Commonwealth Consolidated Acts Commonwealth Consolidated ActsSituation in which conversion regulation can be made
(1) This section applies if:
(a) a person has made a valid application (a pre - conversion application ) for a visa (a pre - conversion visa ) of a particular class; and
(b) the pre - conversion visa has not been granted to the person, whether or not a migration decision has been made in relation to the pre - conversion application; and
(c) since the application was made, one or more of the following events has occurred:
(i) the requirements for making a valid application for that class of visa change;
(ii) the criteria for the grant of that class of visa change;
(iii) that class of visa ceases to exist; and
(d) had the application been made after the event (or events) occurred, because of that event (or those events):
(i) the application would not have been valid; or
(ii) that class of visa could not have been granted to the person.
(2) To avoid doubt, under subsection (1) this section may apply in relation to:
(a) classes of visas, including protection visas and any other classes of visas provided for by this Act or the regulations; and
(b) classes of applicants, including applicants having a particular status; and
(c) applicants for a visa who are taken to have applied for the visa by the operation of this Act or the regulations.
Example: If a non - citizen applies for a visa, and then, before the application is decided, gives birth to a child, in some circumstances the child is taken, by the operation of the regulations, to have applied for a visa of the same class at the time the child is born (see regulation 2.08).
Conversion regulation
(3) For the purposes of this Act, a regulation (a conversion regulation ) may provide that, despite anything else in this Act, the pre - conversion application for the pre - conversion visa:
(a) is taken not to be, and never to have been, a valid application for the pre - conversion visa; and
(b) is taken to be, and always to have been, a valid application (a converted application ) for a visa of a different class (specified by the conversion regulation) made by the applicant for the pre - conversion visa.
Note: This section may apply in relation to a pre - conversion application made before the commencement of the section (see the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 ).
For example, a conversion regulation (made after the commencement of this section) could have the effect that a pre - conversion application for a particular type of visa made on 1 August 2014 (before that commencement):
(a) is taken not to have been made on 1 August 2014 (or ever); and
(b) is taken to be, and always to have been, a converted application for another type of visa made on 1 August 2014.
(4) Without limiting subsection (3), a conversion regulation may:
(a) prescribe a class or classes of pre - conversion visas; and
(b) prescribe a class of applicants for pre - conversion visas; and
(c) prescribe a time (the conversion time ) when the regulation is to start to apply in relation to a pre - conversion application, including different conversion times depending on the occurrence of different events.
Visa application charge
(5) If an amount has been paid as the first instalment of the visa application charge for a pre - conversion application, then, at and after the conversion time in relation to the application:
(a) that payment is taken not to have been paid as the first instalment of the visa application charge for the pre - conversion application; and
(b) that payment is taken to be payment of the first instalment of the visa application charge for the converted application, even if the first instalment of the visa application charge that would otherwise be payable for the converted application is greater than the actual amount paid for the first instalment of the visa application charge for the pre - conversion application; and
(c) in a case in which the first instalment of the visa application charge payable for the converted application is less than the actual amount paid for the first instalment of the visa application charge for the pre - conversion application, no refund is payable in respect of the difference only for that reason.
Note: For the visa application charge, see sections 45A, 45B and 45C.
Effect on bridging visas
(6) For the purposes of this Act, if, immediately before the conversion time for a pre - conversion application, a person held a bridging visa because the pre - conversion application had not been finally determined, then, at and after the conversion time, the bridging visa has effect as if it had been granted because of the converted application.
(7) For the purposes of this Act, if, immediately before the conversion time for a pre - conversion application, a person had made an application for a bridging visa because of the pre - conversion application, but the bridging visa application had not been finally determined, then, at and after the conversion time:
(a) the bridging visa application is taken to have been applied for because of the converted application; and
(b) the bridging visa (if granted) has effect as if it were granted because of the converted application.
Note: This Act and the regulations would apply to a bridging visa to which subsection (6) or (7) applies, and to when the bridging visa would cease to have effect, in the same way as this Act and the regulations would apply in relation to any bridging visa.
For example, such a bridging visa would generally cease to be in effect under section 82 if and when the substantive visa is granted because of the converted application.
Conversion regulation may affect accrued rights etc.
(8) To avoid doubt:
(a) subsection 12(2) (retrospective application of legislative instruments) of the Legislation Act 2003 does not apply in relation to the effect of a conversion regulation (including a conversion regulation enacted by the Parliament); and
(b) subsection 7(2) of the Acts Interpretation Act 1901 , including that subsection as applied by section 13 of the Legislation Act 2003 , does not apply in relation to the enactment of this section or the making of a conversion regulation (including a conversion regulation enacted by the Parliament).