This article will outline the grant of visas Migration Act. The Migration Act 1958 is the primary legislation for the entry, stay and departure of non-citizens in Australia. It provides the legislative framework for the administration of Australia's migration program.
Additionally, it also establishes the criteria needed for visa applications, appeals, and reviews. The grant of visas is important in Australia because it:
- Facilitates travel: The grant of visas enables people from other countries to travel to and enter Australia for various purposes, such as tourism, education, work, and family visits.
- Provides economic benefits: Visa holders can contribute to the Australian economy through tourism, education, or working in various industries, and can also help address skills shortages in certain sectors.
- Promotes cultural exchange: Granting visas can promote cultural exchange by allowing people from different backgrounds and nationalities to visit or reside in Australia, enriching the cultural diversity of the country.
- Provides humanitarian assistance: The grant of visas can provide humanitarian assistance to people who are fleeing persecution or are in need of protection. This includes refugees, asylum seekers, and people in vulnerable situations.
- Establishes national security: The grant of visas also plays a critical role in maintaining national security by ensuring that only people who meet the eligibility criteria and do not pose a security risk can enter and stay in Australia.
Read on to know more about relevant laws and legislation regarding the grant of visas Migration Act.
Section 65: Grant and Refusal of Visas
According to Section 65 of the grant of visas Migration Act, the Minister will only grant a visa application subject to sections 84 and 86 if:
- It has met the necessary health criteria requirements
- It satisfies the criteria as prescribed by the Migration Act or the regulations
- Applicants have paid any visa application charges
The Minister will also grant an application as long as the following sections do not prevent the grant of the visa:
- 40 (Circumstances when granted)
- 91W (Evidence of identity and bogus documents)
- 91WA (Bogus documents and destroying identity documents)
- 91WB (Evidence of identity and bogus documents)
- 500A (Refusal or cancellation of temporary safe haven visas
- 501 (Special power to refuse or cancel)
- Any other provision of this Act or any Commonwealth law
Note: An application set aside under section 94 is not considered for the purposes of Section 65 subsection (1) until it is removed from the pool under subsection 95(3).
Grant of Visas Migration Act: Powers of the Minister
Section 84 empowers the Minister to halt the processing of visa applications of the type specified in a determination made under that section. Section 86 prohibits the Minister from granting a visa of the type specified in a determination made under section 85. This is if the number of such visas granted in a specified fiscal year has reached a predetermined maximum.
Section 195A also gives the Minister the authority to grant a visa to a person detained under section 189. This is the case whether or not the person has applied for the visa. Subdivisions AA, AC, and AF and the regulations do not apply to the Minister's authority under Section 195A. Any decisions to refuse the grant of protection visas to fast-track review applicants must be referred to the Immigration Assessment Authority.
Section 66: Notification of Decision
According to Section 66 of the grant of visas Migration Act, the Minister must notify a visa applicant about the grant or refusal of their visa in a prescribed way. The notification to refuse a visa must:
- Specify the criterion that the applicant did not satisfy
- Specify the provision or regulation that prevented the grant of the visa
- Contain written reasons why the applicant did not satisfy the criterion (other than non-disclosable information)
- State that they have referred the decision for review in the case of a fast-track reviewable decision. Fast-track processing is a premium service that gives certain Visitor visa (subclass 600) applicants priority processing.
- State that the decision is not subject to review in the case of a fast-track reviewable decision.
The notification of a refusal must also state the following if the applicant has a right to have the decisions reviewed under Part 5 or 7 or Section 500:
- Review of the decision
- Time in which the application can be reviewed
- Who can apply for the review
- Where the application can be reviewed
Section 66 subsection 3 of the grant of visas Migration Act applies to an application if:
- The visa cannot be granted while the applicant is in the migration zone.
- This Act does not provide for an application for review of a decision to refuse the grant of the visa.
Failure to give notification of a decision does not affect the validity of the decision. Section 66 does not apply to a decision under Sections 501, 501A, 501B, or 501E to refuse the grant of a visa to a person.
Sections 501C and 501G require notification of a decision under sections 501, 501A, 501B, or 501F to refuse to grant a visa to a person.
Section 67: How and When To Grant and Refuse Visas
Section 67 of the grant of visas Migration Act states how and when to grant and refuse visas in Australia. The Minister is authorised to grant or refuse a visa, each of which is put in a record.
The record must state the day and time of the grant or refusal. The Minister cannot vary or revoke the decision after the day and time the record is made. This is the case even if the Minister fails to comply with stating the day and time of the decision in a record.
Section 68: When Visa Is in Effect
According to Section 68 of the Migration Act, a visa is in effect the day after its grant. The day can either be specified in the visa or when an event specified in the visa occurs. A visa can only be in effect during the visa period of the visa. Let's use the Visitor visa (subclass 600) as an example.
For instance, an applicant applied for a visitor visa because he wants to visit famous tourist spots in Australia. According to the Department of Home Affairs (DHA), a visitor visa can enable an applicant to stay in Australia for up to 12 months. If we apply Section 68 to our example, the applicant cannot remain in Australia for more than 12 months.
What About Bridging Visas?
Bridging visas are temporary visas that allow people to remain in Australia lawfully while they are waiting for a decision on their immigration status. These visas are designed to bridge the gap between the expiry of an individual's current visa and the decision on their new visa application.
According to Section 68 of the grant of visas Migration Act, a reactivated bridging visa held by a non-citizen will come into effect again during the visa period if:
- The non-citizen does not hold a substantive visa that is in effect; and
- The non-citizen does not hold any other bridging visa or the reactivated bridging visa is determined to be the most beneficial bridging visa for the applicant, in accordance with the regulations.
Section 69: Effect of Compliance or Non-compliance
What happens if the Minister does not comply with Subdivisions AA and AB of the Migration Act or Section 494D? According to Section 69 of the grant of visas Migration Act, this does not invalidate a grant or refusal of a visa.
However, it may invalidate or overturn the decision if the decision was incorrect upon review. The Minister is not required to take any further action if he/she handles a visa application in accordance with Subdivisions AA, AB, or AC.
Importance of Seeking Legal Advice
Visa applicants must accomplish a number of requirements, and complete a number of documents in order for their applications to be granted. However, there may be circumstances where their applications may be rejected. This may cause inconveniences and frustration especially if the applicants are on a tight schedule for moving to or visiting Australia.
Applicants may seek the aid of JB Solicitors' experienced immigration lawyers for legal assistance with immigration and visa applications. Our team can guide applicants with everything they need from visa requirements and basic legal requirements. We can ensure that your application is processed smoothly and efficiently with our services.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
