Migration Amendment (Conversion of Protection Visa Applications) Regulation 2015 [F2015L01461]-Response required [2015] AUSStaCSDLM 222 (11 November 2015)

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Instrument	Migration Amendment (Conversion of Protection Visa Applications) Regulation 2015 [F2015L01461]
Purpose	Amends the Migration Regulations 1994 to confirm that the effect of section 2.08F is to provide that any application made by certain visa applicants for a Permanent Protection Visa will be converted into an application for a Temporary Protection Visa
Last day to disallow	3 December 2015
Authorising legislation	Migration Act 1958
Department	Immigration and Border Protection
Scrutiny principle	Standing Order 23(3)(b)

Retrospective effect

The regulation amends section 2.08F of the Migration Regulations 1994, and is intended to confirm that the effect of that section is to provide that an application for a Permanent Protection Visa (PPV) will be converted into an application for a Temporary Protection Visa (TPV) if the application:

• has been the subject of a court order requiring the minister to reconsider the application;

• has been remitted to the minister for reconsideration by the Administrative Appeals Tribunal; or

• had not been decided by the minister before 16 December 2014.

The committee notes that, although the instrument is not strictly retrospective, it prescribes rules for the future based on antecedent facts (that is, the existence of an earlier visa application). As a consequence, it appears that a person whose application for a PPV was made on or before 16 December 2014 may now be subject to criteria for the grant of a TPV that did not apply at the time of their application.

The ES for the instrument states:

It is noted that the Regulation does not have any retrospective effect beyond the retrospectivity expressly authorised by the Migration Act (subsection 45AA(3) and subsection 45AA(8)) and reflected in subregulation 2.08F(1) (which has not been amended). The effect of the conversion from a PPV application to a TPV application is that the visa application is taken not to be, and never to have been, a valid application for a PPV, and is taken to be, and to always have been, a valid application for a TPV.

The committee notes that subsection 45AA(3) of the Migration Act 1958 (the Act) specifically provides that a regulation may provide that, where a visa class is changed or effectively superseded (as in this case), an earlier application for the visa is taken not to be, and never to have been, a valid application for the visa; and is taken to be, and always to have been, a valid application for the amended or new visa. The Act also provides that, to avoid doubt, subsection 12(2) of the Legislative Instruments Act 2003 and subsection 7(2) of the Acts Interpretation Act 1901 do not apply to any such regulation (subsection 45AA(8)).^[1]

However, the committee's usual approach in cases such as this, is to regard the instruments as being retrospective in effect, and to asses such cases against the requirement to ensure that instruments of delegated legislation do not unduly trespass on personal rights and liberties (scrutiny principle 23(3)(b)).

The committee requests the advice of the minister in relation to this matter.

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[1] In general terms, these provisions respectively provide that an instrument may not commence retrospectively where a person other than the Commonwealth would be disadvantaged; and that the amendment of an Act or part of an Act does not affect the previous operation of those provisions (including any right, privilege, obligation or liability acquired, accrued or incurred under the affected provisions).