Commonwealth Consolidated Acts

MIGRATION AND MARITIME POWERS LEGISLATION AMENDMENT (RESOLVING THE ASYLUM LEGACY CASELOAD) ACT 2014 - SCHEDULE 3

Part   1 -- Amendment of the Migration Act 1958

Division   1--Amendments

Migration Act 1958

1   After subsection   31(3)

Insert:

  (3A)   To avoid doubt, subsection   (3) does not require criteria to be prescribed for a visa or visas including, without limitation, visas of the following classes:

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

  (b)   permanent protection visas (see subsection   35A(2));

  (c)   temporary protection visas (see subsection   35A(3));

  (d)   bridging visas (see section   37);

  (e)   temporary safe haven visas (see section   37A);

  (f)   maritime crew visas (see section   38B).

Note 1:   An application for any of these visas is invalid if criteria relating to both the application and the grant of the visa have not been prescribed (see subsection   46AA(2)).

Note 2:   If criteria are prescribed by the regulations for any of these visas, the visa cannot be granted unless any criteria prescribed by this Act, as well as any prescribed by regulation, are satisfied (see subsection   46AA(4)).

2   Before subsection   46(1)

Insert:

Validity--general

3   Paragraph   46(1)(d)

Repeal the paragraph, substitute:

  (d)   it is not prevented by any provision of this Act, or of any other law of the Commonwealth, including, without limitation, the following provisions of this Act:

  (i)   section   48 (visa refused or cancelled earlier);

  (ii)   section   48A (protection visa refused or cancelled earlier);

  (iii)   section   161 (criminal justice visa holders);

  (iv)   section   164D (enforcement visa holders);

  (v)   section   195 (detainee applying out of time);

  (vi)   section   501E (earlier refusal or cancellation on character grounds); and

  (e)   it is not invalid under any provision of this Act, or of any other law of the Commonwealth, including, without limitation, the following provisions of this Act:

  (i)   section   46AA (visa applications, and the grant of visas, for some Act - based visas);

  (ii)   section   46A (visa applications by unauthorised maritime arrivals);

  (iii)   section   46B (visa applications by transitory persons);

  (iv)   section   91E or 91G (CPA and safe third countries);

  (v)   section   91K (temporary safe haven visas);

  (vi)   section   91P (non - citizens with access to protection from third countries).

4   Before subsection   46(2A)

Insert:

Provision of personal identifiers

5   Before subsection   46(3)

Insert:

Prescribed criteria for validity

6   At the end of section   46

Add:

  (5)   To avoid doubt, subsections   (3) and (4) do not require criteria to be prescribed in relation to the validity of visa applications, including, without limitation, applications for visas of the following classes:

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

  (b)   permanent protection visas (see subsection   35A(2));

  (c)   temporary protection visas (see subsection   35A(3));

  (d)   bridging visas (see section   37);

  (e)   temporary safe haven visas (see section   37A);

  (f)   maritime crew visas (see section   38B).

7   After section   46

Insert:

46AA   Visa applications, and the grant of visas, for some Act - based visas

Visa classes covered by this section

  (1)   The following classes of visas are covered by this section:

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

  (b)   permanent protection visas (see subsection   35A(2));

  (c)   temporary protection visas (see subsection   35A(3));

  (d)   bridging visas (see section   37);

  (e)   temporary safe haven visas (see section   37A);

  (f)   maritime crew visas (see section   38B).

Applications invalid if no prescribed criteria

  (2)   An application for a visa of any of the classes covered by this section is invalid if, when the application is made, both of the following conditions are satisfied:

  (a)   there are no regulations in effect prescribing criteria that must be satisfied for a visa of that particular class to be a valid application;

  (b)   there are no regulations in effect prescribing criteria that must be satisfied for a visa of that particular class to be granted.

Note:   This subsection does not apply if regulations are in effect prescribing criteria mentioned in paragraph   (a) or (b) (or both) for a visa.

  (3)   The criteria mentioned in subsection   (2) do not include prescribed criteria that apply generally to visa applications or the granting of visas.

Example:   The criteria mentioned in subsection   (2) do not include the criteria set out in regulation   2.07 of the Migration Regulations   1994 (application for visa--general).

Criteria in the Act and the regulations

  (4)   If regulations are in effect prescribing criteria mentioned in paragraph   (2)(a) or (b) (or both) for a visa of a class covered by this section:

  (a)   an application for the visa is invalid unless the application satisfies both:

  (i)   any applicable criteria under this Act that relate to applications for visas of that class; and

  (ii)   any applicable criteria prescribed by regulation that relate to applications for visas of that class; and

  (b)   the visa must not be granted unless the application satisfies both:

  (i)   any applicable criteria under this Act that relate to the grant of visas of that class; and

  (ii)   any applicable criteria prescribed by regulation that relate to the grant of visas of that class.

Note:   For visa applications generally, see section   46. For the grant of a visa generally, see section   65.

Division   2--Application

8   Application of amendments

The amendments of the Migration Act 1958 made by Division   1 apply in relation to an application for a visa made on or after the commencement of the amendments.

Part   2 -- Amendment of the Migration Regulations   1994

Migration Regulations   1994

9   Regulation   2.01 (heading)

Repeal the heading, substitute:

2.01   Classes of visas

Classes of visas prescribed by section   31 of the Act

10   Regulation   2.01

Before "For", insert "(1)".

11   Paragraph   2.01(a)

Omit "created by the Act", substitute "identified by an item in the table in subregulation   (2)".

12   Regulation   2.01 (note)

Repeal the note, substitute:

Classes of visas provided for by the Act

  (2)   A class of visas provided for by the Act that is identified by an item in the following table is classified under these Regulations, by Class and Subclass, as indicated in the item.

Note 1:   Subsection   35A(4) of the Act provides that additional classes of permanent and temporary visas may be prescribed as protection visas for the purposes of section   31.

Note 2:   For table items   4 - 12, section   37 provides that there are classes of temporary visas, to be known as bridging visas.