Non-citizen Visas: Migration Act 1958

Please note that the information we provide in this article about non-citizen visas is current as of the date of publication, and the DHA regularly updates rules and regulations. Kindly ensure that you check the official updates before making any decisions, or speak with an immigration lawyer for the most up-to-date information, as laws and conditions are subject to change.

This article will discuss sections 48A to 51 of the Migration Act 1958 which talks about some rules on non-citizen visas in Australia. These are the following:

1. Section 48A – No further applications for protection visa after refusal or cancellation  
2. Section 48B – Minister may determine that section 48A does not apply to non-citizen
3. Section 49 – Withdrawal of visa application
4. Section 50 – Only new information to be considered in later protection visa applications
5. Section 51 – Order of consideration

However, in order to fully understand the discussions in this article about non-citizen visas, you should read the following articles first:

1. Applications for Visas Migration Act (s44 to s45A)
2. Valid Visa Application: Migration Act 1958 (s46 to s46A)
3. Visa Application by Transitory Persons (s46B to 48)

Protection Visa Applications: When Not Allowed

Section 48A of the Migration Act does not allow further applications for protection visa after refusal or cancellation. It states that 

• a non-citizen who, 
• while in the migration zone, 
• has made an application/s for a protection visa, 
• where the grant/s of the visa/s has been refused 
• whether or not the applications have been finally determined,
• may not make a further application for a protection visa, or 
• have a further application for a protection visa made on his or her behalf.

Moreover, the attempted removal of a non-citizen from the migration zone still means that the non-citizen is continuously in the migration zone.

This section also enumerates the several meanings of “application for protection visa”:

1. an application for a visa of a class provided for by section 35A (protection visas–classes of visas)
2. an application for a visa where a non-citizen is a refugee
3. an application for a visa, or entry permit where the applicant is a non-citizen who has been determined to be a refugee under the Refugees Convention as amended by the Refugees Protocol
4. an application for a decision that a non-citizen is a refugee under the Refugees Convention as amended by the Refugees Protocol
5. an application covered by paragraph (a) or (b) that is also covered by section 39 (transitional – refugee applications) of the Migration Reform Act 1992.

Non-citizen Visas: Power to Determine Inapplicability of Section 48A

The rule under section 48B states that a non-citizen can be given written notice by the Minister that section 48A does not apply to their application for a protection visa. The inapplicability runs during the time period:

• beginning with the date of the notice and 
• ending at the end of the seventh working day after the date of the notice. 

Note that this can only happen if the Minister believes it is in the public interest to do so. Moreover, the Minister can only exercise such power personally.

Furthermore, if the Minister makes the necessary decision, they must:

1. prepare such decision in writing and present it to each House of Parliament.
2. Include the reasons for such determination, referring in particular to the Minister’s reasons for thinking that his or her actions are in the public interest.

Such written decision must NOT include:

• the name of the non-citizen; or
• any information that may identify the non-citizen; or

Note: If the Minister thinks it’s not in the public interest to disclose the name of someone else who has something to do with the matter at hand or any other identifying matter, the above details should not be in the written statement.

Non-citizen Visas: Withdrawal of visa application

A non-citizen visa applicant may withdraw their visa application under section 49 through a written notice for the Minister. This means that a withdrawn application is considered to have been resolved.

Do note that for the purposes of sections  48 and 48A, if the withdrawal was done before the refusal, it does not mean that the Minister refuses to grant the visa. However, the fees payable in respect of an application that is withdrawn are not refundable.

Non-citizen Visas: New information for Protection Visa Applications

Section 50 of this Act states that the Department of Home Affairs (DHA) will only consider new information in later protection visa applications. Moreover, a non-citizen who has made an application for a protection visa but was refused and there is already a final determination of the application makes a further application for a protection visa, the Minister, in considering the further application:

1. is not required to reconsider any information considered in the earlier application or an earlier application; and
2. may have regard to, and take to be correct, any decision that the Minister made about or because of that information.

Non-citizen Visas: Order of consideration

Section 51 gives the Minister to consider and dispose of applications for visas in such order as he or she considers appropriate. Further, it is not indicative of an unreasonable delay in the review or disposition of the earlier application if:

• one submitted a new information later but has been considered or disposed of or
• but the current application has not yet been considered or disposed of.

Seek Legal Advice from JB Solicitors

JB Solicitors is a group of competitive and experienced lawyers who can give you legal advice regarding migration, citizenship, and non-citizen visas. 

Moreover, the extensive scope of the Migration Act, related laws, and policy directives are areas of expertise for migration lawyers. Attorneys specialising in immigration provide advice on possible challenges during visa applications, such as character or health criteria, skill evaluations, or previous visa refusals.

At JB Solicitors, we offer the following migration services:

• Gathering relevant documents for visa applications
• Providing immigration advice
• Helping with appeals and reviews of decisions
• Providing advice about compliance and sponsorship for employers and businesses who nominate skilled workers
• Helping you get permanent residency and  prepare for citizenship applications
• Migration planning for families
• Update you about recent migration law changes.

Contact us today and schedule a quick consultation.