Migration Act 1958 (Assignment)

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Added on  2020-02-24

Migration Act 1958 (Assignment)

   Added on 2020-02-24

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Immigration Law
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Migration Act 1958 (Assignment)_1
Question 1
Section 46 of the Migration Act 1958 states that a visa application is only valid if it is
in relation to a visa of a class provided in the application, all requirements and criteria
provided by the section are satisfied, all charges which have to be paid in relation to that
particular class of visa application have been paid, any fees which is prescribed by the
regulations in relation to the visa have been paid, no provision of the act prevents the
application of the visa along with any other Commonwealth law and a few provisions of this
Act1. These section are namely Section 48 where the visa have been refused or cancelled
earlier, Section 48A protection visa has been cancelled or refused earlier, Section 161 non-
citizens holding criminal justice visa, Section 164D non-citizens holding enforcement visa,
Section 195 application being made out of time, Section 501E where the visa had been
refused or cancelled on the grounds of character. In addition section 46AA application of
grant of visa in relation to act based visas, 46A application made by unauthorised Maritime
arrivals2, S 46B application made by transitory arrivals3, Section 91E or 91G Safe Third
countries and CPA4, section 91k related to temporary safe haven visa and section 91P non-
citizens having access to protection by third countries5. The visa application is further invalid
with respect to subsection 2 if the person making the application is in the migration zone, the
condition imposed on the person under section 41(2)A have not been waived by the Minister,
the application is subjected to a condition which provides that the visa cannot be granted. In
relation to sub section 2A application for visa can be said to be valid in case it is related to an
application with respect to a prescribed class for the purpose of the subsection and with
1 Migration regulations 1958 (Cth) at Section 46
2 Migration regulations 1958 (Cth) at Section 46A
3 Migration regulations 1958 (Cth) at Section 46B
4 Migration regulations 1958 (Cth) at Section 91E AND 91G
5 Migration regulations 1958 (Cth) at Section 91P
Migration Act 1958 (Assignment)_2
respect to the regulation the application has been taken to be made validly. Further criteria
may be prescribed by the regulations in relation to a specific class of visa to be valid. This
can be in relation to where the application is made, how it is made and at what time it has
been made. The Migration Regulations 1994 states through regulation 2.07 that all charges
needs to be paid in relation to the visa application6. The application has to be made in the
place prescribed by the regulations and in the mode which has been prescribed. The
application also has to be made through the particular forms for the specific types of visa
Applicants of a contributory parent visa either temporary or permanent are not
allowed to make an application for such visa if they have been barred from doing so. An
applicant might be barred from applying for such visa if they have been imposed with a “No
further Stay” condition through condition 8503 on the visa presently held by them. In
addition a person not holding a substantive visa and have been not granted a visa as their
application has been refused since they last entered Australia are also not eligible of making a
visa application for contributory parent visa. Therefore in the particular circumstances a
person whose application for partner visa has been refused and are not holding any
substantive visa are not eligible to apply for contributory parent visa7.
Section 35A and 36 of the MA, sets out Provisions in relation to the grant of
Protection Visa. As per section 36 of the MA a person for the purpose of being granted with a
protection visa must be a risk to the country as per section 4 of the Australian Security
Intelligence Organisation Act 1979 or has is danger to the security of the country or has been
6 Migration Regulations 1994 at Regulation 2.07
7 Migration Regulations 1994 at Schedule 8
Migration Act 1958 (Assignment)_3

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