Migration (Review) Regulations (Cth)
MIGRATION (REVIEW) REGULATIONS
- In force under the Migration Act 1958
- Reprinted as at 4 October 1991 (HISTREG CHAP 424 #DATE 04:10:1991)
- In force under the Migration Act 1958
- Reprinted as at 4 October 1991 (HISTREG CHAP 424 #DATE 04:10:1991)
*1*The Migrant (Review) Regulations (in force under the Migration Act 1958) as shown in this reprint comprise Statutory Rules 1989 No. 412 amended as indicated in the Tables below.
Year and Date of Date of Application,
number notification commencement saving or
in Gazette transitional
provisions
1989 No. 412 21 Dec 1989 21 Dec 1989
1990 No. 110 31 May 1990 31 May 1990 -
238 12 July 1990 12 July 1990 -
280 31 Aug 1990 31 Aug 1990 -
400 6 Dec 1990 Rr. 4.6 and 9.8: 19 Dec 1989 -
Remainder: 10 Dec 1990
1991 No. 3 22 Jan 1991 22 Jan 1991 -
61 15 Apr 1991 R. 12.2: 22 Jan 1991 R. 15
Remainder: 15 Apr 1991
202 28 June 1991 28 June 1991 -
298 1 Oct 1991 R. 11: 26 June 1991 -
Remainder: 1 Oct 1991
Table of Amendments
ad.=added or inserted am.=amended rep.=repealed rs.=repealed and substituted
Provision affected
How affected
R. 2
am. 1990 No. 400; 1991 Nos. 61, 202 and 298
R. 2A
ad. 1991 No. 61
am. 1991 Nos. 202 and 298
R. 2B
ad. 1991 No. 202
R. 3
am. 1990 Nos. 110 and 400
rs. 1991 No. 61
R. 5
am. 1990 No. 280; 1991 No. 298
R. 5A
ad. 1990 No. 280
am. 1990 No. 400
R. 7
am. 1990 No. 280; 1991 No. 298
R. 8
am. 1991 No. 202
Part 2A (rr. 8A-8L)
ad. 1991 No. 61
Rr. 8A-8D
ad. 1991 No. 61
R. 8E
ad. 1991 No. 61
am. 1991 No. 298
Rr. 8F-8L
ad. 1991 No. 61
R. 9
am. 1990 No. 400; 1991 No. 3
rs. 1991 No. 61
R. 12
am. 1990 No. 280
R. 12A
ad. 1990 No. 280
am. 1990 No. 400
R. 20
am. 1990 Nos. 280 and 400; 1991 No. 298
R. 21
am. 1990 Nos. 110 and 400; 1991 No. 3
rs. 1991 No. 61
am. 1991 Nos. 202 and 298
R. 21A
ad. 1990 No. 110
rep. 1991 No. 61
R. 21B
ad. 1990 No. 110
am. 1990 No. 238
rep. 1991 No. 61
R. 21C
ad. 1991 No. 3
am. 1991 Nos. 61, 202 and 298
R. 24
am. 1990 No. 110; 1991 No. 61
rs. 1991 No. 298
Rr. 28, 29
ad. 1991 No. 61
R. 30
ad. 1991 No. 202
Schedule
am. 1990 No. 400; 1991 Nos. 61 and 202
MIGRATION (REVIEW) REGULATIONS - TABLE OF PROVISIONS TABLE
TABLE OF PROVISIONS
Regulation
PART 1-PRELIMINARY
1. Citation
2. Interpretation
2A. Internally reviewable decisions
2B. Review of certain decisions relating to entry permits
PART 2-INTERNAL REVIEW
3. Review officer to conduct review
4. Review officers
5. Applications for internal review and fee payable
5A. Waiver of fee for internal review
6. Lodgment of application
7. Refund of fee for internal review
8. Notice of decision in relation to internal review
PART 2A-REVIEW OF DECISIONS CONCERNING DOMESTIC PROTECTION
(TEMPORARY) ENTRY PERMITS
8A. Interpretation
8B. Restriction on application of Parts 2, 3 and 4 in relation to review
of decisions to refuse prescribed permits
8C. Certain review officers to conduct review of decisions to refuse
prescribed permits
8D. Application for review and fee payable
8E. Persons who may apply under this Part
8F. Refund of fee if application allowed
8G. Notification of decision in relation to application
8H. Decision reviewable once only by a particular review authority
8J. Time limits
8K. Lodgment of application-persons in custody
8L. Delegation by Secretary
PART 3-REVIEW BY TRIBUNAL
9. Jurisdiction of the Tribunal
10. Prescribed number of Senior Members and of members
11. Powers of Tribunal on review
12. Application for review by Tribunal and fee payable
12A. Waiver of fee for review by Tribunal
13. Lodgment of application
14. Prescribed number of copies-subsection 122 (2) of the Act
15. Time limits in relation to other evidence
16. Summons to attend before Tribunal
17. Fees for persons giving evidence
18. Prescribed allowances-section 155 of the Act
19. Duties, powers and functions of officers of Tribunal
20. Refund of fee for review by Tribunal
PART 4-PROVISIONS RELATING TO REVIEW BY REVIEW AUTHORITY
21. Individuals and organisations entitled to apply for review
21C. Persons who may apply for review of decision to refuse a December
1989 entry permit
22. Decision reviewable once only by particular review authority
23. Notification of decision of review authority
24. Time limits
25. Lodgment of application-person in custody
26. Service of documents
27. Time when service takes effect
28. Delegation by Secretary
29. Secretary may refer certain review applications to the Tribunal
30. Expedited review (close family visit visas)
SCHEDULE
VISAS AND ENTRY PERMITS TO WHICH INTERNAL REVIEW IS APPLICABLE
MIGRATION (REVIEW) REGULATIONS - PART 1
PART 1-PRELIMINARY
MIGRATION (REVIEW) REGULATIONS - REG 1
Citation
1. These Regulations may be cited as the Migration (Review) Regulations.*1* SEE NOTES TO FIRST ARTICLE OF THIS CHAPTER .
MIGRATION (REVIEW) REGULATIONS - REG 2
Interpretation
2.(1) In these Regulations, unless the contrary intention appears:
"internal review" means review by a review officer under Part 2;
"internally reviewable decision" means a decision of a kind that is specified in regulation 2A as an internally reviewable decision;
"IRT reviewable decision" means a decision that:
(a) has been affirmed, varied or made on review under Part 2; or
(b) is a decision that would, but for subregulation 2A (2), be an internally
reviewable decision; or
(c) is a decision to refuse a December 1989 (temporary) entry permit or a
December 1989 (permanent) entry permit; or
(d) is a decision in respect of which a prescribed application is referred
to the Tribunal under regulation 29;
"reconsidered" means reconsidered in accordance with regulation 20 of the Migration Regulations;
"the Act" means the Migration Act 1958.
(2) In these Regulations, a reference to a particular visa or entry permit is a reference to:
(a) in the case of a visa-a visa of that class as specified in Schedule 2 to
the Migration Regulations; and
(b) in the case of an entry permit-an entry permit of that kind as specified
in Schedule 3 to those Regulations.
(3) A word or expression used in these Regulations and in the Migration Regulations has, in these Regulations, unless the contrary intention appears, the same meaning as in the Migration Regulations.
MIGRATION (REVIEW) REGULATIONS - REG 2A
Internally reviewable decisions
2A.(1) Subject to this regulation, a decision is an internally reviewable decision if it is:
(a) a decision to refuse a visa or entry permit of a kind specified in the
Schedule; or
(b) a decision to reject a nomination or sponsorship lodged in connection
with an application, or proposed application, for a visa or entry permit of a kind specified in the Schedule; or
(c) a decision by way of an assessment under subsection 30 (1) or 41 (2) of
the Act in relation to an application for a visa or entry permit of a kind specified in the Schedule.
(2) A decision is not an internally reviewable decision if it is:
(a) a decision made:
(i) by the Minister personally; or
(ii) by the Secretary, or a Senior Executive Service officer, acting
as a delegate of the Minister; or
(b) a decision made on, or in connection with, an application for an entry
permit lodged by a person who:
(i) became an illegal entrant on entry into Australia by reason of
subsection 14 (2) of the Act; and
(ii) was an illegal entrant by reason of that subsection when he or
she lodged the application; or
(c) a decision made in respect of an application for an entry permit lodged
as a result of a notification by the Tribunal to the applicant under paragraph 121 (2) (a) of the Act.
(3) A decision to refuse a permanent entry permit after the applicant's entry into Australia is not an internally reviewable decision unless:
(a) the applicant held a temporary entry permit that was not subject to the
condition referred to in paragraph 33 (4) (a) of the Act when he or she applied for the permanent entry permit; or
(b) in the case of an application lodged by the applicant at the same time
as an application for an extended eligibility entry permit:
(i) the second-mentioned application is refused; and
(ii) that refusal is internally reviewable.
(4) A decision to refuse an extended eligibility entry permit, or a permanent entry permit, to an applicant who held, on lodging the application for the entry permit, a visitor visa or an equivalent entry permit is not an internally reviewable decision unless the application was for:
(a) an extended eligibility (spouse) entry permit or a spouse (after entry)
entry permit; or
(b) an extended eligibility (interdependency) entry permit or an
interdependency (permanent) entry permit;
and was made on or after 15 April 1991.
(5) A decision is not an internally reviewable decision if it is:
(a) a decision to refuse a temporary entry permit to an applicant who held,
when he or she applied for the entry permit, a student visa or entry permit that was granted for the primary purpose of enabling him or her to study a full-time English language course as a student paying full fees; or
(b) a decision to refuse an entry permit to an applicant who held, on or
after entry into Australia, a visa or entry permit granted subject to a condition specified in paragraph 23 (4) (b) or 33 (4) (b) of the Act.
(6) A decision to reject a nomination or sponsorship lodged in connection with an application or proposed application for a visa or entry permit of a kind specified in the Schedule is an internally reviewable decision only if:
(a) where such an application has been lodged-no decision in respect of the
application has been notified to the person lodging the application; and
(b) whether or not such an application has been lodged-some person would
have, in the event of lodgment and refusal of the application, a right of review of the decision in respect of the application.
MIGRATION (REVIEW) REGULATIONS - REG 2B
Review of certain decisions relating to entry permits
2B.(1) For the purposes of paragraph 120 (1) (a) of the Act, each of the following decisions is prescribed:
(a) a decision to refuse a domestic protection (temporary) entry permit
under regulation 117A of the Migration Regulations;
(b) a decision to refuse a December 1989 (temporary) entry permit under
regulation 131A of the Migration Regulations;
(c) a decision to refuse a December 1989 (permanent) entry permit under
regulation 142C of the Migration Regulations.
(2) A reference in subregulation (1) to the Migration Regulations is a reference to those Regulations as in force on 30 June 1991.
MIGRATION (REVIEW) REGULATIONS - PART 2
PART 2-INTERNAL REVIEW
MIGRATION (REVIEW) REGULATIONS - REG 3
Review officer to conduct review
3. A review officer must conduct a review of an internally reviewable decision if:
(a) an application for review of the decision that complies with these
Regulations has been lodged in accordance with these Regulations; and
(b) the appropriate fee, if payable, has been paid.
MIGRATION (REVIEW) REGULATIONS - REG 4
Review officers
4. The officers who are to conduct reviews for the purposes of section 115 of the Act are the following officers:
(a) any officer of the Department appointed by name for that purpose by
instrument of the Secretary; and
(b) any officer who, for the time being, is performing the duties of a
position in the Department the position number of which is designated in writing by the Secretary for the purposes of this provision.
MIGRATION (REVIEW) REGULATIONS - REG 5
Applications for internal review and fee payable
5.(1) An application for internal review:
(a) is to be in a form approved by the Minister and must contain:
(i) the name and address of the applicant for review; and
(ii) a brief statement of the capacity in which the applicant applies
for review; and
(iii) details of the decision to which the application relates; and
(iv) if the application is in relation to a decision refusing to grant
a visa or an entry permit and the applicant for the review was not also the applicant for the visa or entry permit-the name and address of that last-mentioned applicant; and
(b) must, unless the Secretary makes a determination under regulation 5A, be
accompanied by the fee specified in subregulation (2).
(2) The fee payable in connection with the internal review of a decision is a fee of $200.
MIGRATION (REVIEW) REGULATIONS - REG 5A
Waiver of fee for internal review
5A. The Secretary may determine that the fee referred to in regulation 5 should not be paid if he or she is satisfied that payment of the fee has caused, or will cause, the applicant for review severe financial hardship.
MIGRATION (REVIEW) REGULATIONS - REG 6
Lodgment of application
6.(1) Subject to regulation 25, an application for internal review is to be lodged at an office of the Department in Australia:
(a) by posting the application to that office; or
(b) by leaving it in a box at that office designated for the lodgment of
such applications; or
(c) by leaving it with a person employed by the Department at that office
and authorised to receive such documents.
(2) An application posted in accordance with paragraph (1) (a) is not to be taken to have been lodged until received at an office of the Department.
MIGRATION (REVIEW) REGULATIONS - REG 7
Refund of fee for internal review
7.(1) The fee paid in connection with an internal review is to be refunded if:
(a) the decision to which the review relates is set aside or varied by a
review authority; or
(b) under regulation 5A, the Secretary determines that the fee should not be
paid.
(2) Where, in relation to an application for internal review:
(a) the applicant is not entitled to apply for such a review; or
(b) the decision to which the application relates is not subject to internal
review; or
(c) the Minister has given a certificate as referred to in subsection 120
(2) of the Act in relation to the decision to which the application relates; or
(d) the application is withdrawn because the death has occurred, since the
application was lodged, of:
(i) the applicant for the visa or entry permit that was the subject of
the application; or
(ii) a member of that applicant's family unit; or
(e) the application is withdrawn because the applicant for the visa or entry
permit that was the subject of the application has been granted a visa or entry permit of that kind otherwise than in circumstances specified in paragraph 7 (3) (b) or (c) or 20 (3) (b) or (c);
the amount of any fee paid on lodging the application is to be refunded.
(3) The fee paid on an application for internal review is not to be refunded where:
(a) the application for review is withdrawn otherwise than in circumstances
specified in paragraph (2) (d) or (e); or
(b) before the review is determined, the Minister has reconsidered the
initial application and the applicant's score on the reconsideration is more than or equal to the applicable pass mark; or
(c) before the review is determined, the applicant for the review is granted
an entry permit on an application made following a notification by a review officer under subsection 121 (2) of the Act.
MIGRATION (REVIEW) REGULATIONS - REG 8
Notice of decision in relation to internal review
8.(1) Subject to regulation 30, the review officer who makes a decision on an internal review must, not later than 10 days after making the decision, give notice of the decision to the applicant for the review.
(2) Unless the review officer sets aside the decision to which the review relates, the notice must:
(a) set out the decision of the review officer; and
(b) set out the reasons for the decision, including brief reference to the
findings and evidence on any material questions of fact.
MIGRATION (REVIEW) REGULATIONS - PART 2A
PART 2A-REVIEW OF DECISIONS CONCERNING
DOMESTIC PROTECTION (TEMPORARY) ENTRY PERMITS
MIGRATION (REVIEW) REGULATIONS - REG 8A
Interpretation
8A. In this Part, "prescribed permit" means a domestic protection (temporary) entry permit.
MIGRATION (REVIEW) REGULATIONS - REG 8B
Restriction on application of Parts 2, 3 and 4 in relation to review of
decisions to refuse prescribed permits
8B.(1) An application to review a decision to refuse a prescribed permit may be made only under this Part.
(2) Parts 2, 3 and 4 do not apply to an application for review under this Part except as expressly provided by this Part.
MIGRATION (REVIEW) REGULATIONS - REG 8C
Certain review officers to conduct review of decisions to refuse prescribed
permits
8C.(1) A review officer specified in subregulation (2) must conduct a review of a decision to refuse a prescribed permit if an application for review of the decision has been lodged in accordance with this Part.
(2) A review officer who conducts a review referred to in subregulation (1) must be:
(a) an officer of the Department appointed by name, in writing, for the
purposes of this regulation, by the Secretary; or
(b) an officer for the time being performing the duties of a position in the
Department the position number of which is designated, in writing, for the purposes of this regulation, by the Secretary.
MIGRATION (REVIEW) REGULATIONS - REG 8D
Application for review and fee payable
8D.(1) An application for review of a decision to refuse a prescribed permit must be made on a form approved by the Minister for the purpose and contain details sufficient to identify the decision.
(2) The application must be accompanied by a fee of $30 unless the fee has been waived under subregulation (3) or the applicant is the Secretary.
(3) The Secretary may determine that the fee referred to in subregulation (2) should not be paid if he or she is satisfied that payment of the fee has caused, or will cause, severe financial hardship to the applicant for review.
MIGRATION (REVIEW) REGULATIONS - REG 8E
Persons who may apply under this Part
8E.(1) The applicant for a prescribed permit may apply for review of a decision to refuse the permit, but only if he or she:
(a) was lawfully present in Australia when the application for the permit
was lodged; or
(b) became an illegal entrant before 1 July 1991, and:
(i) the application for the prescribed permit was lodged before 1 July
1991; or
(ii) the applicant is taken, under regulation 22D of the Migration
Regulations, to have applied for the prescribed permit.
(2) The Secretary may apply for review of a decision to refuse a prescribed permit.
MIGRATION (REVIEW) REGULATIONS - REG 8F
Refund of fee if application allowed
8F. Regulation 7 applies in relation to reviews under this Part as if references in that regulation to internal review were references to review under this Part.
MIGRATION (REVIEW) REGULATIONS - REG 8G
Notification of decision in relation to application
8G.(1) Subregulation 8 (1) applies in relation to reviews under this Part as if the reference in that subregulation to internal review were a reference to review under this Part.
(2) Regulation 23 applies in relation to reviews under this Part.
MIGRATION (REVIEW) REGULATIONS - REG 8H
Decision reviewable once only by a particular review authority
8H. Regulation 22 applies in relation to reviews under this Part.
MIGRATION (REVIEW) REGULATIONS - REG 8J
Time limits
8J. Regulation 24 applies in relation to reviews under this Part as if references in that regulation to a primary decision were references to a decision to refuse a prescribed permit within the meaning of this Part.
MIGRATION (REVIEW) REGULATIONS - REG 8K
Lodgment of application-persons in custody
8K. Regulation 25 applies in relation to reviews under this Part as if:
(a) references to internal review were references to review under this Part;
and
(b) subparagraph 25 (1) (a) (ii) were omitted; and
(c) references to the Tribunal and a registry of the Tribunal were omitted.
MIGRATION (REVIEW) REGULATIONS - REG 8L
Delegation by Secretary
8L. Regulation 28 applies in relation to reviews under this Part.
MIGRATION (REVIEW) REGULATIONS - PART 3
PART 3-REVIEW BY TRIBUNAL
MIGRATION (REVIEW) REGULATIONS - REG 9
Jurisdiction of the Tribunal
9.(1) Subject to subregulation (2), the Tribunal is to review an IRT reviewable decision if an application for review of the decision is made in accordance with these Regulations.
(2) In the case of a decision to refuse to grant a December 1989 (temporary) entry permit or a December 1989 (permanent) entry permit, subregulation (1) applies only if the applicant for the permit:
(a) was a prohibited non-citizen on or before 18 December 1989; and
(b) had not been arrested under section 92 or 93 of the Act:
(i) on or after 10 December 1990; and
(ii) before lodgment of the application for the permit.
(3) The Tribunal is to review a decision in respect of which a prescribed application is referred to it under regulation 29.
MIGRATION (REVIEW) REGULATIONS - REG 10
Prescribed number of Senior Members and of members
10. For the purposes of section 151 of the Act:
(a) the prescribed number of Senior Members is 6; and
(b) the prescribed number of members is 50.
MIGRATION (REVIEW) REGULATIONS - REG 11
Powers of Tribunal on review
11. The Tribunal has recommendatory powers in relation to the review of a decision made by the Minister personally.
MIGRATION (REVIEW) REGULATIONS - REG 12
Application for review by Tribunal and fee payable
12.(1) An application for review by the Tribunal:
(a) is to be in a form approved by the Minister and must contain:
(i) the name and address of the applicant for review; and
(ii) a brief statement of the capacity in which the applicant applies
for review; and
(iii) details of the decision to which the application relates; and
(iv) if the application is in relation to a decision refusing to grant
a visa or an entry permit and the applicant for the review was not also the applicant for the visa or entry permit-the name and address of that last-mentioned applicant; and
(b) must, unless the Registrar, or a Deputy Registrar, of the Tribunal makes
a determination under regulation 12A, be accompanied by the fee specified in subregulation (2).
(2) The fee payable in connection with the review of a decision by the Tribunal is a fee of $300.
MIGRATION (REVIEW) REGULATIONS - REG 12A
Waiver of fee for review by Tribunal
12A. The Registrar, or a Deputy Registrar, of the Tribunal may determine that the fee referred to in regulation 12 should not be paid if he or she is satisfied that payment of the fee has caused, or will cause, the applicant for review severe financial hardship.
MIGRATION (REVIEW) REGULATIONS - REG 13
Lodgment of application
13.(1) An application for review by the Tribunal may be lodged at a registry of the Tribunal:
(a) by posting the application to that registry; or
(b) by leaving it at that registry in a box designated for the lodgment of
such applications; or
(c) by leaving it with a person employed at that registry and authorised to
receive such documents.
(2) An application posted in accordance with paragraph (1) (a) is not to be taken to have been lodged until received at a registry of the Tribunal.
MIGRATION (REVIEW) REGULATIONS - REG 14
Prescribed number of copies-subsection 122 (2) of the Act
14. For the purposes of subsection 122 (2) of the Act, the prescribed number of copies is:
(a) in respect of a statement referred to in paragraph 122 (2) (a) of the
Act-2 copies; and
(b) in respect of each document or part of a document referred to in
paragraph 122 (2) (b) of the Act-one copy.
MIGRATION (REVIEW) REGULATIONS - REG 15
Time limits in relation to other evidence
15.(1) The person who is required to provide to the Tribunal other evidence referred to in paragraph 130 (1) (b) of the Act must provide the evidence:
(a) if provided personally-not later than 10 days; or
(b) if provided by post from a place in Australia:
(i) not later than 14 days; or
(ii) if the Tribunal so directs-not later than 28 days; or
(c) if provided by post from a place outside Australia:
(i) not later than 30 days; or
(ii) if the Tribunal so directs-not later than 70
days;
after the Tribunal has required the evidence to be obtained.
(2) For the purposes of this regulation, evidence is not to be taken to be provided until received at a registry of the Tribunal.
MIGRATION (REVIEW) REGULATIONS - REG 16
Summons to attend before Tribunal
16. A summons referred to in subsection 132 (3) of the Act may be served on a person:
(a) by delivering the summons to the person personally or to a person duly
authorised to receive documents on behalf of that first-mentioned person; or
(b) by leaving it at the last-known place of residence of the person with a
person apparently an occupant of that place and apparently not less than 16 years of age; or
(c) by sending the summons by certified post to the last-known place of
residence of that person.
MIGRATION (REVIEW) REGULATIONS - REG 17
Fees for persons giving evidence
17. For the purposes of subsection 145 (1) of the Act, the fees and allowances for expenses to be paid to a person summoned to appear before the Tribunal in relation to a review by the Tribunal are the fees and allowances in accordance with the scale in Schedule 2 to the Administrative Appeals Tribunal Regulations as in force from time to time, as determined by the presiding member.
MIGRATION (REVIEW) REGULATIONS - REG 18
Prescribed allowances-section 155 of the Act
18.(1) For the purposes of section 155 of the Act, the following allowance is prescribed for a Principal Member in relation to attendance at any business in respect of his or her duties as Principal Member, namely, an allowance of $6.63 in relation to each day or part of a day on which he or she so attends in respect of those duties.
(2) The allowance under subregulation (1) is not payable in respect of a Saturday or Sunday, a public holiday or any day on which the Principal Member is officially on leave from his or her duties.
MIGRATION (REVIEW) REGULATIONS - REG 19
Duties, powers and functions of officers of Tribunal
19. Each officer of the Tribunal has the following duties, powers and functions:
(a) to issue a summons by the presiding member in relation to a review for
the purposes of paragraph 132 (3) (a) or (b) of the Act;
(b) to obtain documents in connection with the review of a decision;
(c) to direct attendance at a registry of the Tribunal in connection with
the review of a decision.
MIGRATION (REVIEW) REGULATIONS - REG 20
Refund of fee for review by Tribunal
20.(1) The fee paid in connection with a review by the Tribunal is to be refunded if:
(a) the decision to which the review relates is set aside or varied; or
(b) the Registrar, or a Deputy Registrar, under regulation 12A, determines
that the fee should not be paid.
(2) Where, in relation to an application for review by the Tribunal:
(a) the applicant is not entitled to apply for such a review; or
(b) the decision to which the application relates is not subject to review
by the Tribunal; or
(c) the Minister has given a certificate as referred to in subsection 120
(2) of the Act in relation to the decision to which the application relates; or
(d) the application is withdrawn because the death has occurred, since the
application was lodged, of:
(i) the applicant for the visa or entry permit that was the subject of
the application; or
(ii) a member of that applicant's family unit; or
(e) the application is withdrawn because the applicant for the visa or entry
permit that was the subject of the application has been granted a visa or entry permit of that kind otherwise than in circumstances specified in paragraph 7 (3) (b) or (c) or 20 (3) (b) or (c);
the amount of any fee paid on lodging the application is to be refunded.
(3) The fee paid on an application for review by the Tribunal is not to be refunded where:
(a) the application for review is withdrawn otherwise than in circumstances
specified in paragraph (2) (d) or (e); or
(b) before the review is determined, the Minister has reconsidered the
initial application and the applicant's score on the reconsideration is more than or equal to the applicable pass mark; or
(c) before the review is determined, the applicant for the review is granted
an entry permit on an application made following a notification by the Tribunal under subsection 121 (2) of the Act.
MIGRATION (REVIEW) REGULATIONS - PART 4
PART 4-PROVISIONS RELATING TO REVIEW BY REVIEW AUTHORITY
MIGRATION (REVIEW) REGULATIONS - REG 21
Individuals and organisations entitled to apply for review
21.(1) This regulation has effect subject to regulation 21C.
(2) In this regulation:
"relevant decision" means:
(a) an internally reviewable decision; or
(b) an IRT reviewable decision;
"third party", in relation to an application for a visa or entry permit, means:
(a) an individual (other than the applicant for the visa or entry permit);
or
(b) an organisation.
(3) An applicant for a visa or entry permit may apply, in accordance with these Regulations, for review of a relevant decision, being a decision to refuse the visa or entry permit, if:
(a) the applicant was lawfully present in Australia when he or she lodged
the application; or
(b) the applicant:
(i) was an illegal entrant on 19 December 1989; and
(ii) has not subsequently left Australia; and
(iii) in the case of an application for an entry permit, made the
application on or after 19 December 1989 and before 1 November 1990; or
(c) in the case of an application for an extended eligibility (family) entry
permit lodged after 10 December 1990, the applicant was, when he or she lodged the application, an illegal entrant who had attained the age of 18 years and:
(i) entered Australia; and
(ii) became a prohibited non-citizen or an illegal
entrant;
before attaining that age; or
(d) the applicant:
(i) became an illegal entrant, by reason of subsection 14 (2) of the
Act, on entry to Australia; and
(ii) has not left Australia since that entry.
(4) Subject to subregulation (7), where an application for a visa or entry permit has been lodged, a third party may apply, in accordance with these Regulations, for review of a relevant decision in respect of the application:
(a) if:
(i) the application was for a visa or entry permit of a kind that has
a prescribed criterion requiring nomination or sponsorship; and
(ii) the third party is a nominator or sponsor of the applicant; or
(b) if:
(i) the application was for a visa or entry permit of a kind specified
in an item in the table set out in subregulation (5); and
(ii) particulars relating to the third party were included in the
application; and
(iii) the third party applying for review is an individual or
organisation specified in column 3 of that item; or
(c) in respect of an individual, if:
(i) the application was for a return visa class A, B, C, D or F; and
(ii) the applicant made the application overseas; and
(iii) the third party is an individual who is a close relative of the
applicant.
(5) For the purposes of subparagraph (4) (b) (i), the following table is set out:
Column 1 Column 2 Column 3
Item No.
Kind of visa or equivalent entry permit
Individual or organisation
1.
business (joint venture)
an Australian citizen, Australian permanent
resident or Australian organisation, being an individual or organisation
that intends to associate with the joint venture
2.
distinguished talent (Australian support)
an Australian citizen, Australian permanent
resident or Australian organisation, being an individual or organisation
that has given written testimony of the applicant's standing
3.
close family visitor
a close relative who is an Australian citizen
or an Australian permanent resident
4.
visiting academic
an Australian tertiary institution or research
institution
(6) Subject to subregulation (7), a third party may apply, in accordance with these Regulations, for review of a relevant decision:
(a) if:
(i) the decision is one to reject a nomination or sponsorship lodged
in connection with an application for a visa or entry permit; and
(ii) the third party is the individual or organisation that lodged the
nomination or sponsorship; or
(b) if:
(i) the decision is one by way of an assessment under subsection 30
(1) or 41 (2) of the Act; and
(ii) the third party is the nominator or sponsor in relation to the
application to which the decision relates.
(7) A third party is not entitled under subregulation (4) or (6) to apply for review of a relevant decision if, at the time of lodgment of the relevant application for a visa or an entry permit:
(a) the third party, if an individual, was not an Australian citizen or an
Australian permanent resident; or
(b) in the case of a decision to refuse an entry permit-the applicant for
the entry permit did not satisfy the requirements of subregulation (3).
(8) A third party may apply, in accordance with these Regulations, for review of a relevant decision to refuse the nomination or sponsorship by the third party in relation to a proposed application for a visa or entry permit if, at the time of lodgment of the nomination or sponsorship:
(a) the proposed applicant for the visa or entry permit satisfied any
requirement of subregulation (3); and
(b) the third party, if an individual, was an Australian citizen or an
Australian permanent resident.
MIGRATION (REVIEW) REGULATIONS - REG 21C
Persons who may apply for review of decision to refuse a December 1989 entry
permit
21C.(1) An Australian citizen or Australian permanent resident who nominated an applicant in relation to an application for a December 1989 (temporary) entry permit may apply for review of:
(a) a decision to refuse that application; or
(b) where the applicant has been granted an entry permit of that kind, a
decision to refuse the applicant's application for a December 1989 (permanent) entry permit;
if the circumstances specified in subregulation 9 (2) apply in respect of the applicant.
(2) No person other than a person referred to in subregulation (1) may apply for review of a decision of the kind referred to in that subregulation.
MIGRATION (REVIEW) REGULATIONS - REG 22
Decision reviewable once only by particular review authority
22. A person who is entitled to apply for review of a reviewable decision to a review authority is not entitled to apply more than once to that review authority for review of that decision.
MIGRATION (REVIEW) REGULATIONS - REG 23
Notification of decision of review authority
23.(1) A notice or statement to be given to an applicant in relation to a decision of a review authority is to be taken to be duly given if the notice or statement is given:
(a) by posting it to the last address for service provided by the applicant
in connection with his or her application for review; or
(b) by posting it to the residential address provided by the applicant in
his or her application for review; or
(c) by giving it to the applicant or to a person authorised by the applicant
to receive such documents on behalf of the applicant; or
(d) by leaving it at the place of residence of the applicant with a person
apparently an occupant of that place and apparently not less than 16 years of age.
(2) The notice or statement is to be taken to have been received:
(a) if sent to an address in Australia-on the expiry of 5 working days after
the day of posting; or
(b) if sent to an address outside Australia-on the expiry of 21 days after
the day of posting or on such earlier day as is proved.
(3) It is sufficient compliance with the requirement to give a notice or statement under subregulation (1) if a facsimile or certified copy of the notice or statement is so given.
MIGRATION (REVIEW) REGULATIONS - REG 24
Time limits
24.(1) An application for review by a review officer of a decision must be made:
(a) if the applicant is physically present in Australia-within 28 days after
the day on which the person to whom the decision relates is taken to have been notified of the decision; or
(b) if the applicant is not physically present in Australia-within 70 days
after that day.
(2) An application for review by the Tribunal of a decision must be made:
(a) if the applicant is physically present in Australia-within 28 days after
the day on which:
(i) in the case of a decision otherwise than by a review officer-the
person to whom the decision relates is taken to have been notified of the decision; or
(ii) in the case of a decision by a review officer-the person who
applied for review by a review officer is taken to have been notified of the decision; or
(b) if the applicant is not physically present in Australia-within 70 days
after the day on which:
(i) in the case of a decision otherwise than by a review officer-the
person to whom the decision relates is taken to have been notified of the decision; or
(ii) in the case of a decision by a review officer-the person who
applied for review by a review officer is taken to have been notified of the decision.
MIGRATION (REVIEW) REGULATIONS - REG 25
Lodgment of application-person in custody
25.(1) An application for review by a review authority in respect of a person in custody under the Act:
(a) must be lodged:
(i) in the case of an application for internal review-at an office of
the Department; or
(ii) in the case of an application for review by the Tribunal-at a
registry of the Tribunal;
in the State or Territory where the person is in custody; and
(b) is to be so lodged by leaving it at the office or registry, as the case
requires, with an officer of the Department.
(2) The person lodging the application must, on the day on which it is lodged, inform in writing an officer of the Department appointed by the Secretary to be a custody review officer in the relevant State or Territory of:
(a) the nature of the application and the name of the person in respect of
whom it was lodged; and
(b) the office or registry at which, and the day on which, it was lodged;
and
(c) the name of the officer with whom it was lodged.
(3) For the purposes of this regulation, an office occupied by an officer of the Department at an airport or detention centre is to be taken to be an office of the Department, or a registry of the Tribunal, as the case requires.
MIGRATION (REVIEW) REGULATIONS - REG 26
Service of documents
26.(1) Where:
(a) a document is to be given, or served on, a person for the purposes of a
review under Part 3 of the Act; and
(b) no other provision as to the manner of giving or serving the document is
made by the Act or these Regulations;
the document may be given to or served on the person:
(c) by giving it to the person personally or to a person duly authorised to
receive documents on behalf of the first-mentioned person; or
(d) by posting it to the person at his or her last-known place of residence;
or
(e) by leaving it at the place of residence of the person with another
person apparently an occupant of that place and apparently not less than 16 years of age.
(2) It is sufficient compliance with a requirement to give or serve a document referred to in subregulation (1) if a facsimile or certified copy of the document is so given or served.
MIGRATION (REVIEW) REGULATIONS - REG 27
Time when service takes effect
27. A document given to, or served on, a person under regulation 26 is to be taken to be received by the person:
(a) on the day on which it is given to, or left with, the person or given
to, or left with another person authorised by the first-mentioned person to receive documents of that kind on his or her behalf; or
(b) if the document is served by post on a person in Australia-on the
expiry of 5 working days after the day of posting; or
(c) if the document is served by post on a person outside Australia-on the
expiry of 21 days after the day of posting or on such earlier day as is proved.
MIGRATION (REVIEW) REGULATIONS - REG 28
Delegation by Secretary
28. The Secretary may, by signed instrument, delegate the Secretary's powers under these Regulations.
MIGRATION (REVIEW) REGULATIONS - REG 29
Secretary may refer certain review applications to the Tribunal
29.(1) The Secretary may, if he or she thinks fit, refer to the Tribunal a prescribed application that has not been decided.
(2) Where a prescibed application is so referred, no fee is payable in respect of the referral.
(3) In this regulation, "prescribed application" means an application for review by a review officer of a decision to refuse:
(a) an extended eligibility temporary entry permit; or
(b) a permanent entry permit after entry;
where that application was lodged before 15 April 1991.
MIGRATION (REVIEW) REGULATIONS - REG 30
Expedited review (close family visit visas)
30.(1) If:
(a) an application for a close family visit visa is refused on the ground
that the criterion specified in paragraph 89 (aa) of the Migration Regulations is not met; and
(b) the application was made for the purposes of participation by the
applicant in an event of special family significance in which the applicant is directly concerned; and
(c) the applicant identified the circumstances referred to in paragraph (b)
in the application; and
(d) the application was made at such time before the event referred to in
paragraph (b) as would allow, in the event of refusal of the application, for internal review, and review by the Tribunal, of that refusal;
the refusal must be reviewed immediately by a review officer on receipt of an application for internal review.
(2) A decision of a review officer must be reviewed immediately by the Tribunal on receipt of an application for review of the decision.
(3) A review authority must give notice of its decision in respect of an application for review to the applicant as soon as practicable.
MIGRATION (REVIEW) REGULATIONS - SCHEDULE SCH
SCHEDULE Subregulation 2A (1)
VISAS AND ENTRY PERMITS TO WHICH INTERNAL REVIEW IS APPLICABLE
PART 1-VISAS
Column 1 Column 2
Item No. Class of visas
1 return, Class A
2 return, Class B
3 return, Class C
4 return, Class D
5 return, Class F
PART 2-CLASSES OF VISAS AND EQUIVALENT ENTRY PERMITS
Column 1 Column 2
Item No. Class of visas or equivalent entry permit
1 spouse
2 child
3 adoption
4 parent
5 preferential family
6 concessional family
7 business (joint venture)
8 distinguished talent (Australian support)
9 employer nomination
10 labour agreement
11 former citizen
12 former resident
13 educational
14 entertainment
15 executive (overseas)
16 specialist (overseas)
17 family relationship
18 media and film staff
19 medical practitioner
20 prospective marriage
21 religious worker
22 sport
23 restricted passport
24 supported dependant
25 visiting academic
26 close family visitor
27 interdependency (temporary)
PART 3-OTHER ENTRY PERMITS
Column 1 Column 2
Item No. Entry permits
1 spouse (after entry)
2 child (after entry)
3 aged parent (after entry)
4 skilled occupation
5 compassionate grounds
6 confirmatory
7 extended eligibility (spouse)
8 extended eligibility (economic)
9 extended eligibility (family)
10 extended eligibility (interdependency)
11 interdependency (permanent)
0
0
0