(b) if the determination is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.
(6) The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any non‑citizen, whether he or she is requested to do so by the non‑citizen or by any other person, or in any other circumstances.
91G Applications made before regulations take effect
(1) Subject to section 91F and subsection (3), if:
(a) this Subdivision applies to a non‑citizen immediately after a regulation prescribing a country as a safe third country takes effect and did not apply to the non‑citizen immediately before that time; and
(b) the regulation prescribes a day as the cut off day; and
(c) during the period (the transitional period) from the beginning of the cut off day until immediately before that regulation takes effect, the non‑citizen made an application for a protection visa;
then:
(d) if the non‑citizen had not been immigration cleared at the time of making the application—that application, and any other application made by the non‑citizen for a visa made during the transitional period, ceases to be a valid application when the regulation takes effect; and
(e) if the non‑citizen had been immigration cleared at the time of making the application—that application, and any other application made by the non‑citizen for a protection visa made during the transitional period, ceases to be a valid application when the regulation takes effect; and
(f) on and after the regulation takes effect, this Act applies as if the non‑citizen had applied for a protection visa immediately after the regulation takes effect.
(2) To avoid doubt:
(a) paragraphs (1)(d) and (e) apply even if an application referred to in the paragraph concerned, or a decision in relation to such an application, is the subject of a review by, or an appeal or application to, the ART, a Federal Court or any other body or court; and
(b) no visa may be granted to the non‑citizen as a direct, or indirect, result of such an application.
(3) Subsection (1) does not apply in relation to a non‑citizen who, before the regulation referred to in that subsection takes effect, has:
(a) been granted a substantive visa as a result of an application referred to in that subsection; or
(b) been determined under this Act to be a non‑citizen who satisfies the criterion mentioned in subsection 36(2).
(4) The cut off day specified in the regulation must not be:
(a) before a day on which the Minister, by notice in the Gazette, announces that he or she intends that such a regulation will be made; or
(b) more than 6 months before the regulation takes effect.
Subdivision AJ—Temporary safe haven visas
91H Reason for this Subdivision
This Subdivision is enacted because the Parliament considers that a non‑citizen (other than an unauthorised maritime arrival or a transitory person) who holds a temporary safe haven visa, or who has not left Australia since ceasing to hold such a visa, should not be allowed to apply for a visa other than another temporary safe haven visa. Any such non‑citizen who ceases to hold a visa will be subject to removal under Division 8.
Note: For temporary safe haven visas, see section 37A.
91J Non‑citizens to whom this Subdivision applies
(1) This Subdivision applies to a non‑citizen in Australia at a particular time if, at that time, the non‑citizen:
(a) holds a temporary safe haven visa; or
(b) has not left Australia since ceasing to hold a temporary safe haven visa.
(2) This Subdivision does not apply to an unauthorised maritime arrival or a transitory person.
Note: Unauthorised maritime arrivals are covered by section 46A and transitory persons are covered by section 46B.
91K Non‑citizens to whom this Subdivision applies are unable to make valid applications for certain visas
Despite any other provision of this Act but subject to section 91L, if this Subdivision applies to a non‑citizen at a particular time and, at that time, the non‑citizen applies, or purports to apply, for a visa (other than a temporary safe haven visa), then that application is not a valid application.
91L Minister may determine that section 91K does not apply to a non‑citizen
(1) If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a particular non‑citizen, determine that section 91K does not apply to an application for a visa made by the non‑citizen in the period starting when the notice is given and ending at the end of the seventh working day after the day that the notice is given.
(2) The power under subsection (1) may only be exercised by the Minister personally.
(3) If the Minister makes a determination under subsection (1), he or she is to cause to be laid before each House of the Parliament a statement that:
(a) sets out the determination; and
(b) sets out the reasons for the determination, referring in particular to the Minister’s reasons for thinking that his or her actions are in the public interest.
(4) A statement under subsection (3) is not to include:
(a) the name of the non‑citizen; or
(b) any information that may identify the non‑citizen; or
(c) if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned—the name of that other person or any information that may identify that other person.
(5) A statement under subsection (3) is to be laid before each House of the Parliament within 15 sitting days of that House after:
(a) if the determination is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or
(b) if the determination is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.
(6) The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any non‑citizen, whether he or she is requested to do so by the non‑citizen or by any other person, or in any other circumstances.
Subdivision AL—Other provisions about protection visas
91V Verification of information
Applicant for protection visa
(1) If an applicant for a protection visa has given information to the Minister or an officer in, or in connection with, the application for the visa, the Minister or an officer may, either orally or in writing, request the applicant to make an oral statement, on oath or affirmation, to the effect that the information is true.
(2) If:
(a) the applicant has been given a request under subsection (1); and
(b) the applicant refuses or fails to comply with the request; and
(c) when the request was made, the applicant was given a warning, either orally or in writing, that the Minister may draw an inference unfavourable to the applicant’s credibility in the event that the applicant refuses or fails to comply with the request;
then, in making a decision whether to grant the protection visa to the applicant, the Minister may draw any reasonable inference unfavourable to the applicant’s credibility.
(3) If:
(a) the applicant has been given a request under subsection (1); and
(b) the applicant complies with the request; and
(c) the Minister has reason to believe that, because of:
(i) the manner in which the applicant complied with the request; or
(ii) the applicant’s demeanour in relation to compliance with the request;
the applicant was not sincere;
then, in making a decision whether to grant the protection visa to the applicant, the Minister may draw any reasonable inference unfavourable to the applicant’s credibility.
Non‑citizen refused immigration clearance
(4) If:
(a) either:
(i) a non‑citizen gave information to an officer when the non‑citizen was in immigration clearance, and the non‑citizen is subsequently refused immigration clearance; or
(ii) a non‑citizen was refused immigration clearance and subsequently gave information to an officer; and
(b) the information is relevant to the administration or enforcement of this Act or the regulations;
an officer may, either orally or in writing, request the non‑citizen to make an oral statement, on oath or affirmation, to the effect that the information is true.
(5) If:
(a) the non‑citizen has been given a request under subsection (4); and
(b) the non‑citizen refuses or fails to comply with the request; and
(c) when the request was made, the non‑citizen was given a warning, either orally or in writing, that the Minister may draw an inference unfavourable to the non‑citizen’s credibility in the event that the non‑citizen refuses or fails to comply with the request;
then, in making a decision about the non‑citizen under this Act or the regulations, the Minister may draw any reasonable inference unfavourable to the non‑citizen’s credibility.
(6) If:
(a) the non‑citizen has been given a request under subsection (4); and
(b) the non‑citizen complies with the request; and
(c) the Minister has reason to believe that, because of:
(i) the manner in which the non‑citizen complied with the request; or
(ii) the non‑citizen’s demeanour in relation to compliance with the request;
the non‑citizen was not sincere;
then, in making a decision about the non‑citizen under this Act or the regulations, the Minister may draw any reasonable inference unfavourable to the non‑citizen’s credibility.
Officer
(7) A reference in this section to an officer includes a reference to a person who is a clearance officer within the meaning of section 165.
Oaths or affirmations
(8) The Minister or an officer may administer an oath or affirmation for the purposes of this section.
91W Evidence of identity and bogus documents
(1) The Minister or an officer may, either orally or in writing, request an applicant for a protection visa to produce, for inspection by the Minister or the officer, documentary evidence of the applicant’s identity, nationality or citizenship.
(2) The Minister must refuse to grant the protection visa to the applicant if:
(a) the applicant has been given a request under subsection (1); and
(b) the applicant refuses or fails to comply with the request, or produces a bogus document in response to the request; and
(c) the applicant does not have a reasonable explanation for refusing or failing to comply with the request, or for producing the bogus document; and
(d) when the request was made, the applicant was given a warning, either orally or in writing, that the Minister cannot grant the protection visa to the applicant if the applicant:
(i) refuses or fails to comply with the request; or
(ii) produces a bogus document in response to the request.
(3) Subsection (2) does not apply if the Minister is satisfied that the applicant:
(a) has a reasonable explanation for refusing or failing to comply with the request or producing the bogus document; and
(b) either:
(i) produces documentary evidence of his or her identity, nationality or citizenship; or
(ii) has taken reasonable steps to produce such evidence.
(4) For the purposes of this section, a person produces a document if the person produces, gives, presents or provides the document or causes the document to be produced, given, presented or provided.
91WA Providing bogus documents or destroying identity documents
(1) The Minister must refuse to grant a protection visa to an applicant for a protection visa if:
(a) the applicant provides a bogus document as evidence of the applicant’s identity, nationality or citizenship; or
(b) the Minister is satisfied that the applicant:
(i) has destroyed or disposed of documentary evidence of the applicant’s identity, nationality or citizenship; or
(ii) has caused such documentary evidence to be destroyed or disposed of.
(2) Subsection (1) does not apply if the Minister is satisfied that the applicant:
(a) has a reasonable explanation for providing the bogus document or for the destruction or disposal of the documentary evidence; and
(b) either:
(i) provides documentary evidence of his or her identity, nationality or citizenship; or
(ii) has taken reasonable steps to provide such evidence.
(3) For the purposes of this section, a person provides a document if the person provides, gives or presents the document or causes the document to be provided, given or presented.
91WB Application for protection visa by member of same family unit
(1) This section applies to a non‑citizen in Australia (the family applicant):
(a) who applies for a protection visa; and
(b) who is a member of the same family unit as a person (the family visa holder) who has been granted a protection visa.
(2) Despite anything else in this Act, the Minister must not grant the protection visa to the family applicant on the basis of a criterion mentioned in paragraph 36(2)(b) or (c) unless the family applicant applies for the protection visa before the family visa holder is granted a protection visa.
91X Names of applicants for protection visas not to be published by the High Court, Federal Court or Federal Circuit and Family Court of Australia (Division 2)
(1) This section applies to a proceeding before the High Court, the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) if the proceeding relates to a person in the person’s capacity as:
(a) a person who applied for a protection visa; or
(b) a person who applied for a protection‑related bridging visa; or
(c) a person whose protection visa has been cancelled; or
(d) a person whose protection‑related bridging visa has been cancelled.
(2) The court must not publish (in electronic form or otherwise), in relation to the proceeding, the person’s name.
(3) In this section:
application for a protection‑related bridging visa means an application for a bridging visa, where the applicant for the bridging visa is, or has been, an applicant for a protection visa.
proceeding means a proceeding in a court, whether between parties or not, and includes an incidental proceeding in the course of, or in connection with, a proceeding, and also includes an appeal.
protection‑related bridging visa means a bridging visa granted as a result of an application for a protection‑related bridging visa.
Subdivision B—The “points” system
92 Operation of Subdivision
This Subdivision has effect where one of the prescribed criteria in relation to a visa of a particular class is the criterion that the applicant receives the qualifying score when assessed as provided by this Subdivision.
93 Determination of applicant’s score
(1) The Minister shall make an assessment by giving the applicant the prescribed number of points for each prescribed qualification that is satisfied in relation to the applicant.
(2) In this section:
prescribed means prescribed by regulations in force at the time the assessment is made.
94 Initial application of “points” system
(1) An applicant whose assessed score is more than or equal to the applicable pass mark at the time when the score is assessed is taken to have received the qualifying score.
(2) An applicant whose assessed score is less than the applicable pool mark at the time when the score is assessed is taken not to have received the qualifying score.
(3) If an applicant’s assessed score is more than or equal to the applicable pool mark, but less than the applicable pass mark, at the time when the score is assessed:
(a) the Minister must, unless the application is withdrawn, put the application aside and deal with it in accordance with section 95; and
(b) if the Minister puts the application aside—the Minister is taken to have put the application into a pool.
(4) Where, in accordance with this section, the Minister puts an application aside, he or she shall be taken for all purposes not to have failed to make a decision to grant or refuse to grant a visa.
95 Applications in pool
When section applies
(1) This section applies if the Minister puts an application into a pool.
How applications to be dealt with
(2) If, within 12 months after the assessment of the applicant’s assessed score, the Minister gives a notice under section 96 varying the applicable pass mark or the applicable pool mark:
(a) the Minister must, without re‑assessing that score, compare that score with the applicable pass mark and the applicable pool mark; and
(b) if that score is more than or equal to the applicable pass mark—the applicant is taken to have received the qualifying score; and
(c) if that score is less than the applicable pool mark—the applicant is taken not to have received the qualifying score; and
(d) if that score is more than or equal to the applicable pool mark but less than the applicable pass mark—the application remains in the pool until it is removed from the pool (see subsection (3)).
Removal of applications from pool
(3) An application in the pool is taken to have been removed from the pool at whichever is the earliest of the following times:
(a) the end of 12 months after the assessment of the applicant’s assessed score;
(b) the earliest time (if any) when the applicant is taken to have received the qualifying score as the result of the operation of subsection (2);
(c) the earliest time (if any) when the applicant is taken not to have received the qualifying score as the result of the operation of subsection (2).
Removal from pool under paragraph (3)(a) treated as failure to receive qualifying score
(4) If an application is removed from the pool because of paragraph (3)(a), the applicant is taken not to have received the qualifying score.
Section to be subject to section 95A
(5) This section has effect subject to section 95A.
95A Extension of period in pool
(1) This section applies to an application that:
(a) is in the pool at the commencement of this section; or