Migration (Review) Regulations

Legislation au C2004L05128 Regulations Not in force Legislative Instrument

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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.

 

Authority:

sections 115, 116 and 181 of the Migration Act 1958

 

Overview

The Migration (Review) Regulations 1989 were enacted to provide a structured framework for the review of decisions made under the Migration Act 1958. These Regulations were established by the Governor-General in accordance with the powers granted under sections 115, 116 and 181 of the Act. The primary objective of these Regulations is to enable and facilitate the review of decisions related to visa and entry permit applications, ensuring that applicants have a clear and fair process to challenge decisions they believe are incorrect. This regulatory framework aims to provide a mechanism for internal review by officers appointed by the Secretary and external review by the Immigration Review Tribunal, ensuring that there are multiple avenues for applicants to seek redress. The Regulations cover various aspects including the types of decisions that can be reviewed, the process and timing for lodging applications, the fees associated with the review process, and the conditions under which fees may be refunded. Additionally, the Regulations outline the roles and powers of review officers and Tribunal members, as well as the procedures for lodging applications and providing evidence. These provisions collectively address the need for a transparent, efficient, and accessible review process within Australia's migration legislation.

Scope and Application

The Migration (Review) Regulations 1989 are subsidiary legislation enacted under the Migration Act 1958, which governs the regulation of immigration to, within, and from Australia. These regulations provide the framework for the review of decisions made under the Act by either the internal review authority or the Immigration Review Tribunal, including decisions related to the granting or refusal of visas and entry permits. The Regulations apply to individuals and entities that have been subject to decisions concerning their migration status in Australia, including those who have applied for a visa or entry permit, as well as those who have been nominated or sponsored for such applications. These regulations establish the process for internal review and review by the Tribunal, including who may apply for review, the manner and form of applications, and the fees associated with these processes. The scope of the Regulations extends nationally across Australia, as they apply to decisions made by the Minister, the Secretary, or Senior Executive Officers of the Department of Home Affairs, and to decisions that have been reviewed internally or are eligible for review by the Tribunal. Certain exclusions and thresholds apply, such as the prohibition on multiple applications for review of the same decision by the same applicant. The Regulations also detail the circumstances under which fees for review may be refunded, and the conditions under which review decisions must be communicated to applicants. Furthermore, the application and scope of these Regulations may be extended or modified through subordinate instruments, allowing for adjustments to be made in response to changes in policy or legal interpretation.

Key Provisions

The Migration (Review) Regulations prescribe various matters necessary to enable review of decisions under the Migration Act 1958. Regulation 3 specifies the types of decisions that can be reviewed internally, such as decisions not to grant a visa or entry permit of certain classes, decisions to reject nomination or sponsorship, and points assessments made under subsection 30(1) of the Act. However, it is important to note that a person cannot apply more than once for review of a points assessment. Regulation 4 empowers the Secretary to appoint officers to conduct these internal reviews. An application for internal review must be in a form approved by the Minister and accompanied by a fee of $150 as stated in Regulation 5. Regulation 6 outlines the means of lodging an application for internal review, which may be by post or by leaving it at an office of the Department of Immigration, Local Government and Ethnic Affairs. Under Regulation 7, the application fee for internal review is refundable if the review outcome is in the applicant’s favour, the applicant is not entitled to apply for review, the decision being reviewed is not reviewable, or if the Minister certifies that it would be contrary to the public interest to review or change the decision. However, the fee is not refundable if the application is withdrawn or if the passmark for applications is adjusted before the review is completed and the points score equals or exceeds the new passmark. Regulation 8 requires the review officer to inform the applicant of the review decision within 10 days and provide reasons if the review is unsuccessful. The Act imposes several obligations on parties involved in the review process. Under Regulation 3, decisions not to grant a visa or entry permit of certain classes, decisions to reject nomination or sponsorship, and points assessments made under subsection 30(1) of the Act are subject to internal review. Regulation 4 mandates the Secretary to appoint officers to conduct internal reviews. Regulation 5 stipulates that an application for internal review must be in an approved form and accompanied by a fee of $150. Regulation 6 allows for the lodgment of applications for internal review by post or in person at specified offices, while Regulation 7 outlines the conditions under which the application fee may be refunded. Regulation 8 requires review officers to inform applicants of the review decision within 10 days and provide reasons if the review is unsuccessful. Under Regulation 9, the Immigration Review Tribunal can review decisions not reviewable by internal review because they were made by the Minister personally, the Secretary, or a Senior Executive Service Officer. Regulation 10 prescribes the maximum number of Senior Members and members of the Tribunal, while Regulation 11 provides that the Tribunal can make recommendations on reviews of decisions made by the Minister personally, with all other reviews being determinative. Regulation 12 specifies that an application for Tribunal review must be in an approved form and accompanied by a fee of $300. Regulation 13 allows for the lodgment of applications for Tribunal review by post or at a registry of the Tribunal. Regulation 14 prescribes the number of copies of documents the Secretary must give to the Registrar of the Tribunal after being notified of an application for review. Regulation 15 sets time limits for persons required to provide evidence under paragraph 130(1)(b) of the Act to provide that evidence to the Tribunal. Regulation 16 provides means for summoning a person to appear before the Tribunal to give evidence as provided in subsection 132(3) of the Migration Act. Regulation 17 specifies that fees and allowances to be paid 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 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. Regulation 19 outlines the duties, powers, and functions of officers of the Tribunal. Regulation 20 provides for the refund of the application fee for Tribunal review if the outcome is in the applicant’s favour, the applicant is not entitled to apply for review, the decision being reviewed is not reviewable, or if the Minister certifies that it would be contrary to the public interest to review or change the decision. The Act imposes penalties and consequences for breaches of its provisions. For instance, Regulation 7 states that the application fee for internal review is not refundable if the application is withdrawn or if the passmark for applications is adjusted before the review is completed and the points score equals or exceeds the new passmark. Similarly, Regulation 20 states that the application fee for Tribunal review is not refundable if the applicant is not entitled to apply for review, the decision being reviewed is not reviewable, or if the Minister certifies that it would be contrary to the public interest to review or change the decision. While the Act does not specify maximum penalties for breaches, it is worth noting that breaches of the Act or Regulations may result in civil or criminal consequences, depending on the nature and severity of the breach.

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Area of Law
Immigration & Refugee Law
Instrument
Regulation
Concepts
Definitions & Interpretation
Reporting & Disclosure Obligations
Review & Sunset Clauses
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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.