Commonwealth Numbered Regulations - Explanatory Statements

[Index] [Search] [Download] [Related Items] [Help]

MIGRATION (REVIEW) REGULATIONS (AMENDMENT) 1991 NO. 61

Statutory Rules 1991 No. 61

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 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 principally to clarify who may seek review under the Migration (Review) Regulations and what decisions may be reviewed. The previous regulations determining these matters were difficult to follow. These amendments do not affect existing review rights.

Provision is also being made within these changes to provide review rights for persons who will be affected by new policy relating to the grant of permanent residence to persons who are the spouses of, or who have established a genuine and continuing nonfamilial relationship with, Australian citizens or permanent residents.

Review rights are also being created for persons who apply to remain in Australia on the grounds that they should be granted refugee status, and are rejected.

A number of technical amendments are made by these Regulations including one which enables the Secretary of the Department to submit certain applications for internal review direct to the Immigration Review Tribunal.

Details of the amendments are attached.

Authority:       Sections 115, 116 and 181 of the Migration Act 1958

Cabinet Minute No 14546 of 15 December 1990

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

ATTACHMENT

Migration (Review) Regulations (Amendment)

Regulation 1 - Commencement

This regulation provides that the amendment to regulation 24(3) of the Migration (Review) Regulations (the Review Regulations) is retrospective to 22 January 1991. This amendment was overlooked in amendments made by Statutory Rules No 3 of 1991, which came into operation on that date, and will be beneficial to individuals.

Regulation 2 - Amendment

This regulation provides for the Migration (Review) Regulations to be amended.

Regulation 3 - Regulation 2 (Interpretation)

This regulation adds two new definitions to the Review Regulations -"IRT reviewable decision", which will be a decision reviewable by the Immigration Review Tribunal, and "internally reviewable decision", which will be a decision reviewable by Migration Internal Review Officers.

Regulation 4 - New Regulation 2A

This regulation inserts a new regulation 2A into the Review Regulations. Regulation 2A sets out what decisions are reviewable under these regulations. This regulation (together with the new regulation 3) is a rewrite of existing regulation 3 of the Review Regulations and there are no policy changes except for provisions relating to spouses of, and persons who have established a genuine and continuing non-familial relationship with, Australian citizens and permanent residents.

Regulation 5 - Regulation 3 (Decisions subject to internal review)

This regulation omits regulation 3 of the Review Regulations and substitutes a new regulation 3. The existing regulation 3 has been replaced, as mentioned above, by the new regulation 2A and by the new regulation 3.

Regulation 6 - New Part 2A

Statutory Rules No 25 of 1991 provided for a new entry permit in the Migration Regulations called the domestic protection (temporary) entry permit. This entry permit is essentially granted to people who can satisfy the Minister that they are entitled to refugee status, or can establish strong humanitarian grounds to remain in Australia.

This regulation inserts a new part into the Review Regulations to set up a system of review for the new domestic protection (temporary) entry permits. A new part has been added to the Review Regulations because many of the procedural provisions relating to review of this entry permit differ from those applying to other entry permits, eg. different decision makers and fees.

Regulations added to the Review Regulations by new Part 2A are as follows:

8A - Interpretation: specifies that this Part applies to the domestic protection (temporary) entry permit.

8B - Restriction on application of Parts 2, 3 and 4 in relation to review of decisions to refuse prescribed permits: specifies that Parts 2, 3 and 4 of the Review Regulations apply only to the extent that this Part expressly so provides.

8C - Certain review officers to conduct review of decisions to refuse prescribed permits: specifies that Review Officers are officers of the Department appointed for the purposes of this Part.

8D - Application for review and fee payable: provides that applications have to be made on the approved form, that the fee payable upon lodgment of a review application is $30 and for the Secretary to waive the fee in cases of severe financial hardship.

8E - Persons who may apply under this Part: specifies which persons may apply for review under this Part.

8F - Refund of fee if application allowed: applies the provisions of regulation 7 of the Review Regulations to this Part. Regulation 7 of the Review Regulations sets out the circumstances in which a fee may be refunded.

8G - Notification of decision in relation to application: applies the provisions of regulations 8(1) and 23 of the Review Regulations to this Part. Regulations 8(1) and 23 state what must be included in a notice to an applicant of a review decision, and the time limits within which a notice should be given to the applicant.

8H - Decision reviewable once only by a particular review authority: applies the provisions of regulation 22 to this Part. Regulation 22 provides that no decision may be reviewed more than once by a review authority.

8J - Time limits: applies the provisions of regulation 24 of the Review Regulations to this Part. Regulation 24 sets out the time limits within which an application must be lodged.

8K - Lodgment of applications - Persons in custody: applies the provisions of regulation 25 of the Review Regulations to this Part. Regulation 25 sets out the requirements to be met by a person in custody lodging an application for review.

8L - Delegation by Secretary: applies the provisions of regulation 28 to this Part. Regulation 28 is a new regulation inserted by regulation 13 of these amending Regulations and provides for the Secretary to delegate his or her powers under the Review Regulations.

Regulation 7 - Regulation 9 (Review by Tribunal)

This regulation omits existing regulation 9, and substitutes a new regulation 9 which clarifies the jurisdiction of the Tribunal. The new regulation contains no policy changes.

Regulation 8 - Regulation 21 (Persons who may apply for review by review authority)

This regulations omits existing regulation 21 and substitutes a new regulation 21 which sets out more clearly the classes of people who may apply for review. It contains no policy changes. The new regulation 21 also includes the provisions of previous regulations 21A, 21B and 21C(3).

Regulation 9 - Regulation 21A (Restrictions on applications for review)

This regulation omits regulation 21A of the Review Regulations as the provisions of regulation 21A are now included in the new regulation 21.

Regulation 10 - Regulation 21B (Illegal entrants who may apply for review)

This regulation omits regulation 21B of the Review Regulations as the provisions of regulation 21B are now included in the new regulation 21.

Regulation 11 - Regulation 21C (Persons who may apply for review of decision to refuse a December 1989 entry permit)

This regulation omits regulation 21C(3) of the Review Regulations as the provisions of regulation 21C(3) are now included in the new regulation 21.

Regulation 12 - Regulation 24 (Time limits)

Regulation 12.1 is a technical amendment to correct a reference as a result of the inclusion of regulation 21B of the Review Regulations in regulation 21 (see regulation 10 above).

Regulation 12.2 includes a reference to regulation 21C in regulation 24(3) of the Review Regulations. This amendment was overlooked in amendments made by Statutory Rules No. 3 of 1991 and is retrospective to 22 January 1991, the date that amendment came into effect. There is no adverse effect upon any individual.

Regulation 13 - New regulations 28 and 29

This regulation inserts a new regulation 28 into the Review Regulations to enable delegation of the Secretary's powers.

This regulation also inserts a new regulation 29 into the Review Regulations -Secretary may refer certain review applications to the Tribunal. This regulation will enable "fast tracking" of current extended eligibility temporary entry permit and permanent entry permit after entry applications by enabling the Secretary to refer any of these review applications, which have not been decided, to the IRT so that they become applications to the IRT.

Regulation 14 - Schedule (Visas and entry permits to which internal review is applicable)

This regulation makes a minor consequential amendment to the Schedule as a result of the rewrite of regulation 3.

This regulation also adds the interdependency (temporary) visa and the extended eligibility (interdependency) and interdependency (permanent) entry permits to Schedule 3. Schedule 3 lists the visas and entry permits for which an adverse decision may be reviewed.

Regulation 15 - Transitional

This regulation is a transitional regulation which specifies that amendments made by these Regulations (other than the amendment made in regulation 12.2) do not apply to applications for review lodged before the commencement of these Regulations.