Australia

Limits on visas under the Migration Act

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Outlines the limits on visas as specified in the Migration Act

Australia Immigration

This article outlines the limits on visas as specified under the Migration Act. Australia has a range of visas available for people who are living overseas or who are returning to Australia. The Migration Act 1958 governs laws about immigration and visa application procedures. Some of the most common types of visas in Australia are:

Visitor visas
Student visas
Permanent visas
Skilled work visas
Partner visas
Returning resident visas

Visas are important because they allow people to enter and stay in a foreign country legally. Without a valid visa, a person can be denied entry to a country or even deported if they are found to be staying in the country illegally. Read on to know more about the limits on visas Migration Act.

Limit on Visas Migration Act Section 85 and 86

According to Section 85 of limits on visas Migration Act, the Minister may determine the maximum number of visas (including protection visas):

Of a specified class; or
Of specified classes

These specified class or classes may be granted in a specified financial year. However, this does not apply in relation to temporary protection visas or safe haven visas. The primary distinction between these two visas is that a safe haven visa applicant must intend to work or study in Australia.

On the other hand, temporary protection visa applicants must only meet health and character requirements. According to Section 86 of the limit on visas Migration Act, the DHA may not grant any visas in the financial year if:

There is a determined maximum number of visas of a class or classes in the financial year; and
The number of visas of the class or classes granted reaches the maximum number

Section 87: Limits on Visas for Certain Persons

According to Section 87, Section 86 does not prevent the grant of a visa to a person who applied for it if he/she is the spouse, de facto partner, or dependent child of:

An Australian citizen;
The holder of a permanent visa that is in effect; or
A person who is normally resident in Australia and whose presence is not subject to a time limit imposed by law.

For the purpose of Section 87, a child of a person is a dependent child if he/she:

Does not have a spouse or de facto partner; and
Is either 18 or is 18, 19, 20 and is dependent on the person for financial and psychological or physical support.

Section 87A: Grant of Visas for People Who Are Unable to Meet Certain Requirements

This Section 87A of the limit on visas Migration Act does not prevent the grant of a visa to a person if they meet the following conditions:

The person has applied whether before or after the commencement of this section for the grant of a visa; and
A time was or is reached once the grant of the visa to the person in a particular fiscal year was or is prohibited by the provisions in Section 86; and;
The Minister requested the person after the time to satisfy the requirements for the grant if the visa relates to health or character; and
The person satisfies health and character requirements in a financial year subsequent to the financial year in which the time referred to in point (2) mentioned above occurred
Section 86 would prevent the person from receiving the visa at the time specified in point (2).
The person was unable to meet health and character requirements at a time when Section 86 would not have prevented the grant of the visa to the person.
The Minister feels that the person's inability to meet health and character requirements was due to circumstances beyond the person's control.

Section 88 and 89: Other Provisions for Limits

Section 88 of the limit on visas Migration Act states that prevention of the grant of visas does not affect its application procedure. Additionally, Section 89 states that:

"The fact that the Minister has neither granted nor refused to grant a visa of a class or classes to which a determination under section 85 applies does not mean, for any purpose, that the Minister has failed to make a decision to grant or refuse to grant the visa."

This provision states that if a Minister has not explicitly granted or refused to grant a visa, it does not necessarily mean that they have failed to make a decision. In other words, the Minister may have decided not to grant the visa without explicitly stating so.

Section 90: Order of Dealing With Limited Visas

Section 90 of the limit on visas Migration Act state that:

"The fact that an application for a visa of a class or classes to which a determination under section 85 applies has not been considered or disposed of, despite the fact that a later application for the same class or classes has been considered or disposed of, does not imply that the consideration or disposal of the earlier application is unreasonable."

This statement means that if a visa application of a certain type was not considered or dealt with, but a later application of the same type was considered or dealt with, it doesn't necessarily mean that the first application was treated unfairly. In other words, just because one application was processed before the other, it doesn't mean that the first application was overlooked or treated unfairly.

Section 91: Order of Dealing With Visas

Section 91 of the limits on visas Migration Act states that if Section 85 applies to a type of visa, the Minister has the authority to process or decide on visa applications in any order they see fit. However, the Minister may only do this if it is in accordance with Section 86. Hence, the Minister can process visa applications in any order they think is appropriate, as long as they follow the law.

Importance of Seeking Legal Advice

It's not uncommon for individuals to make mistakes or overlook important details that can lead to their visa application being denied.

JB Solicitors has expert immigration lawyers who can aid in the process of visa applications in Australia. We are knowledgeable about various application procedures and ensure that they we conduct it properly and legally.

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.