s 45 — Application for visa — Migration Act 1958
Text of provision
45 Non-citizen may apply for visa
(1) A non-citizen may apply for a visa.
(2) Subject to this Act, the regulations may prescribe criteria that must be satisfied for a visa of a particular class to be granted.
(3) Subject to this Act, the regulations may prescribe the circumstances in which an application for a visa of a particular class may be made.
(4) Subject to this Act, the regulations may prescribe the form and manner in which an application for a visa is to be made.
Plain English
Section 45 establishes the basic right of a non-citizen to apply for a visa. It is an enabling provision — it does not itself create an entitlement to a visa, only the right to apply.
The section also authorises the Migration Regulations to prescribe the criteria, circumstances, form and manner for applications. This means that the detailed requirements for any specific visa class — such as the Subclass 189 or Subclass 190 — are found in the Migration Regulations, not in the Act itself.
The word "may" in s 45(1) means there is no obligation on a non-citizen to apply for a visa — it is their choice. However, a non-citizen who is in the migration zone without a valid visa is an unlawful non-citizen and is subject to mandatory detention under s 189.
Practical effect
Section 45 is the foundational provision that initiates the visa application process. The grant of a visa — once an application is made — is governed by s 65.
The power to prescribe criteria in s 45(2) is exercised through the Migration Regulations. For points-tested visas, those criteria include passing the points test under s 101 and the requirements set out in provisions such as cl 189.211.
A person cannot be granted a visa unless an application has been validly made under s 45 and the applicable regulations. An invalid application — for example, one made in the wrong form or in circumstances not prescribed — does not enliven the decision-making power in s 65.