Best Guide to S46A of Migration Act 1958

Understanding Section 46A: Visa Applications by Unauthorised Maritime Arrivals in Australia

In Australian immigration law, Section 46A of the Migration Act governs visa applications made by unauthorised maritime arrivals—people who arrive in Australia by sea without proper authorisation. This section outlines clear rules and exceptions about when these individuals can or cannot apply for a visa while in Australia.

General Rule for Visa Applications

Normally, an unauthorised maritime arrival in Australia cannot make a valid visa application if they are:

• An unlawful non-citizen (meaning they don’t hold a valid visa), or
• Holding a bridging visa, a temporary protection visa, or another type of temporary visa specified by law.

This rule stops these individuals from applying for other visas while they are in Australia under these conditions.

Exceptions to the Rule

There are two main exceptions where this rule doesn’t apply:

1. Safe Haven Enterprise Visa Holders
   People who hold a safe haven enterprise visa—or have held one in the past and are now a lawful non-citizen—can apply for certain visas listed in the law. To qualify, they must meet specific requirements, such as:

• Having a job,
• Studying, or
• Receiving certain social security benefits.
  This exception supports those contributing to Australian society through work, education, or community involvement.

1. Ministerial Intervention
   The Minister for Immigration can step in and allow an unauthorised maritime arrival to apply for a specific visa if it’s in the public interest. Here’s how it works:

• The Minister makes this decision personally.
• The decision must be reported to Parliament, explaining why it’s in the public interest, without revealing the individual’s identity.
• The Minister can set a time limit on this decision or apply it differently to various groups of unauthorised maritime arrivals.
• The Minister can also change or cancel the decision if needed, as long as it’s in the public interest.

Key Points to Understand

• The Minister doesn’t have to consider using this power, even if someone asks them to.
• When the Minister makes, changes, or cancels a decision, a report must be presented to Parliament within specific timeframes (e.g., by 1 July or 1 January, depending on when the decision was made). This ensures transparency while keeping personal details private.
• This section balances strict immigration control with opportunities for those who can contribute to Australia.

Conclusion

Section 46A is a key part of Australia’s immigration law, managing visa applications from unauthorised maritime arrivals. It sets firm restrictions but also offers pathways—like the safe haven enterprise visa—for those who meet certain conditions. Whether you’re exploring Australian visa options or need clarity on the Migration Act, understanding these rules is essential.