Commonwealth Numbered Acts Commonwealth Numbered ActsDivision 1--Protection visas generally
1 Subsection 5(1)
Insert:
"protection visa" has the meaning given by section 35A.
Note: Section 35A covers the following:
(a) permanent protection visas (classified by the Migration Regulations 1994 as Protection (Class XA) visas when this definition commenced);
(b) other protection visas formerly provided for by subsection 36(1);
(c) temporary protection visas (classified by the Migration Regulations 1994 as Temporary Protection (Class XD) visas when this definition commenced);
(d) any additional classes of permanent or temporary visas that are prescribed as protection visas by the regulations.
See also section 36 and Subdivision AL of Division 3 of Part 2.
2 At the end of subsection 31(1)
Add:
Note: See also subsection 35A(4), which allows additional classes of permanent and temporary visas to be prescribed as protection visas by regulations made for the purposes of this subsection.
3 Subsection 31(2)
Omit "sections 32, 33, 34, 35, 36, 37, 37A, 38, 38A and 38B", substitute:
the following provisions:
(a) section 32 (special category visas);
(b) section 33 (special purpose visas);
(c) section 34 (absorbed person visas);
(d) section 35 (ex-citizen visas);
(e) subsection 35A(2) (permanent protection visas);
(f) subsection 35A(3) (temporary protection visas);
(g) section 37 (bridging visas);
(h) section 37A (temporary safe haven visas);
(i) section 38 (criminal justice visas);
(j) section 38A (enforcement visas);
(k) section 38B (maritime crew visas).
4 Subsection 31(3)
Omit "36", substitute "35A".
5 After section 35
Insert:
35A Protection visas--classes of visas
(1) A protection visa is a visa of a class provided for by this section.
(2) There is a class of permanent visas to be known as permanent protection visas.
Note: These visas were classified by the Migration Regulations 1994 as Protection (Class XA) visas when this section commenced.
(3) There is a class of temporary visas to be known as temporary protection visas.
Note: These visas were classified by the Migration Regulations 1994 as Temporary Protection (Class XD) visas when this section commenced.
(4) Regulations made for the purposes of subsection 31(1) may prescribe additional classes of permanent and temporary visas as protection visas.
(5) A class of visas that was formerly provided for by subsection 36(1), as that subsection was in force before the commencement of this section, is also a class of protection visas for the purposes of this Act and the regulations.
Example: An example of a class of visas for subsection (5) is the class of visas formerly classified by the Migration Regulations 1994 as Protection (Class AZ) visas. These visas can no longer be granted.
Note: This section commenced, and subsection 36(1) was repealed, on the commencement of Part 1 of Schedule 2 to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 .
(6) The criteria for a class of protection visas are:
(a) the criteria set out in section 36; and
(b) any other relevant criteria prescribed by regulation for the purposes of section 31.
Note: See also Subdivision AL.
6 Section 36 (heading)
Repeal the heading, substitute:
36 Protection visas--criteria provided for by this Act
7 Subsection 36(1)
Repeal the subsection.
8 Subparagraph 36(2)(b)(ii)
After "protection visa", insert "of the same class as that applied for by the applicant".
9 At the end of subparagraph 36(2)(c)(ii)
Add "of the same class as that applied for by the applicant".
10 Subsection 48A(2) (definition of application for a protection visa )
Omit "includes", substitute "means".
11 Subsection 48A(2) (paragraph (aa) of the definition of application for a protection visa )
Repeal the paragraph, substitute:
(aa) an application for a visa of a class provided for by section 35A (protection visas--classes of visas), including (without limitation) an application for a visa of a class formerly provided for by subsection 36(1) that was made before the commencement of this paragraph; or
Note: Visas formerly provided for by subsection 36(1) are provided for by subsection 35A(5). Subsection 36(1) was repealed by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 , which also inserted section 35A and this paragraph.
12 Subsection 48A(2) (paragraphs (a) and (b) of the definition of application for a protection visa )
Omit "; and", substitute "; or".
Division 2--Safe haven enterprise visas
13 Subsection 5(1) (after paragraph (b) of the note at the end of the definition of protection visa )
Insert:
(ba) safe haven enterprise visas;
14 After paragraph 31(2)(f)
Insert:
(fa) subsection 35A(3A) (safe haven enterprise visas);
15 After paragraph 31(3A)(c)
Insert:
(ca) safe haven enterprise visas (see subsection 35A(3A));
16 After subsection 35A(3)
Insert:
(3A) There is a class of temporary visas to be known as safe haven enterprise visas.
(3B) The purpose of safe haven enterprise visas is both to provide protection and to encourage enterprise through earning and learning while strengthening regional Australia.
Note: If a person satisfies the requirements for working, study and accessing social security prescribed for the purposes of paragraph 46A(1A)(c), section 46A will not bar the person from making a valid application for any of the onshore visas prescribed for the purposes of paragraph 46A(1A)(b). This does not include permanent protection visas.
17 After paragraph 46(5)(c)
Insert:
(ca) safe haven enterprise visas (see subsection 35A(3A));
18 After paragraph 46AA(1)(c)
Insert:
(ca) safe haven enterprise visas (see subsection 35A(3A));
18A At the end of subsection 85(2)
Add "or safe haven enterprise visas".
18B After subparagraph 1401(3)(d)(i)
Insert:
(ia) does not hold, and has not ever held, a Safe Haven Enterprise (Class XE) visa; and
18C After subparagraph 1403(3)(d)(i)
Insert:
(ia) holds, or has ever held, a Safe Haven Enterprise (Class XE) visa; or
18D At the end of Schedule 1
Add:
1404. Safe Haven Enterprise (Class XE)
(1) Form: 790.
(2) Visa application charge:
(a) first instalment (payable at the time the application is made):
(i) for an applicant who is in immigration detention and has not been immigration cleared:
|
First instalment |
||
|
Item |
Component |
Amount |
|
1 |
Base application charge |
Nil |
|
2 |
Additional applicant charge for an applicant who is at least 18 |
Nil |
|
3 |
Additional applicant charge for an applicant who is less than 18 |
Nil |
(ii) for any other applicant:
|
First instalment |
||
|
Item |
Component |
Amount |
|
1 |
Base application charge |
$35 |
|
2 |
Additional applicant charge for an applicant who is at least 18 |
Nil |
|
3 |
Additional applicant charge for an applicant who is less than 18 |
Nil |
Note: Regulation 2.12C explains the components of the first instalment of visa application charge and specifies the amounts of subsequent temporary application charge and non-internet application charge. Not all of the components may apply to a particular application.
Additional applicant charge is paid by an applicant who claims to be a member of the family unit of another applicant and seeks to combine the application with that applicant's application.
(b) the second instalment (payable before grant of visa) is nil.
(3) Other:
(a) Application must be made in Australia.
(b) Applicant must be in Australia.
(c) Application by a person claiming to be a member of the family unit of a person who is an applicant for a Safe Haven Enterprise (Class XE) visa may be made at the same time and place as, and combined with, the application by that person.
(d) An application by a person for a Safe Haven Enterprise (Class XE) visa is valid only if the person:
(i) holds, or has ever held, a Temporary Protection (Class XD) visa or a Subclass 785 (Temporary Protection) visa, including such a visa granted before 2 December 2013; or
(ii) holds, or has ever held, a Safe Haven Enterprise (Class XE) visa; or
(iii) holds, or has ever held, a Temporary Safe Haven (Class UJ) visa; or
(iv) holds, or has ever held, a Temporary (Humanitarian Concern) (Class UO) visa; or
(v) did not hold a visa that was in effect on the person's last entry into Australia; or
(vi) is an unauthorised maritime arrival; or
(vii) was not immigration cleared on the person's last entry into Australia.
(e) An application by a person for a Safe Haven Enterprise (Class XE) visa is valid only if the person indicates in writing an intention to work or study while accessing minimum social security benefits in a regional area specified under subclause (4).
(4) The Minister may, by legislative instrument, specify a regional area for the purposes of these regulations.
Note: See also regulation 2.06AAB (visa applications by holders and certain former holders of safe haven enterprise visas).
(5) Subclasses:
790 (Safe Haven Enterprise)
18E After Part 785 of Schedule 2
Insert:
Subclass 790 -- Safe Haven Enterprise
790.1--Interpretation
For the purposes of this Part, a person (A) is a member of the same family unit as another person (B) if:
(a) A is a member of B's family unit; or
(b) B is a member of A's family unit; or
(c) A and B are members of the family unit of a third person.
790.2--Primary criteria
Note: All applicants must satisfy the primary criteria.
790.21--Criteria to be satisfied at time of application
(1) Subclause (2) or (3) is satisfied.
(2) The applicant:
(a) claims that a criterion mentioned in paragraph 36(2)(a) or (aa) of the Act is satisfied in relation to the applicant; and
(b) makes specific claims as to why that criterion is satisfied.
Note: Paragraphs 36(2)(a) and (aa) of the Act set out criteria for the grant of protection visas to non-citizens in respect of whom Australia has protection obligations.
(3) The applicant claims to be a member of the same family unit as a person:
(a) to whom subclause (2) applies; and
(b) who is an applicant for a Subclass 790 (Safe Haven Enterprise) visa.
Note: See paragraphs 36(2)(b) and (c) of the Act.
790.22--Criteria to be satisfied at time of decision
(1) Subclause (2) or (3) is satisfied.
(2) The Minister is satisfied that a criterion mentioned in paragraph 36(2)(a) or (aa) of the Act is satisfied in relation to the applicant.
Note: Paragraphs 36(2)(a) and (aa) of the Act set out criteria for the grant of protection visas to non-citizens in respect of whom Australia has protection obligations.
(3) The Minister is satisfied that:
(a) the applicant is a member of the same family unit as an applicant mentioned in subclause (2); and
(b) the applicant mentioned in subclause (2) has been granted a Subclass 790 (Safe Haven Enterprise) visa.
Note: See paragraphs 36(2)(b) and (c) of the Act.
The applicant has undergone a medical examination carried out by any of the following (a relevant medical practitioner ):
(a) a Medical Officer of the Commonwealth;
(b) a medical practitioner approved by the Minister for the purposes of this paragraph;
(c) a medical practitioner employed by an organisation approved by the Minister for the purposes of this paragraph.
(1) One of subclauses (2) to (4) is satisfied.
(2) The applicant has undergone a chest x-ray examination conducted by a medical practitioner who is qualified as a radiologist in Australia.
(3) The applicant is under 11 years of age and is not a person in respect of whom a relevant medical practitioner has requested the examination mentioned in subclause (2).
(4) The applicant is a person:
(a) who is confirmed by a relevant medical practitioner to be pregnant; and
(b) who has been examined for tuberculosis by a chest clinic officer employed by a health authority of a State or Territory; and
(c) who has signed an undertaking to place herself under the professional supervision of a health authority in a State or Territory and to undergo any necessary treatment; and
(d) who the Minister is satisfied should not be required to undergo a chest x-ray examination at this time.
(1) A relevant medical practitioner has considered:
(a) the results of any tests carried out for the purposes of the medical examination required under clause 790.222; and
(b) the radiological report (if any) required under clause 790.223 in respect of the applicant.
(2) If the relevant medical practitioner:
(a) is not a Medical Officer of the Commonwealth; and
(b) considers that the applicant has a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community;
the relevant medical practitioner has referred any relevant results and reports to a Medical Officer of the Commonwealth.
If a Medical Officer of the Commonwealth considers that the applicant has a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community, arrangements have been made, on the advice of the Medical Officer of the Commonwealth, to place the applicant under the professional supervision of a health authority in a State or Territory to undergo any necessary treatment.
The applicant:
(a) satisfies public interest criteria 4001 and 4003A; and
(b) if the applicant had turned 18 at the time of application--satisfies public interest criterion 4019.
The Minister is satisfied that the grant of the visa is in the national interest.
(1) If the applicant is a child to whom subregulation 2.08(2) applies, subclause (2) is satisfied.
(2) The Minister is satisfied that:
(a) the applicant is a member of the same family unit as an applicant to whom subclause 790.221(2) applies; and
(b) the applicant to whom subclause 790.221(2) applies has been granted a Subclass 790 (Safe Haven Enterprise) visa.
Note 1: Subregulation 2.08(2) applies, generally, to a child born to a non-citizen after the non-citizen has applied for a visa but before the application is decided.
Note 2: Subclause 790.221(2) applies if the Minister is satisfied that Australia has protection obligations in respect of the applicant as mentioned in paragraph 36(2)(a) or (aa) of the Act.
790.3--Secondary criteria
Note: All applicants must satisfy the primary criteria.
790.4--Circumstances applicable to grant
The applicant must be in Australia when the visa is granted.
790.5--When visa is in effect
Temporary visa permitting the holder to travel to, enter and remain in Australia until:
(a) if the holder of the temporary visa (the first visa ) makes a valid application for another Subclass 790 (Safe Haven Enterprise) visa within 5 years after the grant of the first visa--the day when the application is finally determined or withdrawn; or
(b) in any other case--the end of 5 years from the date of grant of the first visa.
790.6--Conditions
Conditions 8565 and 8570.
Note: There is nothing in the Act or these regulations which restricts the ability of the holder of the visa to study or work as he or she sees fit.
Division 2A--Safe haven enterprise visas: pathways to other visas
18F After subsection 46A(1)
Insert:
(1A) Subsection (1) does not apply in relation to an application for a visa if:
(a) either:
(i) the applicant holds a safe haven enterprise visa (see subsection 35A(3A)); or
(ii) the applicant is a lawful non-citizen who has ever held a safe haven enterprise visa; and
(b) the application is for a visa prescribed for the purposes of this paragraph; and
(c) the applicant satisfies any employment, educational or social security benefit requirements prescribed in relation to the safe haven enterprise visa for the purposes of this paragraph.
18G After regulation 2.06AAA
Insert:
2.06AAB Visa applications by holders and certain former holders of safe haven enterprise visas.
(1) For paragraph 46A(1A)(b) of the Act, visas of the subclasses listed in the following table are prescribed:
|
Visas for which holders and certain former holders of safe haven enterprise visas may apply |
|
|
Item |
Visa subclass |
|
1 |
Subclass 132 (Business Talent) |
|
2 |
Subclass 143 (Contributory Parent) |
|
3 |
Subclass 186 (Employer Nomination Scheme) |
|
4 |
Subclass 187 (Regional Sponsored Migration Scheme) |
|
5 |
Subclass 188 (Business Innovation and Investment (Provisional)) |
|
6 |
Subclass 189 (Skilled--Independent) |
|
7 |
Subclass 190 (Skilled--Nominated) |
|
8 |
Subclass 402 (Training and Research) |
|
9 |
Subclass 405 (Investor Retirement) |
|
10 |
Subclass 416 (Special Program) |
|
11 |
Subclass 445 (Dependent Child) |
|
12 |
Subclass 457 (Temporary Work (Skilled)) |
|
13 |
Subclass 476 (Skilled--Recognised Graduate) |
|
14 |
Subclass 489 (Skilled--Regional (Provisional)) |
|
15 |
Subclass 570 (Independent ELICOS Sector) |
|
16 |
Subclass 571 (Schools Sector) |
|
17 |
Subclass 572 (Vocational Education and Training Sector) |
|
18 |
Subclass 573 (Higher Education Sector) |
|
19 |
Subclass 574 (Postgraduate Research Sector) |
|
20 |
Subclass 575 (Non-Award Sector) |
|
21 |
Subclass 580 (Student Guardian) |
|
22 |
Subclass 801 (Partner) |
|
23 |
Subclass 802 (Child) |
|
24 |
Subclass 804 (Aged Parent) |
|
25 |
Subclass 820 (Partner) |
|
26 |
Subclass 835 (Remaining Relative) |
|
27 |
Subclass 836 (Carer) |
|
28 |
Subclass 837 (Orphan Relative) |
|
29 |
Subclass 838 (Aged Dependent Relative) |
|
30 |
Subclass 858 (Distinguished Talent) |
|
31 |
Subclass 864 (Contributory Aged Parent) |
|
32 |
Subclass 884 (Contributory Aged Parent (Temporary)) |
(2) For the purposes of paragraph 46A(1A)(c) of the Act, an applicant for a visa who currently holds, or has ever held, a safe haven enterprise visa must, for a period or periods totalling 42 months (which need not be continuous) while the visa is (or was) in effect, satisfy one of the following requirements:
(a) the applicant does not receive any social security benefits determined under subregulation (3), and is engaged in employment, as determined under that subregulation, in a regional area specified under subclause 1404(4) of Schedule 1;
(b) the applicant is enrolled in full-time study at an educational institution, as determined under subregulation (3), in a regional area specified under subclause 1404(4) of Schedule 1;
(c) the applicant satisfies a combination of the requirements in paragraph (a) and paragraph (b), at different times.
(3) The Minister may, by legislative instrument, make a determination for the purposes of paragraphs (2)(a) and (b).
19 Application of amendments
(1) The amendments of the Migration Act 1958 made by Division 1 of this Part:
(a) apply in relation to an application for a visa that had not been finally determined immediately before the commencement of that Division; and
(b) apply in relation to an application for a visa made on or after the commencement of that Division; and
(c) in the case of the amendments of section 48A of that Act made by that Division--apply in relation to an application for a protection visa mentioned in paragraph 48A(1)(a) or (b), or paragraph 48A(1AA)(a) or (b), of that Act that was made, or taken to have been made:
(i) on or after the commencement of that Division; or
(ii) at any time before the commencement of that Division (whether or not the application had been finally determined at that time).
(2) The amendments of the Migration Act 1958 made by Division 2 of this Part apply in relation to an application for a visa made on or after the commencement of that Division.
(3) The amendments of the Migration Act 1958 and the Migration Regulations 1994 made by Division 2A of this Part apply in relation to an application for a visa made on or after the commencement of that Division.
Part 2 -- Visa applications taken to be applications for a different visa
20 After section 45
Insert:
45AA Application for one visa taken to be an application for a different visa
Situation in which conversion regulation can be made
(1) This section applies if:
(a) a person has made a valid application (a pre-conversion application ) for a visa (a pre-conversion visa ) of a particular class; and
(b) the pre-conversion visa has not been granted to the person, whether or not a migration decision has been made in relation to the pre-conversion application; and
(c) since the application was made, one or more of the following events has occurred:
(i) the requirements for making a valid application for that class of visa change;
(ii) the criteria for the grant of that class of visa change;
(iii) that class of visa ceases to exist; and
(d) had the application been made after the event (or events) occurred, because of that event (or those events):
(i) the application would not have been valid; or
(ii) that class of visa could not have been granted to the person.
(2) To avoid doubt, under subsection (1) this section may apply in relation to:
(a) classes of visas, including protection visas and any other classes of visas provided for by this Act or the regulations; and
(b) classes of applicants, including applicants having a particular status; and
(c) applicants for a visa who are taken to have applied for the visa by the operation of this Act or the regulations.
Example: If a non-citizen applies for a visa, and then, before the application is decided, gives birth to a child, in some circumstances the child is taken, by the operation of the regulations, to have applied for a visa of the same class at the time the child is born (see regulation 2.08).
Conversion regulation
(3) For the purposes of this Act, a regulation (a conversion regulation ) may provide that, despite anything else in this Act, the pre-conversion application for the pre-conversion visa:
(a) is taken not to be, and never to have been, a valid application for the pre-conversion visa; and
(b) is taken to be, and always to have been, a valid application (a converted application ) for a visa of a different class (specified by the conversion regulation) made by the applicant for the pre-conversion visa.
Note: This section may apply in relation to a pre-conversion application made before the commencement of the section (see the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 ).
For example, a conversion regulation (made after the commencement of this section) could have the effect that a pre-conversion application for a particular type of visa made on 1 August 2014 (before that commencement):
(a) is taken not to have been made on 1 August 2014 (or ever); and
(b) is taken to be, and always to have been, a converted application for another type of visa made on 1 August 2014.
(4) Without limiting subsection (3), a conversion regulation may:
(a) prescribe a class or classes of pre-conversion visas; and
(b) prescribe a class of applicants for pre-conversion visas; and
(c) prescribe a time (the conversion time ) when the regulation is to start to apply in relation to a pre-conversion application, including different conversion times depending on the occurrence of different events.
Visa application charge
(5) If an amount has been paid as the first instalment of the visa application charge for a pre-conversion application, then, at and after the conversion time in relation to the application:
(a) that payment is taken not to have been paid as the first instalment of the visa application charge for the pre-conversion application; and
(b) that payment is taken to be payment of the first instalment of the visa application charge for the converted application, even if the first instalment of the visa application charge that would otherwise be payable for the converted application is greater than the actual amount paid for the first instalment of the visa application charge for the pre-conversion application; and
(c) in a case in which the first instalment of the visa application charge payable for the converted application is less than the actual amount paid for the first instalment of the visa application charge for the pre-conversion application, no refund is payable in respect of the difference only for that reason.
Note: For the visa application charge, see sections 45A, 45B and 45C.
Effect on bridging visas
(6) For the purposes of this Act, if, immediately before the conversion time for a pre-conversion application, a person held a bridging visa because the pre-conversion application had not been finally determined, then, at and after the conversion time, the bridging visa has effect as if it had been granted because of the converted application.
(7) For the purposes of this Act, if, immediately before the conversion time for a pre-conversion application, a person had made an application for a bridging visa because of the pre-conversion application, but the bridging visa application had not been finally determined, then, at and after the conversion time:
(a) the bridging visa application is taken to have been applied for because of the converted application; and
(b) the bridging visa (if granted) has effect as if it were granted because of the converted application.
Note: This Act and the regulations would apply to a bridging visa to which subsection (6) or (7) applies, and to when the bridging visa would cease to have effect, in the same way as this Act and the regulations would apply in relation to any bridging visa.
For example, such a bridging visa would generally cease to be in effect under section 82 if and when the substantive visa is granted because of the converted application.
Conversion regulation may affect accrued rights etc.
(8) To avoid doubt:
(a) subsection 12(2) of the Legislative Instruments Act 2003 does not apply in relation to the effect of a conversion regulation (including a conversion regulation enacted by the Parliament); and
(b) subsection 7(2) of the Acts Interpretation Act 1901 , including that subsection as applied by section 13 of the Legislative Instruments Act 2003 , does not apply in relation to the enactment of this section or the making of a conversion regulation (including a conversion regulation enacted by the Parliament).
21 Application of amendments
The amendment of the Migration Act 1958 made by Division 1 of this Part, to insert section 45AA of that Act, applies in relation to an application for a pre-conversion visa made before, on or after the commencement of this Part.
Part 3 -- Deemed visa applications
22 At the end of section 48
Add:
(4) In paragraphs (1)(b) and (1A)(b):
(a) a reference to an application for a visa made by or on behalf of a non-citizen includes a reference to an application for a visa that is taken to have been made by the non-citizen by the operation of this Act or a regulation; and
(b) a reference to the cancellation of a visa includes a reference to the cancellation of a visa for which an application is taken to have been made by the operation of this Act or a regulation.
23 After subsection 48A(1C)
Insert:
(1D) In paragraphs (1)(a) and (b) and (1AA)(a) and (b), a reference to an application for a protection visa made by or on behalf of a non-citizen includes a reference to an application for a protection visa that is taken to have been made by the non-citizen by the operation of this Act or a regulation.
(1E) In subsection (1B), a reference to the cancellation of a protection visa includes a reference to the cancellation of a protection visa in relation to which an application for a protection visa is taken to have been made by the operation of this Act or a regulation.
24 After subsection 501E(1A)
Insert:
(1B) In paragraph (1)(a) and subsection (1A), a reference to a refusal to grant a visa, or to the cancellation of a visa, includes a reference to such a refusal or cancellation in relation to a visa for which an application is taken to have been made by the operation of this Act or a regulation.
25 Application of amendments
The amendments of the Migration Act 1958 made by Division 1 of this Part apply in relation to an application for a visa that is taken to have been made before, on or after the commencement of this Part.
Part 4 -- Permanent protection visas and temporary protection visas
26 Regulation 1.03
Insert:
"protection visa" has the meaning given by section 35A of the Act.
Note: Section 35A of the Act covers the following:
(a) permanent protection visas (classified by these Regulations as Protection (Class XA) visas when this definition commenced);
(b) other protection visas formerly provided for by subsection 36(1) of the Act;
(c) temporary protection visas (classified by these Regulations as Temporary Protection (Class XD) visas when this definition commenced);
(d) any additional classes of permanent or temporary visas that are prescribed as protection visas by the regulations.
See also section 36 and Subdivision AL of Division 3 of Part 2 of the Act.
27 Subparagraph 1401(2)(a)(i) of Schedule 1
Repeal the subparagraph.
28 Subparagraph 1401(2)(a)(ii) of Schedule 1
Omit "(ii) for any other applicant:".
29 At the end of subitem 1401(3) of Schedule 1
Add:
(d) An application by a person for a Protection (Class XA) visa is valid only if the person:
(i) does not hold, and has not ever held, a Subclass 785 (Temporary Protection) visa, including such a visa granted before 2 December 2013; and
(ii) does not hold, and has not ever held, a Temporary Safe Haven (Class UJ) visa; and
(iii) does not hold, and has not ever held, a Temporary (Humanitarian Concern) (Class UO) visa; and
(iv) held a visa that was in effect on the person's last entry into Australia; and
(v) is not an unauthorised maritime arrival; and
(vi) was immigration cleared on the person's last entry into Australia.
30 At the end of Schedule 1
Add:
1403. Temporary Protection (Class XD)
(1) Form: 866.
(2) Visa application charge:
(a) first instalment (payable at the time the application is made):
(i) for an applicant who is in immigration detention and has not been immigration cleared:
|
First instalment |
||
|
Item |
Component |
Amount |
|
1 |
Base application charge |
Nil |
|
2 |
Additional applicant charge for an applicant who is at least 18 |
Nil |
|
3 |
Additional applicant charge for an applicant who is less than 18 |
Nil |
(ii) for any other applicant:
|
First instalment |
||
|
Item |
Component |
Amount |
|
1 |
Base application charge |
$35 |
|
2 |
Additional applicant charge for an applicant who is at least 18 |
Nil |
|
3 |
Additional applicant charge for an applicant who is less than 18 |
Nil |
Note: Regulation 2.12C explains the components of the first instalment of visa application charge and specifies the amounts of subsequent temporary application charge and non-internet application charge. Not all of the components may apply to a particular application.
Additional applicant charge is paid by an applicant who claims to be a member of the family unit of another applicant and seeks to combine the application with that applicant's application.
(b) the second instalment (payable before grant of visa) is nil.
(3) Other:
(a) Application must be made in Australia.
(b) Applicant must be in Australia.
(c) Application by a person claiming to be a member of the family unit of a person who is an applicant for a Temporary Protection (Class XD) visa may be made at the same time and place as, and combined with, the application by that person.
(d) An application by a person for a Temporary Protection (Class XD) visa is valid only if the person:
(i) holds, or has ever held, a Temporary Protection (Class XD) visa or a Subclass 785 (Temporary Protection) visa, including such a visa granted before 2 December 2013; or
(ii) holds, or has ever held, a Temporary Safe Haven (Class UJ) visa; or
(iii) holds, or has ever held, a Temporary (Humanitarian Concern) (Class UO) visa; or
(iv) did not hold a visa that was in effect on the person's last entry into Australia; or
(v) is an unauthorised maritime arrival; or
(vi) was not immigration cleared on the person's last entry into Australia.
(4) Subclasses:
785 (Temporary Protection)
31 After Part 773 of Schedule 2
Insert:
Subclass 785 -- Temporary Protection
785.1--Interpretation
For the purposes of this Part, a person (A) is a member of the same family unit as another person (B) if:
(a) A is a member of B's family unit; or
(b) B is a member of A's family unit; or
(c) A and B are members of the family unit of a third person.
785.2--Primary criteria
Note: All applicants must satisfy the primary criteria.
785.21--Criteria to be satisfied at time of application
(1) Subclause (2) or (3) is satisfied.
(2) The applicant:
(a) claims that a criterion mentioned in paragraph 36(2)(a) or (aa) of the Act is satisfied in relation to the applicant; and
(b) makes specific claims as to why that criterion is satisfied.
Note: Paragraphs 36(2)(a) and (aa) of the Act set out criteria for the grant of protection visas to non-citizens in respect of whom Australia has protection obligations.
(3) The applicant claims to be a member of the same family unit as a person:
(a) to whom subclause (2) applies; and
(b) who is an applicant for a Subclass 785 (Temporary Protection) visa.
Note: See paragraphs 36(2)(b) and (c) of the Act.
785.22--Criteria to be satisfied at time of decision
(1) Subclause (2) or (3) is satisfied.
(2) The Minister is satisfied that a criterion mentioned in paragraph 36(2)(a) or (aa) of the Act is satisfied in relation to the applicant.
Note: Paragraphs 36(2)(a) and (aa) of the Act set out criteria for the grant of protection visas to non-citizens in respect of whom Australia has protection obligations.
(3) The Minister is satisfied that:
(a) the applicant is a member of the same family unit as an applicant mentioned in subclause (2); and
(b) the applicant mentioned in subclause (2) has been granted a Subclass 785 (Temporary Protection) visa.
Note: See paragraphs 36(2)(b) and (c) of the Act.
The applicant has undergone a medical examination carried out by any of the following (a relevant medical practitioner ):
(a) a Medical Officer of the Commonwealth;
(b) a medical practitioner approved by the Minister for the purposes of this paragraph;
(c) a medical practitioner employed by an organisation approved by the Minister for the purposes of this paragraph.
(1) One of subclauses (2) to (4) is satisfied.
(2) The applicant has undergone a chest x-ray examination conducted by a medical practitioner who is qualified as a radiologist in Australia.
(3) The applicant is under 11 years of age and is not a person in respect of whom a relevant medical practitioner has requested the examination mentioned in subclause (2).
(4) The applicant is a person:
(a) who is confirmed by a relevant medical practitioner to be pregnant; and
(b) who has been examined for tuberculosis by a chest clinic officer employed by a health authority of a State or Territory; and
(c) who has signed an undertaking to place herself under the professional supervision of a health authority in a State or Territory and to undergo any necessary treatment; and
(d) who the Minister is satisfied should not be required to undergo a chest x-ray examination at this time.
(1) A relevant medical practitioner has considered:
(a) the results of any tests carried out for the purposes of the medical examination required under clause 785.222; and
(b) the radiological report (if any) required under clause 785.223 in respect of the applicant.
(2) If the relevant medical practitioner:
(a) is not a Medical Officer of the Commonwealth; and
(b) considers that the applicant has a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community;
the relevant medical practitioner has referred any relevant results and reports to a Medical Officer of the Commonwealth.
If a Medical Officer of the Commonwealth considers that the applicant has a disease or condition that is, or may result in the applicant being, a threat to public health in Australia or a danger to the Australian community, arrangements have been made, on the advice of the Medical Officer of the Commonwealth, to place the applicant under the professional supervision of a health authority in a State or Territory to undergo any necessary treatment.
The applicant:
(a) satisfies public interest criteria 4001 and 4003A; and
(b) if the applicant had turned 18 at the time of application--satisfies public interest criterion 4019.
The Minister is satisfied that the grant of the visa is in the national interest.
(1) If the applicant is a child to whom subregulation 2.08(2) applies, subclause (2) is satisfied.
(2) The Minister is satisfied that:
(a) the applicant is a member of the same family unit as an applicant to whom subclause 785.221(2) applies; and
(b) the applicant to whom subclause 785.221(2) applies has been granted a Subclass 785 (Temporary Protection) visa.
Note 1: Subregulation 2.08(2) applies, generally, to a child born to a non-citizen after the non-citizen has applied for a visa but before the application is decided.
Note 2: Subclause 785.221(2) applies if the Minister is satisfied that Australia has protection obligations in respect of the applicant as mentioned in paragraph 36(2)(a) or (aa) of the Act.
785.3--Secondary criteria
Note: All applicants must satisfy the primary criteria.
785.4--Circumstances applicable to grant
The applicant must be in Australia when the visa is granted.
785.5--When visa is in effect
Temporary visa permitting the holder to remain in, travel to and enter Australia until:
(a) if the holder of the temporary visa (the first visa ) makes a valid application for another Subclass 785 (Temporary Protection) visa within 3 years after the grant of the first visa--the day when the application is finally determined or withdrawn; or
(b) in any other case--the earlier of:
(i) the end of 3 years from the date of grant of the first visa; and
(ii) the end of any shorter period, specified by the Minister, from the date of grant of the first visa.
785.6--Conditions
Conditions 8503, 8570 and 8565.
32 Clause 866.211 of Schedule 2
Repeal the clause, substitute:
(1) Subclause (2) or (3) is satisfied.
(2) The applicant:
(a) claims that a criterion mentioned in paragraph 36(2)(a) or (aa) of the Act is satisfied in relation to the applicant; and
(b) makes specific claims as to why that criterion is satisfied.
Note: Paragraphs 36(2)(a) and (aa) of the Act set out criteria for the grant of protection visas to non-citizens in respect of whom Australia has protection obligations.
(3) The applicant claims to be a member of the same family unit as a person:
(a) to whom subclause (2) applies; and
(b) who is an applicant for a Subclass 866 (Protection) visa.
Note: See paragraphs 36(2)(b) and (c) of the Act.
33 Clause 866.221 of Schedule 2
Repeal the clause, substitute:
(1) Subclause (2) or (3) is satisfied.
(2) The Minister is satisfied that a criterion mentioned in paragraph 36(2)(a) or (aa) of the Act is satisfied in relation to the applicant.
Note: Paragraphs 36(2)(a) and (aa) of the Act set out criteria for the grant of protection visas to non-citizens in respect of whom Australia has protection obligations.
(3) The Minister is satisfied that:
(a) the applicant is a member of the same family unit as an applicant mentioned in subclause (2); and
(b) the applicant mentioned in subclause (2) has been granted a Subclass 866 (Protection) visa.
Note: See paragraphs 36(2)(b) and (c) of the Act.
34 Clause 866.223 of Schedule 2
Omit "relevant medical practitioner", substitute " relevant medical practitioner ".
35 Paragraph 866.225(a)
Omit ", 4002".
36 Clause 866.230 of Schedule 2
Repeal the clause, substitute:
(1) If the applicant is a child to whom subregulation 2.08(2) applies, subclause (2) is satisfied.
(2) The Minister is satisfied that:
(a) the applicant is a member of the same family unit as an applicant to whom subclause 866.221(2) applies; and
(b) the applicant to whom subclause 866.221(2) applies has been granted a Subclass 866 (Protection) visa.
Note 1: Subregulation 2.08(2) applies, generally, to a child born to a non-citizen after the non-citizen has applied for a visa but before the application is decided.
Note 2: Subclause 866.221(2) applies if the Minister is satisfied that Australia has protection obligations in respect of the applicant as mentioned in paragraph 36(2)(a) or (aa) of the Act.
36A At the end of Schedule 8
Add:
8570 T he holder must not:
(a) enter a country by reference to which:
(i) the holder was found to be a person to whom Australia has protection obligations; or
(ii) for a member of the family unit of another holder--the other holder was found to be a person to whom Australia has protection obligations; or
(b) enter any other country unless:
(i) the Minister is satisfied that there are compassionate or compelling circumstances justifying the entry; and
(ii) the Minister has approved the entry in writing.
37 After clause 8564 of Schedule 8
Insert:
8565 The holder must notify Immigration of any change in the holder's residential address within 28 days after the change occurs.
Division 2--Main amendments commencing immediately after Division 1
38 After regulation 2.08E
Insert:
Conversion regulation
(1) For section 45AA of the Act, despite anything else in the Act, a valid application (a pre-conversion application ) for a Protection (Class XA) visa made before the commencement of this regulation by an applicant prescribed by subregulation (2) is, immediately after this regulation starts to apply in relation to the application under subregulation (3):
(a) taken not to be , and never to have been, a valid application for a Protection (Class XA) visa; and
(b) taken to be, and always to have been, a valid application for a Temporary Protection (Class XD) visa, made by the prescribed applicant.
Note 1: As a result, the Minister is required to make a decision on the pre-conversion application as if it were a valid application for a Temporary Protection (Class XD) visa.
Note 2: If the first instalment of visa application charge for the pre-conversion application had been paid before this regulation starts to apply, the first instalment of visa application charge for an application for a Temporary Protection (Class XD) visa (if any) is taken to have been paid. See section 45AA of the Act.
Prescribed applicants
(2) The following are prescribed applicants:
(a) an applicant who holds, or has ever held, any of the following visas:
(i) a Subclass 785 (Temporary Protection) visa granted before 2 December 2013;
(ii) a Temporary Safe Haven (Class UJ) visa;
(iii) a Temporary (Humanitarian Concern) (Class UO) visa;
(b) an applicant who did not hold a visa that was in effect on the applicant's last entry into Australia;
(c) an applicant who is an unauthorised maritime arrival;
(d) an applicant who was not immigration cleared on the applicant's last entry into Australia.
When this regulation starts to apply
(3) This regulation starts to apply in relation to a pre-conversion application immediately after the occurrence of whichever of the following events is applicable to the application:
(a) if, before the commencement of this regulation, the Minister had not made a decision in relation to the pre-conversion application under section 65 of the Act--the commencement of this regulation;
(b) in a case in which the Minister had made such a decision before the commencement of this regulation--one of the following events, if the event occurs on or after the commencement of this regulation:
(i) the Refugee Review Tribunal remits a matter in relation to the pre-conversion application in accordance with paragraph 415(2)(c) of the Act;
(ii) the Administrative Appeals Tribunal remits a matter in relation to the pre-conversion application in accordance with paragraph 43(1A)(c) of the Administrative Appeals Tribunal Act 1975 (as substituted in relation to an RRT-reviewable decision by section 452 of the Act);
(iii) a court quashes a decision of the Minister in relation to the pre-conversion application and orders the Minister to reconsider the application in accordance with the law.
Division 3--Consequential amendments
39 Regulation 2.06AA
Repeal the regulation.
40 Subregulation 2.07AQ(3) (table item 1, column headed "Criterion 2", paragraph (c))
Omit "; or".
41 Subregulation 2.07AQ(3) (table item 1, column headed "Criterion 2", paragraph (d))
Repeal the paragraph.
42 Subregulation 2.07AQ(3) (table item 2, column headed "Criterion 1")
Omit "Protection (Class XA)", substitute "protection".
43 Subregulation 2.07AQ(3) (table item 2, column headed "Criterion 2")
After "item 1,", insert "or a Subclass 785 (Temporary Protection) visa granted before 9 August 2008,".
44 Subregulation 2.07AQ(5)
Omit "Protection (Class XA)" (wherever occurring), substitute "protection".
45 Subregulation 2.07AQ(7)
After "Subclass 785 (Temporary Protection) visa", insert "granted before 9 August 2008".
46 Subregulation 2.43(3) (paragraph (i) of the definition of relevant visa )
Repeal the paragraph, substitute:
(i) Subclass 785, including a Subclass 785 visa granted before 2 December 2013;
47 Subitem 1127AA(3) of Schedule 1 (table item 1, column headed "Criterion 1", paragraph (c))
Omit "; or".
48 Subitem 1127AA(3) of Schedule 1 (table item 1, column headed "Criterion 1", paragraph (d))
Repeal the paragraph.
49 Subitem 1127AA(3) of Schedule 1 (table item 2, column headed "Criterion 1")
After "item 1,", insert "or a Subclass 785 (Temporary Protection) visa granted before 9 August 2008,".
50 Subparagraphs 1302(3)(bb)(i) and (ii) of Schedule 1
After "visa", insert ", including a Subclass 785 (Temporary Protection) visa granted before 2 December 2013".
51 Paragraphs 773.213(2)(zf) and (zfa) of Schedule 2
Repeal the paragraphs, substitute:
(zf) protection visas (including Protection (Class AZ) visas, see subsection 35A(5) of the Act);
52 Amendments of listed provisions--protection visas
The provisions listed in the following table are amended as set out in the table.
|
Amendments relating to protection visas |
|||
|
Item |
Provision |
Omit |
Substitute |
|
1 |
Regulation 1.03 (paragraph (a) of the definition of relative ) |
Protection (Class XA) |
protection |
|
2 |
Paragraph 1.05A(2)(d) |
Protection (Class XA) |
protection |
|
3 |
Paragraph 2.04(2)(a) |
Protection (Class XA) |
protection |
|
4 |
Paragraph 2.12(1)(c) |
Protection (Class XA) |
protection visas |
|
5 |
Regulation 2.20 |
Protection (Class XA) (wherever occurring) |
protection |
|
6 |
Regulation 4.31A |
Protection (Class XA) (wherever occurring) |
protection |
|
7 |
Subregulation 4.33(1) |
Protection (Class XA) |
protection |
|
8 |
Paragraph 010.211(4)(b) of Schedule 2 |
Protection (Class XA) |
protection |
|
9 |
Clause 010.611 of Schedule 2 |
Protection (Class XA) (wherever occurring) |
protection |
|
10 |
Clause 020.611 of Schedule 2 |
Protection (Class XA) (wherever occurring) |
protection |
|
11 |
Paragraph 030.612(a) of Schedule 2 |
Protection (Class XA) |
protection |
|
12 |
Paragraph 050.212(8)(c) of Schedule 2 |
Protection (Class XA) |
protection |
|
13 |
Paragraph 050.613A(1)(a) of Schedule 2 |
Protection (Class XA) |
protection |
|
14 |
Paragraph 050.614(1)(a) of Schedule 2 |
Protection (Class XA) |
protection |
|
15 |
Paragraph 051.611A(1)(a) of Schedule 2 |
Protection (Class XA) |
protection |
Division 4--Amendments relating to application
53 At the end of Schedule 13
Add:
5000 Operation of Divisions 1 and 3 of Part 4 of Schedule 2
The amendments of these Regulations made by Divisions 1 and 3 of Part 4 of Schedule 2 to the Migration Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 apply in relation to:
(a) a visa application made on or after the commencement of Division 1 of that Part; and
(b) a visa application that is taken to be, and always to have been, a valid application for a Temporary Protection (Class XD) visa by the operation of paragraph 2.08F(1)(b) of these Regulations (as inserted by Division 2 of that Part).
Note: Regulation 2.08F applies, by its own terms, in relation to some protection visa applications made before the commencement of that Part.