(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 |
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 |
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;
(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;
(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 ;
(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 inister 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;
(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;
(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 ;
(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.