Commonwealth Numbered Regulations - Explanatory Statements

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MIGRATION (REVIEW) REGULATIONS (AMENDMENT) 1991 NO. 298

STATUTORY RULES 1991 No. 298

Issued by the Authority of the Minister for Immigration, Local Government and Ethnic Affairs

Migration Act 1958

Migration (Review) Regulations (Amendment)

Section 181 of the Migration Act 1958 (the Act) provides that the GovernorGeneral 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 decisions 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 make some grammatical and technical corrections;

•       to increase the fee for internal review from $150 to $200 in accordance with Government policy;

•       to provide for refund of the fee for internal review and the fee for review by the Immigration Review Tribunal (IRT) in certain situations where the application for review has been withdrawn;

•       to require that nominators wishing to apply for review of a refusal of a December 1989 (temporary) entry permit are Australian citizens or Australian permanent residents; and

•       to amend the time limits within which applications for review must be lodged to reflect recent amendments to the Migration Act.

Regulation 11 which increases the period during which review applications can be lodged has been made retrospective to 26 June 1991 when the enabling legislation received assent. The retrospectivity is beneficial to applicants and no person will be disadvantaged. The retrospectivity is therefore not in conflict with provisions of the Acts Interpretation Act 1901.

Details of the regulations are set out in the Attachment.

ATTACHMENT

Regulation 1 - Amendment

This regulation provides for the Review Regulations to be amended.

Regulation 2 - Commencement

This regulation provides that regulation 11 is retrospective to 26 June 1991, when enabling legislation received assent. This retrospectivity is beneficial in that some potential review applicants were mistakenly notified by certain review officers that the new time limits operated from 26 June 1991.

Regulation 3 - Regulation 2 (Interpretation)

This regulation makes a grammatical correction.

Regulation 4 - Regulation 2A (Internally reviewable decisions)

This regulation makes a technical correction.

Regulation 5 - Regulation 5 (Application for internal review and fee payable)

This regulation amends regulation 5 of the Review Regulations to increase the fee for internal review from $150 to $200.

Regulation 6 - Regulation 7 (Refund of fee for internal review)

Regulation 7 of the Review Regulations provides that the fee for internal review of a decision is not refundable where the application for review is withdrawn. This regulation amends regulation 7 to enable refund of the fee where the application is withdrawn because the applicant for the visa or entry permit has died or a member of his or her family has died. The amendment also enables refund of the fee, in some cases where the application is withdrawn because the applicant has been granted a visa or an entry permit of the same kind as the one to which the review application related.

Regulation 7 - Regulation 8E (Persons who may apply under this Part)

This regulation amends regulation 8E of the Review Regulations by omitting some unnecessary words.

Regulation 8 - Regulation 20 (Refund of fee for review by Tribunal)

Regulation 20 of the Review Regulations provides that the fee for IRT review of a decision is not refundable where the application for review is withdrawn. This regulation amends regulation 20 to enable refund of the fee where the application is withdrawn because the applicant for the visa or entry permit has died or a member of his or her family has died. The amendment also enables refund of the fee in some cases where the application is withdrawn because the applicant has been granted a visa or an entry permit of the same kind as the one to which the review application related.

Regulation 9 - Regulation 21 (Individuals and organisations entitled to apply for review)

This regulation makes a technical amendment to regulation 21 of the Review Regulations for clarification.

Regulation 10 - Regulation 21C (Persons who may apply for review of decision to refuse a December 1989 entry permit)

The Migration Regulations (regulation 131A) require the nominator of an applicant for a December 1989 (temporary) entry permit to be an Australian citizen or an Australian permanent resident. This regulation amends regulation 21C of the Review Regulations to require that a nominator applying for review of a decision to refuse a December 1989 (temporary) entry permit be an Australian citizen or permanent resident.

Regulation 11 - Regulation 24 (Time limits)

Sections 115 and 116 of the Migration Act were recently amended to provide that the period prescribed in the regulations for lodging a review application at either tier should not exceed 28 days where the principal applicant is physically present in Australia or 70 days where the principal applicant is not physically present in Australia. Previously, the periods of 28 days and 70 days were aggregate periods in which applications for both internal and IRT review must have been lodged.

This regulation omits regulation 24 of the Review Regulations and substitutes a new regulation 24 which reflects the new time limits in the Migration Regulations for lodgment of applications.

The amendment has been made retrospective to 26 June 1991 when the enabling legislation received assent.