asylum seeking bill

8/10/2019 Asylum Seeking Bill

1/118

2013-2014

The Parliament of theCommonwealth of Australia

HOUSE OF REPRESENTATIVES

Presented and read a first time

Migration and Maritime PowersLegislation Amendment (Resolving the

Asylum Legacy Caseload) Bill 2014

No. , 2014

(Immigration and Border Protection)

A Bill for an Act to amend the law relating to

migration and maritime powers, and for related

purposes


2/118


3/118

No. , 2014 Migration and Maritime Powers Legislation Amendment (Resolving

the Asylum Legacy Caseload) Bill 2014

i

Contents1 Short title ............................. .................................. ............................ 1

2 Commencement ............................... ................................. ................. 1

3 Schedules ............................. .................................. ............................ 4

Schedule 1Amendments relating to maritime powers 5

Part 1Main amendments 5

Maritime Powers Act 2013 5

Part 2Other amendments 20

Administrative Decisions (Judicial Review) Act 1977 20

Immigration (Guardianship of Children) Act 1946 20

Migration Act 1958 20

Part 3Application 22

Schedule 2Protection visas and other measures 24

Part 1Protection visas 24

Division 1Protection visas generally 24


Division 2Safe haven enterprise visas 27


Division 3Application 28

Part 2Visa applications taken to be applications for adifferent visa 29

Division 1Amendments 29



Part 3Deemed visa applications 33





4/118

ii Migration and Maritime Powers Legislation Amendment (Resolving


No. , 2014

Part 4Permanent protection visas and temporary protectionvisas 35

Division 1Main amendments 35

Migration Regulations 1994 35

Division 2Main amendments commencing immediately afterDivision 1 44


Division 3Consequential amendments 46


Division 4Amendments relating to application 49


Schedule 3Act-based visas 50

Part 1Amendment of the Migration Act 1958 50




Part 2Amendment of the Migration Regulations 1994 54


Schedule 4Amendments relating to fast track assessment

process 57

Part 1Fast track assessment process 57


Part 2Application 89

Schedule 5Clarifying Australias international law

obligations 90

Part 1Removal of unlawful non-citizens 90

Division 1Amendments commencing on the day after Royal Assent 90


Division 2Amendments if this Act commences after the Migration

Amendment (Protection and Other Measures) Act 2014 91


5/118



iii

Part 2Amendments commencing on Proclamation 92


Part 3Contingent amendments 98

Division 1Amendments if this Act commences before the MigrationAmendment (Protection and Other Measures) Act 2014 98


Division 2Amendments if this Act commences before the MigrationAmendment (Regaining Control Over AustraliasProtection Obligations) Act 2014 98


Division 3Amendments if this Act commences after the MigrationAmendment (Regaining Control Over Australias

Protection Obligations) Act 2014 99


Part 4Application and transitional provisions 100

Schedule 6Unauthorised maritime arrivals and transitory

persons: newborn children 101

Part 1Amendments 101


Part 2Application of amendments 106

Schedule 7Caseload management 110

Part 1Amendments 110


Part 2Application and savings 112


6/118


7/118



1

A Bill for an Act to amend the law relating to1

migration and maritime powers, and for related2

purposes3

The Parliament of Australia enacts:4

1 Short title5

This Act may be cited as theMigration and Maritime Powers6Legislation Amendment (Resolving the Asylum Legacy Caseload)7

Act 2014.8

2 Commencement9

(1) Each provision of this Act specified in column 1 of the table10

commences, or is taken to have commenced, in accordance with11


8/118

2 Migration and Maritime Powers Legislation Amendment (Resolving


No. , 2014

column 2 of the table. Any other statement in column 2 has effect1according to its terms.2

3

Commencement informationColumn 1 Column 2 Column 3

Provisions Commencement Date/Details

1. Sections 1 to 3

and anything in

this Act not

elsewhere covered

by this table

The day this Act receives the Royal Assent.

2. Schedule 1 The day after this Act receives the Royal

Assent.

3. Schedule 2,

Part 1, Division 1

The day after this Act receives the Royal

Assent.4. Schedule 2,

Part 1, Division 2

A single day to be fixed by Proclamation.

However, if the provisions do not commence

within the period of 6 months beginning on

the day this Act receives the Royal Assent,

they commence on the day after the end of

that period.

5. Schedule 2,

Part 1, Division 3


Assent.

6. Schedule 2,

Parts 2 and 3


Assent.

7. Schedule 2,Part 4, Division 1

The day after this Act receives the RoyalAssent.

8. Schedule 2,

Part 4, Division 2

Immediately after the commencement of the

provisions covered by table item 7.

9. Schedule 2,

Part 4,

Divisions 3 and 4


Assent.

10. Schedule 3 The day after this Act receives the Royal

Assent.

11. Schedule 4 A single day to be fixed by Proclamation.


within the period of 6 months beginning onthe day this Act receives the Royal Assent,


9/118



3

Commencement information

Column 1 Column 2 Column 3


they commence on the day after the end ofthat period.

12. Schedule 5,

items 1 and 2


Assent.

13. Schedule 5,

item 3

Immediately after item 4 of Schedule 2 to

theMigration Amendment (Protection and

Other Measures) Act 2014commences.

14. Schedule 5,

Part 2

A single day to be fixed by Proclamation.


within the period of 6 months beginning on

the day this Act receives the Royal Assent,

they commence on the day after the end ofthat period.

15. Schedule 5,

item 18

At the same time as the provisions covered

by table item 3.

However, if item 3 of Schedule 2 to the

Migration Amendment (Protection and

Other Measures) Act 2014commences at or

before that time, the provisions do not

commence at all.

16. Schedule 5,

items 19 to 22


by table item 3.

However, if Schedule 1 to theMigration

Amendment (Regaining Control Over

Australias Protection Obligations) Act 2014

commences at or before that time, the

provisions do not commence at all.

17. Schedule 5,

item 23

Immediately after theMigration Amendment

(Regaining Control Over Australias

Protection Obligations) Act 2014

commences.

18. Schedule 5,

item 24

Immediately after item 3 of Schedule 3 to

theMigration Amendment Act 2014

commences.

19. Schedule 5, Immediately after item 5 of Schedule 3 to


10/118



No. , 2014

Commencement information

Column 1 Column 2 Column 3


item 25 theMigration Amendment Act 2014commences.

20. Schedule 5,

item 26

Immediately after theMigration Amendment

(Regaining Control Over Australias

Protection Obligations) Act 2014

commences.

21. Schedule 5,

item 27


Assent.

22. Schedule 5,

items 28 and 29


by table item 3.

23. Schedules 6

and 7


Assent.

Note: This table relates only to the provisions of this Act as originally1enacted. It will not be amended to deal with any later amendments of2this Act.3

(2) Any information in column 3 of the table is not part of this Act.4Information may be inserted in this column, or information in it5may be edited, in any published version of this Act.6

3 Schedules7

(1) Legislation that is specified in a Schedule to this Act is amended or8

repealed as set out in the applicable items in the Schedule9concerned, and any other item in a Schedule to this Act has effect10according to its terms.11

(2) The amendment of any regulation under subsection (1) does not12prevent the regulation, as so amended, from being amended or13repealed by the Governor-General.14


11/118

Amendments relating to maritime powers Schedule 1

Main amendments Part 1



5

Schedule 1Amendments relating to1maritime powers2

Part 1Main amendments3

Mari time Powers Act 20134

1 Section 75

Omit:6

In accordance with international law, the exercise of powers is7limited in places outside Australia.8

2 Section 89

Insert:10

destination:11

(a) in relation to a vessel or aircraft detained under12subsection 69(1)see subsections 69(2), (3) and (3A); or13

(b) in relation to a person detained under subsection 72(4)see14subsections 72(4), (4A) and (4B).15

Note: See also section 75C.16

Mari ne Safety (Domestic Commercial Vessel) National Lawhas17

the meaning given by section 17 of theMarine Safety (Domestic18Commercial Vessel) National Law Act 2012.19

3 Section 8 (paragraph (e) of the definition of moni tor ing law)20

After Division, insert 73 or.21

4 Section 1122

Before For the purposes, insert (1).23

5 At the end of section 1124

Add:25


12/118

Schedule 1 Amendments relating to maritime powers

Part 1 Main amendments



No. , 2014

(2) To avoid doubt, a continuous exerci se of powersdoes not end1merely because the destination to which a vessel, aircraft or person2is to be taken (or caused to be taken) is changed to a different place3under subsection 69(3A) or 72(4B).4

6 At the end of Division 2 of Part 25

Add:6

22A Failure to consider international obligations etc. does not7

invalidate authorisation8

(1) The exercise of a power to give an authorisation under a provision9of this Division is not invalid:10

(a) because of a failure to consider Australias international11obligations, or the international obligations or domestic law12

of any other country; or13(b) because of a defective consideration of Australias14

international obligations, or the international obligations or15domestic law of any other country; or16

(c) because the exercise of the power is inconsistent with17Australias international obligations.18

(2) Subsection (1) is not to be taken to imply that the exercise of a19power under any other provision of this Act is invalid for a reason20of a kind specified in paragraph (1)(a), (b) or (c).21

22B Rules of natural justice do not apply to authorisations22

(1) The rules of natural justice do not apply to the exercise of a power23to give an authorisation under a provision of this Division.24

(2) Subsection (1) is not to be taken to imply that the rules of natural25justice do apply in relation to the exercise of powers under any26other provision of this Act.27

7 Paragraph 31(a)28

After investigate, insert or prevent.29

8 Subsection 41(1) (note)30

Omit Note:, substitute Note 1:.31


13/118





7

9 At the end of subsection 41(1)1

Add:2

Note 2: This section does not apply to the exercise of powers under3

Divisions 7 and 8 of Part 3 in some circumstances: see section 75D.4


Add:6

Note: For other provisions affecting powers under this section, see7section 69A and Division 8A.8

11 Subsections 69(2) and (3)9

Repeal the subsections, substitute:10

(2) The officer may:11

(a) take the vessel or aircraft, or cause the vessel or aircraft to be12taken, to a place (the destination); and13

(b) remain in control of the vessel or aircraft, or require the14person in charge of the vessel or aircraft to remain in control15of the vessel or aircraft, at the destination, until whichever of16the following occurs first:17

(i) the vessel or aircraft is returned to a person referred to18in subsection 87(1);19

(ii) action is taken as mentioned in subsection 87(3) in20relation to the vessel or aircraft.21

(3) The destination may be:22

(a) in the migration zone; or23

(b) outside the migration zone (including outside Australia).24

Note: Section 75C contains additional provisions about the place that may25be the destination.26

(3A) A maritime officer may change the destination to a different place27at any time (including a time after arrival at the place that was28

previously the destination). If the destination is changed to a29different place:30

(a) that different place is then the destination; but31

(b) this does not affect the exercise of powers under this Act32

before the change.33


14/118





No. , 2014

Note: It is possible that the destination may change more than once.1

12 After section 692

Insert:3

69A Additional provisions relating to taking a vessel or aircraft to a4

destination under section 695

(1) For the purpose of taking a vessel or aircraft (or causing a vessel or6aircraft to be taken) to a destination under paragraph 69(2)(a), the7vessel or aircraft may be detained under subsection 69(1):8

(a) for any period reasonably required:9

(i) to decide which place should be the destination; or10

(ii) to consider whether the destination should be changed11to a different place under subsection 69(3A), and (if it12

should be changed) to decide what that different place13is; and14

(b) for any period reasonably required for the Minister to15consider whether to make or give a determination or direction16under section 75D, 75F or 75H in relation to:17

(i) a matter referred to in subparagraph (a)(i) or (ii); or18

(ii) any other matter relating to the exercise of powers in19relation to the vessel or aircraft, or in relation to persons20on (or suspected as having been on) the vessel or21aircraft; and22

(c) for the period it actually takes to travel to the destination.23

Note: The total period for which the vessel or aircraft is detained may be24longer than the periods covered by this subsection: see subsection (3)25and section 87.26

(2) For the purpose of paragraph (1)(c):27

(a) the period it actually takes to travel to the destination may28include stopovers at other places on the way to the29destination, and time for other logistical, operational or other30contingencies relating to travelling to the destination; and31

(b) there is no requirement that the most direct route to the32destination must be taken.33

(3) Days in periods covered by subsection (1) do not count towards the3428 day limit specified in paragraph 87(2)(a).35


15/118





9

13 Subsection 72(1) (note)1

Omit Note:, substitute Note 1:.2


Add:4

Note 2: For other provisions affecting powers under this section, see5section 72A and Division 8A.6

15 Subsections 72(3) and (4)7

Repeal the subsections, substitute:8

(3) A maritime officer may require the person to remain on the vessel9or aircraft until whichever of the following occurs first:10

(a) the vessel or aircraft is returned to a person referred to in11subsection 87(1);12

(b) action is taken as mentioned in subsection 87(3) in relation to13the vessel or aircraft.14

Note: It is an offence to fail to comply with a requirement under this15subsection: see section 103.16

(4) A maritime officer may detain the person and take the person, or17cause the person to be taken, to a place (the destination).18

(4A) The destination may be:19

(a) in the migration zone; or20

(b) outside the migration zone (including outside Australia).21

Note: Section 75C contains additional provisions about the place that may22be the destination.23

(4B) A maritime officer may change the destination to a different place24at any time (including a time after arrival at the place that was25

previously the destination). If the destination is changed to a26different place:27

(a) that different place is then the destination; but28

(b) this does not affect the exercise of powers under this Act29before the change.30

Note: It is possible that the destination may change more than once.31


16/118





No. , 2014

16 Subsection 72(5)1

Omit another place, substitute the destination.2

17 Paragraphs 72(5)(a) and (b)3

After or aircraft, insert , or in a particularplace on a vessel or4aircraft.5


Insert:7

72A Additional provisions relating to taking a person to a8

destination under subsection 72(4)9

(1) A person may be detained under subsection 72(4):10

(a) for any period reasonably required:11

(i) to decide which place should be the destination; or12

(ii) to consider whether the destination should be changed13to a different place under subsection 72(4B), and (if it14should be changed) to decide what that different place15is; and16

(b) for any period reasonably required for the Minister to17consider whether to make or give a determination or direction18under section 75D, 75F or 75H in relation to:19

(i) a matter referred to in subparagraph (a)(i) or (ii); or20

(ii) any other matter relating to the exercise of powers in21

relation to the person; and22

(c) for the period it actually takes to travel to the destination; and23

(d) for any period reasonably required to make and effect24arrangements relating to the release of the person.25

(2) For the purpose of paragraph (1)(c):26

(a) the period it actually takes to travel to the destination may27include stopovers at other places on the way to the28destination, and time for other logistical, operational or other29contingencies relating to travelling to the destination; and30

(b) there is no requirement that the most direct route to the31destination must be taken.32


17/118





11

(3) The person must not be detained under subsection 72(4) for any1longer than is permitted by subsection (1) of this section.2

(4) Powers may be exercised in accordance with subsection 72(5) in3

relation to the person at any time while the person continues to be4detained under subsection 72(4).5

(5) Subsection (3) does not prevent:6

(a) the arrest of the person; or7

(b) the detention of the person under another Australian law; or8

(c) the exercise of any other power in relation to the person.9

19 After Division 8 of Part 310

Insert:11

Division 8AGeneral provisions relating to powers under12Divisions 7 and 813

75A Failure to consider international obligations etc. does not14

invalidate exercise of powers15

(1) The exercise of a power under section 69, 69A, 71, 72, 72A, 74,1675D, 75F, 75G or 75H is not invalid:17

(a) because of a failure to consider Australias international18obligations, or the international obligations or domestic law19of any other country; or20

(b) because of a defective consideration of Australias21 international obligations, or the international obligations or22domestic law of any other country; or23

(c) because the exercise of the power is inconsistent with24Australias international obligations.25

(2) Subsection (1) is not to be taken to imply that the exercise of a26power under any other provision of this Act is invalid for a reason27of a kind specified in paragraph (1)(a), (b) or (c).28

75B Rules of natural justice do not apply to exercise of powers29

(1) The rules of natural justice do not apply to the exercise of powers30 under section 69, 69A, 71, 72, 72A, 74, 75D, 75F, 75G or 75H.31


18/118





No. , 2014

(2) Subsection (1) is not to be taken to imply that the rules of natural1justice do apply in relation to the exercise of powers under any2other provision of this Act.3

75C Additional provisions about destination to which a vessel,4

aircraft or person may be taken5

(1) To avoid doubt:6

(a) the destination to which a vessel, aircraft or person is taken7(or caused to be taken) under section 69 or 72:8

(i) does not have to be in a country; and9

(ii) without limiting subparagraph (i)may be just outside10a country; and11

(iii) may be a vessel; and12

(b) a vessel, aircraft or person may be taken (or caused to be13

taken) to a destination under section 69 or 72:14

(i) whether or not Australia has an agreement or15arrangement with any other country relating to the16vessel or aircraft (or the persons on it), or the person;17and18

(ii) irrespective of the international obligations or domestic19law of any other country.20

Note: The definition of countryin section 8 includes the territorial sea and21archipelagic waters of the country, as well as various other areas.22

(2) However, if the destination is in another country, section 4023

(exercising powers in other countries) must be complied with.24

75D Exercising powers between countries25

(1) Section 41 (foreign vessels between countries) does not apply to an26exercise of power under section 69, 69A, 71, 72, 72A or 74 if:27

(a) the exercise of power is:28

(i) covered by a determination in force under29subsection (2); or30

(ii) required by a direction in force under31paragraph 75F(2)(a); and32


19/118





13

(b) the exercise of power is part of a continuous exercise of1powers that commenced in accordance with any applicable2requirements of Division 5 of Part 2.3

(2) For the purpose of subparagraph (1)(a)(i), the Minister may make a4written determination that is expressed to cover the exercise, in a5specified circumstance, of powers under one or more of the6sections referred to in subsection (1).7

(3) The Minister may, in writing, vary or revoke a determination made8under subsection (2).9

(4) The only condition for the exercise of the power to make a10determination under subsection (2), or to vary a determination, is11that the Minister thinks that it is in the national interest to make or12vary the determination.13

Note: There are no conditions for the exercise of the power to revoke a14determination.15

(5) A determination under subsection (2), or an instrument varying or16revoking a determination, comes into force:17

(a) unless paragraph (b) applieswhen it is made; or18

(b) if the determination or instrument specifies a later time as the19time when it is to come into forceat that later time.20

(6) A determination under subsection (2) remains in force until21whichever of the following occurs first:22

(a) an instrument revoking the determination comes into force;23

(b) if the determination is expressed to cease to be in force at a24specified timethe time so specified.25

(7) A determination under subsection (2), or a variation or revocation26of a determination, is not a legislative instrument.27

75E Powers are not limited by the Migration Act 195828

(1) Powers under sections 69, 69A, 71, 72, 72A, 74, 75D, 75F, 75G or2975H are not in any respect subject to, or limited by, theMigration30

Act 1958(including regulations and other instruments made under31that Act).32


20/118





No. , 2014

(2) Subsection (1) of this section is not to be taken to imply that other1powers under this Act are subject to, or limited by, theMigration2Act 1958 (including regulations and other instruments made under3that Act).4

75F Minister may give directions about exercise of powers5

(1) This section applies in relation to the powers in sections 69, 69A,671, 72 and 72A.7

(2) The Minister may, in writing, give directions:8

(a) requiring the exercise of a power or powers in a specified9circumstance, or in circumstances in a specified class, in a10specified manner; or11

(b) relating to the exercise of a power or powers in a specified12circumstance, in a specified class of circumstances or more13generally.14

(3) Without limiting subsection (2), the Minister may give a direction15under that subsection:16

(a) specifying a place that is to be, or is not to be, the destination17to which a vessel, aircraft or person is taken under18

paragraph 69(2)(a) or subsection 72(4); or19

(b) specifying matters to be taken into account in deciding the20destination to which a vessel, aircraft or person is to be so21taken.22

(4) The Minister may, in writing, vary or revoke a direction given23under subsection (2).24

(5) The only condition for the exercise of the power to give a direction25under subsection (2), or to vary a direction, is that the Minister26thinks that it is in the national interest to give or vary the direction.27

Note: There are no conditions for the exercise of the power to revoke a28direction.29

(6) A direction under subsection (2) may specify circumstances in30which the direction need not be complied with.31

(7) A direction under subsection (2), or an instrument varying or32

revoking a direction, comes into force:33


21/118





15


(b) if the direction or instrument specifies a later time as the time2when it is to come into forceat that later time.3

(8) A direction under subsection (2) remains in force until whichever4of the following occurs first:5

(a) an instrument revoking the direction comes into force;6

(b) if the direction is expressed to cease to be in force at a7specified timethe time so specified.8

(9) If the Minister gives a direction as mentioned in paragraph (2)(a):9

(a) the direction is taken to constitute an authorisation of the10exercise of the power or powers in accordance with the11direction; and12

(b) that authorisation is taken (despite section 23) to remain in13

force while the direction is in force.14

(10) A direction under subsection (2), or an instrument varying or15revoking a direction, is not a legislative instrument.16

75G Compliance with directions17

(1) Subject to subsections (2) and (3) of this section, and18subsection 75F(6), a maritime officer must comply with any19applicable directions in force under section 75F. However, a failure20to comply does not invalidate any exercise of power by a maritime21officer.22

(2) A maritime officer who is a member of the Australian Defence23Force is not required to comply with a direction under section 75F24to the extent that the direction is inconsistent with an order or other25exercise of command under sections 8 and 9 of theDefence Act261903.27

(3) A maritime officer is not required to comply with a direction under28section 75F to the extent that he or she reasonably believes that it29would be unsafe to do so.30


22/118





No. , 2014

75H Certain maritime laws do not apply to certain vessels detained1

or used in exercise of powers2

Vessels detained under section 693

(1) The laws specified in subsection (3) (including regulations and4other instruments made under those laws) do not apply in relation5to a vessel at any time when the vessel is detained in exercise (or6

purported exercise) of powers under section 69.7

Vessels used in exercise of powers under subsections 72(4) or (5)8

(2) The laws specified in subsection (3) (including regulations and9other instruments made under those laws) do not apply in relation10to a vessel at any time when the following paragraphs are satisfied:11

(a) the vessel is being used in the exercise (or purported12

exercise) of powers under subsection 72(4) or (5), or the13Commonwealth intends that the vessel is for use in the14exercise of such powers;15

(b) the vessel is specified in, or is included in a class of vessels16specified in, a determination under subsection (4) that is in17force;18

(c) if the determination states that it has effect, in relation to the19vessel or class of vessels, only in specified circumstances20those circumstances exist;21

(d) if the determination states that it has effect, in relation to the22vessel or the class of vessels, only in one or more specified23

periodsthe time is in that period, or one of those periods.24Note: Paragraph (c) and (d) do not have to be satisfied unless the25

determination states as mentioned in those paragraphs.26

The laws that are disapplied27

(3) The laws that, because of subsection (1) or (2), do not apply in28relation to a vessel are:29

(a) theNavigation Act 2012; and30

(b) the Shipping Registration Act 1981; and31

(c) the Marine Safety (Domestic Commercial Vessel) National32Law.33


23/118





17

Determinations of vessels and classes of vessels1

(4) For the purpose of paragraph (2)(b), the Minister may make a2written determination specifying a vessel, or a class of vessels. The3

determination may also state either or both of the following:4(a) that it has effect, in relation to the vessel or class of vessels,5

only in specified circumstances;6

(b) that it has effect, in relation to the vessel or the class of7vessels, only in one or more specified periods.8

(5) The Minister may, in writing, vary or revoke a determination made9under subsection (4).10

(6) The only condition for the exercise of the power to make a11determination under subsection (4), or to vary a determination, is12that the Minister thinks that it is in the national interest to make or13

vary the determination.14

Note: There are no conditions for the exercise of the power to revoke a15determination.16

(7) A determination under subsection (4), or an instrument varying or17revoking a determination, comes into force:18


(b) if the determination or instrument specifies a later time as the20time when it is to come into forceat that later time.21

(8) A determination under subsection (4) remains in force until22whichever of the following occurs first:23

(a) an instrument revoking the determination comes into force;24

(b) if the determination is expressed to cease to be in force at a25specified timethe time so specified.26

(9) A determination under subsection (4), or a variation or revocation27of a determination, is not a legislative instrument.28

20 Section 7929

Omit:30

Written notice must be given to the owner or person who was in31

possession or control of a seized, retained or detained thing.32


24/118





No. , 2014

substitute:1

Written notice must be given to the owner of a seized, retained or2

detained thing, or to a person who had possession or control of the3

thing.4

21 Paragraph 80(1)(b)5

Omit the person, substitute a person.6


Add:8

(3) If a detained vessel or aircraft is to be taken to a destination under9paragraph 69(2)(a), the information must also explain the effect of10

subsection 69A(3).11

23 Paragraphs 86(1)(b) and 87(1)(b)12

Omit the person, substitute a person.13


Add:15

Note: In the case of a detained vessel or aircraft that is taken to a destination16under paragraph 69(2)(a), days in periods covered by17subsection 69A(1) (such as the period it takes to travel to the18destination) do not count towards the 28 day limit: see19subsection 69A(3).20


Repeal the subsection, substitute:22

(1) If the thing is disposed of under paragraph 91(1)(a), (b) or (c)23(reasons for disposal), the Minister must give written notice, as24soon as practicable after the disposal, to:25

(a) the person who owned the thing; or26

(b) a person who had possession or control of the thing27immediately before it was seized, retained or detained.28


25/118





19


Omit the person, substitute any person to whom the notice may be2

given under that subsection.3

27 Section 944

Omit:5

Persons from detained vessels and aircraft may be required to6remain on the vessel or aircraft, or may be taken to another place.7

28 Section 978

Repeal the section.9

29 Section 10710

After proceeding, insert , whether civil or criminal,.11


After this Act, insert , other than the powers under section75D, 75F13or 75H,.14


26/118


Part 2 Other amendments



No. , 2014

Part 2Other amendments1

Administrative Decisions (Judicial Review) Act 19772

31 After paragraph (p) of Schedule 13

Insert:4

(pa) decisions under section 75D, 75F or 75H of theMaritime5Powers Act 2013;6

Immigration (Guardianship of Chi ldren) Act 19467

32 At the end of paragraph 6(2)(d)8

Add , or under Division7 or 8 of Part 3 of theMaritime Powers Act9

2013.10

33 Paragraph 8(2)(b)11

After migration law, insert or theMaritime Powers Act 2013.12

34 Paragraph 8(2)(c)13

Repeal the paragraph, substitute:14

(c) imposes any obligation on the Minister or another Minister to15exercise, or to consider exercising, any power conferred by or16under the migration law or theMaritime Powers Act 2013.17

35 At the end of paragraph 8(3)(d)18

Add , or under Division 7 or 8 of Part 3 of theMaritime Powers Act192013.20

Migration Act 195821

36 Subsection 5(1) (paragraph (b) of the definition of22t ransitory person)23

Omit or paragraph72(4)(b) of theMaritime Powers Act 2013,24substitute or under Division7 or 8 of Part 3 of theMaritime Powers25

Act 2013.26


27/118


Other amendments Part 2



21

37 Paragraph 5AA(2)(ba)1


(ba) the person entered the migration zone as a result of the3

exercise of powers under Division 7 or 8 of Part 3 of the4 Maritime Powers Act 2013; or5

38 Subparagraph 42(2A)(c)(i)6

Omit or 72(4) of theMaritime Powers Act 2013, substitute or under7

Division 7 or 8 of Part 3 of theMaritime Powers Act 2013.8


28/118


Part 3 Application



No. , 2014

Part 3Application1

39 Application of amendments of the Marit ime Powers A ct220133

(1) Subject to this item, the amendments of theMaritime Powers Act 20134made by Part 1 of this Schedule (the amending Part) apply in relation5to the exercise (or continued exercise) of powers under that Act after the6commencement of the amending Part, even if:7

(a) an authorisation for the exercise of the powers was given8under Division 2 of Part 2 of that Act before the9commencement of the amending Part; or10

(b) the powers are exercised:11

(i) in the course of a continuous exercise of powers that12

started before the commencement of the amending Part;13or14

(ii) without limiting subparagraph (i)in relation to a15person, vessel or aircraft who or that started to be16detained, or otherwise held, under Division 7 or 8 of17Part 3 of theMaritime Powers Act 2013before that18commencement; or19

(iii) in any other situation in relation to which powers were20(or could have been) exercised under that Act before21that commencement.22

(2) The amendments of theMaritime Powers Act 2013made by item 3 (so23

far as it affects the giving of authorisations), and item 6, of the24amending Part apply in relation to authorisations given under Division 225of Part 2 of that Act after the commencement of the amending Part.26

(3) Section 75H of theMaritime Powers Act 2013, as inserted by item 19 of27the amending Part, applies to:28

(a) vessels that, after the commencement of the amending Part,29are detained as mentioned in subsection 75H(1), even if the30vessels started to be so detained before that commencement;31and32

(b) vessels that, after the commencement of the amending Part,33

are being used, or that are intended for use, as mentioned in34


29/118


Application Part 3



23

paragraph 75H(2)(a), even if the vessels started to be so used,1or intended for use, before that commencement.2

(4) The amendments of theMaritime Powers Act 2013made by items 21,3

23, 25 and 26 of the amending Part apply after the commencement of4the amending Part in relation to a seized, retained or detained thing5(including a vessel or aircraft), even if the exercise of power by which6the thing was first seized, retained or detained occurred before that7commencement.8

(5) The amendments of theMaritime Powers Act 2013made by the9amending Part do not, by implication, affect the interpretation of that10Act, as in force before the commencement of the amending Part, in11relation to the exercise of powers, or the giving of authorisations, under12that Act before that commencement.13


30/118

Schedule 2 Protection visas and other measures

Part 1 Protection visas



No. , 2014

Schedule 2Protection visas and other1measures2

Part 1Protection visas3

Division 1Protection visas generally4

Migration Act 19585

1 Subsection 5(1)6

Insert:7

protection visahas the meaning given by section 35A.8

Note: Section 35A covers the following:9

(a) permanent protection visas (classified by theMigration10Regulations 1994as Protection (Class XA) visas when this11definition commenced);12

(b) other protection visas formerly provided for by subsection 36(1);13

(c) temporary protection visas (classified by theMigration14Regulations 1994as Temporary Protection (Class XD) visas15when this definition commenced);16

(d) any additional classes of permanent or temporary visas that are17prescribed as protection visas by the regulations.18

See also section 36 and Subdivision AL of Division 3 of Part 2.19


Add:21

Note: See also subsection 35A(4), which allows additional classes of22permanent and temporary visas to be prescribed as protection visas by23regulations made for the purposes of this subsection.24


Omit sections32, 33, 34, 35, 36, 37, 37A, 38, 38A and 38B,26substitute:27

the following provisions:28

(a) section 32 (special category visas);29

(b) section 33 (special purpose visas);30

(c) section 34 (absorbed person visas);31


31/118

Protection visas and other measures Schedule 2

Protection visas Part 1



25

(d) section 35 (ex-citizen visas);1

(e) subsection 35A(2) (permanent protection visas);2

(f) subsection 35A(3) (temporary protection visas);3

(g) section 37 (bridging visas);4(h) section 37A (temporary safe haven visas);5

(i) section 38 (criminal justice visas);6

(j) section 38A (enforcement visas);7

(k) section 38B (maritime crew visas).8

4 Subsection 31(3)9

Omit 36, substitute 35A.10


Insert:12

35A Protection visasclasses of visas13

(1) A protection visais a visa of a class provided for by this section.14

(2) There is a class of permanent visas to be known as permanent15protection visas.16

Note: These visas were classified by theMigration Regulations 1994as17Protection (Class XA) visas when this section commenced.18

(3) There is a class of temporary visas to be known as temporary19protection visas.20

Note: These visas were classified by theMigration Regulations 1994as21Temporary Protection (Class XD) visas when this section commenced.22

(4) Regulations made for the purposes of subsection 31(1) may23prescribe additional classes of permanent and temporary visas as24protection visas.25

(5) A class of visas that was formerly provided for by26subsection 36(1), as that subsection was in force before the27commencement of this section, is also a class of protection visas28for the purposes of this Act and the regulations.29

Example: An example of a class of visas for subsection (5) is the class of visas30

formerly classified by theMigration Regulations 1994as Protection31 (Class AZ) visas. These visas can no longer be granted.32


32/118





No. , 2014

Note: This section commenced, and subsection 36(1) was repealed, on the1commencement of Part 1 of Schedule 2 to theMigration and Maritime2Powers Legislation Amendment (Resolving the Asylum Legacy3

Caseload) Act 2014.4

(6) The criteria for a class of protection visas are:5

(a) the criteria set out in section 36; and6

(b) any other relevant criteria prescribed by regulation for the7purposes of section 31.8

Note: See also Subdivision AL.9

6 Section 36 (heading)10

Repeal the heading, substitute:11

36 Protection visascriteria provided for by this Act12


Repeal the subsection.14

8 Subparagraph 36(2)(b)(ii)15

After protection visa, insert of the same class as that applied for by16the applicant.17

9 At the end of subparagraph 36(2)(c)(ii)18

Add of the same class as that applied for by the applicant.19

10 Subsection 48A(2) (definition ofappl icat ion for a20

protect ion visa)21

Omit includes, substitute means.22

11 Subsection 48A(2) (paragraph (aa) of the definition of23appl icat ion for a protect ion v isa)24


(aa) an application for a visa of a class provided for by26section 35A (protection visasclasses of visas), including27(without limitation) an application for a visa of a class28formerly provided for by subsection 36(1) that was made29

before the commencement of this paragraph; or30


33/118


Protection visas Part 1



27

Note: Visas formerly provided for by subsection 36(1) are provided for1by subsection 35A(5). Subsection 36(1) was repealed by the2Migration and Maritime Powers Legislation Amendment3(Resolving the Asylum Legacy Caseload) Act 2014, which also4inserted section 35A and this paragraph.5

12 Subsection 48A(2) (paragraphs (a) and (b) of the definition6of appl icat ion for a protect ion vis a)7

Omit ; and, substitute ; or.8

Division 2Safe haven enterprise visas9

Migration Act 195810

13 Subsection 5(1) (after paragraph (b) of the note at the end11of the definition of protect ion visa)12

Insert:13(ba) safe haven enterprise visas;14

14 After paragraph 31(2)(f)15

Insert:16

(fa) subsection 35A(3A) (safe haven enterprise visas);17

15 After paragraph 31(3A)(c)18

Insert:19

(ca) safe haven enterprise visas (see subsection 35A(3A));20

16 After subsection 35A(3)21

Insert:22

(3A) There is a class of temporary visas to be known as safe haven23enterprise visas.24

17 After paragraph 46(5)(c)25

Insert:26


18 After paragraph 46AA(1)(c)28

Insert:29


34/118





No. , 2014


Division 3Application2

19 Application of amendments3

(1) The amendments of theMigration Act 1958made by Division 1 of this4Part:5

(a) apply in relation to an application for a visa that had not been6finally determined immediately before the commencement of7that Division; and8

(b) apply in relation to an application for a visa made on or after9the commencement of that Division; and10

(c) in the case of the amendments of section 48A of that Act11made by that Divisionapply in relation to an application for12

a protection visa mentioned in paragraph 48A(1)(a) or (b), or13 paragraph 48A(1AA)(a) or (b), of that Act that was made, or14taken to have been made:15

(i) on or after the commencement of that Division; or16

(ii) at any time before the commencement of that Division17(whether or not the application had been finally18determined at that time).19

(2) The amendments of theMigration Act 1958made by Division 2 of this20Part apply in relation to an application for a visa made on or after the21commencement of that Division.22


35/118


Visa applications taken to be applications for a different visa Part 2



29

Part 2Visa applications taken to be applications for1a different visa2

Division 1Amendments3

Migration Act 19584


Insert:6

45AA Application for one visa taken to be an application for a7

different visa8

Situation in which conversion regulation can be made9

(1) This section applies if:10

(a) a person has made a valid application (a pre-conversion11application) for a visa (a pre-conversion visa) of a particular12class; and13

(b) the pre-conversion visa has not been granted to the person,14whether or not a migration decision has been made in relation15to the pre-conversion application; and16

(c) since the application was made, one or more of the following17events has occurred:18

(i) the requirements for making a valid application for that19 class of visa change;20

(ii) the criteria for the grant of that class of visa change;21

(iii) that class of visa ceases to exist; and22

(d) had the application been made after the event (or events)23occurred, because of that event (or those events):24

(i) the application would not have been valid; or25

(ii) that class of visa could not have been granted to the26person.27

(2) To avoid doubt, under subsection (1) this section may apply in28relation to:29


36/118


Part 2 Visa applications taken to be applications for a different visa



No. , 2014

(a) classes of visas, including protection visas and any other1classes of visas provided for by this Act or the regulations;2and3

(b) classes of applicants, including applicants having a particular4status; and5

(c) applicants for a visa who are taken to have applied for the6visa by the operation of this Act or the regulations.7

Example: If a non-citizen applies for a visa, and then, before the application8is decided, gives birth to a child, in some circumstances the child9is taken, by the operation of the regulations, to have applied for a10visa of the same class at the time the child is born (see11regulation 2.08).12

Conversion regulation13

(3) For the purposes of this Act, a regulation (a conversion regulation)14

may provide that, despite anything else in this Act, the15pre-conversion application for the pre-conversion visa:16

(a) is taken not to be, and never to have been, a valid application17for the pre-conversion visa; and18

(b) is taken to be, and always to have been, a valid application (a19converted appli cation) for a visa of a different class20(specified by the conversion regulation) made by the21applicant for the pre-conversion visa.22

Note: This section may apply in relation to a pre-conversion application23made before the commencement of the section (see theMigration and24Maritime Powers Legislation Amendment (Resolving the Asylum25

Legacy Caseload) Act 2014).26

For example, a conversion regulation (made after the commencement27of this section) could have the effect that a pre-conversion application28for a particular type of visa made on 1 August 2014 (before that29commencement):30

(a) is taken not to have been made on 1 August 2014 (or ever); and31

(b) is taken to be, and always to have been, a converted application32for another type of visa made on 1 August 2014.33

(4) Without limiting subsection (3), a conversion regulation may:34

(a) prescribe a class or classes of pre-conversion visas; and35

(b) prescribe a class of applicants for pre-conversion visas; and36

(c) prescribe a time (the conversion time) when the regulation is37

to start to apply in relation to a pre-conversion application,38


37/118


Visa applications taken to be applications for a different visa Part 2



31

including different conversion times depending on the1occurrence of different events.2

Visa application charge3

(5) If an amount has been paid as the first instalment of the visa4application charge for a pre-conversion application, then, at and5after the conversion time in relation to the application:6

(a) that payment is taken not to have been paid as the first7instalment of the visa application charge for the8

pre-conversion application; and9

(b) that payment is taken to be payment of the first instalment of10the visa application charge for the converted application,11even if the first instalment of the visa application charge that12would otherwise be payable for the converted application is13greater than the actual amount paid for the first instalment of14the visa application charge for the pre-conversion15application; and16

(c) in a case in which the first instalment of the visa application17charge payable for the converted application is less than the18actual amount paid for the first instalment of the visa19application charge for the pre-conversion application, no20refund is payable in respect of the difference only for that21reason.22

Note: For the visa application charge, see sections 45A, 45B and 45C.23

Effect on bridging visas24

(6) For the purposes of this Act, if, immediately before the conversion25time for a pre-conversion application, a person held a bridging visa26

because the pre-conversion application had not been finally27determined, then, at and after the conversion time, the bridging28visa has effect as if it had been grantedbecause of the converted29application.30

(7) For the purposes of this Act, if, immediately before the conversion31time for a pre-conversion application, a person had made an32application for a bridging visa because of the pre-conversion33application, but the bridging visa application had not been finally34

determined, then, at and after the conversion time:35


38/118


Part 2 Visa applications taken to be applications for a different visa



No. , 2014

(a) the bridging visa application is taken to have been applied for1because of the converted application; and2

(b) the bridging visa (if granted) has effect as if it were granted3because of the converted application.4

Note: This Act and the regulations would apply to a bridging visa to which5subsection (6) or (7) applies, and to when the bridging visa would6cease to have effect, in the same way as this Act and the regulations7would apply in relation to any bridging visa.8

For example, such a bridging visa would generally cease to be in9effect under section 82 if and when the substantive visa is granted10because of the converted application.11

Conversion regulation may affect accrued rights etc.12

(8) To avoid doubt:13

(a) subsection 12(2) of theLegislative Instruments Act 2003does14

not apply in relation to the effect of a conversion regulation15(including a conversion regulation enacted by the16Parliament); and17

(b) subsection 7(2) of theActs Interpretation Act 1901, including18that subsection as applied by section 13 of theLegislative19

Instruments Act 2003, does not apply in relation to the20enactment of this section or the making of a conversion21regulation (including a conversion regulation enacted by the22Parliament).23



The amendment of theMigration Act 1958made by Division 1 of this26Part, to insert section 45AA of that Act, applies in relation to an27application for a pre-conversion visa made before, on or after the28commencement of this Part.29


39/118


Deemed visa applications Part 3



33

Part 3Deemed visa applications1

Division 1Amendments2

Migration Act 19583


Add:5

(4) In paragraphs (1)(b) and (1A)(b):6

(a) a reference to an application for a visa made by or on behalf7of a non-citizen includes a reference to an application for a8visa that is taken to have been made by the non-citizen by the9operation of this Act or a regulation; and10

(b) a reference to the cancellation of a visa includes a reference11to the cancellation of a visa for which an application is taken12to have been made by the operation of this Act or a13regulation.14

23 After subsection 48A(1C)15

Insert:16

(1D) In paragraphs (1)(a) and (b) and (1AA)(a) and (b), a reference to an17application for a protection visa made by or on behalf of a18non-citizen includes a reference to an application for a protection19

visa that is taken to have been made by the non-citizen by the20operation of this Act or a regulation.21

(1E) In subsection (1B), a reference to the cancellation of a protection22visa includes a reference to the cancellation of a protection visa in23relation to which an application for a protection visa is taken to24have been made by the operation of this Act or a regulation.25

24 After subsection 501E(1A)26

Insert:27

(1B) In paragraph (1)(a) and subsection (1A), a reference to a refusal to28

grant a visa, or to the cancellation of a visa, includes a reference to29such a refusal or cancellation in relation to a visa for which an30


40/118


Part 3 Deemed visa applications



No. , 2014

application is taken to have been made by the operation of this Act1or a regulation.2



The amendments of theMigration Act 1958made by Division 1 of this5Part apply in relation to an application for a visa that is taken to have6

been made before, on or after the commencement of this Part.7


41/118


Permanent protection visas and temporary protection visas Part 4



35

Part 4Permanent protection visas and temporary1protection visas2

Division 1Main amendments3

Migration Regulations 19944

26 Regulation 1.035

Insert:6

protection visahas the meaning given by section 35A of the Act.7

Note: Section 35A of the Act covers the following:8

(a) permanent protection visas (classified by these Regulations as9

Protection (Class XA) visas when this definition commenced);10(b) other protection visas formerly provided for by subsection 36(1)11

of the Act;12

(c) temporary protection visas (classified by these Regulations as13Temporary Protection (Class XD) visas when this definition14commenced);15

(d) any additional classes of permanent or temporary visas that are16prescribed as protection visas by the regulations.17

See also section 36 and Subdivision AL of Division 3 of Part 2 of the18Act.19

27 Subparagraph 1401(2)(a)(i) of Schedule 120

Repeal the subparagraph.21

28 Subparagraph 1401(2)(a)(ii) of Schedule 122

Omit (ii) for anyother applicant:.23

29 At the end of subitem 1401(3) of Schedule 124

Add:25

(d) An application by a person for a Protection (Class XA) visa26is valid only if the person:27

(i) does not hold, and has not ever held, a Subclass 78528(Temporary Protection) visa, including such a visa29granted before 2 December 2013; and30


42/118


Part 4 Permanent protection visas and temporary protection visas



No. , 2014

(ii) does not hold, and has not ever held, a Temporary Safe1Haven (Class UJ) visa; and2

(iii) does not hold, and has not ever held, a Temporary3(Humanitarian Concern) (Class UO) visa; and4

(iv) held a visa that was in effect on the persons last entry5into Australia; and6

(v) is not an unauthorised maritime arrival; and7

(vi) was immigration cleared on the persons last entry into8Australia.9

30 At the end of Schedule 110

Add:11

1403. Temporary Protection (Class XD)12

(1) Form: 866.13

(2) Visa application charge:14

(a) first instalment (payable at the time the application is made):15

(i) for an applicant who is in immigration detention and has16not been immigration cleared:17

18

First instalment

Item Component Amount

1 Base application charge Nil

2 Additional applicant charge for an applicant who is at least 18 Nil3 Additional applicant charge for an applicant who is less than 18 Nil

19

(ii) for any other applicant:20

21

First instalment

Item Component Amount

1 Base application charge $35

2 Additional applicant charge for an applicant who is at least 18 Nil

3 Additional applicant charge for an applicant who is less than 18 Nil


43/118





37

Note: Regulation 2.12C explains the components of the first instalment of visa application1charge and specifies the amounts of subsequent temporary application charge and2non-internet application charge. Not all of the components may apply to a particular3application.4

Additional applicant charge is paid by an applicant who claims to be a member of the5 family unit of another applicant and seeks to combine the application with that6applicants application.7

(b) the second instalment (payable before grant of visa) is nil.8

(3) Other:9

(a) Application must be made in Australia.10

(b) Applicant must be in Australia.11

(c) Application by a person claiming to be a member of the12family unit of a person who is an applicant for a Temporary13Protection (Class XD) visa may be made at the same time14and place as, and combined with, the application by that15

person.16(d) An application by a person for a Temporary Protection (Class17

XD) visa is valid only if the person:18

(i) holds, or has ever held, a Temporary Protection (Class19XD) visa or a Subclass 785 (Temporary Protection)20visa, including such a visa granted before 2 December212013; or22

(ii) holds, or has ever held, a Temporary Safe Haven (Class23UJ) visa; or24

(iii) holds, or has ever held, a Temporary (Humanitarian25Concern) (Class UO) visa; or26

(iv) did not hold a visa that was in effect on the persons last27entry into Australia; or28

(v) is an unauthorised maritime arrival; or29

(vi) was not immigration cleared on the persons last entry30into Australia.31

(4) Subclasses:32

785 (Temporary Protection)33

31 After Part 773 of Schedule 234

Insert:35


44/118





No. , 2014

Subclass 785Temporary Protection12

785.1Interpretation3

785.1114

For the purposes of this Part, a person (A) is a member of the same5family unit as another person (B) if:6

(a) A is a member of Bs family unit; or7

(b) B is a member of As family unit; or8

(c) A and B are members of the family unit of a third person.9

785.2Primary criteria10

Note: All applicants must satisfy the primary criteria.11

785.21Criteria to be satisfied at time of application12

785.21113

(1) Subclause (2) or (3) is satisfied.14

(2) The applicant:15

(a) claims that a criterion mentioned in paragraph 36(2)(a) or16(aa) of the Act is satisfied in relation to the applicant; and17

(b) makes specific claims as to why that criterion is satisfied.18

Note: Paragraphs 36(2)(a) and (aa) of the Act set out criteria for the grant of19protection visas to non-citizens in respect of whom Australia has20protection obligations.21

(3) The applicant claims to be a member of the same family unit as a22person:23

(a) to whom subclause (2) applies; and24

(b) who is an applicant for a Subclass 785 (Temporary25Protection) visa.26

Note: See paragraphs 36(2)(b) and (c) of the Act.27


45/118





39

785.22Criteria to be satisfied at time of decision1

785.2212


(2) The Minister is satisfied that a criterion mentioned in4paragraph 36(2)(a) or (aa) of the Act is satisfied in relation to the5applicant.6


(3) The Minister is satisfied that:10

(a) the applicant is a member of the same family unit as an11applicant mentioned in subclause (2); and12

(b) the applicant mentioned in subclause (2) has been granted a13Subclass 785 (Temporary Protection) visa.14


785.22216

The applicant has undergone a medical examination carried out by17any of the following (a relevant medical practitioner):18

(a) a Medical Officer of the Commonwealth;19

(b) a medical practitioner approved by the Minister for the20purposes of this paragraph;21

(c) a medical practitioner employed by an organisation approved22by the Minister for the purposes of this paragraph.23

785.22324

(1) One of subclauses (2) to (4) is satisfied.25

(2) The applicant has undergone a chest x-ray examination conducted26by a medical practitioner who is qualified as a radiologist in27Australia.28

(3) The applicant is under 11 years of age and is not a person in29

respect of whom a relevant medical practitioner has requested the30 examination mentioned in subclause (2).31


46/118





No. , 2014

(4) The applicant is a person:1

(a) who is confirmed by a relevant medical practitioner to be2pregnant; and3

(b) who has been examined for tuberculosis by a chest clinic4officer employed by a health authority of a State or Territory;5and6

(c) who has signed an undertaking to place herself under the7professional supervision of a health authority in a State or8Territory and to undergo any necessary treatment; and9

(d) who the Minister is satisfied should not be required to10undergo a chest x-ray examination at this time.11

785.22412

(1) A relevant medical practitioner has considered:13

(a) the results of any tests carried out for the purposes of the14medical examination required under clause 785.222; and15

(b) the radiological report (if any) required under clause 785.22316in respect of the applicant.17

(2) If the relevant medical practitioner:18

(a) is not a Medical Officer of the Commonwealth; and19

(b) considers that the applicant has a disease or condition that is,20or may result in the applicant being, a threat to public health21in Australia or a danger to the Australian community;22

the relevant medical practitioner has referred any relevant results23

and reports to a Medical Officer of the Commonwealth.24

785.22525

If a Medical Officer of the Commonwealth considers that the26applicant has a disease or condition that is, or may result in the27applicant being, a threat to public health in Australia or a danger to28the Australian community, arrangements have been made, on the29advice of the Medical Officer of the Commonwealth, to place the30applicant under the professional supervision of a health authority in31a State or Territory to undergo any necessary treatment.32


47/118





41

785.2261

The applicant:2

(a) satisfies public interest criteria 4001 and 4003A; and3

(b) if the applicant had turned 18 at the time of application4satisfies public interest criterion 4019.5

785.2276

The Minister is satisfied that the grant of the visa is in the national7interest.8

785.2289

(1) If the applicant is a child to whom subregulation 2.08(2) applies,10subclause (2) is satisfied.11


(a) the applicant is a member of the same family unit as an13applicant to whom subclause 785.221(2) applies; and14

(b) the applicant to whom subclause 785.221(2) applies has been15granted a Subclass 785 (Temporary Protection) visa.16

Note 1: Subregulation 2.08(2) applies, generally, to a child born to a17non-citizen after the non-citizen has applied for a visa but before the18application is decided.19

Note 2: Subclause 785.221(2) applies if the Minister is satisfied that Australia20has protection obligations in respect of the applicant as mentioned in21paragraph 36(2)(a) or (aa) of the Act.22

785.3Secondary criteria23

Note: All applicants must satisfy the primary criteria.24

785.4Circumstances applicable to grant25

785.41126

The applicant must be in Australia when the visa is granted.27


48/118





No. , 2014

785.5When visa is in effect1

785.5112

Temporary visa permitting the holder to remain in Australia until:3

(a) if the holder of the temporary visa (the fi rst visa) makes a4valid application for another Subclass 785 (Temporary5Protection) visa within 3 years after the grant of the first6visathe day when the application is finally determined or7withdrawn; or8

(b) in any other casethe earlier of:9

(i) the end of 3 years from the date of grant of the first visa;10and11

(ii) the end of any shorter period, specified by the Minister,12from the date of grant of the first visa.13

785.6Conditions14

785.61115

Conditions 8503 and 8565.16

32 Clause 866.211 of Schedule 217

Repeal the clause, substitute:18

866.21119


(2) The applicant:21

(a) claims that a criterion mentioned in paragraph 36(2)(a) or22(aa) of the Act is satisfied in relation to the applicant; and23

(b) makes specific claims as to why that criterion is satisfied.24


(3) The applicant claims to be a member of the same family unit as a28

person:29(a) to whom subclause (2) applies; and30


49/118





43

(b) who is an applicant for a Subclass 866 (Protection) visa.1




866.2215


(2) The Minister is satisfied that a criterion mentioned in7paragraph 36(2)(a) or (aa) of the Act is satisfied in relation to the8applicant.9

Note: Paragraphs 36(2)(a) and (aa) of the Act set out criteria for the grant of10protection visas to non-citizens in respect of whom Australia has11

protection obligations.12


(a) the applicant is a member of the same family unit as an14applicant mentioned in subclause (2); and15

(b) the applicant mentioned in subclause (2) has been granted a16Subclass 866 (Protection) visa.17



Omit relevant medical practitioner, substitute relevant medical20

practitioner.21

35 Paragraph 866.225(a)22

Omit , 4002.23



866.23026

(1) If the applicant is a child to whom subregulation 2.08(2) applies,27subclause (2) is satisfied.28



50/118





No. , 2014

(a) the applicant is a member of the same family unit as an1applicant to whom subclause 866.221(2) applies; and2

(b) the applicant to whom subclause 866.221(2) applies has been3granted a Subclass 866 (Protection) visa.4

Note 1: Subregulation 2.08(2) applies, generally, to a child born to a5non-citizen after the non-citizen has applied for a visa but before the6application is decided.7

Note 2: Subclause 866.221(2) applies if the Minister is satisfied that Australia8has protection obligations in respect of the applicant as mentioned in9paragraph 36(2)(a) or (aa) of the Act.10

37 After clause 8564 of Schedule 811

Insert:12

8565 The holder must notify Immigration of any change in the holders13residential address within 28 days after the change occurs.14

Division 2Main amendments commencing immediately15after Division 116


38 After regulation 2.08E18

Insert:19

2.08F Certain applications for Protection (Class XA) visas taken to20

be applications for Temporary Protection (Class XD)21visas22

Conversion regulation23

(1) For section 45AA of the Act, despite anything else in the Act, a24valid application (a pre-conversion application) for a Protection25(Class XA) visa made before the commencement of this regulation26

by an applicant prescribed by subregulation (2) is, immediately27after this regulation starts to apply in relation to the application28under subregulation (3):29

(a) taken not to be, and never to have been,a valid application30

for a Protection (Class XA) visa; and31


51/118





45

(b) taken to be, and always to have been, a valid application for a1Temporary Protection (Class XD) visa, made by the2

prescribed applicant.3

Note 1: As a result, the Minister is required to make a decision on the4pre-conversion application as if it were a valid application for a5Temporary Protection (Class XD) visa.6

Note 2: If the first instalment of visa application charge for the pre-conversion7application had been paid before this regulation starts to apply, the8first instalment of visa application charge for an application for a9Temporary Protection (Class XD) visa (if any) is taken to have been10paid. See section 45AA of the Act.11

Prescribed applicants12

(2) The following are prescribed applicants:13

(a) an applicant who holds, or has ever held, any of the following14

visas:15(i) a Subclass 785 (Temporary Protection) visa granted16

before 2 December 2013;17

(ii) a Temporary Safe Haven (Class UJ) visa;18

(iii) a Temporary (Humanitarian Concern) (Class UO) visa;19

(b) an applicant who did not hold a visa that was in effect on the20applicants last entry into Australia;21

(c) an applicant who is an unauthorised maritime arrival;22

(d) an applicant who was not immigration cleared on the23applicants last entry into Australia.24

When this regulation starts to apply25

(3) This regulation starts to apply in relation to a pre-conversion26application immediately after the occurrence of whichever of the27following events is applicable to the application:28

(a) if, before the commencement of this regulation, the Minister29had not made a decision in relation to the pre-conversion30application under section 65 of the Actthe commencement31of this regulation;32

(b) in a case in which the Minister had made such a decision33before the commencement of this regulationone of the34following events, if the event occurs on or after the35

commencement of this regulation:36


52/118





No. , 2014

(i) the Refugee Review Tribunal remits a matter in relation1to the pre-conversion application in accordance with2

paragraph 415(2)(c) of the Act;3

(ii) the Administrative Appeals Tribunal remits a matter in4relation to the pre-conversion application in accordance5with paragraph 43(1A)(c) of theAdministrative Appeals6Tribunal Act 1975(as substituted in relation to an7RRT-reviewable decision by section 452 of the Act);8

(iii) a court quashes a decision of the Minister in relation to9the pre-conversion application and orders the Minister10to reconsider the application in accordance with the law.11

Division 3Consequential amendments12


39 Regulation 2.06AA14

Repeal the regulation.15

40 Subregulation 2.07AQ(3) (table item 1, column headed16Criterion 2, paragraph (c))17

Omit ; or.18

41 Subregulation 2.07AQ(3) (table item 1, column headed19Criterion 2, paragraph (d))20

Repeal the paragraph.21

42 Subregulation 2.07AQ(3) (table item 2, column headed22Criterion 1)23

Omit Protection (Class XA), substitute protection.24

43 Subregulation 2.07AQ(3) (table item 2, column headed25Criterion 2)26

After item1,, insert or a Subclass 785 (Temporary Protection) visa27granted before9 August 2008,.28


53/118





47

44 Subregulation 2.07AQ(5)1

Omit Protection (Class XA) (wherever occurring), substitute2

protection.3

45 Subregulation 2.07AQ(7)4

After Subclass 785 (Temporary Protection) visa, insert granted5

before 9 August 2008.6

46 Subregulation 2.43(3) (paragraph (i) of the definition of7relevant vis a)8


(i) Subclass 785, including a Subclass 785 visa granted before102 December 2013;11

47 Subitem 1127AA(3) of Schedule 1 (table item 1, column12

headed Criterion 1, paragraph (c))13

Omit ; or.14

48 Subitem 1127AA(3) of Schedule 1 (table item 1, column15headed Criterion 1, paragraph (d))16

Repeal the paragraph.17

49 Subitem 1127AA(3) of Schedule 1 (table item 2, column18headed Criterion 1)19

After item1,, insert or a Subclass 785 (Temporary Protection) visa20

granted before9 August 2008,.21

50 Subparagraphs 1302(3)(bb)(i) and (ii) of Schedule 122

After visa, insert , including a Subclass 785 (Temporary Protection)23

visa granted before 2 December 2013.24

51 Paragraphs 773.213(2)(zf) and (zfa) of Schedule 225

Repeal the paragraphs, substitute:26

(zf) protection visas (including Protection (Class AZ) visas, see27subsection 35A(5) of the Act);28


54/118





No. , 2014

52 Amendments of listed provisionsprotection visas1

The provisions listed in the following table are amended as set out in2the table.3

4

Amendments relating to protection visas

Item Provision Omit Substitute

1 Regulation 1.03

(paragraph (a) of the

definition of relative)

Protection (Class XA) protection

2 Paragraph 1.05A(2)(d) Protection (Class XA) protection

3 Paragraph 2.04(2)(a) Protection (Class XA) protection

4 Paragraph 2.12(1)(c) Protection (Class XA) protection visas

5 Regulation 2.20 Protection (Class XA)

(wherever occurring)

protection

6 Regulation 4.31A Protection (Class XA)


protection

7 Subregulation 4.33(1) Protection (Class XA) protection

8 Paragraph 010.211(4)(b) of

Schedule 2


9 Clause 010.611 of

Schedule 2

Protection (Class XA)


protection

10 Clause 020.611 of

Schedule 2

Protection (Class XA)


protection

11 Paragraph 030.612(a) of

Schedule 2


12 Paragraph 050.212(8)(c) of

Schedule 2


13 Paragraph 050.613A(1)(a)

of Schedule 2


14 Paragraph 050.614(1)(a) of

Schedule 2


15 Paragraph 051.611A(1)(a)

of Schedule 2



55/118





49

Division 4Amendments relating to application1


53 At the end of Schedule 133

Add:4

Part 50Amendments made by the Migration and5

Maritime Powers Legislation Amendment6

(Resolving the Asylum Legacy Caseload)7

Act 201489

5000 Operation of Divisions 1 and 3 of Part 4 of Schedule 210

The amendments of these Regulations made by Divisions 1 and 311of Part 4 of Schedule 2 to theMigration Legislation Amendment12(Resolving the Asylum Legacy Caseloa

asylum seeking bill

Documents