Section 36A — Migration Act 1958: Consideration of protection obligations

(1) In considering a valid application for a protection visa made by a non-citizen, the Minister must consider and make a record of whether the Minister is satisfied of any of the following: (a) the non-citizen satisfies the criterion in paragraph 36(2)(a) with respect to a country and also satisfies the criterion in subsection 36(1C); (b) the non-citizen satisfies the criterion in paragraph 36(2)(aa) with respect to a country; (c) the non-citizen: (i) satisfies the criterion in paragraph 36(2)(a) with respect to a country but does not satisfy the criterion in subsection 36(1C); and (ii) would satisfy the criterion in paragraph 36(2)(aa) with respect to a country except that the non-citizen is a non-citizen mentioned in paragraph 36(2)(a). (2) The Minister must do so: (a) before deciding whether to grant or refuse to grant the visa; and (b) before considering whether the non-citizen satisfies any other criteria for the grant of the visa; and (c) before considering whether the grant of the visa is prevented by any provision of the Act or regulations; and (d) without regard to subsections 36(2C) and (3). (3) Subsection (1) does not apply if: (a) the non-citizen (the family applicant) is a member of the same family unit as another non-citizen (the family visa holder) who holds a protection visa of the same class as the visa the family applicant is applying for; and (b) the family applicant’s application for a protection visa was made before the family visa holder was granted their visa; and (c) the family visa holder is a non-citizen mentioned in paragraph 36(2)(a) or (aa).