Migration (Review) Regulations

EXPLANATORY STATEMENT

Subject: Migration Act 1958

 Migration (Review) Regulations

1989 No. 412

Section 181 of the Migration Act 1958 (the Act), so far as is relevant, provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters which by this Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to this Act, in particular making provision for and in relation to the charging and recovery of fees and the making provision for the and in relation to the giving, lodging and service of documents on the Minister, Secretary or any other person or body for purposes of the Act.

In addition, regulations were prescribed pursuant to the following powers:

- section 115 of the Act provides that the Governor-General may make the following regulations:

- in relation to decisions of the Minister to be reviewed by the internal review authority;

- in relation to the review officers who are to conduct those reviews;

- in relation to the manner and form of applications for such reviews;

- in relation to the persons who may apply for such reviews.

- section 116 provides the power to prescribe regulations in relation to:

- the kinds of decisions that may be reviewed by the Immigration Review Tribunal (the Tribunal);

- the manner and form of applications for such reviews;

- the persons who may apply for such reviews.

The purpose of these Regulations is to prescribe those matters necessary to enable review of decisions under the power in the Migration Act 1958.

PART 1 - PRELIMINARY

Regulation 1 - Citation

This regulation provides that the Regulations may be cited as the Migration (Review) Regulations.

Regulation 2 - Interpretation

This regulation contains a number of definitions notably “extended eligibility entry permit” which is defined in the Migration (Criteria and General) Regulations to mean any of the following entry permits:

- extended eligibility (spouse) entry permit

- extended eligibility (family) entry permit

- extended eligibility (economic) entry permit

- extended eligibility (other) entry permit

- extended eligibility (limited) entry permit

PART 2 - INTERNAL REVIEW

Regulation 3 - Decisions subject to internal review

This regulation provides that decisions not to grant a visa or entry permit of one of the classes listed in the Schedule are to be reviewable subject to the exceptions specified. Decisions taken by the Minister personally, the Secretary or Senior Executive Officers may only be reviewed by the Tribunal.

This regulation also enables review of decisions to reject nomination or sponsorship where provision of a nomination or sponsorship is a criterion in a class of visa and entry permit in the Migration Regulations.

The regulation also prevents a person applying more than once for review of a points assessment made under subsection 30(1) of the Migration Act.

Regulation 4 - Review officers

This regulation enables the Secretary to appoint officers to carry out internal review of decisions reviewable under Regulation 3.

Regulation 5 - Application for internal review and fee payable

This regulation provides that an application for internal review is to be in a form approved by the Minister and is to be accompanied by a fee of $150.

Regulation 6 - Lodgment of application

This regulation provides means of lodgment of applications for internal review which may be achieved by posting applications or leaving them at an office of the Department of Immigration, Local Government and Ethnic Affairs.

Regulation 7 - Refund of fee for internal review

This regulation provides for refund of the application fee for internal review where the outcome of that review is in the applicant’s favour. The fee is also to be refunded where the person applying for review is not entitled to do so, the decision which the person wishes to have reviewed is not a reviewable decision under Regulation 3 or the Minister has given a certificate under subsection 120(2) of the Act that it would be contrary to the public interest to review or change the decision.

An applicant for review will not be eligible for fee refund if the application is withdrawn or in the event of adjustment of the passmark for applications before the review is completed, with result that the points score allotted to the visa or entry permit application being reviewed is equal to or more than the new passmark.

Regulation 8 - Notice of decision in relation to internal review

This regulation obliges the review officer to inform the applicant for review of the review decision within 10 days of the decision. This is to ensure that applicants are advised of the outcome of their applications. The review officer must give reasons for a decision where the appeal is unsuccessful.

PART 3 - REVIEW BY TRIBUNAL

Regulation 9 - Review by Tribunal

This regulation provides for the Tribunal to review decisions not reviewable by internal review only because they were taken by the Minister personally, the Secretary or a Senior Executive Service Officer. Decisions which have already been reviewed by the internal review are also reviewable by the Tribunal.

Regulation 10 - Prescribed Number of Senior Members and of members

This regulation prescribes for the purposes of section 151 of the Migration Act the maximum number of Senior Members and members of the Tribunal.

Regulation 11 - Powers of Tribunal on review

This regulation provides for the Tribunal to make recommendations on reviews of decisions made by the Minister personally. All other reviews will be determinative.

Regulation 12 - Application for review by Tribunal

This regulation specifies that an application for Tribunal review is to be in a form approved by the Minister and is to be accompanied by a fee of $300.

Regulation 13 - Lodgment of application

This regulation provides means of lodgment of applications for Tribunal review which may be achieved by post or leaving application at a registry of the Tribunal.

Regulation 14 - Prescribed number of copies - subsection 122(2) of the Act

This regulation prescribes the number of copies of documents the Secretary of the Department shall give to the Registrar of the Tribunal after being notified of receipt by the Tribunal of an application for review.

Regulation 15 - Time Limits in relation to other evidence

This regulation provides the time limits in which persons required to provide evidence under paragraph 130(1)(b) of the Act are to provide that evidence to the Tribunal.

Regulation 16 - Summons to attend before Tribunal

This regulation provides means for summoning a person to appear before the Tribunal give evidence as provided in subsection 132(3) of the Migration Act.

Regulation 17 - Fees for persons giving evidence

This regulation provides that fees and allowances to be paid under section 145(1) of the Act to a person summoned to give evidence are to be in accordance with the scale in Schedule 2 of the Administrative Appeals Tribunal Regulations.

Regulation 18 - Prescribed allowances - section 155 of the Act

This regulation provides for a special allowance of $6.63 to be paid to the Principal Member each day or part of a day he or she carries out duties except on Saturday, Sunday or public holidays.

This allowance is in addition to remuneration and allowances specified by the Remuneration Tribunal.

Regulation 19 - Duties, powers and functions of officers of Tribunal

This regulation provides the duties, powers and functions of officers of the Tribunal.

Regulation 20 - Refund of fee for review by Tribunal

This regulation provides for refund of the application fee for Tribunal review where the outcome of that review is in favour of the applicant. The fee is also to be refunded where the person who applies for review is not entitled to do so, the decision which the person wishes to have reviewed is not a reviewable decision under Regulation 9, or the Minister has given a certificate under subsection 120(2) of the Act that it would be contrary to the public interest to review or change the decision.

PART 4 - PROVISIONS RELATING TO REVIEW BY REVIEW AUTHORITY

Regulation 21 - Persons who may apply for review by review authority

This regulation provides that a person who was lawfully present in Australia at the time of his or her application for a visa or entry permit has standing to apply for review by the internal review authority and the Tribunal. In addition a person or company who or which nominated or sponsored an applicant may, instead of the applicant, apply for review of the decision.

Where the decision is a refusal to grant a visa or an entry permit of certain classes listed in Regulation 21(5), other persons or bodies which provided support for the original application also have standing to apply for review.

Where there has been a refusal to grant a return visa to a person outside Australia an immediate family member of the applicant for that visa has a right of review of the applicant. This is to protect the interests of Australian permanent residents overseas who have not obtained return visas before departure from Australia.

Regulation 22 - Decision reviewable once only by particular review authority

This regulation provides that a decision may only be reviewed once by each review authority. This is to prevent repeated reviews of the same decision.

Regulation 23 - Notification of decision of review authority

This regulation provides means of giving notice to the applicant of the review decision made by the internal review officer and the Tribunal.

Regulation 24 - Time Limits

This regulation provides a mechanism for calculation of the time periods in which applications for internal review and Tribunal review must be made.

The time periods specified are the maximum allowed under subsections 115(3) and (4) and 116(3) of the Migration Act.

Regulation 25 - Lodgment of application - persons in custody

This regulation provides means of lodgment of applications for internal review and Tribunal review by persons held in custody under the Migration Act.

Regulation 26 - Service of documents

This regulation provides a means of service of documents where there are no other applicable provisions in the Migration Act or Regulations.

Regulation 27 - Time when services takes effect

This regulation provides when service of documents under Regulation 26 is deemed to have occurred.

Schedule - Visas and Entry Permits to which Internal Review is Applicable.

This schedule lists the classes of visas and entry permit which are reviewable by internal review officers under Regulation 3.