Migration (Review) (1993) Regulations (Amendment) 1994 No. 37
EXPLANATORY STATEMENT STATUTORY RULES 1994 No. 37
Issued by the Authority of the Minister for Immigration and Ethnic Affairs
Subject - 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, not inconsistent with the Act, prescribing matters required or permitted by the Act to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act. In addition sections 115 and 116 of the Act enable regulations to be made providing for, inter alia, the manner and form of applications for review of decisions made by the Minister or by delegates of the Minister.
The purpose of the Regulations is to amend paragraph 10(1)(aa) of the Migration (Review) (1993) Regulations by omitting the words "review officer" and substituting the words "review authority". When paragraph 10(1)(aa) was inserted on 3 June 1993 the policy intent was to provide for a mechanism for the refund of fees paid on an application for internal review where a review authority - a term encompassing both a departmental review officer and the Immigration Review Tribunal - remitted a decision for reconsideration pursuant to paragraph 118(4)(ba) of the Act.
By oversight the mechanism for the refund of fees paid on an application for internal review contained in paragraph 10(1)(aa) was restricted to circumstances where a review officer remitted a decision for reconsideration. No mechanism was provided to enable such fees to be refunded in circumstances where the Immigration Review Tribunal remitted a decision for reconsideration. The amendment would overcome the effect of that oversight.
The Regulations would be taken to have commenced on 3 June 1993, the date paragraph 10(1)(aa) was inserted. The operation of these regulations is entirely beneficial to the applicants concerned and is not prejudicial to any person.
Retrospective commencement of the regulations does not, therefore, contravene subsection 48(2) of the Acts Interpretation Act 1901.
Overview
The Migration (Review) (1993) Regulations (Amendment) 1994 No. 37, issued under the authority of the Minister for Immigration and Ethnic Affairs, seek to amend the Migration (Review) (1993) Regulations by modifying the term "review officer" to "review authority" in paragraph 10(1)(aa). This change aims to correct an oversight that previously limited the refund of fees paid on an application for internal review to cases where a review officer, and not the Immigration Review Tribunal, remitted a decision for reconsideration. This amendment ensures consistency with the policy intent behind the original insertion of paragraph 10(1)(aa) on 3 June 1993, which was to provide a mechanism for refunding fees in cases where a review authority remits a decision for reconsideration. The regulations are designed to be beneficial to applicants without causing prejudice to any person and are set to commence retrospectively from 3 June 1993, which does not contravene the Acts Interpretation Act 1901.
Scope and Application
The Migration (Review) (1993) Regulations (Amendment) 1994 apply to the Migration Act 1958 and are intended to rectify an oversight in the original regulations that failed to include a mechanism for the refund of fees in cases where the Immigration Review Tribunal, rather than a departmental review officer, remitted a decision for reconsideration. This amendment ensures that applicants who have paid fees for internal review and whose cases are remitted for reconsideration by either a review officer or the tribunal can receive refunds, thereby ensuring consistency and fairness in the application of the Act. The regulations apply nationally across Australia, as they pertain to the federal Migration Act 1958 and its associated administrative processes. There are no stated exclusions or exemptions within the scope of these regulations, which extend solely to the specified amendment in the refund mechanism. The regulatory changes are designed to be retrospective, taking effect from the date the original regulations were inserted, 3 June 1993, without contravening the Acts Interpretation Act 1901.
Key Provisions
The primary operative sections of the Migration (Review) (1993) Regulations (Amendment) 1994 No. 37 involve the amendment of paragraph 10(1)(aa) of the Migration (Review) (1993) Regulations. This amendment replaces the term "review officer" with "review authority," thereby broadening the scope of who can remit a decision for reconsideration and trigger a refund of fees paid on an application for internal review. This change ensures that the refund mechanism applies not only to decisions remitted by a review officer but also by the Immigration Review Tribunal, thereby correcting an oversight that previously limited the refund eligibility to cases where only a review officer was involved (Section 10(1)(aa)).
The amended Regulations impose specific obligations on the parties involved, ensuring that the refund of fees for internal review applications is processed correctly and comprehensively. This includes the requirement that the refund mechanism applies to decisions remitted by both review officers and the Immigration Review Tribunal. This amendment ensures that applicants are not disadvantaged by the oversight and that the refund process aligns with the original policy intent (Section 10(1)(aa)).
The Regulations do not introduce new offences or penalties but clarify existing provisions to ensure the correct application of the refund mechanism. The omission of the term "review officer" and the substitution with "review authority" aims to rectify a previous limitation and does not impose additional burdens or penalties on any party. The amendments are designed to be beneficial to applicants by ensuring they receive refunds under the correct conditions as originally intended by the Act (Section 10(1)(aa)).
The Explanatory Statement clarifies that the retrospective commencement of the Regulations does not contravene subsection 48(2) of the Acts Interpretation Act 1901, as the changes are purely corrective and beneficial to the applicants. This means that the Regulations will be applied as if they had been in effect from 3 June 1993, the date the original paragraph 10(1)(aa) was inserted. This approach ensures that the intended mechanism for fee refunds operates correctly without causing any prejudice to any person (Explanatory Statement).
Overall, the Regulations aim to ensure that the refund mechanism for internal review applications operates as intended by the original legislation, providing a fair and equitable process for applicants. The changes are designed to be beneficial and non-prejudicial, ensuring compliance with the Migration Act 1958 and the Acts Interpretation Act 1901.