Migration Amendment (Resolution of Status Visa) Regulations 2023

Schedule 1 to the Amendment Regulations

On 14 February 2023, the Migration Amendment (Transitioning TPV/SHEV Holders to Resolution of Status Visas) Regulations 2023(the Transition Regulations)amended the Migration Regulations 1994 (the Migration Regulations) to facilitate the transition to permanent residence of persons who arrived in Australia before the TPV/SHEV transition day (14 February 2023) and who applied for or obtained temporary protection in Australia through a Subclass 785 (Temporary Protection) visa (TPV) or a Subclass 790 (Safe Haven Enterprise) visa (SHEV).

In general terms, the effect of the Transition Regulations is that:

–           persons who have an unresolved TPV or SHEV application on the TPV/SHEV transition day are to have that application automatically converted to an application for a Subclass 851 Resolution of Status visa (RoS visa), which is a permanent visa; and

–           persons who hold or held a TPV or a SHEV that was not subsequently cancelled, as well as children born in Australia to those persons, are able to make an application for the RoS visa by completing the relevant application form.

Subsequent to the commencement of the Transition Regulations, it was identified that further amendments were required to address gaps in the legislative scheme, to ensure that all intended eligible persons are covered. Schedule 1 to the Amendment Regulations makes the necessary amendments. The amendments make provision for the following groups of applicants:

–                     persons who held a TPV or SHEV on the TPV/SHEV transition day, but who failed to apply for a RoS visa before their TPV or SHEV ceased, who were previously unable to apply for a RoS visa;

–                     initial TPV or SHEV applicants (who do not have their own claims for protection, but are a family member of a person who does) who were previously unable to have their TPV or SHEV application converted to a RoS visa application if the family member is found to engage protection obligations;

–                     persons who did not hold a TPV or SHEV on the TPV/SHEV transition day, but who had held a TPV or SHEV before that day, who were previously unable to have their TPV or SHEV application converted to a RoS visa application; and

–                     persons who have previously made a valid application for a TPV or SHEV which was finalised, but who have never held a TPV or SHEV, and who were previously unable to have the current TPV or SHEV application converted to a RoS visa application.

Schedule 2 to the Amendment Regulations

Schedule 2 to the Amendment Regulations inserts new time-of-decision criteria in the RoS visa to allow the Minister to investigate and respond to identity related concerns. These criteria will apply in cases where the identity of the applicant for the RoS visa requires further investigation. In the context of the transition to permanent residence, the intention is to take action prior to the grant of permanent residence to resolve, as far as possible, any doubts that may exist in relation to an applicant’s identity. This will facilitate the applicant’s future dealings with the Australian Government in relation to such matters as acquisition of Australian citizenship and an Australian passport.

The new criteria are also an important integrity measure, with the following features:

–             clause 851.228 of Schedule 2 to the Migration Regulations – the RoS visa application must be refused in cases where an invitation to give identity information is issued, and the applicant either does not provide the requested information, or provides a bogus document or false or misleading information (and does not have a reasonable explanation for doing so and does not take reasonable steps to provide the information); and  

–             clause 851.229 of Schedule 2 to the Migration Regulations – in cases where there are substantial concerns with previous identity findings (e.g. the applicant has falsely claimed to be from a particular country and this was accepted by a previous decision-maker) the applicant will only be eligible for the grant of the RoS visa if the applicant would be eligible for a protection visa, or if there are compassionate or compelling circumstances for granting the RoS visa, or if the applicant is a family member of a person who holds a RoS visa;

–             clause 851.229 has the effect that the additional criteria only need to be considered if the Minister is satisfied that there are substantial identity-related concerns. This term is not defined. The intention is to limit the application of the additional visa criteria to serious or substantial cases, where an identity was contrived for the purpose of qualifying for a TPV or SHEV. A finding about this issue will depend on an evaluation of the facts of each case.

The new criteria have been inserted in recognition of the importance of a clearly established and recorded identity for persons who, in many cases, arrived in Australia without any identity documentation, and who are now progressing to permanent residence and potentially Australian citizenship. The criteria also reflect the legitimate concern of the Australian government to detect and deter fraud by visa applicants. Balanced with these factors is a recognition that this cohort of RoS visa applicants have now lived in Australia for several years and the government is committed to resolution of their status. In particular, it is accepted that, in many cases, asylum seekers have difficulty in providing appropriate evidence of identity and may have legitimate reasons, at least initially, for disguising their identity. While the benefit of the doubt must go to asylum seekers in this situation, ongoing identity fraud by a visa applicant is not acceptable. The Department of Home Affairs has identified numerous instances of suspected identity fraud in this caseload.

The matters dealt with in the Amendment Regulations are appropriate for implementation in regulations rather than by Parliamentary enactment. It has been the consistent practice of the Government of the day to provide for detailed visa criteria and conditions in the Migration Regulations rather than in the Migration Act itself. The Migration Act expressly provides for these matters to be prescribed in regulations, as can be seen in the authorising provisions. Providing for these details to be in delegated legislation rather than primary legislation gives the Government the ability to effectively manage the operation of Australia’s visa program and respond quickly to emerging needs.

Written by Ross Ahmadzai

18 Oct, 2023

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