Regulation 2.20 — Eligible non-citizen (Act, s 72)

2.20 Eligible non-citizen (Act, s 72)

(1) For the purposes of the definition of eligible non-citizen in section 72 of the Act (which deals with persons eligible to be granted a bridging visa), the classes of persons described in subregulations (6) to (12) and (14) to (19) are prescribed.

(6) This subregulation applies to a non-citizen who:

(a) either:

(i) bypassed immigration clearance on or after 1 September 1994 and has not subsequently been granted a substantive visa; or

(ii) entered Australia without authority before 1 September 1994 and has not subsequently been granted a substantive visa or entry permit; and

(d) has not come to the notice of Immigration as an illegal entrant or an unlawful non-citizen within 45 days of entering Australia.

(6A) This subregulation applies to a non-citizen who:

(a) last held a student visa that was cancelled under section 137J of the Act; and

(b) has been refused immigration clearance.

(7) This subregulation applies to a non-citizen:

(a) who:

(i) was refused immigration clearance; or

(ii) bypassed immigration clearance and came to the notice of Immigration as an unlawful non-citizen within 45 days of entering Australia; and

(b) if:

(i) the non-citizen made a protection visa application that is not finally determined; or

(ii) the non-citizen applied for judicial review of a decision to refuse a protection visa; or

(iii) the Minister has applied for judicial review of a decision in relation to the non-citizen’s protection visa application; and

(c) who has not turned 18; and

(d) in respect of whom a child welfare authority of a State or Territory has certified that release from detention is in the best interests of the non-citizen; and

(e) in respect of whom the Minister is satisfied that:

(i) arrangements have been made between the non-citizen and an Australian citizen, Australian permanent resident or eligible New Zealand citizen for the care and welfare of the non-citizen; and

(ii) those arrangements are in the best interests of the non-citizen; and

(iii) the grant of a visa to the non-citizen would not prejudice the rights and interests of any person who has, or may reasonably be expected to have, custody or guardianship of, or access to, the non-citizen.

(8) This subregulation applies to a non-citizen:

(a) who:

(i) was refused immigration clearance; or

(ii) bypassed immigration clearance and came to the notice of Immigration as an unlawful non-citizen within 45 days of entering Australia; and

(b) if:

(i) the non-citizen made a protection visa application that is not finally determined; or

(ii) the non-citizen applied for judicial review of a decision to refuse a protection visa; or

(iii) the Minister has applied for judicial review of a decision in relation to the non-citizen’s protection visa application; and

(c) who has turned 75; and

(d) in respect of whom the Minister is satisfied that adequate arrangements have been made for his or her support in the community.

(9) This subregulation applies to a non-citizen:

(a) who:

(i) was refused immigration clearance; or

(ii) bypassed immigration clearance and came to the notice of Immigration as an unlawful non-citizen within 45 days of entering Australia; and

(b) if:

(i) the non-citizen made a protection visa application that is not finally determined; or

(ii) the non-citizen applied for judicial review of a decision to refuse a protection visa; or

(iii) the Minister has applied for judicial review of a decision in relation to the non-citizen’s protection visa application; and

(c) who has a special need (based on health or previous experience of torture or trauma) in respect of which a medical specialist appointed by Immigration has certified that the non-citizen cannot properly be cared for in a detention environment; and

(d) in respect of whom the Minister is satisfied that adequate arrangements have been made for his or her support in the community.

(10) This subregulation applies to a non-citizen:

(a) who:

(i) was refused immigration clearance; or

(ii) bypassed immigration clearance and came to the notice of Immigration as an unlawful non-citizen within 45 days of entering Australia; and

(b) if:

(i) the non-citizen made a protection visa application that is not finally determined; or

(ii) the non-citizen applied for judicial review of a decision to refuse a protection visa; or

(iii) the Minister has applied for judicial review of a decision in relation to the non-citizen’s substantive visa application; and

(c) who is the spouse or de facto partner of an Australian citizen, Australian permanent resident or eligible New Zealand citizen; and

(d) in relation to whom the Minister is satisfied that the non-citizen’s relationship with that Australian citizen, Australian permanent resident or eligible New Zealand citizen is genuine and continuing; and

(e) who is nominated by that Australian citizen, Australian permanent resident or eligible New Zealand citizen.

(11) This subregulation applies to a non-citizen who is a member of the family unit of a non-citizen to whom subregulation (10) applies.

(11A) This subregulation applies to a non-citizen if:

(a) the non-citizen is an unauthorised maritime arrival because of subsection 5AA(1A) of the Act (which is about a non-citizen born in the migration zone with a parent who is at the time of the birth an unauthorised maritime arrival because of subsection 5AA(1) of the Act); and

(b) a parent of the non-citizen is or was an eligible non-citizen. Note 1: A non-citizen born on or after the day this subregulation commences becomes an eligible non-citizen because of this subregulation:

(a) at birth, if at least one of his or her parents is an eligible non-citizen then or had been an eligible non-citizen before then; or

(b) at the time after birth when at least one of the non-citizen’s parents first becomes an eligible non-citizen, if none of the non-citizen’s parents was an eligible non-citizen before that time.

Note 2: A non-citizen who was born before the day this subregulation commences becomes an eligible non-citizen because of this subregulation:

(a) on that day, if at least one of his or her parents is an eligible non-citizen then or had been an eligible non-citizen before then; or

(b) at the time after that day when at least one of the non-citizen’s parents first becomes an eligible non-citizen, if none of the non-citizen’s parents was an eligible non-citizen before that time.

(12) This subregulation applies to a non-citizen if:

(a) the non-citizen is in immigration detention; and

(b) the Minister is satisfied that the non-citizen’s removal from Australia is not reasonably practicable at that time; and

(c) the Minister is satisfied that the non-citizen will do everything possible to facilitate the non-citizen’s removal from Australia; and

(e) any visa applications made by the non-citizen, other than an application made following the exercise of the Minister’s power under section 48B of the Act, have been finally determined.

(13) For paragraph (12)(b), a non-citizen’s removal from Australia is not to be taken to be not reasonably practicable only because the non-citizen is a party to proceedings in a court or tribunal related to an issue in connection with a visa.

(14) This subregulation applies to:

(a) a non-citizen:

(i) who is outside Australia; and

(ii) in relation to whom an officer of:

(A) the Australian Federal Police; or

(B) a police force of a State or Territory; or

(C) the office of the Director of Public Prosecutions of the Commonwealth, a State or a Territory; or

(D) a body of the Commonwealth, a State or a Territory that has functions similar to those of an office of a Director of Public Prosecutions;

has told Immigration in writing that:

(E) the non-citizen has been identified as a suspected victim of human trafficking, slavery or slavery-like practices; and

(F) suitable arrangements have been made for the care, safety and welfare of the non-citizen in Australia for the proposed period of the bridging visa; and

(b) a non-citizen (a family member):

(i) who is outside Australia; and

(ii) who is a member of the immediate family of a non-citizen mentioned in paragraph (a); and

(iii) in relation to whom the Minister has been told in writing, by an officer of the authority that told Immigration for the purposes of paragraph (a), that suitable arrangements have been made for the care, safety and welfare of the family member in Australia for the proposed period of the bridging visa.

(15) This subregulation applies to:

(a) a non-citizen:

(i) who is in Australia; and

(ii) is the subject of a valid criminal justice stay certificate under Division 4 of Part 2 of the Act or an assistance notice that has not been revoked; and

(iii) whom the Minister is satisfied needs to travel outside Australia for compelling and compassionate reasons; and

(iv) in relation to whom an officer of:

(A) the Australian Federal Police; or

(B) a police force of a State or Territory; or

(C) the office of the Director of Public Prosecutions of the Commonwealth, a State or a Territory; or

(D) a body of the Commonwealth, a State or a Territory that has functions similar to those of an office of a Director of Public Prosecutions;

has told Immigration in writing that suitable arrangements have been made for the care, safety and welfare of the non-citizen in Australia for the proposed period of the bridging visa; and

(b) a non-citizen (a family member):

(i) who is a member of the immediate family of a non-citizen mentioned in paragraph (a); and

(ii) in relation to whom the Minister has been told in writing, by an officer of the authority that told Immigration for the purposes of subparagraph (a)(iv), that suitable arrangements have been made for the care, safety and welfare of the family member in Australia for the proposed period of the bridging visa.

(16) This subregulation applies to a non-citizen:

(a) who held an enforcement visa that has ceased to be in effect; and

(b) who is an unlawful non-citizen; and

(d) who is in criminal detention.

(17) This subregulation applies to a non-citizen if:

(a) the non-citizen is an unlawful non-citizen; and

(b) section 195A of the Act is not available to the Minister in relation to the grant of a visa to the non-citizen; and

(c) the Minister is satisfied that the non-citizen’s removal from Australia is not reasonably practicable at that time.

(18) This subregulation applies to a non-citizen if there is no real prospect of the removal of the non-citizen from Australia becoming practicable in the reasonably foreseeable future.

(19) This subregulation applies to a non-citizen if:

(a) the non-citizen is the holder of a Bridging R (Class WR) visa; and

(b) either:

(i) the visa was granted by the Minister under section 195A of the Act; or

(ii) if the non-citizen has previously held other Bridging R (Class WR) visas—the first of those visas was granted by the Minister under section 195A of the Act.