Amendments to Resolution of Status eligibility Migration Amendment (Resolution of Status Visa) Regulations 2023 – F2023L01393
This amendment provides further necessary amendments to the Migration Amendment (Transitioning TPV/SHEV Holders to Resolution of Status Visas) and the Migration Regulations to ensure all eligible persons are included in these provisions and inserts a new identity measure.
These current amendments make provisions for these groups:
- Persons who held a TPV or SHEV on the ‘TPV/SHEV transition day’ (14 February 2023), 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 - New integrity measures
Cl 851.228 – 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
Cl 851.229 – 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.
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. This additional criteria will 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.
This Instrument commences 19 October 2023.