The Migration Act 1958 covers certain Sections on visas for non-citizens. In this article, we will explore some visas for non-citizens. The following sections contain information on some visas for non-citizens:
Section 37: Bridging Visas for Non-citizens
This Section states that bridging visas are classes of temporary visas that authorities grant under Subdivision AF under Division 3, Part 2 of the Act.
Section 37A: Temporary Safe Haven Visas
In this Section, the term concerned country refers to the country/ countries in which the circumstances exist that give rise to the grant of temporary safe haven visas.
Subsection (1) of Section 37A states that there is a class of temporary visas that are "temporary safe haven visas" to travel, enter and remain in Australia. As the name mentions, these visas grant temporary safe haven to people in Australia.
Subsection (2) states that the Minister may, by notice in the Gazette, extend the visa period of this type of visa. By this, the visa will cease to be effect on the day the Minister specifies in the notice.
According to Subsection (3), the Minister may shorten the visa period of a temporary safe haven visa. This way the visa will cease to be in effect on the day the Minister specifies in the notice.
This is the case if the Minister is of the opinion that the safe haven visa is no longer necessary for the holder of the visa. This may due to fundamental, durable and stable changes in the country concerned.
Addition Provisions Under Section 37A
Subsection (4) states that if the Gazette publishes a notice under subsection (3), the Minister must lay before each House of the Parliament a copy of the notice within 3 sitting days of that House after publication of the notice.
Moreover, the Minister must provide a statement setting out the reasons for the notice. The statement must particularly refer to the Minister's reasons for thinking that fundamental, durable and stable changes have taken place in the country concerned.
According to subsection (5) if a notice under Subsection (2) or (3) that the Gazette published, has not been revoked, then the visa will cease to be in effect on the date the Minister specified in the notice. This is despite any other provisions in the Act.
Lastly, subsection (6) states that the Minister does not have any duty to consider whether to exercise the power under point (2) in respect of any non-citizen. This is whether the non-citizen requests the Minister to do so or by any other person, or in any other circumstances.
Section 38: Criminal Justice Visas
There is a class of temporary visas that are criminal justice visas that authorities can grant under Subdivision D of Division 4 of Part 2 of the Act. Criminal justice visas are applicable when a criminal justice certificate about the non-citizen is in force.
Generally, either the NSW police or the ODPP (Office of Director Public Prosecutions) has to certify that a party is required in Australia before the approval of a Criminal Justice Visa.
To read about criminal justice visas in detail, read this blog.
Section 38A: Enforcement Visas for Non-citizens
Enforcement visas may be application when a non-citizen is facing immigration detention. It can also be applicable in cases where the non-citizens poses some kind of security risk to the country, or risk to the public safety of the country.
According to Section 38A, enforcement visas are temporary visas for non-citizens to remain in Australia temporarily. To read more about enforcement visas in detail, read this blog.
Section 38B: Maritime Crew Visas
Subsection (1) states that maritime crew visas are temporary visas to travel and enter Australia by sea. Furthermore, subsection (2) states that subject to subsection (43, 1B), a maritime crew visa that a non-citizen holds does not allow them to travel to Australia by air.
It is important to note that it is still possible for the non-citizen to hold another visa that allows them to travel to and enter Australia by air.
Subsection (3) states that the Minister may make a declaration in writing stating that it is undesirable that a person, or any persons in a class of persons, travel to, enter or remain in Australia.
Furthermore, point (4) states that if the Minister makes a declaration under subsection (3) in relation to persons or class of persons, then the maritime crew visa ceases to be in effect:
- if the Minister specifies a time in the declaration - at the time so specified; or
- if the Minister does not specify such a time in the declaration - at the end of the day on which the declaration is made.
Importantly, a maritime crew visa can also cease to be in effect under other Sections such as Section 82.
Additional Provisions Section 38B
Subsection (5) of Section 38B states that if the Minister revokes the declaration that they make under Subsection (4) then we consider that the Minister never made such a declaration.
Note that under subsection 33(3) of the Acts Interpretation Act 1901, the Minister may revoke a declaration made under subsection (4).
Moreover, subsection (6) states that despite subsection (5), any detention of the non-citizen during any part of the period:
- beginning when the Minister made the declaration; and
- ending at the time of the revocation of the declaration;
is lawful. Moreover, the non-citizen cannot make any claim against the Commonwealth, an officer or any other person because of the detention.
Importance of Seeking Advice from JB Solicitors
Do you require further information on visas for non-citizens? We advise you to speak with our expert team of solicitors today.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.