(1) For subsection 46(2) of the Act, a Resolution of Status (Class CD) visa is a prescribed class of visa.
(2) An application for a Resolution of Status (Class CD) visa is taken to have been validly made by a person only if the requirements of subregulation (3) or item 1127AA of Schedule 1 have been met.
(3) The requirements of this subregulation are met for a person if the criteria set out in at least 1 of the items of the table are satisfied.
Item
Criterion 1
Criterion 2
Criterion 3
Criterion 4
1
The person makes a valid application for a Protection (Class XA) visa
The person holds:<br>(a) a Subclass 447 (Secondary Movement Offshore Entry (Temporary)) visa; or
Nil
Nil
(b) a Subclass 451 (Secondary Movement Relocation (Temporary)) visa; or
(c) a Subclass 695 (Return Pending) visa
2
The person makes a valid application for a protection visa
The person held, but no longer holds, a visa of a kind mentioned in criterion 2 of item 1, or a Subclass 785 (Temporary Protection) visa granted before 9 August 2008, and the visa was not cancelled
The person:<br>(a) has not left Australia; or<br>(b) while holding a visa that permits re‑entry to Australia, has left and re‑entered Australia
The person does not hold a permanent visa
3
The person holds:<br>(a) a Temporary Safe Haven (Class UJ) visa; or<br>(b) a Temporary (Humanitarian Concern) (Class UO) visa
An offer of a permanent stay in Australia is made to the person by the Australian Government
The person indicates to an authorised officer that he or she accepts the offer of a permanent stay in Australia
The authorised officer endorses, in writing, the person’s acceptance of the offer
4
The person is a member of the family unit of a person who is taken to have made a valid application as a result of satisfying the criteria in item 3
An offer of a permanent stay in Australia is made to the person by the Australian Government
The person indicates to an authorised officer that he or she accepts the offer of a permanent stay in Australia
The authorised officer endorses, in writing, the person’s acceptance of the offer
5
The circumstance specified in subregulation (3A) exists for the person
An offer of a permanent stay in Australia is made to the person by the Australian Government
The person indicates to an authorised officer that he or she accepts the offer of a permanent stay in Australia
The authorised officer endorses, in writing, the person’s acceptance of the offer
(3A) The circumstance specified in this subregulation exists for a person if the Minister has issued a certificate stating that, by reason of the High Court’s decision in Love v Commonwealth; Thoms v Commonwealth (2020) 270 CLR 152:
(a) if the person is in the migration zone:
(i) the person has been released from immigration detention; or
(ii) the person has not been taken into immigration detention; or
(iii) the person, based on the information known to the Minister at the date of the certificate, will not be taken into immigration detention; or
(b) otherwise—the Minister is satisfied, based on the information known to the Minister at the date of the certificate, that the person could not be detained under section 189 of the Act if the person were in the migration zone.
(3B) The Minister, an officer of the Department or another person may collect, use and disclose personal information for the purposes of informing:
(a) a decision by the Minister whether to issue a certificate of the kind mentioned in subregulation (3A) in relation to a person; or
(b) a decision by the Australian Government whether or not to make an offer of a permanent stay in Australia to a person:
(i) in relation to whom the Minister has issued such a certificate; or
(ii) for whom, by reason of the High Court’s decision in Love v Commonwealth; Thoms v Commonwealth (2020) 270 CLR 152, the fact mentioned in subparagraph (3A)(a)(i) or (ii) exists.
(4) If:
(a) the application for the Resolution of Status (Class CD) visa is taken to have been validly made because the criteria in item 1 or 2 of the table in subregulation (3) have been satisfied; and
(b) the application for the Protection (Class XA) visa mentioned in the item was made before 9 August 2008;
the application is taken to have been made on 9 August 2008.
(5) If:
(a) the application for the Resolution of Status (Class CD) visa is taken to have been validly made because the criteria in item 1 or 2 of the table in subregulation (3) have been satisfied; and
(b) the application for the protection visa mentioned in the item is made on or after 9 August 2008;
the application is taken to have been made when the application for the protection visa is made.
(6) If the application for the Resolution of Status (Class CD) visa is taken to have been validly made because the criteria in item 3, 4 or 5 of the table in subregulation (3) have been satisfied, the application is taken to have been made when the authorised officer endorses the person’s acceptance of the offer as described in the item.
(7) Subregulation (2) applies whether or not the applicant holds, or held, a Subclass 447 (Secondary Movement Offshore Entry (Temporary)) visa, a Subclass 451 (Secondary Movement Relocation (Temporary)) visa, a Subclass 695 (Return Pending) visa or a Subclass 785 (Temporary Protection) visa granted before 9 August 2008 that is, or was, subject to a condition mentioned in paragraph 41(2)(a) of the Act relating to the making of applications for other visas.
2.07AR Applications for Superyacht Crew (Temporary) (Class UW) visas
Despite anything in regulation 2.07, an application for a Superyacht Crew (Temporary) (Class UW) visa may be made on behalf of an applicant.
2.07AS Applications for Special Category (Temporary) (Class TY) visas
Despite anything in regulation 2.07, for the purposes of sections 45 and 46 of the Act, an application for a Special Category (Temporary) (Class TY) visa is taken to have been validly made by an applicant, in person, while in immigration clearance, if the applicant:
(a) presents to a clearance officer a New Zealand passport held by the applicant that is in force; and
(b) is not the holder of a permanent visa; and
(c) has submitted an Australia Travel Declaration; and
(d) has provided answers to the health and character questions required by the departmental system that processes such declarations; and
(e) complies with the requirements under regulation 3.03AB in relation to the provision of the Australia Travel Declaration.
2.08 Application by newborn child
(1) If:
(a) a non‑citizen applies for a visa; and
(b) after the application is made, but before it is decided, a child, other than a contributory parent newborn child, is born to the non‑citizen;
then:
(c) the child is taken to have applied for a visa of the same class at the time he or she was born; and
(d) the child’s application is taken to be combined with the non‑citizen’s application.
(2) Despite any provision in Schedule 2, a child referred to in subregulation (1):
(a) must satisfy the criteria to be satisfied at the time of decision; and
(b) at the time of decision must satisfy a criterion (if any) applicable at the time of application that an applicant must be sponsored, nominated or proposed.
Note: Regulations 2.07AL and 2.08AA apply in relation to an application by a contributory parent newborn child.
2.08AA Application by contributory parent newborn child
(1) Despite any provision in Schedule 2, a contributory parent newborn child who applies for a Contributory Parent (Temporary) (Class UT) visa or a Contributory Aged Parent (Temporary) (Class UU) visa:
(a) does not have to satisfy the secondary criteria in Schedule 2 that would, but for this subregulation, need to be satisfied at the time of application; and
(b) must satisfy the applicable secondary criteria to be satisfied at the time of decision.
(2) Despite any provision in Schedule 1, a contributory parent newborn child:
(a) who is the holder of a Subclass 173 (Contributory Parent (Temporary)) visa or a Subclass 884 (Contributory Aged Parent (Temporary)) visa; and
(b) whose parent has applied for a Contributory Parent (Migrant) (Class CA) visa or a Contributory Aged Parent (Residence) (Class DG) visa, and either:
(i) that application has not been finally determined; or
(ii) the parent has been granted the permanent visa;
is taken to have made a combined application for the permanent visa, mentioned in paragraph (b), with the parent.
(3) For subregulation (2), the contributory parent newborn child is taken to have made the application:
(a) if the child was in Australia when the temporary visa was granted—on the grant of the temporary visa to the child; or
(b) if the child was outside Australia when the temporary visa was granted—immediately after the child is immigration cleared.
2.08A Addition of certain applicants to certain applications for permanent visas
(1) If:
(a) a person (in this regulation called the original applicant) applies for a permanent visa of a class for which Schedule 1, including Schedule 1 as it applies in relation to a particular class of visa, permits combined applications; and
(b) after the application is made, but before it is decided, the Minister receives, in writing and in accordance with Division 2.3, a request from the original applicant to have:
(i) the spouse or de facto partner; or
(ii) a dependent child;
of the original applicant (the additional applicant) added to the original applicant’s application; and
(c) the request includes a statement that the original applicant claims that the additional applicant is:
(i) the spouse or de facto partner; or
(ii) a dependent child;
as the case requires, of the original applicant; and
(d) the additional applicant charge (if any) has been paid in relation to the additional applicant; and
(da) at the time when:
(i) the Minister has received the request; and
(ii) the additional applicant charge (if any) has been paid;
the additional applicant satisfies the provisions of Schedule 1 that relate to the whereabouts of an applicant at the time of application and apply to a visa of the same class;
then:
(e) the additional applicant is taken to have applied for a visa of the same class; and
(f) the application of the additional applicant:
(i) is taken to have been made on the later of:
(A) the Minister receiving the request; and
(B) the additional applicant charge (if any) being paid; and
(ii) is taken to be combined with the application of the original applicant; and
(iii) is taken to have been made at the same place as, and on the same form as, the application of the original applicant.
(2) Despite any provision in Schedule 2, the additional applicant:
(a) must be, at the time when the application is taken to be made under subparagraph (1)(f)(i), a person who satisfies the applicable secondary criteria to be satisfied at the time of application; and
(b) must satisfy the applicable secondary criteria to be satisfied at the time of decision.
(2A) Subregulations (1) and (2) do not apply to an applicant for a Skilled (Residence) (Class VB) visa.
Note 1: Regulations 2.07AL and 2.08AA apply in relation to an application by a contributory parent newborn child.
Note 2: Past amendments of these Regulations may have amended or repealed provisions of Schedule 1 but included transitional provisions by which a former version of Schedule 1 continues to apply in specified cases.
2.08AAA Addition of certain applicants to certain applications for temporary protection visas and safe haven enterprise visas
(1) If:
(a) a person (the original applicant) applies for a visa of either of the following classes:
(i) a Temporary Protection (Class XD) visa;
(ii) a Safe Haven Enterprise (Class XE) visa; and
(c) after the application is made, but before it is decided, the Minister receives, in writing and in accordance with Division 2.3, a request from the original applicant to have a member of the same family unit as the original applicant (the additional applicant) added to the application; and
(d) the request includes a statement that the original applicant claims that the additional applicant is a member of the same family unit as the original applicant; and
(f) the additional applicant charge (if any) has been paid in relation to the additional applicant; and
(g) at the time when:
(i) the Minister has received the request; and
(ii) the additional applicant charge (if any) has been paid;
the additional applicant satisfies the provisions of Schedule 1 that relate to the whereabouts of an applicant at the time of application and apply to a visa of the same class;
then:
(h) the additional applicant is taken to have applied for a visa of the same class; and
(i) the application of the additional applicant:
(i) is taken to have been made on the later of the day the Minister receives the request and the day the additional applicant charge (if any) is paid; and
(ii) is taken to be combined with the application of the original applicant; and
(iii) is taken to have been made at the same place as, and on the same form as, the application of the original applicant.
(2) Despite any provision in Schedule 2, the additional applicant:
(a) must be, at the time the application is taken to be made under subparagraph (1)(i)(i), a person who satisfies the applicable primary criteria to be satisfied at the time of application; and
(b) must satisfy the applicable primary criteria to be satisfied at the time of decision.
2.08B Addition of certain dependent children to certain applications for temporary visas
(1) If:
(a) a person (the original applicant) applies for:
(i) an Extended Eligibility (Temporary) (Class TK) visa; or
(iii) a Prospective Marriage (Temporary) (Class TO) visa; or
(vi) a Partner (Provisional) (Class UF) visa; or
(vii) a Partner (Temporary) (Class UK) visa; or
(viiia) a Business Skills (Provisional) (Class EB) visa; or
(x) a Skilled (Provisional) (Class VC) visa; or
(xi) a Skilled (Provisional) (Class VF) visa; or
(xiii) a Skilled—Regional Sponsored (Provisional) (Class SP) visa; or
(xiv) a Skilled Work Regional (Provisional) (Class PS) visa; or
(xv) a Skilled Employer Sponsored Regional (Provisional) (Class PE) visa; and
(b) the Minister receives, in writing and in accordance with Division 2.3, a request from the original applicant to have a dependent child of the original applicant added to the original applicant’s application; and
(ba) the request is received after the application is made but before it is decided; and
(c) the request includes a statement that the original applicant claims that the dependent child is the dependent child of the original applicant; and
(d) the additional applicant charge (if any) and the subsequent temporary application charge (if any) have been paid in relation to the dependent child; and
(daa) at the time when:
(i) the Minister has received the request; and
(ii) the additional applicant charge (if any) and the subsequent temporary application charge (if any) have been paid in relation to the additional applicant;
the dependent child satisfies the provisions of Schedule 1 that relate to the whereabouts of an applicant at the time of application and apply to a visa of the same class;
then:
(e) the dependent child is taken to have applied for a visa of the same class; and
(f) the application of the dependent child:
(i) is taken to have been made on the latest of:
(A) the Minister receiving the request; and
(B) the additional applicant charge (if any) being paid; and
(C) the subsequent temporary application charge (if any) being paid; and
(ii) is taken to be combined with the application of the original applicant; and
(iii) is taken to have been made at the same place as, and on the same form as, the application of the original applicant.
(2) Despite any provision in Schedule 2, the dependent child:
(a) must be, at the time when the application is taken to be made under subparagraph (1)(f)(i), a person who satisfies the applicable secondary criteria to be satisfied at the time of application; and
(b) must satisfy the applicable secondary criteria to be satisfied at the time of decision.
2.08E Certain applicants taken to have applied for Partner (Migrant) (Class BC) visas and Partner (Provisional) (Class UF) visas
(1) For subsection 46(2) of the Act, the Partner (Migrant) (Class BC) visa and the Partner (Provisional) (Class UF) visa are prescribed classes of visa.
(2) If:
(a) a person (the applicant) applies for a Prospective Marriage (Temporary) (Class TO) visa; and
(b) after the application is made, but before it is decided, the applicant marries the person who was specified as the applicant’s prospective spouse in the application for that visa; and
(c) the marriage is recognised as valid for the purposes of the Act;
then:
(d) the applicant is taken also to have applied for a Partner (Migrant) (Class BC) visa and a Partner (Provisional) (Class UF) visa on the day Immigration receives notice of the marriage; and
(e) the applications are taken to be validly made.
(3) The amount paid by the applicant as the first instalment of the visa application charge for the Prospective Marriage (Temporary) (Class TO) visa application is taken to be payment of the first instalment of the visa application charge for the Partner (Migrant) (Class BC) visa application.
2.08F Certain applications for Protection (Class XA) visas taken to be applications for Temporary Protection (Class XD) visas