Migration Regulations (Amendment) 1997 No. 185
EXPLANATORY STATEMENT
STATUTORY RULES 1997 No. 185
Issued by the Authority of the Minister for Immigration and Multicultural Affairs
Migration Act 1958
Migration Regulations (Amendment)
Section 504 of the Migration Act 1958 ("the Act") provides that the Governor-General may make regulations, not inconsistent with the Act, to prescribe all matters which are required or permitted to be prescribed by the Act or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act.
Without limiting the generality of section 504, particular provision is made for and in relation to the following matters:
- paragraph 504(1)(a) of the Act provides that the Regulations may provide for the charging and recovery of fees in respect of any matter under the Act or the Regulations; and
- paragraph 504(1)(b) of the Act provides that the Regulations may make provision for the remission, refund or waiver of fees which may be prescribed by the Regulations, and for exempting persons from the payment of such fees.
In addition, regulations may be made pursuant to the following powers:
- section 41 of the Act provides that without limiting the generality of the section, the Regulations may provide that visas or visas of a specified class are subject to specified conditions, including but not limited to a condition that a further visa cannot be granted and a condition restricting work rights;
- paragraph 339(1)(b) of the Act provides for the Regulations to prescribe the place where, and the period within which, an application for internal review must be lodged;
- paragraph 347(1)(b) of the Act provides for the period within which an application for review of an Immigration Review Tribunal ("IRT")-reviewable decision must be given to the Tribunal to be prescribed;
- paragraph 347(1)(c) of the Act provides for the fee which is to accompany an application for review of an IRT-reviewable decision to be prescribed.
- subsection 347(5) of the Act provides that regulations made pursuant to paragraph 347(1)(b) may specify different periods in relation to different classes of IRT-reviewable decisions;
- paragraph 412(1)(b) of the Act provides for the period within which an application for review of a Refugee Review Tribunal ("RRT")-reviewable decision must be given to the Tribunal to be prescribed; and
- paragraph 412(1)(c) of the Act provides for the fee which is to accompany an application for review of an RRTreviewable decision to be prescribed.
The purpose of the Regulations is to amend the Migration Regulations to give effect to Government decisions relating to certain review matters and to the work entitlements for certain bridging visa holders. In particular, the Regulations will:
- specify the period within which an application for internal review, or review by either the Immigration Review Tribunal ("IRT") or Refugee Review Tribunal ("RRT") may be lodged (regulations 3, 5 and 8);
- increase the fee for an application for IRT-reviewable decisions, and provide refund provisions for internally-reviewable and IRT-reviewable decisions where the decision is set aside, varied or remitted for reconsideration to original or primary decision-maker (regulations 4, 6 and 7);
- introduce a sunset provision of two years for the fee for review by the RRT (regulation 9); and
- restrict bridging visas with permission to work to those protection visa applicants who, at the date of application, have been in Australia for less than 45 days in the past year, or for persons who are members of a class of person mentioned in a Gazette Notice (regulations 10 to 14).
Details of the Regulations are set out in the Attachment.
The Regulations commence on 1 July 1997.
ATTACHMENT
Regulation 1 - Commencement
This regulation provides that these Regulations commence on 1 July 1997.
Regulation 2 - Amendment
This regulation provides for the Migration Regulations to be amended as set out in these Regulations.
Regulation 3 - Regulation 4.02 (Application for internal review)
Amendments made to regulation 4.02 by Statutory Rules 1997 No. 109 provide the period in which an application for internal review of an internally-reviewable decision made on or after 1 July 1997 must be made within 14 days of the applicant being notified of the decision.
The purpose of regulation 3 is to provide that in relation to decisions made on or after 1 July 1997, an application for internal review must be made within 21 days of the applicant being notified of the internally-reviewable decision. This regulation is a consequence of a subsequent Government decision.
Regulation 4 - Regulation 4.05 (Refund of fee for internal review)
Amendments made to regulation 4.05 by Statutory Rules 1997 No. 109 repeal certain refund provisions (specifically paragraphs 4.05(1)(a) and (b)) in those cases where a review authority sets aside or varies the decision or where the decision is remitted to the original decision maker for reconsideration respectively.
The purpose of regulation 4 is to reverse the effect of those amendments thereby providing that the paragraphs 4.05(1)(a) and (b) will be retained on and from 1 July 1997. This regulation is a consequence of subsequent decisions by the Government.
Regulation 5 - Regulation 4.10 (Time for lodgement of application for review by the Tribunal)
Amendments made to regulation 4.10 by Statutory Rules 1997 No. 109, provide that an application for review of an Immigration Review Tribunal ("IRT")-reviewable decision made on or after 1 July 1997 must be made within 14 days of the applicant being notified of the IRT-reviewable decision.
The purpose of regulation 5 is to amend subparagraph 4.10(1)(a)(ii) to provide that, in relation to decisions made on or after 1 July 1997, an application for review by the IRT must (text missing)
Regulation 6 - Regulation 4.13 (Review by the Tribunal - prescribed fee and waiver)
Amendments made to regulation 4.13 by Statutory Rules 1997 No. 109 provide for the $300 fee for an application for review by the IRT to be increased from $300 to $500 as of 1 July 1997.
The purpose of regulation 6 is to increase that fee to $850 on and from 1 July 1997, as a result of subsequent Government decisions about cost-recovery.
Regulation 7 - Regulation 4.14 (Refund of fee for review by the Tribunal)
Amendments made to subregulation 4.14(1) by Statutory Rules 1997 No. 109, repeal certain refund provisions (specifically paragraphs 4.14(1)(a) and (b)) in those cases where the IRT sets aside or varies the decision or where the decision is remitted to the primary decision maker for reconsideration respectively.
The purpose of regulation 7 is to reverse the effect of those amendments thereby providing that the paragraphs 4.14(1)(a) and (b) will be retained on and from 1 July 1997. This regulation is a consequence of subsequent decisions by the Government.
Regulation 8 - Regulation 4.31 (Applications)
Amendments made to regulation 4.31 by Statutory Rules 1997 No. 109 provide that an application for an RRT-reviewable decision made on or after 1 July 1997 must be made within 14 days of the applicant being notified of the RRT-reviewable decision.
The purpose of regulation 8 is to amend paragraph 4.31 (b) to provide that, in relation to decisions made on or after 1 July 1997, an application for review by the RRT must be made within 28 days of the applicant being notified of the decision. This regulation is a consequence of a subsequent Government decision. The regulation only applies to persons who are not in immigration detention.
Regulation 9 - Regulation 4.31B (Review by the Tribunal - fee and waiver)
Regulation 25 of Statutory Rules 1997 No. 109 inserts new regulation 4.31B, which provides that a fee is payable for decisions made by the RRT in relation to applications lodged on or after 1 July 1997, and new regulation 4.31C, which provides for waiver or refund of the fee. The fee is only payable if the RRT determines that an applicant is not a person to whom Australia owes protection obligations under the Refugees Convention.
The purpose of regulation 9 is to provide that the fee requirement for the new regulation will only affect applications which are made on and after 1 July 1997 and before 1 July 1999.
Regulations 10 to 14 - Schedule 2
Part 010 (Bridging visa A)
Part 020 (Bridging visa B)
Part 030 (Bridging visa C)
Part 050 (Bridging visa (General))
Part 051 (Bridging visa (Protection Visa Applicant))
Amendments made to Parts 010 to 050 of Schedule 2 to the Regulations by Statutory Rules 1997 No. 109 limit eligibility for a bridging visa with work rights to applicants who apply for a protection visa on or after 1 July 1997 and who, at the date of their application, have been in Australia for less than 14 days.
As a result of further Government decisions, the purpose of regulations 10 to 14 is to provide that applicants who apply for a protection visa on or after 1 July 1997 and who, at the date of their application have been in Australia for 45 days or more. in the preceding year, are ineligible for a bridging visa with permission to work. In addition, these regulations provide an exception to this requirement for persons who fall within a class of persons specified by Gazette Notice.