Migration (Review) (1993) Regulations (Amendment) 1994 No. 10
EXPLANATORY STATEMENT STATUTORY RULES 1994 No. 10
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, to prescribe all matters which are 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 particular, paragraph 181(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 including fees payable in connection with review of decisions made under the Act or the regulations. In addition, sections 115 and 116 of the Act enable regulations to be made providing 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. Details of the Regulations are as follows:
- Regulation 1 provides for these regulations to commence on 1 March 1994.
- Regulation 2 provides for the Migration (Review) (1993) Regulations to be amended as set out in these Regulations.
- Regulation 3 omits subregulation 36(3) of the Migration (Review) (1993) Regulations and substitutes new subregulations 36(3), 36(3A) and 36(3B).
New paragraph 36(3)(a) replicates the provisions of the omitted paragraph 36(3)(a). New paragraph 36(3)(b) replicates the provisions of the omitted paragraph 36(3)(d). The amendments are of a technical nature and have no effect on the substantive operation of the Regulations.
New subregulation 36(3A) provides an additional right of review of a decision to refuse an application for a Class 815 (PRC (permanent)) visa or entry permit, a Class 816 (special (permanent)) visa or entry permit and a Class 818 (highly qualified on- shore (permanent)) visa or entry permit, whether or not the applicant's presence in Australia was lawful when he or she lodged the application for the visa or entry permit.
New subregulation 36(3B) replicates the provisions of the omitted paragraph 36(3)(c). The amendment is of a technical nature and has no effect on the substantive operation of the Regulations.
- Regulation 4 omits subregulation 43G(1) of the Migration (Review) (1993) Regulations and substitutes a new subregulation 43G(1). In addition, new subregulation 43G(1) replicates the provisions of the omitted subregulation and provides for an application for a new Class 817 (protection (permanent)) visa or entry permit to be prescribed for the purposes of paragraph 166BC(2)(c) of the Act.
- Regulation 5 inserts new Class 815 (PRC (permanent)) visa and entry permit, new Class 816 (special (permanent)) visa and entry permit and new Class 818 (highly qualified on-shore (permanent)) visa and entry permit as items 7A, 7B and 7C, respectively, in Part 3 of Schedule 1 (Visas and entry permits to which internal review is applicable).
The regulations commence on 1 March 1994.
Details of the Regulations are set out in the attachment.
Overview
The Migration (Review) (1993) Regulations (Amendment) 1994 No. 10 were enacted to address a gap in the review process for certain permanent visa categories under the Migration Act 1958. These amendments were introduced by the Minister for Immigration and Ethnic Affairs, pursuant to the authority granted under section 181 of the Act. The primary policy objective of these regulations is to provide additional avenues for review for applicants who have had their applications for Class 815 (PRC (permanent)), Class 816 (special (permanent)), and Class 818 (highly qualified on-shore (permanent)) visas or entry permits refused, irrespective of whether they were lawfully present in Australia at the time of application. The regulations also include technical amendments to existing subregulations to ensure consistency and alignment with the overall legislative framework.
Scope and Application
The Migration (Review) (1993) Regulations (Amendment) 1994 No. 10 applies to the Migration Act 1958 and its associated regulations, specifically focusing on the review of decisions made under the Act. These regulations govern the charging and recovery of fees related to the review process, the types of decisions that can be reviewed, the application procedures for such reviews, and the eligibility of persons who may apply for reviews. The regulations apply to individuals and entities involved in the visa application and review process, including applicants, their representatives, and the government departments responsible for immigration. These amendments apply on a national level, as they are amendments to Commonwealth legislation. Notably, the regulations extend the scope of reviewable decisions to include specific permanent visa categories, such as the Class 815 (PRC (permanent)) visa, Class 816 (special (permanent)) visa, and Class 818 (highly qualified onshore (permanent)) visa or entry permit. The amendments are technical in nature and do not alter the substantive operations of the existing regulations. The regulations come into effect on 1 March 1994, as per Regulation 1, and they are made under the authority granted by the Migration Act 1958.
Key Provisions
The Migration (Review) (1993) Regulations (Amendment) 1994 No. 10 amends the Migration (Review) (1993) Regulations, effective from 1 March 1994, in alignment with the Migration Act 1958 (section 181). Regulation 1 establishes the commencement date, and Regulation 2 details the amendments to the existing regulations. Regulation 3 modifies subregulation 36(3), with changes that are technical in nature and do not affect the overall operation of the regulations. Notably, new subregulations 36(3A) and 36(3B) are introduced, expanding the right of review to include decisions regarding Class 815 (PRC (permanent)) visas, Class 816 (special (permanent)) visas, and Class 818 (highly qualified on-shore (permanent)) visas or entry permits, irrespective of the applicant's lawful presence in Australia at the time of application.
These regulations impose specific obligations on the parties involved, primarily concerning the review of decisions made under the Migration Act 1958. Regulation 4 further amends subregulation 43G(1), allowing for applications for a new Class 817 (protection (permanent)) visa or entry permit to be prescribed for the purposes of the Act. Regulation 5 adds new categories of visas and entry permits, specifically Class 815 (PRC (permanent)), Class 816 (special (permanent)), and Class 818 (highly qualified on-shore (permanent)), to the list in Schedule 1, thus extending the scope of internal review.
The legislation does not explicitly state specific offences, penalties, or civil/criminal consequences for breaches of these regulations. However, any failure to comply with the provisions of the Migration Act 1958 or the Migration (Review) (1993) Regulations could potentially lead to legal consequences as outlined in the main Act, such as fines or imprisonment for serious breaches. The exact penalties would depend on the specific nature of the breach and the provisions of the Act applicable at the time.