Migration Amendment (Transitioning TPV/SHEV Holders to Resolution of Status Visas) Regulations 2023, dated 9 February 2023 amend the Migration Regulations 1994 to amend criteria for making a valid application for the Subclass 851 Resolution of Status visa (RoS) by certain persons who hold or have held a Subclass 785 (Temporary Protection) visa TPV or a 790 (Safe Haven Enterprise) visa SHEV, as well as certain children born in Australia to those persons.
The instrument facilitates the transition to permanent residence of persons who arrived in Australia before the commencement date (TPV/SHEV transition day) and who applied for or obtained temporary protection in Australia through a Subclass 785 (Temporary Protection) visa or a Subclass 790 (Safe Haven Enterprise) visa. The instrument makes the following amendments:
Item 1
This item inserts the definition of TPV/SHEV transition day in regulation 1.03 of the Migration Regulations as the day that Schedule 1 to the Migration Amendment (Transitioning TPV/SHEV Holders to Resolution of Status Visas) Regulations 2023 commences (14 February 2023).
Item 2
It inserts regulation 2.08G which convert certain applications for Subclass 785 visas (TPV) and Subclass 790 visas (SHEV) into applications for a permanent visa, Subclass 851 (Resolution of Status) visa.
The cohort of people for whom the visas are converted and the time when the visas are converted are mentioned in the table within the instrument:
- Table item 1
It includes the applications by applicants who hold a TPV or a SHEV on the TPV/SHEV transition day (14 February 2023) and who have made a further application for a TPV or SHEV which is pending before Minister on the TPV/SHEV transition day.
- Table item 2
It includes the applications by applicants who hold a TPV or a SHEV on the TPV/SHEV transition day (14 February 2023) and who have made a further application for a TPV or SHEV which had been refused by the Minister before the TPV/SHEV transition day. In this case, the application is only converted to a RoS application if the applicant is successful in a challenge to the refusal decision at merits review or judicial review and the application is remitted to the Minister after the order of the tribunal or court on or after the TPV/SHEV transition day.
- Table item 3
It deals with the applicant who does not hold or have held TPV or SHEV which means they are first time applicants for the TPV or SHEV, in cases where the Minister has not made a decision on the application before the TPV/SHEV transition day (14 February 2023). The applications will be converted to RoS applications if the Minister makes a record that the applicant satisfies the criteria for the grant of the Subclass 785 (Temporary Protection) visa; or Subclass 790 (Safe Haven Enterprise) visa.
- Table item 4
It covers the applications by applicants who are first time applicants for the TPV or SHEV, in cases where the Minister decided to refuse to grant the visa before the TPV/SHEV transition day. In this case, the application is only converted to a RoS application if the applicant is successful in a challenge to the refusal decision at merits review or judicial review and the application is remitted to the Minister after the order of the tribunal or court on or after the TPV/SHEV transition day and the Minister makes a record that the applicant satisfies the criteria for the grant of the Subclass 785 (Temporary Protection) visa; or Subclass 790 (Safe Haven Enterprise) visa.
Item 3
This item amends the application validity requirement for the RoS visa as set out in item 1127AA of Schedule 1 to the Migration Regulations, imposed pursuant to section 46 (authorising criteria and requirements to make a valid application for a visa) of the Migration Act. The following applicants can make an application for the RoS visa:
- Table item 4
It covers the applicants who hold a TPV or a SHEV and first entered Australia before the TPV/SHEV transition day (14 February 2023) and the applicant has not made another valid application for a TPV or a SHEV that has not been finally determined.
- Table Item 5
It deals with applicants who did not hold a TPV or SHEV on the TPV/SHEV transition day (14 February 2023) and at any time before the TPV/SHEV transition day, the applicant held a TPV or SHEV and the TPV or SHEV most recently held by the applicant was not cancelled and no subsequent application for a TPV or SHEV has been refused and finally determined.
- Table Item 6
It covers applicants who are children born in Australia to persons covered by table items 4 and 5 provided that at the time of application for a RoS visa, the applicant has not made a valid application for a TPV or a SHEV that has not been finally determined.
- Table Item 7
It deals with applicants who are children born in Australia to persons who hold RoS visas granted on the basis of an application taken to have been made under new regulation 2.08G, provided that at the time of application for a RoS visa, the applicant has not made a valid application for a TPV or a SHEV that has not been finally determined.
The VAC for all these applicants is nil.
Items 5 and 7
Items 5 & 7 inserts new paragraphs 1403(3)(ba) and 1404(3)(ba) in Schedule 1 to the Migration Regulations which specifies that a valid application for a TPV or SHEV can only be made by a person who first entered Australia on or after the TPV/SHEV transition day, or who entered before that day and, as at the TPV/SHEV transition day, had not made a TPV or SHEV application, or had made an application that had been finally determined and was not subject to any ongoing judicial review. This amendment is consistent with the policy of transitioning all eligible persons to permanent residence via the RoS visa if they arrived before the TPV/SHEV transition day.
Item 9 & 11
Item 9 & 11 insert references to a RoS visa having been granted to a member of the same family unit as the applicant.
Items 10 & 12
The TPV is valid for three years and the SHEV is valid for five years unless the holder applies for a subsequent TPV or SHEV where the duration of the visa is extended. In that situation, the visa can continue beyond the period for which it was originally granted and will cease when the subsequent application is withdrawn or otherwise at the end of 35 days after the application is finally determined. This enables the TPV or SHEV holder to remain a lawful non-citizen during the processing of the subsequent application.
The amendments made by item 10 and 12 provides similar arrangements in cases where the TPV or SHEV holder applies, or is taken to have applied, for the RoS visa. It will allow applicants for the RoS to continue to reside as a lawful non-citizen on the TPV or SHEV during the processing of the RoS application.
Item 13, 14,15, 16 & 17
These items modify certain health criteria for the grant of a RoS visa. These amendments specifies that the applicant is not required to undergo the medical examination (Clause 851.221) or chest x-ray (Clause 851.222, if the Minister is satisfied that it would be unreasonable to do so.
Item 18
Item 18 outlines the operation of the amendments made by the Instrument in Part 1 of Schedule 1 to the Migration Amendment (Transitioning TPV/SHEV Holders to Resolution of Status Visas) Regulations 2023 and specifies the following:
- The amendments made by items 5 to 8 and 13 to 17 apply in relation to an application for a visa made, or taken to have been made, on or after the commencement of those items
- The amendments made by items 9 and 11 apply in relation to an application for a visa made, or taken to have been made, before, on or after the commencement of those items.
- The amendments made by items 10 and 12 apply in relation to a visa granted before, on or after the commencement of those items.
The instrument is registered on the Federal Register of Legislation on 13 February 2023 and commenced on 14 February 2023. It is currently in force.
To access the instrument, click here.
