‘The instrument ensures that a person cannot be included in the definition of “fast track applicant” if their application for a protection visa was made before the commencement of the instrument (2 April 2019)’
The Migration (Fast Track Applicant Class – Temporary Protection and Safe Haven Enterprise Visa Holders) Instrument 2019 will commence on 2 April 2019 and its explanatory statement includes the following passages:
- Instrument LIN 19/007 is made under paragraph 5(1AA)(b) of the Migration Act 1958 (the Act) for paragraph (b) of the definition of fast track applicant in subsection 5(1) of the Act.
- The instrument operates to specify a class of persons who are “fast track applicants”. The specification will become relevant if a person in that class of persons makes an application for a protection visa, as they will be subject to the processing of their protection visa and any available review rights as a fast trackapplicant. A “protection visa” is defined to mean the visa classes provided for in section 35A of the Act, which includes all permanent protection visas and temporary protection visas, including safe haven enterprise visas.
- The effect of the instrument is to include in the definition of a “fast track applicant” the class of persons specified in this instrument.
- A person is included in this class of persons if the person holds, or last held, a Subclass 785 (Temporary Protection) visa or a Subclass 790 (Safe Haven Enterprise) visa, and the person makes an application, on or after 2 April 2019, for a protection visa. A person who is the holder of a Temporary Protection visa (TPV) or Safe Haven Enterprise visa (SHEV), or whose last substantive visa was a TPV or SHEV, can only apply for a further TPV or SHEV and is not able to make a valid application for a permanent protection visa.
- The instrument ensures that a person cannot be included in the definition of “fast track applicant” if their application for a protection visa was made before the commencement of the instrument (2 April 2019).
- Any person who makes, or is taken to have made, a valid application for a protection visa that is combined with an application made by a person who is a fast track applicant mentioned above, is also a fast track applicant under this instrument.
- A person is also a fast track applicant if they are the child of a person who is a fast track applicant mentioned above, and if they are born and apply for a protection visa after their parent’s protection visa application has been finally determined. Under the Act, relevantly, an application for a visa is “finally determined” when a decision that has been made in respect of the application is no longer subject to merits review.
- It is the intention of the instrument to ensure that a person who is included in these classes of person, who makes an application for a protection visa, will be classified as a fast track applicant and a decision to refuse to grant a protection visa to that person will, subject to certain exceptions, be a fast track decision as defined in subsection 5(1) of the Act. The class of persons includes any person who holds a TPV or SHEV and who applies for a further protection visa, including both illegal maritime arrivals and unauthorised air arrivals. The purpose of this instrument is to ensure that all subsequent TPV and SHEV applicants are processed under the fast track arrangements, to ensure consistency in both processes and outcomes.
- The instrument meets the intention of paragraph (b) of the definition of fast track applicant in subsection 5(1) to give the Minister the flexibility and ability to include in the definition of fast track applicant, by way of a legislative instrument, persons other than those specified in paragraph (a) of the definition. Paragraph 5(1AA)(b) of the Act enables the Minister to make a legislative instrument for the purposes of paragraph (b) of the definition.
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