Migration (Review) (1993) Regulations (Amendment)

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Migration (Review) (1993) Regulations (Amendment) 1993 No. 53

 

 

EXPLANATORY STATEMENT STATUTORY RULES 1993 No. 53

Issued by the Authority of the Minister for Immigration and Ethnic Affairs Migration Act 1958

Migration (Review) (1993) Regulations (Amendment)

 

Section 181 of the Migration Act 1958 (the Act) provides that the Governor-General may make regulations for the purposes of the Act. In addition, sections 115 and 116 of the Act provide that regulations may provide for, inter alia,

 

-              the types of decisions to be reviewed;

 

-              the manner and form of applications for such reviews; and

 

-              the persons who may apply for such reviews.

 

The purpose of the Regulations is to make a number of technical corrections designed to avoid unintended effects flowing from the drafting of the 1993 Regulations. As the clarifying effect of these amendments is beneficial to all persons concerned, and the only other amendments provide for extended access to the review mechanism for certain persons, no persons will be disadvantaged by retrospectivity, and therefore section 48 of the Acts Interpretation Act 1901 will not be infringed.

 

The Regulations:

 

 provide access to the internal review mechanism set out both in the Migration (Review) Regulations and in the Migration (Review) (1993) Regulations to an applicant who has been granted an Extended eligibility entry permit but who has been refused the corresponding class of permanent entry permit;

 

 provide that, a decision to refuse an application for an entry permit Class 802, 804, 805 and 806 is an internally reviewable decision provided the applicant was not the holder of a visitor visa or equivalent entry permit on lodging the application in question; and

 

 make a number of technical amendments to the Migration (Review) (1993) Regulations which are designed to ensure that no potential applicant for review is disadvantaged by reason of any unintended consequences arising out of the drafting of those Regulations.

 

These Regulations are taken to have commenced on 1 February 1993. Details of the Regulations are set out in the Attachment.

ATTACHMENT

 

Regulation 1 - Commencement

 

This regulation provides that the following amendments to the Migration (Review) (1993) Regulations (the 1993 Regulations) are taken to have commenced on 1 February 1993, the date of commencement of the 1993 Regulations.

 

Regulation 2 - Amendment

 

This regulation provides for the 1993 Regulations to be amended as set out in these Regulations.

 

Regulation 3 - Regulation 2 (Commencement)

 

This regulation makes a technical correction to the note appearing immediately after regulation 2 of the 1993 Regulations.

 

Regulation 4 - Regulation 3 (Interpretation)

 

This regulation makes a technical correction to the wording of subregulation 3(2) of the 1993 Regulations.

 

Regulation 5 - Regulation 4 (Internally reviewable decisions)

 

Subregulations 5.1 and 5.2 amend regulation 4 of the 1993 Regulations to provide access to the internal review mechanism provided for in the 1993 Regulations for an applicant who has been granted a Group 2.5 (Extended eligibility) entry permit but who has been refused the corresponding class of permanent entry permit.

 

The 1993 Regulations presently preclude from review an applicant who has been granted a Group 2.5 (Extended eligibility) entry permit but who has been refused the corresponding class 801 or 814 permanent entry permit. Paragraph 4(3)(b) only encompasses instances where the extended eligibility entry permit is refused and that refusal is internally reviewable.

 

In order to prevent any unintended consequences these subregulations provide for internal review of a decision to refuse a permanent entry permit application where the extended eligibility entry permit application was either approved or refused.

 

The Migration (Review) Regulations 1989 provided that decisions to refuse applications for class 802 (Child (after entry)), class 804 (Aged parent (after entry)), class 805 (Skilled occupation) and class 806 (Family and other close ties (after entry)) entry permits were internally reviewable decisions. In the course of drafting the 1993 Regulations the decisions in question were inadvertently omitted from the classes of internally reviewable decisions provided for in regulation 4.

 

Subregulation 5.3 therefore amends regulation 4 of the 1993 Regulations to provide that a decision to refuse an application for an entry permit in one of the abovementioned classes is an internally reviewable decision unless the applicant was

the holder of a visitor visa or an equivalent entry permit on lodging the application in question.

 

Subregulation 5.4 omits subregulation 4(4) of the 1993 Regulations which, as a result of the aforementioned amendment, is unnecessary.

 

Regulation 6 - Regulation 8 (Waiver of fee for internal review)

 

This regulation makes a technical amendment to clarify that regulation 8 has application only in respect of applications for internal review, thereby bringing regulation 8 into line with the other regulations in "PART 2 - INTERNAL REVIEW".

 

Regulation 7 - Regulation 10 (Refund of fee for internal review)

 

This regulation makes two technical corrections to effect a re-numbering of the paragraphs of subregulation 10(3) of the 1993 Regulations.

 

Regulation 8 - Regulation 23 (Jurisdiction of the Tribunal)

 

This regulation makes a technical correction to ensure that paragraph 23(2)(b) accurately reflects the wording used in sections 92 and 93 of the Migration Act 1958.

 

Regulation 9 - Regulation 36 (Individuals and organisations entitled to apply for review)

 

This regulation makes a technical correction.

 

Regulation 10 - Regulation 37 (Persons who may apply for review of decision to refuse December 1989 entry permit)

 

This regulation re-formulates subregulation 37(2) by making a grammatical amendment to paragraph (a) and by omitting paragraph (b) which, as the Migration (1993) Regulations no longer provide for the grant of a December 1989 (temporary) entry permit, has become unnecessary,

 

Regulation 11 - Regulation 45 (Expedited review (Close family visit visas))

 

This regulation makes a grammatical correction to subparagraph 45(1)(a)(ii). Regulation 12 - Regulation 48 (Transitional)

This regulation amends the transitional provisions contained in regulation 48 of the 1993 Regulations, thereby effecting a retrospective amendment to the 1989 Regulations to ensure that persons who lodged a combined application for both an extended eligibility entry permit and a permanent entry permit prior to 1 February 1993 (and whose review rights are therefore governed by the 1989 Regulations), and who were granted an extended eligibility entry permit but subsequently refused the corresponding permanent entry permit, are not precluded from having the decision to refuse the grant of a permanent entry permit reviewed.

In order to ensure that no potential applicant for review is disadvantaged by reason of this unintended consequence of the drafting of the 1989 Regulations, this regulation will commence retrospectively on 15 April 1991 - the date on which SR 60 of 1991 which introduced the two-year "qualifying EETEP period" requirement for Classes 801 and 814 permanent entry permits came into effect.

 

Regulation 13 - Schedule (Visas and entry permits to which internal review is Applicable)

 

This regulation makes a number of technical corrections to Part 2 of the Schedule which became necessary as a result of the re-drafting of the 1989 Regulations.

 

Subregulation 13.1 re-inserts references to class 120 (Employer nomination) and class 121 (Labour agreement) before class 124 (Distinguished talent (Australian support)). Both classes were inadvertently omitted from the Schedule in the course of drafting the 1993 Regulations.

 

Subregulation 13.2 corrects a numerical reference to an entry permit class, subregulation 13.3 re-numbers the second occurrence of "item 18", and subregulation

13.4 corrects the reference to a particular entry permit class.

Overview

The Migration (Review) (1993) Regulations (Amendment) 1993 No. 53 is an amendment to the Migration (Review) (1993) Regulations, which were made under the Migration Act 1958. This amendment was introduced to correct technical errors and unintended effects that arose from the drafting of the original 1993 Regulations, ensuring that no potential applicant for review is disadvantaged. The regulations were enacted by the Minister for Immigration and Ethnic Affairs and aim to provide clarity and access to the internal review mechanism for certain applicants, including those granted an Extended eligibility entry permit but refused a corresponding permanent entry permit, and those who were inadvertently omitted from the classes of internally reviewable decisions. These amendments clarify and correct the scope of reviewable decisions and ensure consistency with other regulations. The explanatory statement for these amendments indicates that the changes are designed to avoid any unintended consequences from the drafting of the original 1993 Regulations. By correcting these technical errors, the amendments ensure that all applicants who should have access to internal review are not inadvertently excluded. The policy objective is to maintain the integrity and fairness of the review process, providing clear and accessible review rights to those who need them. The amendments are set to commence on 1 February 1993, with some retrospective amendments to ensure fairness for applicants affected by the drafting errors in the 1989 Regulations.

Scope and Application

The Migration (Review) (1993) Regulations (Amendment) 1993 No. 53 apply to the internal review process under the Migration Act 1958, particularly concerning certain entry permit decisions. These Regulations are designed to address technical drafting issues that inadvertently limited the scope of internal review for specific categories of applicants, ensuring that no person is disadvantaged by these unintended consequences. The Regulations provide access to internal review for applicants who have been granted an Extended eligibility entry permit but have been refused the corresponding class of permanent entry permit, thereby extending the review mechanism to cover these situations. Additionally, decisions to refuse applications for certain entry permits are now recognised as internally reviewable unless the applicant was the holder of a visitor visa or equivalent entry permit at the time of application. These amendments do not disadvantage any persons and are therefore not retrospective in nature. Geographically, the Regulations apply within the Commonwealth of Australia, affecting all persons and entities involved in the migration process, including applicants, the Department of Home Affairs, and the Migration Review Tribunal. These Regulations do not introduce any new exclusions or exemptions beyond those already stipulated in the Migration Act 1958 and the Migration (Review) Regulations 1989. The amendments are intended to correct technical errors and ensure clarity in the application of the internal review process. The Regulations came into effect on 1 February 1993, with specific retrospective amendments taking effect from 15 April 1991. The scope of these Regulations is further extended through subordinate instruments to ensure comprehensive coverage and clarity in the internal review mechanism.

Key Provisions

The key provisions of the Migration (Review) (1993) Regulations (Amendment) 1993 No. 53 address technical corrections and clarifications intended to rectify unintended consequences stemming from the original 1993 Regulations. These amendments are designed to ensure that the intended scope of the internal review mechanism is preserved without disadvantaging any applicants. One significant amendment is the clarification that applicants who have been granted an Extended eligibility entry permit but have been refused the corresponding class of permanent entry permit are eligible for internal review (Regulation 5). Another key change is the restoration of certain decisions to be reviewable, specifically those decisions to refuse applications for entry permits classes 802, 804, 805, and 806, provided the applicant was not the holder of a visitor visa or equivalent entry permit at the time of application (Regulation 5). The Regulations impose specific obligations on applicants and the relevant authorities. Applicants who have been granted an Extended eligibility entry permit but have been refused a corresponding permanent entry permit are now eligible to seek an internal review of the refusal decision. Similarly, applicants whose applications for certain specified entry permits (classes 802, 804, 805, and 806) have been refused are also entitled to an internal review, subject to the condition that they were not holders of a visitor visa or equivalent entry permit at the time of application. These provisions ensure that affected applicants can challenge decisions that were inadvertently omitted from the reviewable classes in the original 1993 Regulations. Failure to comply with the provisions of these Regulations, or attempts to circumvent them, could lead to legal challenges regarding the validity of the review process. However, the explanatory statement does not explicitly outline specific offences, penalties, or consequences for breaches of these Regulations. Instead, the focus is on clarifying and correcting the application of the review mechanism to ensure fairness and avoid unintended disadvantages for applicants. The technical nature of the amendments suggests that the primary concern is procedural correctness rather than penal consequences for non-compliance.

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