Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (135 of 2014)

Schedule 2   Protection visas and other measures

Part 4   Permanent protection visas and temporary protection visas

Division 2   Main amendments commencing immediately after Division 1

Migration Regulations 1994

38   After regulation 2.08E

Insert:

2.08F Certain applications for Protection (Class XA) visas taken to be applications for Temporary Protection (Class XD) visas

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.