(b) there are no regulations in effect prescribing criteria that must be satisfied for a visa of that particular class to be granted.
Note: This subsection does not apply if regulations are in effect prescribing criteria mentioned in paragraph (a) or (b) (or both) for a visa.
(3) The criteria mentioned in subsection (2) do not include prescribed criteria that apply generally to visa applications or the granting of visas.
Example: The criteria mentioned in subsection (2) do not include the criteria set out in regulation 2.07 of the Migration Regulations 1994 (application for visa—general).
Criteria in the Act and the regulations
(4) If regulations are in effect prescribing criteria mentioned in paragraph (2)(a) or (b) (or both) for a visa of a class covered by this section:
(a) an application for the visa is invalid unless the application satisfies both:
(i) any applicable criteria under this Act that relate to applications for visas of that class; and
(ii) any applicable criteria prescribed by regulation that relate to applications for visas of that class; and
(b) the visa must not be granted unless the application satisfies both:
(i) any applicable criteria under this Act that relate to the grant of visas of that class; and
(ii) any applicable criteria prescribed by regulation that relate to the grant of visas of that class.
Note: For visa applications generally, see section 46. For the grant of a visa generally, see section 65.
46A Visa applications by unauthorised maritime arrivals
(1) An application for a visa is not a valid application if it is made by an unauthorised maritime arrival who:
(a) is in Australia; and
(b) either:
(i) is an unlawful non‑citizen; or
(ii) holds a bridging visa or a temporary protection visa, or a temporary visa of a kind (however described) prescribed for the purposes of this subparagraph.
Note: Temporary protection visas are provided for by subsection 35A(3).
(1A) Subsection (1) does not apply in relation to an application for a visa if:
(a) either:
(i) the applicant holds a safe haven enterprise visa (see subsection 35A(3A)); or
(ii) the applicant is a lawful non‑citizen who has ever held a safe haven enterprise visa; and
(b) the application is for a visa prescribed for the purposes of this paragraph; and
(c) the applicant satisfies any employment, educational or social security benefit requirements prescribed in relation to the safe haven enterprise visa for the purposes of this paragraph.
(2) If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to an unauthorised maritime arrival, determine that subsection (1) does not apply to an application by the unauthorised maritime arrival for a visa of a class specified in the determination.
(2A) A determination under subsection (2) may provide that it has effect only for the period specified in the determination and, if it does so, the determination ceases to have effect at the end of the specified period.
(2B) The period specified in a determination may be different for different classes of unauthorised maritime arrivals.
(2C) The Minister may, in writing, vary or revoke a determination made under subsection (2) if the Minister thinks that it is in the public interest to do so.
(3) The power under subsection (2) or (2C) may only be exercised by the Minister personally.
(4) If the Minister makes, varies or revokes a determination under this section, the Minister must cause to be laid before each House of the Parliament a statement that:
(a) sets out the determination, the determination as varied or the instrument of revocation; and
(b) sets out the reasons for the determination, variation or revocation, referring in particular to the Minister’s reasons for thinking that the Minister’s actions are in the public interest.
(5) A statement under subsection (4) must not include:
(a) the name of the unauthorised maritime arrival; or
(b) any information that may identify the unauthorised maritime arrival; or
(c) if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned—the name of that other person or any information that may identify that other person.
(6) A statement under subsection (4) must be laid before each House of the Parliament within 15 sitting days of that House after:
(a) if the determination is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or
(b) if the determination is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.
(7) The Minister does not have a duty to consider whether to exercise the power under subsection (2) or (2C) in respect of any unauthorised maritime arrival whether the Minister is requested to do so by the unauthorised maritime arrival or by any other person, or in any other circumstances.
46B Visa applications by transitory persons
(1) An application for a visa is not a valid application if it is made by a transitory person who:
(a) is in Australia; and
(b) either:
(i) is an unlawful non‑citizen; or
(ii) holds a bridging visa or a temporary protection visa, or a temporary visa of a kind (however described) prescribed for the purposes of this subparagraph.
Note: Temporary protection visas are provided for by subsection 35A(3).
(2) If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a transitory person, determine that subsection (1) does not apply to an application by the person for a visa of a class specified in the determination.
(2A) A determination under subsection (2) may provide that it has effect only for the period specified in the determination and, if it does so, the determination ceases to have effect at the end of the specified period.
(2B) The period specified in a determination may be different for different classes of transitory persons.
(2C) The Minister may, in writing, vary or revoke a determination made under subsection (2) if the Minister thinks that it is in the public interest to do so.
(3) The power under subsection (2) or (2C) may only be exercised by the Minister personally.
(4) If the Minister makes, varies or revokes a determination under this section, the Minister must cause to be laid before each House of the Parliament a statement that:
(a) sets out the determination, the determination as varied or the instrument of revocation; and
(b) sets out the reasons for the determination, variation or revocation, referring in particular to the Minister’s reasons for thinking that the Minister’s actions are in the public interest.
(5) A statement under subsection (4) must not include:
(a) the name of the transitory person; or
(b) any information that may identify the transitory person; or
(c) if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned—the name of that other person or any information that may identify that other person.
(6) A statement under subsection (4) must be laid before each House of the Parliament within 15 sitting days of that House after:
(a) if the determination is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or
(b) if the determination is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.
(7) The Minister does not have a duty to consider whether to exercise the power under subsection (2) or (2C) in respect of any transitory person whether the Minister is requested to do so by the transitory person or by any other person, or in any other circumstances.
46C Visa pre‑application process
(1) The Minister may arrange for a visa pre‑application process to be conducted in relation to one or more visas if regulations are in force prescribing criteria mentioned in subsection 46(4A) for those visas.
Note: Criteria mentioned in subsection 46(4A) cannot be prescribed for visas mentioned in subsection 46(4B).
Characteristics of a visa pre‑application process
(2) A visa pre‑application process must involve:
(a) the registration of persons as registered participants in the process, so long as those persons meet the eligibility requirements set out in a subsection (14) determination that relates to the process; and
(b) registered participants being selected at random.
Note 1: This means that:
(a) there will be a pool of registered participants in a visa pre‑application process; and
(b) registered participants will be selected at random from that pool.
Note 2: See also subsection (21), which deals with eligibility requirements.
(3) A visa pre‑application process must involve:
(a) a finite period (the finite registration open period) during which the process is to be open for registration; or
(b) an indefinite period (the indefinite registration open period) during which the process is to be open for registration.
(4) If a visa pre‑application process involves a finite registration open period, this Act does not prevent the finite registration open period from being extended for a further period or further periods.
(5) A visa pre‑application process must involve:
(a) a finite period (the finite selection open period) during which the selection of registered participants may take place; or
(b) an indefinite period (the indefinite selection open period) during which the selection of registered participants may take place.
(6) If a visa pre‑application process involves a finite selection open period:
(a) this Act does not prevent the finite selection open period from being extended for a further period or further periods; and
(b) the selection of registered participants may take place on one or more occasions during the finite selection open period.
(7) If a visa pre‑application process involves an indefinite selection open period, the selection of registered participants may take place on one or more occasions during the indefinite selection open period.
(8) If:
(a) a person is a registered participant in a visa pre‑application process; and
(b) the person is selected in accordance with the process;
the person ceases to be a registered participant in the process.
(9) If:
(a) a visa pre‑application process relates to one or more visas; and
(b) the visa pre‑application process involves a finite registration open period; and
(c) the finite registration open period ends;
this Act does not prevent a fresh visa pre‑application process from being conducted in relation to any or all of those visas.
(10) This Act does not prevent 2 or more visa pre‑application processes from being conducted in relation to one or more visas.
Note: This means that visa pre‑application processes can be conducted concurrently.
Use of a computer program
(11) A visa pre‑application process, or a part of a visa pre‑application process, may be conducted by the use of a computer program under the Minister’s control.
(12) Subsection (11) does not limit subsection (1).
Ministerial determination
(13) A visa pre‑application process must not be conducted under subsection (1) unless a determination is in force under subsection (14) in relation to the conduct of the visa pre‑application process.
(14) The Minister may, by legislative instrument, determine rules that apply in relation to the conduct of a specified visa pre‑application process under subsection (1).
Note: For specification by class, see subsection 13(3) of the Legislation Act 2003.
(15) A determination under subsection (14):
(a) must deal with eligibility requirements for the registration of a person as a registered participant in a visa pre‑application process; and
(b) may deal with any or all of the following matters:
(i) the registration of persons as registered participants in a visa pre‑application process;
(ii) the manner in which a person may register as a registered participant in a visa pre‑application process;
(iii) information to be provided by a person when registering as a registered participant in a visa pre‑application process;
(iv) whether a visa pre‑application process must involve a finite registration open period and, if so, the duration of that period;
(v) if a visa pre‑application process involves a finite registration open period—the extension of that period;
(vi) whether a visa pre‑application process must involve an indefinite registration open period;
(vii) whether a visa pre‑application process must involve a finite selection open period and, if so, the duration of that period;
(viii) if a visa pre‑application process involves a finite selection open period—the extension of that period;
(ix) whether a visa pre‑application process must involve an indefinite selection open period;
(x) the withdrawal of a person’s registration as a registered participant in a visa pre‑application process;
(xi) the circumstances in which, or the time when, the registration of a person as a registered participant in a visa pre‑application process lapses;
(xii) the selection of registered participants in a visa pre‑application process.
(16) Subsection (15) does not limit subsection (14).
(17) A determination under subsection (14) may provide for different rules for different visa pre‑application processes.
(18) A determination under subsection (14) may provide for different rules for different classes of persons.
(19) Subsections (17) and (18) of this section do not limit subsection 33(3A) of the Acts Interpretation Act 1901.
(20) Despite regulations made for the purposes of paragraph 44(2)(b) of the Legislation Act 2003, section 42 (disallowance) of that Act applies to a determination under subsection (14) of this section.
Eligibility requirements
(21) The following provisions have effect:
(a) subsections 46(3) and (4) do not, by implication, limit what may be an eligibility requirement for the registration of a person as a registered participant in a visa pre‑application process;
(b) the eligibility requirements for the registration of a person as a registered participant in a visa pre‑application process may be different from the criteria and requirements prescribed for the purposes of subsection 46(3) or (4);
(c) an eligibility requirement for the registration of a person as a registered participant in a visa pre‑application process must be objective.
Visa pre‑application process charge
(22) If visa pre‑application process charge is payable in respect of the registration of a person as a registered participant in a visa pre‑application process, the charge is to be paid at the time of registration. If the charge is not paid at that time, the person is taken never to have been registered as a registered participant in the visa pre‑application process.
(23) The regulations may:
(a) make provision for the remission, refund or waiver of visa pre‑application process charge in specified circumstances; or
(b) make provision for exemptions from visa pre‑application process charge.
Extra‑territorial application
(24) This section extends to acts, omissions, matters and things outside Australia.
47 Consideration of valid visa application
(1) The Minister is to consider a valid application for a visa.
(2) The requirement to consider an application for a visa continues until:
(a) the application is withdrawn; or
(b) the Minister grants or refuses to grant the visa; or
(c) the further consideration is prevented by section 39 (limiting number of visas) or 84 (suspension of consideration).
(3) To avoid doubt, the Minister is not to consider an application that is not a valid application.
(4) To avoid doubt, a decision by the Minister that an application is not valid and cannot be considered is not a decision to refuse to grant the visa.
48 Non‑citizen refused a visa or whose visa cancelled may only apply for particular visas
(1) A non‑citizen in the migration zone who:
(a) does not hold a substantive visa; and
(b) after last entering Australia:
(i) was refused a visa, other than a refusal of a bridging visa or a refusal under section 501, 501A or 501B, for which the non‑citizen had applied (whether or not the application has been finally determined); or
(ii) held a visa that was cancelled under section 109 (incorrect information), 116 (general power to cancel), 133A (Minister’s personal powers to cancel visas on section 109 grounds), 133C (Minister’s personal powers to cancel visas on section 116 grounds), 134 (business visas), 137J (student visas) or 137Q (regional sponsored employment visas);
may, subject to the regulations, apply for a visa of a class prescribed for the purposes of this section or have an application for such a visa made on his or her behalf, but not for a visa of any other class.
(1A) A non‑citizen in the migration zone who:
(a) does not hold a substantive visa; and
(b) after last entering Australia, was refused a visa (other than a refusal of a bridging visa or a refusal under section 501, 501A or 501B) for which an application had been made on the non‑citizen’s behalf, whether or not:
(i) the application has been finally determined; or
(ii) the non‑citizen knew about, or understood the nature of, the application due to any mental impairment; or
(iii) the non‑citizen knew about, or understood the nature of, the application due to the fact that the non‑citizen was, at the time the application was made, a minor;
may, subject to the regulations, apply for a visa of a class prescribed for the purposes of this section or have an application for such a visa made on his or her behalf, but not for a visa of any other class.
(1B) If:
(a) an attempt was made to remove a non‑citizen from the migration zone under section 198 but the removal was not completed; and
(b) the non‑citizen is again in the migration zone as a result of travel to Australia that is covered by paragraph 42(2A)(d);