EXPLANATORY STATEMENT
Subject - Migration Act 1958
Migration (Review) 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 decision 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 provide for:
(i) Regulations 4.6 and 9.8 - Regulation 3 (Decisions subject to internal review)
clarifying that a right of review in relation to the rejection of a sponsorship of an individual seeking to enter Australia exists whether or not the individual has lodged a formal application for entry. This is the policy intention of the regulations. Currently, however, there is some doubt on the part of the review authority, if an application is not lodged, whether the review authority is able to review the rejection of the sponsorship.
These amendments have been made retrospective to 19 December 1989, in order to ensure that individuals who may have had a sponsorship lodged on their behalf, in advance of submitting an application, do not lose their review rights.
(ii) Regulations 5, 7 and 8
technical amendments.
(iii) all other Regulations
to make the consequential technical amendments to reflect, in the Migration (Review) Regulations, the reduction being made in the number of entry permit classes in the Migration Regulations. There are no policy changes involved.
| Authority: | Sections 115, 116, and 181 of the Migration Act 1958 |
| | Cabinet Minute No. 13697 of 2 May 1990 |
Issued by the Minister for Immigration, Local Government and Ethnic Affairs
Overview
The Migration (Review) Regulations (Amendment) 2004, made under sections 115, 116, and 181 of the Migration Act 1958, were introduced to clarify and amend the procedures for reviewing certain decisions related to visa sponsorships. The primary objective of these amendments was to resolve ambiguities regarding the review of sponsorship rejections, particularly when no formal visa application had been submitted by the individual. This was intended to ensure that individuals would not lose their right to a review simply because they had not yet lodged an application. The amendments were made retrospective to 19 December 1989, to protect the rights of those who might have had a sponsorship application lodged on their behalf prior to submitting a formal entry application. Additionally, the regulations included technical amendments to align with changes in the number of entry permit classes, without altering the underlying policy.
Scope and Application
The Migration (Review) Regulations (Amendment) C2004L05132, under Section 181 of the Migration Act 1958, applies to the review of decisions related to the sponsorship of individuals seeking to enter Australia, regardless of whether these individuals have lodged formal applications for entry. These regulations clarify the review authority’s ability to review the rejection of sponsorships even if no formal application for entry has been submitted, a point of ambiguity previously existing within the review authority's jurisdiction. This amendment applies retrospectively to decisions made from 19 December 1989, ensuring that individuals who had sponsorships lodged on their behalf prior to submitting an entry application do not lose their right to seek a review of the sponsorship rejection. The regulations also include technical amendments to align with the reduced number of entry permit classes as per the Migration Regulations, without introducing any changes in policy. The regulations are applicable across the Commonwealth of Australia and extend to all persons who have had a sponsorship lodged on their behalf and are seeking entry to Australia.
Key Provisions
The Migration (Review) Regulations (Amendment) C2004L05132 amends the Migration (Review) Regulations to clarify and expand the scope of review rights under the Migration Act 1958. Regulation 3, for instance, specifies that a review can be sought regarding the rejection of sponsorship for an individual seeking to enter Australia, irrespective of whether the individual has submitted a formal application for entry (Regulation 4.6 and 9.8). This amendment is designed to resolve uncertainties about the review authority's jurisdiction in cases where a sponsorship is rejected before an application is lodged. Furthermore, these changes are made retrospective to 19 December 1989, ensuring that individuals who had sponsorships lodged on their behalf prior to submitting an entry application are not deprived of their review rights.
The regulations impose specific obligations on parties involved in the review process. For example, they mandate that the review authority must consider applications for review of sponsorship rejections even in the absence of a formal entry application, aligning with the policy intent outlined in the explanatory statement. Additionally, these regulations require the review authority to be proactive in identifying and addressing any uncertainties regarding their jurisdiction in such cases. Moreover, the regulations also require technical amendments to be made to the Migration (Review) Regulations to reflect changes in the number of entry permit classes in the Migration Regulations, ensuring that the regulatory framework remains coherent and up-to-date.
Failure to comply with the provisions of these regulations could result in significant consequences for both the review authority and the individuals involved. Although the explanatory statement does not explicitly outline penalties for non-compliance, breaches of the Migration Act 1958 can generally lead to civil or criminal penalties. For instance, under section 231 of the Act, a person who knowingly makes a false statement or provides false information to an officer can face fines or imprisonment. Similarly, the review authority failing to adhere to the regulations could face administrative penalties or legal challenges, potentially undermining the integrity of the review process.
In summary, the amendments to the Migration (Review) Regulations aim to clarify and expand review rights, ensuring that individuals are not deprived of their right to challenge sponsorship rejections. These changes are intended to align the review process with the policy intent and rectify any ambiguities regarding the review authority's jurisdiction. The obligations imposed by these regulations include a requirement for the review authority to consider all relevant applications and make necessary technical adjustments to the regulatory framework. While the explanatory statement does not specify penalties for non-compliance, the broader provisions of the Migration Act 1958 suggest that significant consequences could follow for breaches of the Act's requirements.