Migration (Review) Regulations (Amendment)

Overview

The Migration (Review) Regulations (Amendment) 1990 No. 280 were enacted to address issues surrounding the financial burden placed on applicants during the migration review process. This amendment to the Migration Act 1958 was introduced by the Australian Government, specifically through the Minister for Local Government and Immigration, Local Government and Ethnic Affairs, as per Cabinet Minute No. 13697 of 7 May 1990. The primary policy objective of these regulations was to alleviate the financial strain on applicants by enabling the waiver of fees for internal review and review by the Immigration Review Tribunal in cases where payment would cause severe financial hardship. Additionally, the regulations provide for the refund of fees to applicants who were initially unsuccessful in an internal review but subsequently won their appeal at the Immigration Review Tribunal.

Scope and Application

The Migration (Review) Regulations (Amendment) 1990 No. 280, under Section 181 of the Migration Act 1958, aims to regulate the fees associated with internal reviews and appeals within the migration review process. These amendments allow for the waiver of application fees for internal reviews by the Department and for reviews by the Immigration Review Tribunal if payment would cause financial hardship to the applicant. Additionally, the regulations provide for the refund of fees for internal reviews where an applicant successfully appeals an adverse decision to the Immigration Review Tribunal. The regulations apply to applicants seeking internal reviews or Tribunal reviews, and they are designed to ensure that financial constraints do not impede access to the review process. These provisions are applicable nationally across Australia, as they are subordinate instruments of the Commonwealth-level Migration Act 1958. The amendments do not introduce new exclusions or exemptions but clarify the circumstances under which fees may be waived or refunded, ensuring fairness and accessibility in the review process.

Key Provisions

The Migration (Review) Regulations (Amendment) 1990 No. 280 introduces key provisions that modify the existing Migration (Review) Regulations under the Migration Act 1958. Section 181 of the Act allows the Governor-General to make regulations for the purposes of the Act, and sections 115 and 116 further specify that these regulations can cover 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 amendment focuses on two main areas: the refund of fees and the waiver of fees in specific circumstances. Firstly, the amendment provides for the refund of fees paid for internal review where an applicant is initially unsuccessful in an internal review but subsequently wins an appeal to the Immigration Review Tribunal (section 2). This is facilitated by Regulation 7, which allows the Secretary to refund the fee under certain conditions. Secondly, it allows for the waiver of application fees for internal review by the Department and for review by the Immigration Review Tribunal if payment would result in financial hardship (section 3). This is achieved through new Regulation 5A for internal review and new Regulation 12A for review by the Tribunal. These regulations empower the Secretary to waive fees if the applicant is likely to face severe financial hardship due to the payment. The obligations and requirements imposed by the amendment include the necessity for applicants to demonstrate financial hardship to be eligible for a fee waiver. This involves providing evidence to support their claim, as outlined in the new regulations. For internal review, the Secretary must assess the applicant's financial situation and decide whether the fee should be waived according to the criteria in Regulation 5A. Similarly, for review by the Immigration Review Tribunal, the Secretary or the Registrar must consider the applicant's financial circumstances and determine if a fee waiver is appropriate under Regulation 12A. The regulations also mandate that the Secretary or the Registrar must refund fees when an applicant is successful in an appeal to the Tribunal, as per Regulations 7 and 20. The consequences of non-compliance with the provisions of these regulations are not explicitly stated in the amendment, but it is implied that failure to adhere to the conditions for fee waivers or refunds could lead to administrative penalties. There is no explicit mention of criminal penalties, but the failure to follow these regulations could potentially result in civil consequences such as the denial of a fee waiver or refund, which could adversely affect applicants who genuinely need financial assistance. The regulations aim to ensure that the process is fair and accessible, particularly for those facing financial difficulties.