Section 46 — Valid visa application

Validity—general

(1) Subject to subsections (1A), (2) and (2A), an application for a visa is valid if, and only if:

(a) it is for a visa of a class specified in the application; and

(b) it satisfies the criteria and requirements prescribed under this section; and

(ba) subject to the regulations providing otherwise, any visa application charge that the regulations require to be paid at the time when the application is made, has been paid; and

(c) any fees payable in respect of it under the regulations have been paid; and

(d) it is not prevented by any provision of this Act, or of any other law of the Commonwealth, including, without limitation, the following provisions of this Act:

(i) section 48 (visa refused or cancelled earlier);

(ii) section 48A (protection visa refused or cancelled earlier);

(iii) section 161 (criminal justice visa holders);

(iv) section 164D (enforcement visa holders);

(v) section 195 (detainee applying out of time);

(vi) section 501E (earlier refusal or cancellation on character grounds); and

(e) it is not invalid under any provision of this Act, or of any other law of the Commonwealth, including, without limitation, the following provisions of this Act:

(i) section 46AA (visa applications, and the grant of visas, for some Act-based visas);

(ii) section 46A (visa applications by unauthorised maritime arrivals);

(iii) section 46B (visa applications by transitory persons);

(iv) section 91E or 91G (CPA and safe third countries);

(v) section 91K (temporary safe haven visas);

(vi) section 199G (visa applications by certain nationals of a removal concern country).

(1A) Subject to subsection (2), an application for a visa is invalid if:

(a) the applicant is in the migration zone; and

(b) since last entering Australia, the applicant has held a visa subject to a condition described in paragraph 41(2)(a); and

(c) the Minister has not waived that condition under subsection 41(2A); and

(d) the application is for a visa of a kind that, under that condition, the applicant is not or was not entitled to be granted.

(2) Subject to subsection (2A), an application for a visa is valid if:

(a) it is an application for a visa of a class prescribed for the purposes of this subsection; and

(b) under the regulations, the application is taken to have been validly made. Migration Act 1958 101 Part 2 Arrival, presence and departure of persons Division 3 Visas for non-citizens Provision of personal identifiers

(2A) An application for a visa is invalid if:

(aa) the Minister has not waived the operation of this subsection in relation to the application for the visa; and

(ab) the applicant has been required to provide one or more personal identifiers under section 257A for the purposes of this subsection; and

(b) the applicant has not complied with the requirement.

Note: An invalid application for a visa cannot give rise to an obligation under section 65 to grant a visa: see subsection 47(3). Prescribed criteria for validity

(3) The regulations may prescribe criteria that must be satisfied for an application for a visa of a specified class to be a valid application.

(4) Without limiting subsection (3), the regulations may also prescribe:

(a) the circumstances that must exist for an application for a visa of a specified class to be a valid application; and

(b) how an application for a visa of a specified class must be made; and

(c) where an application for a visa of a specified class must be made; and

(d) where an applicant must be when an application for a visa of a specified class is made.

(4A) Without limiting subsection (3) and paragraph (4)(a), the regulations may prescribe, as a circumstance that must exist for an application for a visa of a specified class to be a valid application, that the applicant was selected in accordance with the applicable visa pre-application process conducted under subsection 46C(1).

(4B) However, the regulations cannot prescribe criteria mentioned in subsection (4A) for any of the following visas:

(a) protection visas;

(b) temporary safe haven visas;

(c) visas classified by the regulations as:

(i) Refugee and Humanitarian (Class XB) visas; or

(ii) Temporary (Humanitarian Concern) (Class UO) visas; or

(iii) Resolution of Status (Class CD) visas.

(5) To avoid doubt, subsections (3) and (4) do not require criteria to be prescribed in relation to the validity of visa applications, including, without limitation, applications for visas of the following classes:

(a) special category visas (see section 32);

(b) permanent protection visas (see subsection 35A(2));

(c) temporary protection visas (see subsection 35A(3));

(ca) safe haven enterprise visas (see subsection 35A(3A));

(d) bridging visas (see section 37);

(e) temporary safe haven visas (see section 37A);

(f) maritime crew visas (see section 38B).