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MIGRATION REGULATIONS 1994 - REG 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;

  (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.


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