Commonwealth Numbered Regulations - Explanatory Statements

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MIGRATION (REVIEW) (1993) REGULATIONS (AMENDMENT) 1994 NO. 88

STATUTORY RULES 1994 No. 88

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, prescribing matters 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 addition sections 115 and 116 of the Act enable regulations to be made providing for, inter alia, decisions of the Minister (or delegates of the Minister) to be reviewed, the manner and form of applications for review of decisions and the persons who may apply for such reviews.

The purpose of the Regulations is to:

•       make it clear that a decision to refuse a Class 815, 816 or 818 entry permit is an internally reviewable decision;

•       clarify when a person is entitled to apply for a review;

•       restore the rights of a person who was lawful at the time of application for a Class 806 entry permit to apply for a review;

•       provide for expedited review for certain applicants for close family visitor visas; and

•       make a number of minor and technical amendments.

The Regulations commence on gazettal except for the Regulations noted below.

The Regulation restoring the rights of a person who was lawful at the time of application for a Class 806 entry permit to apply for a review is made to operate retrospectively to 1 March 1994. This Regulation also clarifies when a person is entitled to apply for a review. The Regulation rectifies oversights in the drafting of Regulations which took effect on 1 March 1994. Its effect is entirely beneficial to the applicants concerned and is not detrimental to any person.

The Regulations providing for an expedited review of certain applications for close family visitor visas rectify an error that occurred in the restructuring of Class 673 and Class 674 visas in amendments to the Migration (1993) Regulations which took effect on 24 December 1993. The effect of the amendments was to inadvertently remove the rights of the applicants concerned to an expedited review. These Regulations restore those rights. This is entirely beneficial to the applicants concerned and is not detrimental to any person. These Regulations are therefore made to operate retrospectively to 24 December 1993.

Details of the Regulations are set out in the Attachment.

The amendment makes it clear that a person who is lawful at the time of application for the visa or entry permit has a right to apply for review of the decision. In addition it clearly defines when a person who was not lawful at the time of application for the visa or entry permit is entitled to apply for review of the decision. In particular it makes it clear that applicants for a Class 806 entry permit who were lawful at the time of application for the entry permit are entitled to apply for review of that decision.

The amendments operate retrospectively to 1 March 1994. This is to overcome an error that was made in restructuring regulation 36. The effect of the error was to deny applicants for the Class 806 entry permit who were lawful at the time of application a review right. Retrospectivity is entirely beneficial to those applicants and is not detrimental to any person. It does not therefore contravene subsection 48(2) of the Acts Interpretation Act 1901.

Regulation 5 - Regulation 43G (Powers of Tribunal

This regulation corrects an error in the punctuation of paragraph 43G(1)(b).

Regulation 6 - Regulation 45 (Expedited review (Close family visit visas)

Subregulation 6.1 inserts the words "the criterion specified in" in subparagraph 45(1)(a)(i). These words were omitted by oversight.

Subregulations 6.2 and 6.3 insert new sub-subparagraphs 45(1)(a)(i)(AB) and 45(1)(a)(ii)(AB). The amendments provide, respectively, for an expedited review for an applicant who is refused a Class 673 (close family visitor (short stay)) visa and a Class 683 (Close family visitor) visa on the grounds that the applicant intended to become a permanent resident of Australia.

A restructure of the Class 673 and Class 683 visa in SR 371 inadvertently resulted in these applicants being denied the right to an expedited review. To ensure that no applicants are disadvantaged subregulations 6.2 and 6.3 are made to operate retrospectively to 24 December 1993, the date of commencement of SR 371. Retrospectivity is entirely beneficial to the applicants concerned and is not detrimental to any person. It does not therefore contravene subsection 48(2) of the Acts Interpretation Act 1901.

Regulation 7 - Application

Subregulation 7.1 makes it clear that any person having an accrued right under subregulations 36(3) and (3A) of the Migration (Review) (1993) Regulations is not disadvantaged by the omission and substitution of those subregulations by regulation 4 of these Regulations.

ATTACHMENT

Regulation 1 - Commencement

Subregulation 4.1 is taken to have commenced retrospectively on 1 March 1994.

Subregulations 6.2 and 6.3 are taken to have commenced retrospectively on 24 December 1993.

The reason for the retrospective operation of each of these amendments is explained in the notes on the particular provisions. In each case the effect is entirely beneficial and it is not detrimental to any person. It does not therefore contravene subsection 48(2) of the Acts Interpretation Act 1901.

The remainder of the Regulations commence on gazettal.

Regulation 2 - Amendment

This regulation provides for the Migration (Review) (1993) Regulations to be amended as set out in these Regulations.

Regulation 3 - Regulation 4 (Internally reviewable decisions)

Subregulation 3.1 makes a technical amendment to subparagraph 4(3)(c)(ii) consequential to the insertion of a new paragraph 4(3)(d) by these Regulations.

Subregulation 3.2 inserts a new paragraph 4(3)(d). The new paragraph makes it clear that a decision to refuse an application for a Class 815, 816 or 818 entry permit is an internally reviewable decision. Previously a decision to refuse an application for an entry permit in these classes was internally reviewable if at the time of application for the entry permit the applicant held a temporary entry permit that was valid for the purpose of obtaining permanent residence. As few, if any applicants, would be able to satisfy this requirement this limitation meant that effectively no applications were internally reviewable.

Regulation 4 - Regulation 36 (Individuals and organisations entitled to apply for review

Subregulation 4.1 omits the existing subregulations 36(3) and (3A) and substitutes new subregulations 36(3), (3A) and (3B) and inserts a new subregulation 36(3AA).

The purpose of this amendment is to clarify when a person is entitled to apply for review. Taken together the effect of the amendments is to set out when an applicant may apply for review. An applicant with lawful status when he or she lodged an application for an entry permit applies under subregulation 36(3). An applicant who was not lawful at the time of application applies under one of subregulations 36(3AA), (3A) or (3B). An applicant who is entitled to apply under subregulation 36(3A) or (3B) is not entitled to apply under subregulation 36(3AA).