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Protection visas: family-derived applicants must apply before the family visa holder’s grant

Validated finding · five-country-2010-20260922-v118-evidence-presentation-fix

CountryAustralia
Operative dateApril 18, 2015
CategoryAsylum or protection
Policy toolEligibility
Affected groupFamily-unit applicants for a protection visa on section 36(2)(b) or (c) grounds

Policy effect

From April 18, 2015, new section 91WB barred granting a protection visa on the family-unit criteria in section 36(2)(b) or (c) unless the family applicant applied before the family visa holder was granted a protection visa. It applies to a non-citizen in Australia applying for a protection visa who belongs to the same family unit as a person already granted a protection visa. The referenced criteria concern family membership of a person satisfying the refugee or complementary-protection criterion who holds a protection visa of the same class sought by the applicant. These family-unit criteria already existed; section 91WB added the express application-before-grant restriction. The provision applied to applications made on or after April 18 and earlier applications not finally determined on that date. Its prohibition concerns grants on the two family-derived criteria; it does not itself prohibit an applicant from satisfying an independent protection criterion. Other protection-visa requirements continue to apply.

Conditions and exceptions

Validated condition or limit: From April 18, 2015, new section 91WB barred granting a protection visa on the family-unit criteria in section 36(2)(b) or (c) unless the family applicant applied before the family visa holder was granted a protection visa.; section 91WB added the express application-before-grant restriction.; The provision applied to applications made on or after April 18 and earlier applications not finally determined on that date.

Official source excerpt

Quoted verbatim from the official source below. Ellipses indicate omitted text.

Migration Amendment (Protection and Other Measures) Act 2015 No. 35, 2015 An Act to amend the Migration Act 1958, and for related purposes Note: An electronic version of this Act is available in ComLaw (http://www.comlaw.gov.au/) ComLaw Authoritative Act C2015A00035 Contents 1 Short title ........................................................................................... 1 2 Commencement ................................................................................. 2 3 Schedule(s) ........................................................................................ 3 Schedule 1—Protection visas 4 Part 1—Amendments commencing on day after Royal Assent 4 Migration Act 1958 4 Part 2—Amendments commencing on Proclamation 5 Migration Act 1958 5 Part 3—Application 9 Schedule 3—Unauthorised maritime arrivals and transitory persons 10 Part 1—Amendments 10 Migration Act 1958 10 Part 2—Application and transitional 13 Schedule 4—Migration Review Tribunal and Refugee Review Tribunal 15 Part 1—Amendments 15 Migration Act 1958 15 Part 2—Application 32 Schedule 5—Technical corrections 33 Counter-Terrorism Legislation Amendment (Foreign Fighters) Act 2014 33 Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 33 No. 35, 2015 Migration Amendment (Protection and Other Measures) Act 2015 i ComLaw Authoritative Act C2015A00035 Migration Amendment (Protection and Other Measures) Act 2015 No. 35, 2015 An Act to amend the Migration Act 1958, and for related purposes [Assented to 13 April 2015] The Parliament of Australia enacts: 1 Short title This Act may be cited as the Migration Amendment (Protection and Other Measures) Act 2015. No. 35, 2015 Migration Amendment (Protection and Other Measures) Act 2015 1 ComLaw Authoritative Act C2015A00035 2 Commencement (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms. Commencement information Column 1 Column 2 Column 3 Provision(s) Commencement Date/Details 1. Sections 1 to 3 The day this Act receives the Royal Assent. 13 April 2015 and anything in this Act not elsewhere covered by this table 2. Schedule 1, The day after this Act receives the Royal 14 April 2015 Part 1 Assent. 3. Schedule 1, A single day to be fixed by Proclamation. 18 April 2015 Part 2 However, if the provision(s) do not (F2015L00541) commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period. 4. Schedule 1, The day after this Act receives the Royal 14 April 2015 Part 3 Assent. 9. Schedule 3 A single day to be fixed by Proclamation. 18 April 2015 However, if the provision(s) do not (F2015L00541) commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period. 10. Schedule 4 A single day to be fixed by Proclamation. 18 April 2015 However, if the provision(s) do not (F2015L00541) commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period. 11. Schedule 5 The day after this Act receives the Royal 14 April 2015 Assent. 2 Migration Amendment (Protection and Other Measures) Act 2015 No. 35, 2015 ComLaw Authoritative Act C2015A00035 Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act. (2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act. 3 Schedule(s) Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms. No. 35, 2015 Migration Amendment (Protection and Other Measures) Act 2015 3 ComLaw Authoritative Act C2015A00035 Schedule 1 Protection visas Part 1 Amendments commencing on day after Royal Assent Schedule 1—Protection visas Part 1—Amendments commencing on day after Royal Assent Migration Act 1958 1 After section 5 Insert: 5AAA Non-citizen’s responsibility in relation to protection claims (1) This section applies in relation to a non-citizen who claims to be a person in respect of whom Australia has protection obligations (however arising). (2) For the purposes of this Act, it is the responsibility of the non-citizen to specify all particulars of his or her claim to be such a person and to provide sufficient evidence to establish the claim. (3) The purposes of this Act include: (a) the purposes of a regulation or other instrument under this Act; and (b) the purposes of any administrative process that occurs in relation to: (i) this Act; or (ii) a regulation or instrument under this Act. (4) To remove doubt, the Minister does not have any responsibility or obligation to: (a) specify, or assist in specifying, any particulars of the non-citizen’s claim; or (b) establish, or assist in establishing, the claim. 4 Migration Amendment (Protection and Other Measures) Act 2015 No. 35, 2015 ComLaw Authoritative Act C2015A00035 Protection visas Schedule 1 Amendments commencing on Proclamation Part 2 Part 2—Amendments commencing on Proclamation Migration Act 1958 2 Subsection 5(1) Insert: bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that: (a) purports to have been, but was not, issued in respect of the person; or (b) is counterfeit or has been altered by a person who does not have authority to do so; or (c) was obtained because of a false or misleading statement, whether or not made knowingly. 3 Subparagraph 65(1)(a)(iii) After “section 40 (circumstances when granted),”, insert “91W ( …
Australian Federal Register of LegislationMigration Amendment (Protection and Other Measures) Act 2015, Schedule 1 Part 2 item 11 and Part 3 item 15(3); Migration Act 1958 sections 36 and 91WB; F2015L00541Open official source
Retrieved from https://www.legislation.gov.au/C2015A00035/asmade/2015-04-13/text/original/pdf

Review method

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Other Australia changes operative in 2015