This article will discuss sections 46B to 48 of the Migration Act 1958 which lay down the rules as to visa application by transitory persons.
Who Are Transitory Persons?
Under the Act, a transitory person:
- Who was taken to another country (under repealed section 198A); or
- Who was taken to a regional processing country under section 198AD; or
- Who was taken to a place outside Australia under paragraph 245F(9)(b) of this Act, or under Division 7 or 8 of Part 3 of the Maritime Powers Act 2013; or
- Who, while a non-citizen and during the period from 27 August 2001 to 6 October 2001:
- was transferred to the ship HMAS Manoora from the ship Aceng or the ship MV Tampa; and
- was then taken by HMAS Manoora to another country; and
- disembarked in that other country; or
- the child of a transitory person, if:
- the child was born in a regional processing country to which the authorities have taken the parent as the relevant paragraph mentions; and
- the child was not an Australian citizen at the time of birth; or
- the child of a transitory person, if:
- the child was born in the migration zone; and
- the child was not an Australian citizen at the time of birth.
Visa Application by Transitory Persons
Section 46B provides that visa application by transitory persons is not a valid application if the transitory person:
- is in Australia; and
Moreover, 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 the application made by a transitory person with the conditions mentioned above is a valid application.
Here’s what you need to know about what the Minister’s determination should contain:
- The determination 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.
- The period specified in a determination may be different for different classes of transitory persons.
- The Minister may, in writing, vary or revoke a determination if the Minister thinks that it is in the public interest to do so.
The Minister’s Power to Make a Determination
Only the Minister may personally exercise the power of making, revoking, or varying a determination. If the Minister makes, varies or revokes a determination, the Minister must present a statement that sets out:
- The determination, the determination as varied or the instrument of revocation; and
- 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.
However, the statement must not include:
- the name of the transitory person; or
- any information that may identify the transitory person; or
- 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.
Moreover, they must lay the statement before each House of the Parliament within 15 sitting days of that House after:
- if they make the determination between 1 January and 30 June (inclusive) in a year–1 July in that year; or
- if they make the determination between 1 July and 31 December (inclusive) in a year–1 January in the following year.
The Minister does not have a duty to consider whether to exercise the powers discussed earlier in respect of any transitory person whether the Minister makes a request to do so:
- by the transitory person or by any other person, or
- in any other circumstances.
Consideration of Valid Visa Application
Section 47 states that the Minister is to consider a valid visa application by transitory persons and the requirement to consider an application for a visa continues until:
- the withdrawal of the application; or
- the Minister grants or refuses to grant the visa; or
- section 39 (limiting number of visas) or 84 (suspension of consideration) prevents further consideration.
To avoid doubt, the Minister is not to consider an application that is not a valid visa application by transitory persons. Moreover, a decision by the Minister that a visa application by transitory persons is not valid is not a decision to refuse to grant the visa.
Refused or Cancelled Visa of a Non-citizen
There’s also an instance when authorities refuse or cancel the visa of a non-citizen. Thus, such person may only apply for particular type of visas.
Section 48 provides that a non-citizen in the migration zone who fits the categories stated below may apply for a visa of a class prescribed for the purposes of this section. He or she may also have an application for such a visa made on his or her behalf, but not for a visa of any other class:
- The non citizen does not hold a substantive visa; and
- after last entering Australia:
- The non citizen faced visa refusal, 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 authorities have made a final determination of the application); or
- He or she held a visa that the authorities cancelled under the following:
- section 109 (incorrect information),
- section 116 (general power to cancel),
- section 133A (Minister’s personal powers to cancel visas on section 109 grounds),
- section 133C (Minister’s personal powers to cancel visas on section 116 grounds),
- section 134 (business visas),
- section 137J (student visas) or
- section 137Q (regional sponsored employment visas);
Moreover, the non-citizen may apply for a prescribed visa regardless if:
- authorities have finally determined the application; or
- the non-citizen knew about, or understood the nature of, the application due to any mental impairment; or
- the non-citizen knew about, or understood the nature of, the application due to the fact that the non-citizen was, at the time they made the application, a minor.
When Is a Non-citizen Considered to Have Been in the Migration Zone Continuously?
Section 48 also establishes the following rules:
- The non-citizen is taken to have been continuously in the migration zone despite the attempted removal if:
Section 42(2A)(d) relates to the travel of a non-citizen to Australia after authorities have made an attempt to remove the non-citizen under section 198.
- The non-citizen is considered to have been in the migration zone continuously despite such removal if he or she:
- has faced removal from the migration zone under section 198; and
- is again in the migration zone as a result of travel to Australia that section 42(2A)(da) or (e) covers.
- The non-citizen who, while holding a bridging visa, leaves and re-enters the migration zone is taken to have been continuously in the migration zone despite that travel.
Contact a Migration Lawyer Today
If you want to clarify the discussion of rules on visa application by transitory persons or any visa or migration law issue, we recommend that you talk to a migration lawyer immediately. JB Solicitors has the most dedicated and competent migration lawyers you can rely on.
Contact us today.