Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth)
This is a compilation of the
The notes at the end of this compilation (the
The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Register ( The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the Register for the compiled law.
If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.
For more information about any editorial changes made in this compilation, see the endnotes.
If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the Register for the compiled law.
If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.
Contents
This Act may be cited as the
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 .
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Sections 1 to 3 and anything in this Act not elsewhere covered by this table | The day this Act receives the Royal Assent. | 15 December 2014 |
Schedule 1 | The day after this Act receives the Royal Assent. | 16 December 2014 |
Schedule 2, Part 1, Division 1 | The day after this Act receives the Royal Assent. | 16 December 2014 |
Schedule 2, Part 1, Division 2 | A single day to be fixed by Proclamation. However, if the provisions do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period. | 18 April 2015 (F2015L00543) |
Schedule 2, Part 1, Division 2A | The later of:
However, the provisions do not commence at all if the event mentioned in paragraph (b) does not occur. | 18 April 2015 |
Schedule 2, Part 1, Division 3 | The day after this Act receives the Royal Assent. | 16 December 2014 |
Schedule 2, Parts 2 and 3 | The day after this Act receives the Royal Assent. | 16 December 2014 |
Schedule 2, Part 4, Division 1 | The day after this Act receives the Royal Assent. | 16 December 2014 |
Schedule 2, Part 4, Division 2 | Immediately after the commencement of the provisions covered by table item 7. | 16 December 2014 |
Schedule 2, Part 4, Divisions 3 and 4 | The day after this Act receives the Royal Assent. | 16 December 2014 |
Schedule 2A | The day after this Act receives the Royal Assent. | 16 December 2014 |
Schedule 3 | The day after this Act receives the Royal Assent. | 16 December 2014 |
Schedule 4 | A single day to be fixed by Proclamation. However, if the provisions do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period. | 18 April 2015 (F2015L00543) |
Schedule 5, items 1 and 2 | The day after this Act receives the Royal Assent. | 16 December 2014 |
Schedule 5, item 3 | Immediately after item 4 of Schedule 2 to the | Never commenced |
Schedule 5, Part 2 | A single day to be fixed by Proclamation. However, if the provisions do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period. | 18 April 2015 (F2015L00543) |
Schedule 5, item 18 | At the same time as the provisions covered by table item 3. However, if item 3 of Schedule 2 to the | 16 December 2014 |
Schedule 5, items 19 to 22 | At the same time as the provisions covered by table item 3. However, if Schedule 1 to the | 16 December 2014 |
Schedule 5, item 23 | Immediately after the | Never commenced |
Schedule 5, item 24 | Immediately after item 3 of Schedule 3 to the | Never commenced |
Schedule 5, item 25 | Immediately after item 5 of Schedule 3 to the | Never commenced |
Schedule 5, item 26 | Immediately after the | Never commenced |
Schedule 5, item 27 | The day after this Act receives the Royal Assent. | 16 December 2014 |
Schedule 5, items 28 and 29 | At the same time as the provisions covered by table item 3. | 16 December 2014 |
Schedules 6 and 7 | The day after this Act receives the Royal Assent. | 16 December 2014 |
Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.
(2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.
(1) Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
(2) The amendment of any regulation under subsection (1) does not prevent the regulation, as so amended, from being amended or repealed by the Governor‑General.
Omit:
In accordance with international law, the exercise of powers is limited in places outside Australia.
Insert:
destination :
(a) in relation to a vessel or aircraft detained under subsection 69(1)—see subsections 69(2), (3) and (3A); or
(b) in relation to a person detained under subsection 72(4)—see subsections 72(4), (4A) and (4B).
Note: See also section 75C.
Marine Safety (Domestic Commercial Vessel) National Law has the meaning given by section 17 of theMarine Safety (Domestic Commercial Vessel) National Law Act 2012.
3
Section 8 (paragraph (e) of the definition of monitoring law ) After “Division”, insert “73 or”.
Before “For the purposes”, insert “(1)”.
Add:
(2) To avoid doubt, a
continuous exercise of powers does not end merely because the destination to which a vessel, aircraft or person is to be taken (or caused to be taken) is changed to a different place under subsection 69(3A) or 72(4B).
Add:
(1) The exercise of a power to give an authorisation under a provision of this Division is not invalid:
(a) because of a failure to consider Australia’s international obligations, or the international obligations or domestic law of any other country; or
(b) because of a defective consideration of Australia’s international obligations, or the international obligations or domestic law of any other country; or
(c) because the exercise of the power is inconsistent with Australia’s international obligations.
(2) Subsection (1) is not to be taken to imply that the exercise of a power under any other provision of this Act is invalid for a reason of a kind specified in paragraph (1)(a), (b) or (c).
(1) The rules of natural justice do not apply to the exercise of a power to give an authorisation under a provision of this Division.
(2) Subsection (1) is not to be taken to imply that the rules of natural justice do apply in relation to the exercise of powers under any other provision of this Act.
After “investigate”, insert “or prevent”.
Omit “Note:”, substitute “Note 1:”.
Add:
Note 2: This section does not apply to the exercise of powers under Divisions 7 and 8 of Part 3 in some circumstances: see section 75D.
Add:
Note: For other provisions affecting powers under this section, see section 69A and Division 8A.
Repeal the subsections, substitute:
(2) The officer may:
(a) take the vessel or aircraft, or cause the vessel or aircraft to be taken, to a place (the
destination ); and(b) remain in control of the vessel or aircraft, or require the person in charge of the vessel or aircraft to remain in control of the vessel or aircraft, at the destination, until whichever of the following occurs first:
(i) the vessel or aircraft is returned to a person referred to in subsection 87(1);
(ii) action is taken as mentioned in subsection 87(3) in relation to the vessel or aircraft.
(3) The destination may be:
(a) in the migration zone; or
(b) outside the migration zone (including outside Australia).
Note: Section 75C contains additional provisions about the place that may be the destination.
(3A) A maritime officer may change the destination to a different place at any time (including a time after arrival at the place that was previously the destination). If the destination is changed to a different place:
(a) that different place is then the destination; but
(b) this does not affect the exercise of powers under this Act before the change.
Note: It is possible that the destination may change more than once.
Insert:
(1) For the purpose of taking a vessel or aircraft (or causing a vessel or aircraft to be taken) to a destination under paragraph 69(2)(a), the vessel or aircraft may be detained under subsection 69(1):
(a) for any period reasonably required:
(i) to decide which place should be the destination; or
(ii) to consider whether the destination should be changed to a different place under subsection 69(3A), and (if it should be changed) to decide what that different place is; and
(b) for any period reasonably required for the Minister to consider whether to make or give a determination or direction under section 75D, 75F or 75H in relation to:
(i) a matter referred to in subparagraph (a)(i) or (ii); or
(ii) any other matter relating to the exercise of powers in relation to the vessel or aircraft, or in relation to persons on (or suspected as having been on) the vessel or aircraft; and
(c) for the period it actually takes to travel to the destination.
Note: The total period for which the vessel or aircraft is detained may be longer than the periods covered by this subsection: see subsection (3) and section 87.
(2) For the purpose of paragraph (1)(c):
(a) the period it actually takes to travel to the destination may include stopovers at other places on the way to the destination, and time for other logistical, operational or other contingencies relating to travelling to the destination; and
(b) there is no requirement that the most direct route to the destination must be taken.
(3) Days in periods covered by subsection (1) do not count towards the 28 day limit specified in paragraph 87(2)(a).
Omit “Note:”, substitute “Note 1:”.
Add:
Note 2: For other provisions affecting powers under this section, see section 72A and Division 8A.
Repeal the subsections, substitute:
(3) A maritime officer may require the person to remain on the vessel or aircraft until whichever of the following occurs first:
(a) the vessel or aircraft is returned to a person referred to in subsection 87(1);
(b) action is taken as mentioned in subsection 87(3) in relation to the vessel or aircraft.
Note: It is an offence to fail to comply with a requirement under this subsection: see section 103.
(4) A maritime officer may detain the person and take the person, or cause the person to be taken, to a place (the
destination ).(4A) The destination may be:
(a) in the migration zone; or
(b) outside the migration zone (including outside Australia).
Note: Section 75C contains additional provisions about the place that may be the destination.
(4B) A maritime officer may change the destination to a different place at any time (including a time after arrival at the place that was previously the destination). If the destination is changed to a different place:
(a) that different place is then the destination; but
(b) this does not affect the exercise of powers under this Act before the change.
Note: It is possible that the destination may change more than once.
Omit “another place”, substitute “the destination”.
After “or aircraft”, insert “, or in a particular place on a vessel or aircraft”.
Insert:
(1) A person may be detained under subsection 72(4):
(a) for any period reasonably required:
(i) to decide which place should be the destination; or
(ii) to consider whether the destination should be changed to a different place under subsection 72(4B), and (if it should be changed) to decide what that different place is; and
(b) for any period reasonably required for the Minister to consider whether to make or give a determination or direction under section 75D, 75F or 75H in relation to:
(i) a matter referred to in subparagraph (a)(i) or (ii); or
(ii) any other matter relating to the exercise of powers in relation to the person; and
(c) for the period it actually takes to travel to the destination; and
(d) for any period reasonably required to make and effect arrangements relating to the release of the person.
(2) For the purpose of paragraph (1)(c):
(a) the period it actually takes to travel to the destination may include stopovers at other places on the way to the destination, and time for other logistical, operational or other contingencies relating to travelling to the destination; and
(b) there is no requirement that the most direct route to the destination must be taken.
(3) The person must not be detained under subsection 72(4) for any longer than is permitted by subsection (1) of this section.
(4) Powers may be exercised in accordance with subsection 72(5) in relation to the person at any time while the person continues to be detained under subsection 72(4).
(5) Subsection (3) does not prevent:
(a) the arrest of the person; or
(b) the detention of the person under another Australian law; or
(c) the exercise of any other power in relation to the person.
Insert:
(1) The exercise of a power under section 69, 69A, 71, 72, 72A, 74, 75D, 75F, 75G or 75H is not invalid:
(a) because of a failure to consider Australia’s international obligations, or the international obligations or domestic law of any other country; or
(b) because of a defective consideration of Australia’s international obligations, or the international obligations or domestic law of any other country; or
(c) because the exercise of the power is inconsistent with Australia’s international obligations.
(2) Subsection (1) is not to be taken to imply that the exercise of a power under any other provision of this Act is invalid for a reason of a kind specified in paragraph (1)(a), (b) or (c).
(1) The rules of natural justice do not apply to the exercise of powers under section 69, 69A, 71, 72, 72A, 74, 75D, 75F, 75G or 75H.
(2) Subsection (1) is not to be taken to imply that the rules of natural justice do apply in relation to the exercise of powers under any other provision of this Act.
(1) To avoid doubt:
(a) the destination to which a vessel, aircraft or person is taken (or caused to be taken) under section 69 or 72:
(i) does not have to be in a country; and
(ii) without limiting subparagraph (i)—may be just outside a country; and
(iii) may be a vessel; and
(b) a vessel, aircraft or person may be taken (or caused to be taken) to a destination under section 69 or 72:
(i) whether or not Australia has an agreement or arrangement with any other country relating to the vessel or aircraft (or the persons on it), or the person; and
(ii) irrespective of the international obligations or domestic law of any other country.
Note: The definition of
country in section 8 includes the territorial sea and archipelagic waters of the country, as well as various other areas.(2) However, if the destination is in another country, section 40 (exercising powers in other countries) must be complied with.
(1) Section 41 (foreign vessels between countries) does not apply to an exercise of power under section 69, 69A, 71, 72, 72A or 74 if:
(a) the exercise of power is:
(i) covered by a determination in force under subsection (2); or
(ii) required by a direction in force under paragraph 75F(2)(a); and
(b) the exercise of power is part of a continuous exercise of powers that commenced in accordance with any applicable requirements of Division 5 of Part 2.
(2) For the purpose of subparagraph (1)(a)(i), the Minister may make a written determination that is expressed to cover the exercise, in a specified circumstance, of powers under one or more of the sections referred to in subsection (1).
(3) The Minister may, in writing, vary or revoke a determination made under subsection (2).
(4) The only condition for the exercise of the power to make a determination under subsection (2), or to vary a determination, is that the Minister thinks that it is in the national interest to make or vary the determination.
Note: There are no conditions for the exercise of the power to revoke a determination.
(5) A determination under subsection (2), or an instrument varying or revoking a determination, comes into force:
(a) unless paragraph (b) applies—when it is made; or
(b) if the determination or instrument specifies a later time as the time when it is to come into force—at that later time.
(6) A determination under subsection (2) remains in force until whichever of the following occurs first:
(a) an instrument revoking the determination comes into force;
(b) if the determination is expressed to cease to be in force at a specified time—the time so specified.
(7) A determination under subsection (2), or a variation or revocation of a determination, is not a legislative instrument.
(1) Powers under sections 69, 69A, 71, 72, 72A, 74, 75D, 75F, 75G or 75H are not in any respect subject to, or limited by, the
Migration Act 1958 (including regulations and other instruments made under that Act).(2) Subsection (1) of this section is not to be taken to imply that other powers under this Act are subject to, or limited by, the
Migration Act 1958 (including regulations and other instruments made under that Act).
(1) This section applies in relation to the powers in sections 69, 69A, 71, 72 and 72A.
(2) The Minister may, in writing, give directions:
(a) requiring the exercise of a power or powers in a specified circumstance, or in circumstances in a specified class, in a specified manner; or
(b) relating to the exercise of a power or powers in a specified circumstance, in a specified class of circumstances or more generally.
(3) Without limiting subsection (2), the Minister may give a direction under that subsection:
(a) specifying a place that is to be, or is not to be, the destination to which a vessel, aircraft or person is taken under paragraph 69(2)(a) or subsection 72(4); or
(b) specifying matters to be taken into account in deciding the destination to which a vessel, aircraft or person is to be so taken.
(4) The Minister may, in writing, vary or revoke a direction given under subsection (2).
(5) The only condition for the exercise of the power to give a direction under subsection (2), or to vary a direction, is that the Minister thinks that it is in the national interest to give or vary the direction.
Note: There are no conditions for the exercise of the power to revoke a direction.
(6) A direction under subsection (2) may specify circumstances in which the direction need not be complied with.
(7) A direction under subsection (2), or an instrument varying or revoking a direction, comes into force:
(a) unless paragraph (b) applies—when it is made; or
(b) if the direction or instrument specifies a later time as the time when it is to come into force—at that later time.
(8) A direction under subsection (2) remains in force until whichever of the following occurs first:
(a) an instrument revoking the direction comes into force;
(b) if the direction is expressed to cease to be in force at a specified time—the time so specified.
(9) If the Minister gives a direction as mentioned in paragraph (2)(a):
(a) the direction is taken to constitute an authorisation of the exercise of the power or powers in accordance with the direction; and
(b) that authorisation is taken (despite section 23) to remain in force while the direction is in force.
(10) A direction under subsection (2), or an instrument varying or revoking a direction, is not a legislative instrument.
(1) Subject to subsections (2) and (3) of this section, and subsection 75F(6), a maritime officer must comply with any applicable directions in force under section 75F. However, a failure to comply does not invalidate any exercise of power by a maritime officer.
(2) A maritime officer who is a member of the Australian Defence Force is not required to comply with a direction under section 75F to the extent that the direction is inconsistent with an order or other exercise of command under sections 8 and 9 of the
Defence Act 1903 .(3) A maritime officer is not required to comply with a direction under section 75F to the extent that he or she reasonably believes that it would be unsafe to do so.
Vessels detained under section 69
(1) The laws specified in subsection (3) (including regulations and other instruments made under those laws) do not apply in relation to a vessel at any time when the vessel is detained in exercise (or purported exercise) of powers under section 69.
Vessels used in exercise of powers under subsections 72(4) or (5)
(2) The laws specified in subsection (3) (including regulations and other instruments made under those laws) do not apply in relation to a vessel at any time when the following paragraphs are satisfied:
(a) the vessel is being used in the exercise (or purported exercise) of powers under subsection 72(4) or (5), or the Commonwealth intends that the vessel is for use in the exercise of such powers;
(b) the vessel is specified in, or is included in a class of vessels specified in, a determination under subsection (4) that is in force;
(c) if the determination states that it has effect, in relation to the vessel or class of vessels, only in specified circumstances—those circumstances exist;
(d) if the determination states that it has effect, in relation to the vessel or the class of vessels, only in one or more specified periods—the time is in that period, or one of those periods.
Note: Paragraph (c) and (d) do not have to be satisfied unless the determination states as mentioned in those paragraphs.
The laws that are disapplied
(3) The laws that, because of subsection (1) or (2), do not apply in relation to a vessel are:
(a) the
Navigation Act 2012 ; and(b) the
Shipping Registration Act 1981 ; and(c) the Marine Safety (Domestic Commercial Vessel) National Law.
Determinations of vessels and classes of vessels
(4) For the purpose of paragraph (2)(b), the Minister may make a written determination specifying a vessel, or a class of vessels. The determination may also state either or both of the following:
(a) that it has effect, in relation to the vessel or class of vessels, only in specified circumstances;
(b) that it has effect, in relation to the vessel or the class of vessels, only in one or more specified periods.
(5) The Minister may, in writing, vary or revoke a determination made under subsection (4).
(6) The only condition for the exercise of the power to make a determination under subsection (4), or to vary a determination, is that the Minister thinks that it is in the national interest to make or vary the determination.
Note: There are no conditions for the exercise of the power to revoke a determination.
(7) A determination under subsection (4), or an instrument varying or revoking a determination, comes into force:
(a) unless paragraph (b) applies—when it is made; or
(b) if the determination or instrument specifies a later time as the time when it is to come into force—at that later time.
(8) A determination under subsection (4) remains in force until whichever of the following occurs first:
(a) an instrument revoking the determination comes into force;
(b) if the determination is expressed to cease to be in force at a specified time—the time so specified.
(9) A determination under subsection (4), or a variation or revocation of a determination, is not a legislative instrument.
Omit:
Written notice must be given to the owner or person who was in possession or control of a seized, retained or detained thing.
substitute:
Written notice must be given to the owner of a seized, retained or detained thing, or to a person who had possession or control of the thing.
Omit “the person”, substitute “a person”.
Add:
(3) If a detained vessel or aircraft is to be taken to a destination under paragraph 69(2)(a), the information must also explain the effect of subsection 69A(3).
Omit “the person”, substitute “a person”.
Add:
Note: In the case of a detained vessel or aircraft that is taken to a destination under paragraph 69(2)(a), days in periods covered by subsection 69A(1) (such as the period it takes to travel to the destination) do not count towards the 28 day limit: see subsection 69A(3).
Repeal the subsection, substitute:
(1) If the thing is disposed of under paragraph 91(1)(a), (b) or (c) (reasons for disposal), the Minister must give written notice, as soon as practicable after the disposal, to:
(a) the person who owned the thing; or
(b) a person who had possession or control of the thing immediately before it was seized, retained or detained.
Omit “the person”, substitute “any person to whom the notice may be given under that subsection”.
Omit:
Persons from detained vessels and aircraft may be required to remain on the vessel or aircraft, or may be taken to another place.
Repeal the section.
After “proceeding”, insert “, whether civil or criminal,”.
After “this Act”, insert “, other than the powers under section 75D, 75F or 75H,”.
Insert:
(pa) decisions under section 75D, 75F or 75H of the
Maritime Powers Act 2013 ;
Add “, or under Division 7 or 8 of Part 3 of the
Maritime Powers Act 2013 ”.
After “migration law”, insert “or the
Maritime Powers Act 2013 ”.
Repeal the paragraph, substitute:
(c) imposes any obligation on the Minister or another Minister to exercise, or to consider exercising, any power conferred by or under the migration law or the
Maritime Powers Act 2013 .
Add “, or under Division 7 or 8 of Part 3 of the
Maritime Powers Act 2013 ”.
36 Subsection 5(1) (paragraph (b) of the definition of transitory person ) Omit “or paragraph 72(4)(b) of the
Maritime Powers Act 2013 ”, substitute “or under Division 7 or 8 of Part 3 of theMaritime Powers Act 2013 ”.
Repeal the paragraph, substitute:
(ba) the person entered the migration zone as a result of the exercise of powers under Division 7 or 8 of Part 3 of the
Maritime Powers Act 2013 ; or
Omit “or 72(4) of the
Maritime Powers Act 2013 ”, substitute “or under Division 7 or 8 of Part 3 of theMaritime Powers Act 2013 ”.
39 Application of amendments of the Maritime Powers Act 2013 (1) Subject to this item, the amendments of the
Maritime Powers Act 2013 made by Part 1 of this Schedule (theamending Part ) apply in relation to the exercise (or continued exercise) of powers under that Act after the commencement of the amending Part, even if:(a) an authorisation for the exercise of the powers was given under Division 2 of Part 2 of that Act before the commencement of the amending Part; or
(b) the powers are exercised:
(i) in the course of a continuous exercise of powers that started before the commencement of the amending Part; or
(ii) without limiting subparagraph (i)—in relation to a person, vessel or aircraft who or that started to be detained, or otherwise held, under Division 7 or 8 of Part 3 of the
Maritime Powers Act 2013 before that commencement; or(iii) in any other situation in relation to which powers were (or could have been) exercised under that Act before that commencement.
(2) The amendments of the
Maritime Powers Act 2013 made by item 3 (so far as it affects the giving of authorisations), and item 6, of the amending Part apply in relation to authorisations given under Division 2 of Part 2 of that Act after the commencement of the amending Part.(3) Section 75H of the
Maritime Powers Act 2013 , as inserted by item 19 of the amending Part, applies to:(a) vessels that, after the commencement of the amending Part, are detained as mentioned in subsection 75H(1), even if the vessels started to be so detained before that commencement; and
(b) vessels that, after the commencement of the amending Part, are being used, or that are intended for use, as mentioned in paragraph 75H(2)(a), even if the vessels started to be so used, or intended for use, before that commencement.
(4) The amendments of the
Maritime Powers Act 2013 made by items 21, 23, 25 and 26 of the amending Part apply after the commencement of the amending Part in relation to a seized, retained or detained thing (including a vessel or aircraft), even if the exercise of power by which the thing was first seized, retained or detained occurred before that commencement.(5) The amendments of the
Maritime Powers Act 2013 made by the amending Part do not, by implication, affect the interpretation of that Act, as in force before the commencement of the amending Part, in relation to the exercise of powers, or the giving of authorisations, under that Act before that commencement.
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.
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.
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).
Omit “36”, substitute “35A”.
Insert:
(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.
Repeal the heading, substitute:
Repeal the subsection.
After “protection visa”, insert “of the same class as that applied for by the applicant”.
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”.
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;
Insert:
(fa) subsection 35A(3A) (safe haven enterprise visas);
Insert:
(ca) safe haven enterprise visas (see subsection 35A(3A));
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.
Insert:
(ca) safe haven enterprise visas (see subsection 35A(3A));
Insert:
(ca) safe haven enterprise visas (see subsection 35A(3A));
Add “or safe haven enterprise visas”.
Insert:
(ia) does not hold, and has not ever held, a Safe Haven Enterprise (Class XE) visa; and
Insert:
(ia) holds, or has ever held, a Safe Haven Enterprise (Class XE) visa; or
Add:
(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:
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:
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)
Insert:
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.
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.
Note: All applicants must satisfy the primary criteria.
The applicant must be in Australia when the visa is granted.
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.
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.
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.
Insert:
(1) For paragraph 46A(1A)(b) of the Act, visas of the subclasses listed in the following table are prescribed:
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).
(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 theMigration 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.
Insert:
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 (apre‑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 theLegislative 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).
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.
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.
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.
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.
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.
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.
Repeal the subparagraph.
Omit “(ii) for any other applicant:”.
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.
Add:
(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:
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:
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)
Insert:
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.
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.
Note: All applicants must satisfy the primary criteria.
The applicant must be in Australia when the visa is granted.
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.
Conditions 8503, 8570 and 8565.
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.
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.
Omit “relevant medical practitioner”, substitute “
relevant medical practitioner ”.
Omit “, 4002”.
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.
Add:
8570 The 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.
Insert:
8565 The holder must notify Immigration of any change in the holder’s residential address within 28 days after the change occurs.
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.
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,”.
Omit “Protection (Class XA)” (wherever occurring), substitute “protection”.
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.
1 | Regulation 1.03 (paragraph (a) of the definition of | 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 |
Add:
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.
Insert:
(1) Despite any legislative instrument made for the purposes of section 39, the Minister must take all reasonably practicable measures to ensure the grant in a financial year of at least the minimum total number of Protection (Class XA) visas and Refugee and Humanitarian (Class XB) visas that is determined by the Minister under subsection (3) of this section for that year.
refugee has the meaning given by section 5H.
well‑founded fear of persecution has the meaning given by section 5J.
Repeal the paragraph, substitute:
(f) to improve the procedures for determining claims from people seeking protection as refugees; and
Repeal the subparagraph, substitute:
(ii) an unauthorised maritime arrival who makes a claim for protection as a refugee; or
Insert:
(1) For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a
refugee if the person:
(a) in a case where the person has a nationality—is outside the country of his or her nationality and, owing to a well‑founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality—is outside the country of his or her former habitual residence and owing to a well‑founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of
well‑founded fear of persecution , see section 5J.(2) Subsection (1) does not apply if the Minister has serious reasons for considering that:
(a) the person has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or
(b) the person committed a serious non‑political crime before entering Australia; or
(c) the person has been guilty of acts contrary to the purposes and principles of the United Nations.
(1) For the purposes of the application of this Act and the regulations to a particular person, the person has a
well‑founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2) A person does not have a
well‑founded fear of persecution if effective protection measures are available to the person in a receiving country.Note: For effective protection measures, see section 5LA.
(3) A person does not have a
well‑founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i) alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii) conceal his or her true race, ethnicity, nationality or country of origin;
(iii) alter his or her political beliefs or conceal his or her true political beliefs;
(iv) conceal a physical, psychological or intellectual disability;
(v) enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi) alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4) If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5) Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of
serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6) In determining whether the person has a
well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
For the purposes of the application of this Act and the regulations to a particular person (the
first person ), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i) the first person has ever experienced; or
(ii) any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i) the characteristic is an innate or immutable characteristic;
(ii) the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii) the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
(1) For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i) the relevant State; or
(ii) a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2) A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
For the purposes of the application of this Act and the regulations to a particular person, paragraph 36(1C)(b) has effect as if a reference in that paragraph to a particularly serious crime included a reference to a crime that consists of the commission of:
(a) a serious Australian offence; or
(b) a serious foreign offence.
Repeal the paragraph, substitute:
(a) both of the criteria in subsections (1B) and (1C); and
Insert:
(1C) A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:
(a) is a danger to Australia’s security; or
(b) having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.
Note: For paragraph (b), see section 5M.
Omit “under the Refugees Convention as amended by the Refugees Protocol”, substitute “because the person is a refugee”.
11
Subsection 48A(2) (after paragraph (aa) of the definition of application for a protection visa ) Insert:
(aaa) an application for a visa, a criterion for which is that the applicant is a non‑citizen who is a refugee; or
Repeal the sections.
Omit all the words after “the non‑citizen”, substitute “because the non‑citizen is or may be a refugee, or for any other reason”.
14
Subparagraphs 336F(3)(a)(ii), (4)(a)(ii) and (5)(c)(i) Omit “under the Refugees Convention as amended by the Refugees Protocol”, substitute “as a refugee”.
Omit “under the Refugees Convention as amended by the Refugees Protocol”.
Repeal the subparagraph, substitute:
(ii) to refuse under section 65 to grant a protection visa relying on subsection 5H(2) or 36(1C);
Repeal the paragraph, substitute:
(c) to refuse under section 65 to grant a protection visa relying on subsection 5H(2) or 36(1C);
18 Subsection 5(1) (definition of receiving country ) Repeal the definition, substitute:
receiving country , in relation to a non‑citizen, means:(a) a country of which the non‑citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non‑citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non‑citizen to the country.
Repeal the subparagraphs, substitute:
(i) subsection 5H(2), or 36(1B) or (1C); or
Repeal the subparagraph, substitute:
(i) subsection 5H(2) or 36(1C); or
Repeal the subparagraph, substitute:
(i) subsection 5H(2) or 36(1C); or
Repeal the subparagraph, substitute:
(i) subsection 5H(2) or 36(1C); or
23 Subsection 5(1) (definition of receiving country ) Insert:
receiving country , in relation to a non‑citizen, means:(a) a country of which the non‑citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non‑citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non‑citizen to the country.
Omit all the words after “made”, substitute “relying on subsection 5H(2), or 36(1B) or (1C);”.
Repeal the subparagraph, substitute:
(i) subsection 5H(2) or 36(1C); or
Repeal the paragraphs, substitute:
(c) a decision to refuse to grant a protection visa, or to cancel a protection visa, that was made relying on subsection 5H(2) or 36(1C);
The amendments made by Part 1 of this Schedule apply in relation to the removal of an unlawful non‑citizen on or after the day this item commences.
The amendments made by Parts 2 and 3 of this Schedule apply in relation to an application for a protection visa that is made on or after the day this item commences.
If a regulation or other instrument made under the
Migration Act 1958 contains a reference to a provision of theMigration Act 1958 listed in column 2 of the following table in relation to an item, the reference in the regulation or other instrument is to be construed as a reference to the provision of theMigration Act 1958 listed in column 3 of the item:
1 | section 91R | subsections 5J(4), (5) and (6) |
2 | section 91S | section 5K |
3 | section 91U | section 5M |
1 Subsection 5(1) (at the end of the definition of transitory person ) Add:
; or (d) the child of a transitory person mentioned in paragraph (aa) or (b), if:
(i) the child was born in a regional processing country to which the parent was taken as mentioned in the relevant paragraph; and
(ii) the child was not an Australian citizen at the time of birth; or
(e) the child of a transitory person mentioned in paragraph (aa) or (b), if:
(i) the child was born in the migration zone; and
(ii) the child was not an Australian citizen at the time of birth.
Note 1: For who is a child, see section 5CA.
Note 2: A transitory person who entered Australia by sea before being taken to a place outside Australia may also be an unauthorised maritime arrival: see section 5AA.
Note 3: Paragraphs (d) and (e) apply no matter when the child was born, whether before, on or after the commencement of those paragraphs. See the
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 .
Insert:
(1A) For the purposes of this Act, a person is also an
unauthorised maritime arrival if:
(a) the person is born in the migration zone; and
(b) a parent of the person is, at the time of the person’s birth, an unauthorised maritime arrival because of subsection (1) (no matter where that parent is at the time of the birth); and
(c) the person is not an Australian citizen at the time of birth.
Note 1: For who is a
parent of a person, see the definition in subsection 5(1) and section 5CA.Note 2: A parent of the person may be an
unauthorised maritime arrival even if the parent holds, or has held, a visa.Note 3: A person to whom this subsection applies is an
unauthorised maritime arrival even if the person is taken to have been granted a visa because of section 78 (which deals with the birth in Australia of non‑citizens).Note 4: For when a person is an Australian citizen at the time of his or her birth, see section 12 of the
Australian Citizenship Act 2007 .Note 5: This subsection applies even if the person was born before the commencement of the subsection. See the
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 .(1AA) For the purposes of this Act, a person is also an
unauthorised maritime arrival if:
(a) the person is born in a regional processing country; and
(b) a parent of the person is, at the time of the person’s birth, an unauthorised maritime arrival because of subsection (1) (no matter where that parent is at the time of the birth); and
(c) the person is not an Australian citizen at the time of his or her birth.
Note 1: A parent of the person may be an
unauthorised maritime arrival even if the parent holds, or has held, a visa.Note 2: This Act may apply as mentioned in subsection (1AA) even if either or both parents of the person holds a visa, or is an Australian citizen or a citizen of the regional processing country, at the time of the person’s birth.
Note 3: This subsection applies even if the person was born before the commencement of the subsection. See the
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 .
Add:
Note: An unauthorised maritime arrival who has been taken to a place outside Australia may also be a transitory person: see the definition of
transitory person in subsection 5(1).
Insert:
Removal on request
Insert:
Removal of transitory persons brought to Australia for a temporary purpose
Add:
Note: Some unlawful non‑citizens are transitory persons. Section 198B provides for transitory persons to be brought to Australia for a temporary purpose. See the definition of
transitory person in subsection 5(1).
Insert:
(1B) Subsection (1C) applies if:
(a) an unlawful non‑citizen who is not an unauthorised maritime arrival has been brought to Australia under section 198B for a temporary purpose; and
(b) the non‑citizen gives birth to a child while the non‑citizen is in Australia; and
(c) the child is a transitory person within the meaning of paragraph (e) of the definition of
transitory person in subsection 5(1).(1C) An officer must remove the non‑citizen and the child as soon as reasonably practicable after the non‑citizen no longer needs to be in Australia for that purpose (whether or not that purpose has been achieved).
Removal of unlawful non‑citizens in other circumstances
Insert:
(2A) However, subsection (2) does not apply in relation to a person who is an unauthorised maritime arrival only because of subsection 5AA(1A) or (1AA) if the person’s parent mentioned in the relevant subsection entered Australia before 13 August 2012.
Note 1: Under subsection 5AA(1A) or (1AA) a person born in Australia or in a regional processing country may be an unauthorised maritime arrival in some circumstances.
Note 2: This section does not apply in relation to a person who entered Australia by sea before 13 August 2012: see the
Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 .
Repeal the subsection, substitute:
(1) Section 198AD applies, subject to sections 198AE, 198AF and 198AG, to a transitory person if, and only if, the person is covered by subsection (1A) or (1B).
(1A) A transitory person is covered by this subsection if:
(a) the person is an unauthorised maritime arrival who is brought to Australia from a regional processing country under section 198B for a temporary purpose; and
(b) the person is detained under section 189; and
(c) the person no longer needs to be in Australia for the temporary purpose (whether or not the purpose has been achieved).
(1B) A transitory person (a
transitory child ) is covered by this subsection if:
(a) a transitory person covered by subsection (1A) gives birth to the transitory child while in Australia; and
(b) the transitory child is detained under section 189; and
(c) the transitory child is a transitory person because of paragraph (e) of the definition of
transitory person in subsection 5(1).
In this Part:
applicable matter has the meaning given by item 11(retrospective application of Part 1 amendments).
commencement day means the day this Schedule commences.
Part 1 amendments means the amendments of theMigration Act 1958 made by Part 1 of this Schedule.
The Part 1 amendments apply on and after the commencement day, and are taken to have applied before that day, subject to this Part, in relation to each of the following matters (an
applicable matter ):
(a) the entry of a person into Australia at any time, whether before, on or after the commencement day (or that entry as it is taken to have occurred on birth under section 10 of the
Migration Act 1958 );(b) the status of a person as an unauthorised maritime arrival or a transitory person at any time:
(i) whether before, on or after the commencement day; and
(ii) whether the person is born before, on or after the commencement day;
(c) the status of a person as an unlawful non‑citizen at any time, whether before, on or after the commencement day;
(d) the detention of a person at any time, whether before, on or after the commencement day, and the performance or exercise of a function, duty or power in relation to such detention;
(e) the performance or exercise of a function, duty or power in relation to a person under Division 8 of Part 2 of that Act at any time, whether before, on or after the commencement day;
(f) an application for a visa by a person made at any time, whether before, on or after the commencement day, including the performance or exercise of a function, duty or power in relation to such an application.
Note 1: The Part 1 amendments provide for a person to be an unauthorised maritime arrival or a transitory person, in some circumstances, if a parent of the person is an unauthorised maritime arrival or a transitory person for the purposes of the
Migration Act 1958 .Note 2: Division 8 of Part 2 of the
Migration Act 1958 provides for:(a) the removal of unlawful non‑citizens from Australia to a place outside Australia (Subdivision A); and
(b) the taking of unauthorised maritime arrivals from Australia to a regional processing country (Subdivision B); and
(c) transitory persons to be brought to Australia from a place outside Australia (Subdivision C).
12
Applications under the Migration Act 1958 that are finally determined The Part 1 amendments do not apply, and are not taken to have applied, in relation to an application under the
Migration Act 1958 concerning (or consisting of) an applicable matter if the application was finally determined, within the meaning of that Act, before the commencement day.
13
Retrospective application of section 46A (visa applications by unauthorised maritime arrivals)
Scope (1) This item applies if the operation of item 11(retrospective application of Part 1 amendments) results in a person being taken to have been an unauthorised maritime arrival at a particular time.
Subsection 46A(1) taken to apply despite the holding of certain visas (2) Subsection 46A(1) of the
Migration Act 1958 is taken to have applied in relation to the person at that time despite the fact that the person was a lawful non‑citizen at the time, if the person was a lawful non‑citizen only because he or she held one or more of the following visas:
(a) a bridging visa;
(b) a temporary safe haven visa;
(c) a temporary (humanitarian concern) visa;
(d) a temporary protection visa granted before 2 December 2013.
Note: Subsection 46A(1) of that Act prevents visa applications by unauthorised maritime arrivals in Australia who are unlawful non‑citizens, unless the Minister makes a determination under subsection 46A(2).
Determinations under section 46A made for parent (3) Subsection 46A(1) of the
Migration Act 1958 does not apply in relation to an application for a visa by the person (thechild ) if:
(a) the application is made at any time, whether before, on or after the commencement day; and
(b) the Minister has made a determination under subsection 46A(2) of that Act in relation to an application by a parent of the child, made before the commencement day, for the same kind of visa.
14
Retrospective application of section 46B (visa applications by transitory persons)
Scope (1) This item applies if the operation of item 11(retrospective application of Part 1 amendments) results in a person being taken to have been a transitory person at a particular time.
Subsection 46B(1) taken to apply despite the holding of certain visas (2) Subsection 46B(1) of the
Migration Act 1958 is taken to have applied in relation to the person at that time despite the fact that the person was a lawful non‑citizen at the time, if the person was a lawful non‑citizen only because he or she held one or more of the following visas:
(a) a bridging visa;
(b) a temporary safe haven visa;
(c) a temporary (humanitarian concern) visa;
(d) a temporary protection visa granted before 2 December 2013.
Note: Subsection 46B(1) of the
Migration Act 1958 prevents visa applications by transitory persons in Australia who are unlawful non‑citizens, unless the Minister makes a determination under subsection 46B(2).
Determinations under section 46B made for parent (3) Subsection 46B(1) of the
Migration Act 1958 does not apply in relation to an application for a visa by the person (thechild ) if:
(a) the application is made at any time, whether before, on or after the commencement day; and
(b) the Minister has made a determination under subsection 46B(2) of that Act in relation to an application by a parent of the child, made before the commencement day, for the same kind of visa.
(1) The Part 1 amendments apply on and after the commencement day in relation to any matter apart from an applicable matter (for applicable matters, see item 11).
(2) For the purposes of the application of the Part 1 amendments on and after the commencement day under subitem (1):
(a) a person may be an unauthorised maritime arrival because of subsection 5AA(1A) or (1AA) of the
Migration Act 1958 no matter when the person was born, whether before, on or after the commencement day; and(b) a person may be a transitory person because of paragraph (d) or (e) of the definition of
transitory person in subsection 5(1) of that Act no matter when the person was born, whether before, on or after the commencement day.(3) The Part 1 amendments apply on and after the commencement day in relation to the status of a person as an unauthorised maritime arrival for the purposes of section 336F of the
Migration Act 1958 .Note: Section 336F of the
Migration Act 1958 deals with the disclosure of information to some foreign countries and to some bodies.
Omit “After considering”, substitute “Subject to sections 84 and 86, after considering”.
Insert:
Note 1: Section 84 allows the Minister to suspend the processing of applications for visas of a kind specified in a determination made under that section. Section 86 prevents the Minister from granting a visa of a kind specified in a determination under section 85 if the number of such visas granted in a specified financial year has reached a specified maximum number.
Omit “Note”, substitute “Note 2”.
Repeal the section.
Omit “notice in the
Gazette ”, substitute “legislative instrument”.
After “visas”, insert “(including protection visas)”.
Omit “the notice”, substitute “the determination”.
Omit “Where a notice under subsection (1) is published in the
Gazette ”, substitute “On and after the commencement of an instrument made under subsection (1)”.
Omit “A notice”, substitute “A determination”.
Omit “notice”, substitute “determination”.
Omit “The”, substitute “(1) Subject to subsection (2), the”.
Omit “notice in the
Gazette ”, substitute “legislative instrument”.
After “visas”, insert “(including protection visas)”.
Add:
(2) Subsection (1) does not apply in relation to temporary protection visas.
Repeal the section.
Repeal the section.
Repeal the section.
(1) The amendments of sections 65, 84 and 85 of the
Migration Act 1958 made by Part 1 of this Schedule apply in relation to an application for a visa:
(a) made on or after the commencement of that Part; or
(b) made before the commencement of that Part but not finally determined as at the commencement of that Part.
(2) The repeal of section 65A of the
Migration Act 1958 made by Part 1 of this Schedule applies in relation to an application for a protection visa:
(a) made on or after the commencement of that Part; or
(b) made before the commencement of that Part but not finally determined as at the commencement of that Part.
(3) The repeals of sections 91Y and 440A of the
Migration Act 1958 made by Part 1 of this Schedule apply in relation to reporting periods commencing on or after the commencement of that Part.(4) The repeal of section 414A of the
Migration Act 1958 made by Part 1 of this Schedule applies in relation to an application for a review:
(a) made on or after the commencement of that Part; or
(b) made before the commencement of that Part but not finally determined as at the commencement of that Part.
(1) A notice in force under subsection 84(1) of the
Migration Act 1958 immediately before the commencement of Part 1 of this Schedule continues in force after that commencement as if the amendments of section 84 of that Act made by that Part had not been made.(2) A notice in force under section 85 of the
Migration Act 1958 immediately before the commencement of Part 1 of this Schedule continues in force after that commencement as if the amendments of section 85 of that Act made by that Part had not been made.
The endnotes provide information about this compilation and the compiled law.
The following endnotes are included in every compilation:
Endnote 1—About the endnotes
Endnote 2—Abbreviation key
Endnote 3—Legislation history
Endnote 4—Amendment history
The abbreviation key sets out abbreviations that may be used in the endnotes.
Amending laws are annotated in the legislation history and amendment history.
The legislation history in endnote 3 provides information about each law that has amended (or will amend) the compiled law. The information includes commencement details for amending laws and details of any application, saving or transitional provisions that are not included in this compilation.
The amendment history in endnote 4 provides information about amendments at the provision (generally section or equivalent) level. It also includes information about any provision of the compiled law that has been repealed in accordance with a provision of the law.
The
If the compilation includes editorial changes, the endnotes include a brief outline of the changes in general terms. Full details of any changes can be obtained from the Office of Parliamentary Counsel.
A misdescribed amendment is an amendment that does not accurately describe how an amendment is to be made. If, despite the misdescription, the amendment can be given effect as intended, then the misdescribed amendment can be incorporated through an editorial change made under section 15V of the
If a misdescribed amendment cannot be given effect as intended, the amendment is not incorporated and “(md not incorp)” is added to the amendment history.
ad = added or inserted | o = order(s) |
am = amended | Ord = Ordinance |
amdt = amendment | orig = original |
c = clause(s) | par = paragraph(s)/subparagraph(s) |
C[x] = Compilation No. x | /sub‑subparagraph(s) |
Ch = Chapter(s) | pres = present |
def = definition(s) | prev = previous |
Dict = Dictionary | (prev…) = previously |
disallowed = disallowed by Parliament | Pt = Part(s) |
Div = Division(s) | r = regulation(s)/rule(s) |
ed = editorial change | reloc = relocated |
exp = expires/expired or ceases/ceased to have | renum = renumbered |
effect | rep = repealed |
F = Federal Register of Legislation | rs = repealed and substituted |
gaz = gazette | s = section(s)/subsection(s) |
LA = | Sch = Schedule(s) |
LIA = | Sdiv = Subdivision(s) |
(md) = misdescribed amendment can be given | SLI = Select Legislative Instrument |
effect | SR = Statutory Rules |
(md not incorp) = misdescribed amendment | Sub‑Ch = Sub‑Chapter(s) |
cannot be given effect | SubPt = Subpart(s) |
mod = modified/modification | |
No. = Number(s) | commenced or to be commenced |
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 | 135, 2014 | 15 Dec 2014 | Sch 1, Sch 2 (items 1–12, 19–53), Sch 2A, 3, Sch 5 (items 1, 2, 18–22, 27–29), Sch 6 and 7: 16 Dec 2014 (s 2(1) items 2, 3, 5–10, 12, 15, 16, 21–23) Sch 2 (items 13–18G), Sch 4 and Sch 5 (items 4–17): 18 Apr 2015 (s 2(1) items 4, 4A, 11, 14) Sch 5 (items 3, 23–26): never commenced (s 2(1) items 13, 17–20) Remainder: 15 Dec 2014 (s 2(1) item 1) | |
Migration Amendment (Protection and Other Measures) Act 2015 | 35, 2015 | 13 Apr 2015 | Sch 5 (items 2–4): 14 Apr 2015 (s 2(1) item 11) | — |
Statute Law Amendment (Prescribed Forms and Other Updates) Act 2023 | 74, 2023 | 20 Sept 2023 | Sch 6 (item 3): 18 Oct 2023 (s 2(1) item 3) | — |
s 2......................................... | am No 35, 2015 |
item 11................................... | rep No 74, 2023 |
Division 2 heading.................. | rs No 35, 2015 |
Division 1 heading.................. | rs No 35, 2015 |
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