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1998-1999
THE
PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
THE
SENATE
MIGRATION LEGISLATION AMENDMENT BILL (No.
2) 1999
EXPLANATORY
MEMORANDUM
(Circulated by authority
of the
Minister for Immigration and Multicultural Affairs,
the Hon. Philip
Ruddock MP)
ISBN: 0643 392153
MIGRATION LEGISLATION AMENDMENT BILL (No. 2)
1999
OUTLINE
Overview
1 The Migration
Legislation Amendment Bill (No. 2) 1999 (“the Bill”) implements a
number of Government initiatives in the Immigration and Multicultural Affairs
portfolio.
2 The amendments to the Migration Act 1958 (“the
Migration Act”):
• provide powers to cancel approvals of
business sponsorships;
• introduce monitoring provisions in
relation to business sponsorships;
• expand the power under the Migration Act to enact
regulations which prescribe the criteria and requirements that must be met for a
visa application to be valid;
• permit the authorisation of
classes of persons, including future members of these classes, as
“officers” and “authorised officers” for the purposes of
the Migration Act;
• provide for the gazettal of the authorisation
of persons, and classes of persons, as “officers” at a time after
the Minister has approved the authorisations;
• enable the transfer
of non-citizens, who are deportees or removees, from prison custody into
immigration detention without effecting their release from
custody;
• provide for merits review of decisions to refuse an
application that was made outside Australia for a permanent visa where the visa
can be granted while the visa applicant is either in the migration zone or
outside Australia;
• exempt applicants from “capping”
in certain specified circumstances;
• extend the period
applications for certain visa categories may remain in the “pool”
from 12 months to 24 months;
• remove the age limit affecting the
appointment of full-time members to the Refugee Review Tribunal (“the
RRT”); and
• ensure that decisions of the Migration Review
Tribunal (“the MRT”) are subject to Part 8 of the Migration Act in
the same way that decisions of the Immigration Review Tribunal (“the
IRT”) are currently subject to Part 8.
FINANCIAL IMPACT
STATEMENT
3 The amendments to the Migration Act will have a low
financial impact.
MIGRATION LEGISLATION AMENDMENT BILL (No. 2) 1999
NOTES
ON INDIVIDUAL CLAUSES
Clause 1 Short title
4 The
short title by which this Act will be known is the Migration Legislation
Amendment Act (No. 2) 1999.
Clause
2 Commencement
5 Subclause 2(1) provides that, subject to this
section, this Act commences on the day on which it receives the Royal Assent.
6 Subclause 2(2) provides that, subject to subsection (3), Schedules 1,
2, 3, 4, 6, 7 and 8 commence on a day or days to be fixed by
Proclamation.
7 Subclause 2(3) provides that if Schedules 1, 2, 3, 4, 6,
7 and 8 are not proclaimed within 6 months of this Act receiving the Royal
Assent, then these Schedules will commence on the first day immediately after
the end of that period.
8 Subclause 2(4) provides that if this Act
receives the Royal Assent before, or on the date of, the commencement of
Schedule 1 to the Migration Legislation Amendment Act (No. 1) 1998, then
Part 1 of Schedule 5 to this Act commences on the date of commencement of
Schedule 1 to that Act.
9 Subclause 2(5) provides that, subject to
subsection (8), if this Act receives the Royal Assent after the date of
commencement of Schedule 1 to the Migration Legislation Amendment Act (No. 1)
1998, then Part 1 of Schedule 5 to this Act commences on the day to be
fixed by Proclamation.
10 Subclause 2(6) provides that, subject to
subsection (8), if this Act receives the Royal Assent before the date of
commencement of Schedule 1 to the Migration Legislation Amendment Act (No. 1)
1998, then Part 2 of Schedule 5 to this Act commences on the day to be
fixed by Proclamation.
11 Subclause 2(7) provides that, if this Act
receives the Royal Assent on or after the date of commencement of Schedule 1 to
the Migration Legislation Amendment Act (No. 1) 1998, then Part 2 of
Schedule 5 to this Act does not commence and is taken not to have been enacted.
12 Subclause 2(8) provides that if subsection (5) or (6) applies, that
is that the commencement of Part 1 or 2 of Schedule 5 is to be on a day fixed by
Proclamation, and that Proclamation does not occur within 6 months of this Act
receiving the Royal Assent, then that Part of the Schedule will commence on the
first day immediately after the end of that period.
13 Subclause 2(9)
provides that if an Act entitled the Migration Legislation Amendment
(Judicial Review) Act 1999 commences on or before 1 June 1999 then Schedule
9 does not commence and is taken not to have been enacted.
14 Subclause
2(10) provides that if an Act entitled the Migration Legislation Amendment
(Judicial Review) Act 1999 does not commence on or before 1 June 1999, or is
not enacted on or before 1 June 1999 (or is never enacted), and this Act
receives the Royal Assent on or before that date, then Schedule 9 commences on
that date.
15 Subclause 2(11) provides that if an Act entitled the
Migration Legislation Amendment (Judicial Review) Act 1999 does not
commence on or before 1 June 1999, or is not enacted on or before 1 June 1999
(or is never enacted), and this Act receives the Royal Assent after that date,
then Schedule 9 is taken to have commenced on that date.
Clause
3 Schedule(s)
16 This clause provides that, subject to section 2, the
provisions of each Act set out in the items of the Schedules to this Act are
amended or repealed as indicated and any other item has effect according to its
terms.
SCHEDULE 1 – Business sponsors
Item 1 After Subdivision G of Division 3 of Part 2
17 This
item inserts new Subdivision GA into Division 3 of Part 2 of the Migration Act,
which deals with the sponsorships of temporary visas.
Subdivision GA
– Cancellation of approval as a business sponsor
Section
137A Definitions
18 New section 137A sets out specific definitions
relevant to new Subdivision GA.
19 The definition of an “approval
of a person as a business sponsor” or “approval” means an
approval (including a renewal of an approval), under the regulations, of a
person as a business sponsor. The definition of a “business
sponsor” means a pre-qualified business sponsor or a standard business
sponsor under the provisions of the regulations relating to the approval of such
sponsors.
20 New subsection 137B(1) gives the Minister a discretionary power to
cancel an approval of a person as a business sponsor if he or she is satisfied
that a prescribed ground for cancelling the approval applies to that person.
21 To avoid doubt, new subsection 137B(2) provides that a matter may
constitute a ground for cancelling an approval as a business
sponsor:
• whether or not the Minister became aware of the matter
because of information given by the person; and
• if the matter is
an act or omission by the person – whether the act or omission was
deliberate or inadvertent.
22 New subsection 137B(3) in effect limits
the Minister’s discretion under new subsection (1). New subsection
137B(3) provides that if the Minister may cancel an approval under new
subsection (1) because prescribed grounds exist for the cancellation, then the
Minister must cancel the sponsorship if prescribed circumstances exist.
23 New subsection 137B(4) provides that any cancellation of an approval
of a business sponsor under new subsection (1) terminates that approval in the
same way as the revocation of such an approval would occur under the
regulations.
Section 137C Non-cancellation of
approval because of one matter not to prevent cancellation of approval because
of another matter
24 New section 137C ensures that the
discretion to cancel an approval as a business sponsor can be exercised when a
ground for cancellation exists even though that approval was not cancelled when
a prior ground for cancellation existed.
25 New section 137D introduces a limited code of procedures in relation
to the notification of the cancellation of business sponsorships.
26 New
subsection 137D(1) requires the Minister to give written notice of a decision to
cancel an approval of a person as a business sponsor, made under new section
137B, to that person.
27 New subsection 137D(2) provides that, subject
to subsection (3), the notice is to be addressed to the person and is to be
given by the prescribed method. However, if there is no prescribed method then
the notice is to be given, by a method the Minister considers to be appropriate,
to an address that is an appropriate address for delivery of the notice
(referred to in new section 137E).
28 New subsection 137D(3) provides
that subsection (2) does not prevent the Minister from giving notice of the
decision to the person by another method or to another address so long as the
person receives the notice.
29 New subsection 137D(4) provides that the
notice of the decision must state the ground for cancellation.
30 New
subsection 137D(5) provides that failure to give notice of the decision does not
affect the validity of the decision.
Section
137E What constitutes an appropriate address for delivery of notice of a
decision
31 New subsection 137E(1) provides that, subject to
subsection (2), if a person has notified the Minister of an address at which he
or she lives or carries on business, or proposes to live or carry on business
for a period of at least 14 days, then that address is taken to be an
appropriate address for notification purposes.
32 However, new
subsection 137E(2) states that subsection (1) does not apply if the person
notifies the Minister of an address to which a notice may be delivered. New
subsection 137E(2) also provides that that address is then the appropriate
address for delivery of the notice.
33 New subsection 137E(3) provides
that if a person has notified the Minister of different addresses at different
times, as mentioned in new subsection (1) or (2), then references to the
address, in this section, are taken to be references to the later or latest
address.
34 New section 137F ensures that where the Minister complies with the
provisions relating to the cancellation of a business sponsorship under this
Subdivision, the Minister is not required to take any other action in respect of
the cancellation.
35 New subsection 137G(1) ensures that if the Federal court sets aside a
cancellation decision made under new section 137B, the approval is taken never
to have been cancelled.
36 New subsection 137G(2) provides that a person
is not entitled to make any claim against the Commonwealth or an officer because
of a purported cancellation.
37 New section 137H relates to the procedures for the provision of
certain information that a business sponsor is required to give to the
Secretary.
38 New subsection 137H(1) provides that, subject to subsection
(2), the Secretary may require a person, who has at any time applied to be
approved as a business sponsor (whether or not the person was eligible to be
approved as a business sponsor), to give information about any matter stated in
a written notice to that person.
39 Under new subsection 137H(2),
however, the Secretary may only require information that relates
to:
• the person’s application for approval as a business
sponsor;
• any approval of the person as a business sponsor;
or
• anything that is done as a result of the application or of any
such approval.
40 New subsection 137H(3) provides that a notice for the
purposes of subsection (1) must state that the information must be given within
a period as prescribed by the regulations or, if no such period is prescribed,
within a reasonable period.
41 New subsection 137H(4) gives the
Secretary the discretion to fix a later day, than that stated in the notice, at
the request of the person to whom to the notice is given. If a later day is so
fixed, the information is to be given by the person on or before that later day.
42 The provisions of new Subdivision GA only apply to approvals granted
or renewed as a result of applications made on or after 1 August 1996.
SCHEDULE 2 – Circumstances that must be met for a valid visa
application
43 These amendments reflect a need to clarify the powers in relation to
prescribing requirements that must be met for making a valid visa application.
This follows a decision of the Federal Court in April 1997 in Arnulfo
Capistrano v Minister of State for Immigration and Multicultural Affairs
(NG952 of 1996).
44 In that case, the Court held that certain provisions
which had been prescribed in the regulations as requirements to be met for the
making of a valid application were more in the nature of criteria that had to be
met in order for there to be a valid application. The Court further held that
there was no power under the Migration Act to prescribe such criteria, and
therefore the criteria were to be treated as criteria that must be met before a
visa could be granted.
45 These amendments will provide that the
regulations may prescribe criteria that must be met for the making of a valid
visa application.
Item 1 Subsections 45(2) and (3)
46 This
item repeals subsections 45(2) and (3) of the Migration Act. The powers that
were formerly under these subsections have been transferred to section 46 by
this Act.
Item 2 Paragraph 46(1)(b)
47 This item repeals
the existing paragraph 46(1)(b) and substitutes a new
paragraph 46(1)(b).
48 New paragraph 46(1)(b) provides that an
application for a visa is valid if, and only if, it satisfies the criteria and
requirements prescribed under section 46.
49 This item inserts subsections (3) and (4) at section 46 such that the
relevant regulation-making power is transferred from repealed subsections 45(2)
and (3) to new subsections 46(3) and (4).
50 New subsection 46(3)
provides that the regulations may prescribe criteria that must be satisfied for
a valid visa application for a visa of a specified class.
51 Without
limiting new subsection 46(3), new subsection 46(4) provides that the
regulations may prescribe:
• the circumstances that must exist for
an application for a visa of a specified class to be a valid visa application;
• how an application for a visa of a specified class must be made;
• where an application for a visa of a specified class must be
made; and
• where an applicant must be when an application for a
visa of a specified class is made.
52 This item inserts a “saving” provision to avoid the
automatic repeal of the regulations made under the former head of power (that
is, under former subsections 45(2) and (3)).
53 This item deems the
regulations made and were in force, or purportedly made and were purportedly in
force, under section 45 (as it existed immediately prior to the commencement of
this Act) to have been validly made under the new sections 46.
SCHEDULE 3 – Authorisation of officers
Item 1 Subsection 5(1) (paragraph (f) of the definition of
officer)
54 This item repeals the existing paragraph (f) in
subsection 5(1) and substitutes new paragraphs 5(1)(f) and (g).
55 New
paragraph 5(1)(f) will allow the Minister to authorise a person as an
“officer” for the purposes of the Migration Act by way of an
instrument in writing.
56 New paragraph 5(1)(g) will permit the Minister
to authorise classes of persons as “officers” by way of an
instrument in writing. It also ensures that future members of any such class
are included in the authorisation without the need for the Minister to sign
another instrument.
57 Nothing in these amendments prevents the existing
device of authorising by name or position number from continuing.
Item
2 After subsection 5(1)
58 This item inserts new subsection 5(1A) at
section 5. The purpose of new subsection 5(1A) is to provide that where the
Minister has authorised a person, or a class of persons, under new paragraph
5(f) or (g) respectively of the definition of an “officer”, then the
Minister must publish a notice of those authorisations in the Gazette.
This will retain public transparency in the authorisation
process.
59 However, notwithstanding the Minister’s obligation to
publish such authorisations by notice in the Gazette, this subsection
does not affect those authorisations from taking effect at the time the Minister
has authorised such persons, or class of persons, to be “officers”
for the purposes of the Act. Furthermore, the validity of those authorisations
is not affected should a notice of those authorisations not be published in the
Gazette.
60 This item ensures that a person who, after the commencement of this
Schedule, was previously authorised as an “officer” under old
paragraph 5(1)(f) of the Migration Act is deemed to be so authorised under new
paragraph 5(1)(f).
Item 1 Subsection 254(3)
61 This item repeals the existing
subsection 254(3) and substitutes new subsections 254(2A) and
(3).
62 These amendments affect persons who are either
“removees” or “detainees” and who are in the custody of
an authority of the Commonwealth, a State or Territory, otherwise than under the
auspices of the Migration Act. These amendments enable those corrective
services authorities to continue to detain in their institutions under
immigration detention such non-citizens who are liable to removal or
deportation, but who would otherwise have been entitled to be released from
custody.
63 New subsection 254(2A) relates to a “removee”
(as defined under subsection 5(1) of the Migration Act). New paragraph
254(2A)(a) gives corrective services authorities the power to exercise the
detention powers in Division 7 of Part 2 of the Migration Act where a removee
has been given written notice under existing subsection 254(2).
64 New
paragraph 254(2A)(b) makes it clear that the transfer to immigration detention
occurs at the “custody transfer time” (as described in existing
paragraph 254(2)(c)) rather than at the moment the notice is served on the
removee.
65 New subsection 254(3) relates to a “deportee” (as
defined under subsection 5(1) of the Migration Act). New paragraph 254(3)(a)
gives corrective services authorities the power to exercise the detention power
in subsection 253(1) where a deportee has been given written notice under
subsection 254(2). But new paragraph 254(3)(c) provides that subsection 253(3)
does not apply in relation to the deportee.
66 New paragraph 254(3)(b)
makes it clear that the transfer to immigration detention occurs at the
“custody transfer time” (as described in existing paragraph
254(2)(c)) rather than at the moment the notice is served on the deportee.
SCHEDULE 5 – Review of decisions refusing to grant permanent visas
to non-citizens
Migration Act 1958
67 The provisions in this Part are permanent provisions that will come
into operation as soon as Schedule 1 to the Migration Legislation Amendment
Act (No. 1) 1998 has commenced operation, or soon thereafter.
Item
1 After subsection 338(7)
68 This item inserts new subsection
338(7A) after subsection 338(7), where section 338 sets out the type of
decisions that are reviewable by the Migration Review Tribunal (“the
MRT”).
69 New subsection 338(7A) provides that a decision to
refuse a non-citizen a permanent visa is an MRT-reviewable decision
if:
• the non-citizen applied for the visa when he or she was
outside Australia; and
• the visa may be granted while the
applicant is either in the migration zone or outside Australia.
Item
2 Subparagraph 347(1)(b)(i)
70 This item makes a technical amendment
as a consequence of the insertion of new subsection
338(7A).
71 Subparagraph 347(1)(b)(i) provides that, in relation to an
MRT-reviewable decision covered by new subsection 338(7A), an application for
review must be given to the Tribunal no later than 28 days after the
notification of the decision.
Item 3 Paragraph
347(2)(a)
72 This item also makes a technical amendment as a
consequence of the insertion of new subsection 338(7A).
73 Paragraph
347(2)(a) provides that, in relation to an MRT-reviewable decision covered by
new subsection 338(7A), an application for review may only be made by the
non-citizen who is the subject of that decision.
Item 4 After
subsection 347(3)
74 This item inserts new subsection 347(3A) after
subsection 347(3).
75 New subsection 347(3A) provides that an
application for review of a permanent visa decision covered by new subsection
338(7A) may only be made by a non-citizen who:
• was physically
present in the migration zone at the time the decision was made; and
• is physically present in the migration zone when the review
application is made.
Part 2 – Temporary
provisions
76 The provisions in this Part are temporary only. The
provisions will come into operation only if this Act commences before Schedule 1
to the Migration Legislation Amendment Act (No. 1) 1998 and will cease to
have effect on the commencement of Schedule 1 to that Act.
Item 5
Section 337 (after paragraph (g) of the definition of Part 5
reviewable
decision)
77 This item inserts new
paragraph (ga) into the definition of a “Part 5 reviewable decision”
contained within section 337.
78 The insertion of new paragraph 337(ga)
means that a Part 5 reviewable decision includes a decision to refuse to grant a
non-citizen a permanent visa where:
• the non-citizen applied for
the visa when he or she was outside Australia; and
• the visa may
be granted while the applicant is either in the migration zone or outside
Australia.
Item 6 Subparagraph 339(1)(b)(i)
79 This item
makes a technical amendment as a consequence of the insertion of new paragraph
337(ga) into the definition of a Part 5 reviewable decision.
80 Subparagraph 339(1)(b)(i) provides that an
application for internal review must be given to the Secretary, at a prescribed
place, no later than 28 days after the notification of the decision where that
decision is covered by new paragraph 337(ga) of the definition of a Part 5
reviewable decision.
Item 7 Paragraph 339(2)(a)
81 This item also makes a technical amendment as a consequence of
the insertion of new paragraph 337(ga) into the definition of a Part 5
reviewable decision.
82 Paragraph 339(2)(a) provides that an application
for an internal review may only be made by the non-citizen who is the subject of
that decision where that decision is covered by new paragraph 337(ga) of the
definition of a Part 5 reviewable decision.
Item 8 After subsection
339(3)
83 This item inserts new subsection 339(3A) after subsection
339(3).
84 New subsection 339(3A) provides that an application for an
internal review of a decision covered by new paragraph 337(ga) of the definition
of a Part 5 reviewable decision may only be made by a non-citizen
who:
• was physically present in the migration zone at the time the
decision was made; and
• is physically present in the migration
zone when the review application is made.
Item 9 Subparagraph
347(1)(b)(i)
85 This item makes a technical amendment as a
consequence of the insertion of new paragraph 337(ga) into the definition of a
Part 5 reviewable decision.
86 Subparagraph 347(1)(b)(i) provides that an
application for review of an IRT-reviewable decision must be given to the
Tribunal no later than 28 days after the notification of a decision covered by
new paragraph 337(ga) of the definition of a Part 5 reviewable decision.
Item 10 Paragraph 347(2)(a)
87 This item also makes a
technical amendment as a consequence of the insertion of new paragraph 337(ga)
into the definition of a Part 5 reviewable decision.
88 Paragraph
347(2)(a) provides that an application for review of an IRT-reviewable decision
may only be made by the non-citizen who is the subject of a decision covered by
new paragraph 337(ga) of the definition of a Part 5 reviewable
decision.
Item 11 After subsection 347(3)
89 This item
inserts new subsection 347(3A) after subsection 347(3).
90 New
subsection 347(3A) provides that that an application for review of a decision
covered by new paragraph 337(ga) of the definition of Part 5 reviewable decision
may only be made by a non-citizen who:
• was physically present in
the migration zone at the time the decision was made; and
• is
physically present in the migration zone when the review application is
made.
SCHEDULE 6 – Exemptions from limits on number of
visas
Migration Act 1958
91 This item inserts new section 87A.
92 New section 87A ensures
that section 86 will not prevent the grant of a visa to a person
where:
• that person has been affected by section 86 in a previous
financial year;
• that person has subsequently been requested to
meet health or character requirements;
• that person has met those
requirements but not before section 86 has again taken effect; and
• the Minister is satisfied that the person was unable to satisfy
the health or character requirements before the operation of section 86 for a
second time because of circumstances beyond the person’s
control.
SCHEDULE 7 – Extension of period in pool for
certain applications for visas
Migration Act
1958
Item 1 At the end of section 95
93 This item
inserts new subsection 95(5) at section 95.
94 New subsection 95(5)
provides that section 95 has effect subject to new section 95A. This item also
makes a minor technical amendment to the heading of subsection 95(4).
95 This item inserts new section 95A. The effect of this provision is to
extend the period in which an application is in the pool under section 95.
96 New subsection 95A(1) applies to all applications that are in the
pool (under section 95), at the commencement of this Schedule, or are
placed in the pool after the commencement of this Schedule.
97 New
subsection 95(2) provides that where an application is, or has been, placed in
the pool then the references to 12 months in subsections 95(2) and (3) are taken
to be references to 2 years.
Migration Act
1958
Item 1 Subsections 461(2) and (3)
98 This item repeals subsections 461(2) and (3) thereby removing the
age limit affecting the appointment of full-time members to the Refugee Review
Tribunal (“the RRT”). This will ensure that there is consistency
between the age limits applying to the appointment of full-time members to the
RRT and the new MRT.
Part 1 – Amendments
99 The amendments to section 475
are consequential to the passage of the Migration Legislation Amendment Act
(No. 1) 1998, and provide that decisions of the MRT are judicially
reviewable in the same way decisions of the Immigration Review Tribunal
(“the IRT”) are, or were, judicially reviewable.
Item
1 Paragraph 475(1)(a)
100 This item amends paragraph 475(1)(a) by
omitting the reference to the IRT and substituting a new reference the MRT, as a
consequence of the establishment of the MRT under the Migration Legislation
Amendment Act (No. 1) 1998. The effect of this provision is to provide that
a decision of the MRT may be judicially reviewed.
101 Despite the
omission of a reference to a decision of the IRT at paragraph 475(1)(a), such
decisions continue to be subject to Part 8 of the Migration Act by virtue of
certain transitional provisions.
102 This item repeals paragraph 475(2)(b) as a consequence of the repeal
of “internally-reviewable decisions” by the Migration Legislation
Amendment Act (No. 1) 1998.
Item 3 Paragraph
475(2)(c)
103 This item amends paragraph 475(2)(c) by omitting the
reference to an “IRT-reviewable decision” and substituting a
reference to an “MRT-reviewable decision”. The effect of this
provision is that an application for merits review of a primary decision by the
MRT, or a primary decision that could be merits reviewed, are not judicially
reviewable decisions.
104 Despite the omission of a reference to an
IRT-reviewable decision at paragraph 475(2)(c), such decisions continue to be
subject to Part 8 of the Migration Act by virtue of certain transitional
provisions, such that judicial review is not available until such time as a
merits review decision has been made.
105 This item amends paragraph 475(2)(f) by omitting the reference to the
IRT and substituting a new reference to the MRT. The effect of this provision
is to provide that a decision of the Principal Member of the MRT to refer a
matter to the Administrative Appeals Tribunal is not a decision that may be
judicially reviewed.
106 This item inserts a new subsection (3) at section 475, as a
consequence of the repeal of section 345 by the Migration Legislation
Amendment Act (No. 1) 1998. The effect of this provision is that where the
Minister makes a decision after the commencement of Schedule 1 to the
Migration Legislation Amendment Act (No. 1) 1998 in relation to a request
made under old section 345, that decision is not judicially reviewable.
107 The purpose of the transitional provisions is to ensure that
decisions of the IRT, and decisions that could have applied to the IRT for
review of that decision, will continue to be subject to Part 8 of the Migration
Act after the commencement of this Act.
Item 6
Application for judicial review of decision of Immigration Review Tribunal
pending at commencement
108 This item applies to applications
for judicial review of a decision of the IRT made prior to the commencement of
this Schedule, where the Court has not made an order under subsection 481(1) of
the Migration Act in respect of that application. Such IRT decisions are to be
treated as if they were decisions of the MRT, and are taken to be applications
(properly made) for judicial review of the MRT decisions. Consequently, such
applications for judicial review may only be made if grounds exist under section
476 of the Migration Act.
Item 7 Period for
making application for judicial review of decision of Immigration Review
Tribunal current at commencement
109 This item applies to
decisions of the IRT made prior to the commencement of this Schedule, where the
time for making an application for judicial review of that decision has not
ceased in accordance with section 478 before the commencement of this Schedule.
If the period for making an application has not ceased under section 478, then a
person may seek judicial review of that IRT decision under section 476 as if it
were a decision of the MRT. Under section 478 the person has 28 days from the
date they are notified of the Tribunal’s decision to make an application
for judicial review of that decision.
110 However, if the period of time
for making an application for judicial review has ceased under section 478 then
the person cannot make an application for judicial review in respect of the IRT
decision.
Item 8 Decision of Immigration Review
Tribunal quashed or set aside and matter to which decision relates referred for
further consideration
111 This item provides that Part 8 of
the Migration Act applies to a decision of the IRT:
• that was made
before the commencement of this Schedule;
• that was the subject of
judicial review, and either before or after the commencement of this Schedule,
where the Court had quashed or set aside that decision; and
• where
the matter was then referred for further consideration but that there has been
no decision with respect to that further consideration.
In such cases,
the decision is taken to be an MRT-reviewable
decision.
Item 9 Decision of Immigration Review
Tribunal that the Minister has agreed to reconsider
112 This
item provides that Part 8 of the Migration Act applies to a decision of the
IRT:
• that was made before the commencement of this Schedule;
• that was the subject of an application for judicial review,
either before or after the commencement of this Schedule;
and
• where before the judicial review application was determined
the Minister agreed, in writing, either before or after the commencement of this
Schedule, to reconsider the decision, but no decision on that reconsideration
had yet been made.
In such cases, the decision is
taken to be an MRT-reviewable decision.