to the vessel; or
(ii) making a requirement of the person in charge of the vessel under paragraph 403(3)(b) of the Environment Protection and Biodiversity Conservation Act 1999; or
(iii) exercising powers under section 69 of the Maritime Powers Act 2013 in relation to the vessel;
because the environment officer, maritime officer or person in command had reasonable grounds to suspect that the vessel had been used or otherwise involved in the commission of an environment detention offence.
Note: Subsection 33(10) also disapplies this section.
Australian resident has the same meaning as in the Fisheries Management Act 1991.
Commonwealth aircraft has the same meaning as in the Environment Protection and Biodiversity Conservation Act 1999.
Commonwealth ship has the same meaning as in the Environment Protection and Biodiversity Conservation Act 1999.
Subdivision AA—Applications for visas
44 Extent of following Subdivisions
(1) This Subdivision and the later Subdivisions of this Division, other than this section, Subdivision AG and subsection 138(1), do not apply to criminal justice visas.
(2) This Subdivision and the later Subdivisions of this Division, other than this section and Subdivision AG, do not apply to enforcement visas.
45 Application for visa
(1) Subject to this Act and the regulations, a non‑citizen who wants a visa must apply for a visa of a particular class.
45AA Application for one visa taken to be an application for a different visa
Situation in which conversion regulation can be made
(1) This section applies if:
(a) a person has made a valid application (a pre‑conversion application) for a visa (a pre‑conversion visa) of a particular class; and
(b) the pre‑conversion visa has not been granted to the person, whether or not a migration decision has been made in relation to the pre‑conversion application; and
(c) since the application was made, one or more of the following events has occurred:
(i) the requirements for making a valid application for that class of visa change;
(ii) the criteria for the grant of that class of visa change;
(iii) that class of visa ceases to exist; and
(d) had the application been made after the event (or events) occurred, because of that event (or those events):
(i) the application would not have been valid; or
(ii) that class of visa could not have been granted to the person.
(2) To avoid doubt, under subsection (1) this section may apply in relation to:
(a) classes of visas, including protection visas and any other classes of visas provided for by this Act or the regulations; and
(b) classes of applicants, including applicants having a particular status; and
(c) applicants for a visa who are taken to have applied for the visa by the operation of this Act or the regulations.
Example: If a non‑citizen applies for a visa, and then, before the application is decided, gives birth to a child, in some circumstances the child is taken, by the operation of the regulations, to have applied for a visa of the same class at the time the child is born (see regulation 2.08).
Conversion regulation
(3) For the purposes of this Act, a regulation (a conversion regulation) may provide that, despite anything else in this Act, the pre‑conversion application for the pre‑conversion visa:
(a) is taken not to be, and never to have been, a valid application for the pre‑conversion visa; and
(b) is taken to be, and always to have been, a valid application (a converted application) for a visa of a different class (specified by the conversion regulation) made by the applicant for the pre‑conversion visa.
Note: This section may apply in relation to a pre‑conversion application made before the commencement of the section (see the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014).
For example, a conversion regulation (made after the commencement of this section) could have the effect that a pre‑conversion application for a particular type of visa made on 1 August 2014 (before that commencement):
(a) is taken not to have been made on 1 August 2014 (or ever); and
(b) is taken to be, and always to have been, a converted application for another type of visa made on 1 August 2014.
(4) Without limiting subsection (3), a conversion regulation may:
(a) prescribe a class or classes of pre‑conversion visas; and
(b) prescribe a class of applicants for pre‑conversion visas; and
(c) prescribe a time (the conversion time) when the regulation is to start to apply in relation to a pre‑conversion application, including different conversion times depending on the occurrence of different events.
Visa application charge
(5) If an amount has been paid as the first instalment of the visa application charge for a pre‑conversion application, then, at and after the conversion time in relation to the application:
(a) that payment is taken not to have been paid as the first instalment of the visa application charge for the pre‑conversion application; and
(b) that payment is taken to be payment of the first instalment of the visa application charge for the converted application, even if the first instalment of the visa application charge that would otherwise be payable for the converted application is greater than the actual amount paid for the first instalment of the visa application charge for the pre‑conversion application; and
(c) in a case in which the first instalment of the visa application charge payable for the converted application is less than the actual amount paid for the first instalment of the visa application charge for the pre‑conversion application, no refund is payable in respect of the difference only for that reason.
Note: For the visa application charge, see sections 45A, 45B and 45C.
Effect on bridging visas
(6) For the purposes of this Act, if, immediately before the conversion time for a pre‑conversion application, a person held a bridging visa because the pre‑conversion application had not been finally determined, then, at and after the conversion time, the bridging visa has effect as if it had been granted because of the converted application.
(7) For the purposes of this Act, if, immediately before the conversion time for a pre‑conversion application, a person had made an application for a bridging visa because of the pre‑conversion application, but the bridging visa application had not been finally determined, then, at and after the conversion time:
(a) the bridging visa application is taken to have been applied for because of the converted application; and
(b) the bridging visa (if granted) has effect as if it were granted because of the converted application.
Note: This Act and the regulations would apply to a bridging visa to which subsection (6) or (7) applies, and to when the bridging visa would cease to have effect, in the same way as this Act and the regulations would apply in relation to any bridging visa.
For example, such a bridging visa would generally cease to be in effect under section 82 if and when the substantive visa is granted because of the converted application.
Conversion regulation may affect accrued rights etc.
(8) To avoid doubt:
(a) subsection 12(2) (retrospective application of legislative instruments) of the Legislation Act 2003 does not apply in relation to the effect of a conversion regulation (including a conversion regulation enacted by the Parliament); and
(b) subsection 7(2) of the Acts Interpretation Act 1901, including that subsection as applied by section 13 of the Legislation Act 2003, does not apply in relation to the enactment of this section or the making of a conversion regulation (including a conversion regulation enacted by the Parliament).
45A Visa application charge
A non‑citizen who makes an application for a visa is liable to pay visa application charge if, assuming the charge were paid, the application would be a valid visa application.
45B Amount of visa application charge
(1) The amount of visa application charge is the amount, not exceeding the visa application charge limit, prescribed in relation to the application.
Note: The visa application charge limit is determined under the Migration (Visa Application) Charge Act 1997.
(2) The amount prescribed in relation to an application may be nil.
(3) The Minister must publish the Contributory Parent Visa Composite Index (within the meaning of the Migration (Visa Application) Charge Act 1997) for a financial year in the Gazette before the start of the financial year.
Note: The Contributory Parent Visa Composite Index affects the visa application charge limit in relation to contributory parent visas (within the meaning of the Migration (Visa Application) Charge Act 1997).
(4) If the Contributory Parent Visa Composite Index for a financial year is not published as required by subsection (3), it is not to be taken, merely because of that fact, to be invalid or to be a figure other than that published by the Australian Government Actuary for the financial year.
45C Regulations about visa application charge
(1) The regulations may:
(a) provide that visa application charge may be payable in instalments; and
(b) specify how those instalments are to be calculated; and
(c) specify when instalments are payable.
(2) The regulations may also:
(a) make provision for and in relation to:
(i) the recovery of visa application charge in relation to visa applications; or
(ii) the way, including the currency, in which visa application charge is to be paid; or
(iii) working out how much visa application charge is to be paid; or
(iv) the time when visa application charge is to be paid; or
(v) the persons who may be paid visa application charge on behalf of the Commonwealth; or
(b) make provision for the remission, refund or waiver of visa application charge or an amount of visa application charge; or
(c) make provision for exempting persons from the payment of visa application charge or an amount of visa application charge; or
(d) make provision for crediting visa application charge, or an amount of visa application charge, paid in respect of one application against visa application charge payable in respect of another application.
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);
(vi) section 199G (visa applications by certain nationals of a removal concern country).
(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.
(4A) Without limiting subsection (3) and paragraph (4)(a), the regulations may prescribe, as a circumstance that must exist for an application for a visa of a specified class to be a valid application, that the applicant was selected in accordance with the applicable visa pre‑application process conducted under subsection 46C(1).
(4B) However, the regulations cannot prescribe criteria mentioned in subsection (4A) for any of the following visas:
(a) protection visas;
(b) temporary safe haven visas;
(c) visas classified by the regulations as:
(i) Refugee and Humanitarian (Class XB) visas; or
(ii) Temporary (Humanitarian Concern) (Class UO) visas; or
(iii) Resolution of Status (Class CD) visas.
(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).
46AA Visa applications, and the grant of visas, for some Act‑based visas
Visa classes covered by this section
(1) The following classes of visas are covered by this section:
(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).
Applications invalid if no prescribed criteria
(2) An application for a visa of any of the classes covered by this section is invalid if, when the application is made, both of the following conditions are satisfied:
(a) there are no regulations in effect prescribing criteria that must be satisfied for a visa of that particular class to be a valid application;