Regulation 2.07AQ — Applications for Resolution of Status (Class CD) visas

2.07AQ Applications for Resolution of Status (Class CD) visas

(1) For subsection 46(2) of the Act, a Resolution of Status (Class CD) visa is a prescribed class of visa.

(2) An application for a Resolution of Status (Class CD) visa is taken to have been validly made by a person only if the requirements of subregulation (3) or item 1127AA of Schedule 1 have been met.

(3) The requirements of this subregulation are met for a person if the criteria set out in at least 1 of the items of the table are satisfied.

Item Criterion 1 Criterion 2 Criterion 3 Criterion 4 1 The person makes a valid The person holds: Nil Nil application for a (a) a Subclass 447 Protection (Class XA) (Secondary visa Movement Offshore Entry (Temporary)) visa; or

(b) a Subclass 451 (Secondary Movement Relocation (Temporary)) visa; or

(c) a Subclass 695 (Return Pending) visa

Item Criterion 1 Criterion 2 Criterion 3 Criterion 4 2 The person makes a valid The person held, but no The person: The person application for a longer holds, a visa of a (a) has not left does not hold protection visa kind mentioned in Australia; or a permanent criterion 2 of item 1, or (b) while holding a visa a Subclass 785 visa that permits (Temporary Protection) re-entry to visa granted before Australia, has left 9 August 2008, and the and re-entered visa was not cancelled Australia 3 The person holds: An offer of a permanent The person indicates The

(a) a Temporary Safe stay in Australia is to an authorised authorised Haven (Class UJ) made to the person by officer that he or she officer visa; or the Australian accepts the offer of a endorses, in

(b) a Temporary Government permanent stay in writing, the (Humanitarian Australia person’s Concern) (Class UO) acceptance of visa the offer

4 The person is a member An offer of a permanent The person indicates The of the family unit of a stay in Australia is to an authorised authorised person who is taken to made to the person by officer that he or she officer have made a valid the Australian accepts the offer of a endorses, in application as a result of Government permanent stay in writing, the satisfying the criteria in Australia person’s item 3 acceptance of the offer 5 The circumstance An offer of a permanent The person indicates The specified in subregulation stay in Australia is to an authorised authorised

(3A) exists for the person made to the person by officer that he or she officer the Australian accepts the offer of a endorses, in Government permanent stay in writing, the Australia person’s acceptance of the offer

(3A) The circumstance specified in this subregulation exists for a person if the Minister has issued a certificate stating that, by reason of the High Court’s decision in Love v Commonwealth; Thoms v Commonwealth (2020) 270 CLR 152:

(a) if the person is in the migration zone:

(i) the person has been released from immigration detention; or

(ii) the person has not been taken into immigration detention; or

(iii) the person, based on the information known to the Minister at the date of the certificate, will not be taken into immigration detention; or

(b) otherwise—the Minister is satisfied, based on the information known to the Minister at the date of the certificate, that the person could not be detained under section 189 of the Act if the person were in the migration zone.

(3B) The Minister, an officer of the Department or another person may collect, use and disclose personal information for the purposes of informing:

(a) a decision by the Minister whether to issue a certificate of the kind mentioned in subregulation (3A) in relation to a person; or

(b) a decision by the Australian Government whether or not to make an offer of a permanent stay in Australia to a person:

(i) in relation to whom the Minister has issued such a certificate; or

(ii) for whom, by reason of the High Court’s decision in Love v Commonwealth; Thoms v Commonwealth (2020) 270 CLR 152, the fact mentioned in subparagraph (3A)(a)(i) or (ii) exists.

(4) If:

(a) the application for the Resolution of Status (Class CD) visa is taken to have been validly made because the criteria in item 1 or 2 of the table in subregulation (3) have been satisfied; and

(b) the application for the Protection (Class XA) visa mentioned in the item was made before 9 August 2008;

the application is taken to have been made on 9 August 2008.

(5) If:

(a) the application for the Resolution of Status (Class CD) visa is taken to have been validly made because the criteria in item 1 or 2 of the table in subregulation (3) have been satisfied; and

(b) the application for the protection visa mentioned in the item is made on or after 9 August 2008;

the application is taken to have been made when the application for the protection visa is made.

(6) If the application for the Resolution of Status (Class CD) visa is taken to have been validly made because the criteria in item 3, 4 or 5 of the table in subregulation (3) have been satisfied, the application is taken to have been made when the authorised officer endorses the person’s acceptance of the offer as described in the item.

(7) Subregulation (2) applies whether or not the applicant holds, or held, a Subclass 447 (Secondary Movement Offshore Entry (Temporary)) visa, a Subclass 451 (Secondary Movement Relocation (Temporary)) visa, a Subclass 695 (Return Pending) visa or a Subclass 785 (Temporary Protection) visa granted before 9 August 2008 that is, or was, subject to a condition mentioned in paragraph 41(2)(a) of the Act relating to the making of applications for other visas.