(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 Administrative Appeals Tribunal remits a matter in relation to the pre‑conversion application in accordance with paragraph 415(2)(c) of the Act as in force when the matter is remitted;
(ii) the Administrative Appeals Tribunal remits a matter in relation to the pre‑conversion application in accordance with paragraph 43(1)(c) of the Administrative Appeals Tribunal Act 1975 as in force when the matter is remitted;
(iia) the ART remits a matter in relation to the pre‑conversion application in accordance with subsection 349(2) of the Act;
(iib) the ART remits a matter in relation to the pre‑conversion application in accordance with paragraph 105(c) of the ART Act;
(iii) a court orders the Minister to reconsider the pre‑conversion application in accordance with the law;
(iv) a court declares or concludes (with or without formal declaration) that a decision of the Minister in relation to the pre‑conversion application is invalid, void or of no effect;
(v) a court quashes a decision of the Minister in relation to the pre‑conversion application.
(4) To avoid doubt, for the purposes of subregulation (3), the Minister is taken not to have made a decision in relation to a pre‑conversion visa application under section 65 of the Act if, before 16 December 2014:
(a) the Minister had made a decision in relation to the pre‑conversion application under section 65 of the Act; and
(b) one of the following events occurred after the Minister made that decision:
(i) the Refugee Review Tribunal remitted a matter in relation to the pre‑conversion application in accordance with paragraph 415(2)(c) of the Act as in force when the matter was remitted;
(ii) the Administrative Appeals Tribunal remitted a matter in relation to the pre‑conversion application in accordance with paragraph 43(1)(c) of the Administrative Appeals Tribunal Act 1975 as in force when the matter was remitted;
(iii) a court ordered the Minister to reconsider the pre‑conversion application in accordance with the law;
(iv) a court declared or concluded (with or without formal declaration) that a decision of the Minister in relation to the pre‑conversion application was invalid, void or of no effect;
(v) a court quashed a decision of the Minister in relation to the pre‑conversion application; and
(c) after the occurrence of the event mentioned in paragraph (b), the Minister had not made another decision in relation to the pre‑conversion application.
Note: This regulation commenced on 16 December 2014.
2.08G Certain applications for Subclass 785 (Temporary Protection) visas and Subclass 790 (Safe Haven Enterprise) visas taken to be applications for Resolution of Status (Class CD) visas
(1) For the purposes of section 45AA of the Act, despite anything else in the Act but subject to subregulations (3) and (4) of this regulation, a valid application (a pre‑conversion application) for a Subclass 785 (Temporary Protection) visa or a Subclass 790 (Safe Haven Enterprise) visa made before the TPV/SHEV transition day by an applicant described in column 1 of an item of the following table is, immediately after this regulation starts to apply in relation to the application under column 2 of the item:
(a) taken not to be, and never to have been, a valid application for a Subclass 785 (Temporary Protection) visa or a Subclass 790 (Safe Haven Enterprise) visa, except for the purposes of section 197C of the Act; and
(b) taken to be, and always to have been, a valid application for a Resolution of Status (Class CD) visa, made by the 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 Resolution of Status (Class CD) visa.
Note 2: TPV/SHEV transition day is defined in regulation 1.03.
Conversion of visa applications
Column 1 Column 2
Item Applicants When this regulation starts to apply
1 An applicant in relation to whom both of the following apply:(a) the applicant held a Subclass 785 (Temporary Protection) visa, or a Subclass 790 (Safe Haven Enterprise) visa, on or before the TPV/SHEV transition day;(b) before the TPV/SHEV transition day, the Minister had not made a decision in relation to the pre‑conversion application under section 65 of the Act On the TPV/SHEV transition day
2 An applicant in relation to whom both of the following apply:(a) the applicant held a Subclass 785 (Temporary Protection) visa, or a Subclass 790 (Safe Haven Enterprise) visa, on or before the TPV/SHEV transition day;(b) before the TPV/SHEV transition day, the Minister had made a decision in relation to the pre‑conversion application to refuse to grant the visa under section 65 of the Act Immediately after a review/court event occurs in relation to the pre‑conversion application if that event occurs on or after the TPV/SHEV transition day
3 An applicant in relation to whom both of the following apply:(a) the applicant does not hold, and has not ever held, a Subclass 785 (Temporary Protection) visa or a Subclass 790 (Safe Haven Enterprise) visa;(c) before the TPV/SHEV transition day, the Minister had not made a decision in relation to the pre‑conversion application under section 65 of the Act When the Minister makes a record, on or after the TPV/SHEV transition day, that the Minister is satisfied:(a) if the pre‑conversion application is for a Subclass 785 (Temporary Protection) visa—that the applicant satisfies the criteria for the grant of the Subclass 785 (Temporary Protection) visa; or(b) if the pre‑conversion application is for a Subclass 790 (Safe Haven Enterprise) visa—that the applicant satisfies the criteria for the grant of the Subclass 790 (Safe Haven Enterprise) visa
3A An applicant in relation to whom both of the following apply:(a) the applicant does not hold, and has not ever held, a Subclass 785 (Temporary Protection) visa or a Subclass 790 (Safe Haven Enterprise) visa;(b) before the TPV/SHEV transition day, the Minister had not made a decision in relation to the pre‑conversion application under section 65 of the Act When the Minister makes a record, on or after the TPV/SHEV transition day, that the Minister is satisfied:(a) that the applicant is a member of the same family unit as another person; and(b) that the other person satisfies the criterion mentioned in paragraph 36(2)(a) or (aa) of the Act; and(c) that:(i) if the pre‑conversion application is for a Subclass 785 (Temporary Protection) visa—the applicant would satisfy the criteria for the grant of the Subclass 785 (Temporary Protection) visa if it were assumed that the other person held a visa of that kind; or(ii) if the pre‑conversion application is for a Subclass 790 (Safe Haven Enterprise) visa—the applicant would satisfy the criteria for the grant of the Subclass 790 (Safe Haven Enterprise) visa if it were assumed that the other person held a visa of that kind
4 An applicant in relation to whom all of the following apply:(a) the applicant does not hold, and has not ever held, a Subclass 785 (Temporary Protection) visa or a Subclass 790 (Safe Haven Enterprise) visa;(c) before the TPV/SHEV transition day, the Minister had made a decision in relation to the pre‑conversion application to refuse to grant the visa under section 65 of the Act;(d) on or after the TPV/SHEV transition day, a review/court event occurs in relation to the pre‑conversion application When the Minister makes a record, after the occurrence of the event mentioned in paragraph (d) of column 1, that the Minister is satisfied:(a) if the pre‑conversion application is for a Subclass 785 (Temporary Protection) visa—that the applicant satisfies the criteria for the grant of the Subclass 785 (Temporary Protection) visa; or(b) if the pre‑conversion application is for a Subclass 790 (Safe Haven Enterprise) visa—that the applicant satisfies the criteria for the grant of the Subclass 790 (Safe Haven Enterprise) visa
5 An applicant in relation to whom all of the following apply:(a) the applicant does not hold, and has not ever held, a Subclass 785 (Temporary Protection) visa or a Subclass 790 (Safe Haven Enterprise) visa;(b) before the TPV/SHEV transition day, the Minister had made a decision in relation to the pre‑conversion application to refuse to grant the visa under section 65 of the Act;(c) on or after the TPV/SHEV transition day, a review/court event occurs in relation to the pre‑conversion application When the Minister makes a record, after the review/court event occurs in relation to the pre‑conversion application, that the Minister is satisfied:(a) that the applicant is a member of the same family unit as another person; and(b) that the other person satisfies the criterion mentioned in paragraph 36(2)(a) or (aa) of the Act; and(c) that:(i) if the pre‑conversion application is for a Subclass 785 (Temporary Protection) visa—the applicant would satisfy the criteria for the grant of the Subclass 785 (Temporary Protection) visa if it were assumed that the other person held a visa of that kind; or(ii) if the pre‑conversion application is for a Subclass 790 (Safe Haven Enterprise) visa—the applicant would satisfy the criteria for the grant of the Subclass 790 (Safe Haven Enterprise) visa if it were assumed that the other person held a visa of that kind
Note: For column 2 of items 3 to 5, if the Minister is not satisfied that the applicant satisfies the criteria for the grant of the visa, this regulation never starts to apply.
(1A) For the purposes of items 2, 4 and 5 of the table in subregulation (1), a review/court event occurs in relation to a pre‑conversion application if one of the following occurs:
(a) the Immigration Assessment Authority remits a decision in relation to the pre‑conversion application in accordance with subsection 473CC(2) of the Act as in force when the matter is remitted;
(b) the Administrative Appeals Tribunal remits a matter in relation to the pre‑conversion application in accordance with paragraph 415(2)(c) of the Act as in force when the matter is remitted;
(c) the Administrative Appeals Tribunal remits a matter in relation to the pre‑conversion application in accordance with paragraph 43(1)(c) of the Administrative Appeals Tribunal Act 1975 as in force when the matter is remitted;
(ca) the ART remits a matter in relation to the pre‑conversion application in accordance with subsection 349(2) of the Act;
(cb) the ART remits a matter in relation to the pre‑conversion application in accordance with paragraph 105(c) of the ART Act;
(d) a court orders the Minister to reconsider the pre‑conversion application in accordance with the law;
(e) a court declares or concludes (with or without formal declaration) that a decision of the Minister in relation to the pre‑conversion application is invalid, void or of no effect;
(f) a court quashes a decision of the Minister in relation to the pre‑conversion application.
(2) To avoid doubt, for the purposes of subregulation (1), the Minister is taken not to have made a decision in relation to a pre‑conversion visa application under section 65 of the Act if, before the TPV/SHEV transition day:
(a) the Minister had made a decision in relation to the pre‑conversion application under section 65 of the Act; and
(b) one of the following events occurred after the Minister made that decision:
(i) the Immigration Assessment Authority remitted a decision in relation to the pre‑conversion application in accordance with subsection 473CC(2) of the Act as in force when the matter was remitted;
(ii) the Administrative Appeals Tribunal remitted a matter in relation to the pre‑conversion application in accordance with paragraph 415(2)(c) of the Act as in force when the matter was remitted;
(iii) the Administrative Appeals Tribunal remitted a matter in relation to the pre‑conversion application in accordance with paragraph 43(1)(c) of the Administrative Appeals Tribunal Act 1975 as in force when the matter was remitted;
(iv) a court ordered the Minister to reconsider the pre‑conversion application in accordance with the law;
(v) a court declared or concluded (with or without formal declaration) that a decision of the Minister in relation to the pre‑conversion application was invalid, void or of no effect;
(vi) a court quashed a decision of the Minister in relation to the pre‑conversion application; and
(c) after the occurrence of the event mentioned in paragraph (b), the Minister had not made another decision in relation to the pre‑conversion application.
(3) This regulation does not apply to a pre‑conversion application if there are proceedings, in relation to the application, in which:
(a) judgment is reserved by a court as at immediately before the TPV/SHEV transition day; or
(b) judgment has been delivered by a court before the TPV/SHEV transition day.
(4) This regulation does not affect rights or liabilities arising between parties to proceedings, in relation to the application, in which:
(a) judgment is reserved by a court as at immediately before the TPV/SHEV transition day; or
(b) judgment has been delivered by a court before the TPV/SHEV transition day.
2.08H Validity of visa applications by current and former Bridging R (Class WR) visa holders
(1) For the purposes of subsection 46(3) of the Act, the following criteria must be satisfied for an application for a visa of the class of visas specified by subregulation (2) to be a valid application:
(a) the person in respect of whom the application is made does not hold a Bridging R (Class WR) visa at the time of application;
(b) the person in respect of whom the application is made is not, at the time of application, an unlawful non‑citizen:
(i) whose most recently held visa was a Bridging R (Class WR) visa; and
(ii) who has been, or is taken to have been, continuously in the migration zone since that visa ceased to be in effect.
(2) For the purposes of subregulation (1), this subregulation specifies:
(a) all prescribed classes of visa; and
(b) to the extent a visa is not covered by paragraph (a)—a visa mentioned in subsection 31(2) of the Act for which an application may be made;
except the following classes of visa:
(c) a protection visa;
(d) a Bridging R (Class WR) visa.
Note 1: For paragraph (2)(a), subsection 31(1) of the Act provides that there are to be prescribed classes of visas, and subregulation 2.01(1) of these regulations prescribes those classes of visas.
Note 2: A person may be prevented from applying for a protection visa because of section 48A of the Act.
2.09 Oral applications for visas
(1) If an item in Schedule 1 authorises oral application for a class of visa by a person in a specified class of persons, a person in that class may apply for a visa of that class by telephone to, or attendance at, an office of Immigration in Australia specified by the Minister in an instrument in writing as an office at which an oral application may be made, but only at a time, or during a period, specified by the Minister in an instrument in writing as a time at which, or period during which, an oral application may be made at that office.
(4) In this regulation:
office of Immigration does not include an office occupied by an officer of Immigration at an airport or a detention centre.
2.10 Where application must be made
(1) For section 46 of the Act, an application for a visa (not being an Internet application) must be made in accordance with this regulation.
(2) If an application for a visa is made outside Australia, the application must be made: