Migration Regulations 1994

For section 45AA of the Act, despite anything else in the Act, a valid application (a pre‑conversion application) for a Protection (Class XA) visa made before the commencement of this regulation by an applicant prescribed by subregulation (2) is, immediately after this regulation starts to apply in relation to the application under subregulation (3):

taken not to be, and never to have been, a valid application for a Protection (Class XA) visa; and

taken to be, and always to have been, a valid application for a Temporary Protection (Class XD) visa, made by the prescribed applicant.

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 Temporary Protection (Class XD) visa.

If the first instalment of visa application charge for the pre‑conversion application had been paid before this regulation starts to apply, the first instalment of visa application charge for an application for a Temporary Protection (Class XD) visa (if any) is taken to have been paid. See section 45AA of the Act.

The following are prescribed applicants:

an applicant who holds, or has ever held, any of the following visas:

a Subclass 785 (Temporary Protection) visa granted before 2 December 2013;

a Temporary Safe Haven (Class UJ) visa;

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

an applicant who did not hold a visa that was in effect on the applicant’s last entry into Australia;

an applicant who is an unauthorised maritime arrival;

an applicant who was not immigration cleared on the applicant’s last entry into Australia.

This regulation starts to apply in relation to a pre‑conversion application immediately after the occurrence of whichever of the following events is applicable to the application:

if, before the commencement of this regulation, the Minister had not made a decision in relation to the pre‑conversion application under section 65 of the Act—the commencement of this regulation;

in a case in which the Minister had made such a decision before the commencement of this regulation—one of the following events, if the event occurs on or after the commencement of this regulation:

the Administrative Appeals Tribunal remits a matter in relation to the pre‑conversion application in accordance with paragraph 415(2)(c) of the Act as in force when the matter is remitted;

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 as in force when the matter is remitted;

the ART remits a matter in relation to the pre‑conversion application in accordance with subsection 349(2) of the Act;

the ART remits a matter in relation to the pre‑conversion application in accordance with paragraph 105(c) of the ART Act;

a court orders the Minister to reconsider the pre‑conversion application in accordance with the law;

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;

a court quashes a decision of the Minister in relation to the pre‑conversion application.

To avoid doubt, for the purposes of subregulation (3), 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 16 December 2014:

the Minister had made a decision in relation to the pre‑conversion application under section 65 of the Act; and

one of the following events occurred after the Minister made that decision:

the Refugee Review Tribunal remitted a matter in relation to the pre‑conversion application in accordance with paragraph 415(2)(c) of the Act as in force when the matter was remitted;

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 as in force when the matter was remitted;

a court ordered the Minister to reconsider the pre‑conversion application in accordance with the law;

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;

a court quashed a decision of the Minister in relation to the pre‑conversion application; and

after the occurrence of the event mentioned in paragraph (b), the Minister had not made another decision in relation to the pre‑conversion application.

This regulation commenced on 16 December 2014.