MIGRATION (REVIEW) REGULATIONS (AMENDMENT) 1991 NO. 61 MIGRATION (REVIEW) REGULATIONS (AMENDMENT) 1991 NO. 61 - TABLE OF PROVISIONS 1.. Commencement 2.. Amendment 3.. Regulation 2 (Interpretation) 4.. New regulation 2A 5.. Regulation 3 (Decisions subject to internal review) 6.. New Part 2A 7.. Regulation 9 (Review by Tribunal) 8.. Regulation 21 (Persons who may apply for review by review authority) 9.. Regulation 21A (Restrictions on applications for review) 10.. Regulation 21B (Illegal entrants who may apply for review) 11.. Regulation 21C (Persons who may apply for review of decision to refuse a December 1989 entry permit) 12.. Regulation 24 (Time limits) 13.. New regulations 28 and 29 14.. Schedule (Visas and entry permits to which internal review is applicable) 15.. Transitional MIGRATION (REVIEW) REGULATIONS (AMENDMENT) 1991 No. 61 - REG 1. Commencement 1.1Subregulation 12.2 is taken to have commenced on 22 January 1991. MIGRATION (REVIEW) REGULATIONS (AMENDMENT) 1991 No. 61 - REG 2. Amendment 2.1The Migration (Review) Regulations are amended as set out in these Regulations. MIGRATION (REVIEW) REGULATIONS (AMENDMENT) 1991 No. 61 - REG 3. Regulation 2 (Interpretation) 3.1 Subregulation 2 (1): Insert the following definitions: " `internally reviewable decision' means a decision of a kind that is specified in regulation 2A as an internally reviewable decision; `IRT reviewable decision' means a decision that: (a) has been affirmed, varied or made on review under Part 2; or (b) is a decision that would, but for subregulation 2A (2), be an internally reviewable decision; or (c) is a decision to refuse a December 1989 (temporary) entry permit or a December 1989 (permanent) entry permit; or (d) in respect of which a prescribed application is referred to the Tribunal under regulation 29;". MIGRATION (REVIEW) REGULATIONS (AMENDMENT) 1991 No. 61 - REG 4. New regulation 2A 4.1After regulation 2, insert: Reviewable decisions "2A. (1) Subject to this regulation, a decision is an internally reviewable decision if it is: (a) a decision to refuse a visa or entry permit of a kind specified in the Schedule; or (b) a decision to reject a nomination or sponsorship lodged in connection with an application, or proposed application, for a visa or entry permit of a kind specified in the Schedule; or (c) a decision by way of an assessment under subsection 30 (1) or 41 (2) of the Act in relation to an application for a visa or entry permit of a kind specified in the Schedule. "(2) A decision is not an internally reviewable decision if it is: (a) a decision made: (i) by the Minister personally; or (ii) the Secretary, or Senior Executive Service officer, acting as a delegate of the Minister; or (b) a decision made on, or in connection with, an application for an entry permit lodged by a person who: (i) became an illegal entrant on entry into Australia by reason of subsection 14 (2) of the Act; and (ii) was an illegal entrant by reason of that subsection when he or she lodged the application. "(3) A decision to refuse a permanent entry permit after the applicant's entry into Australia is not an internally reviewable decision unless: (a) the applicant held a temporary entry permit that was not subject to the condition referred to in paragraph 33 (4) (a) of the Act when he or she applied for the permanent entry permit; or (b) if the decision was made in respect of an application: (i) made in the circumstances, and for a permit of a kind, referred to in subregulation 34A (2) of the Migration Regulations; or (ii) for a spouse (after entry) entry permit or an interdependency entry permit; the applicant: (iii) satisfies the condition specified in paragraph (a); or (iv) held, at the time the decision was made, a temporary entry permit valid for the purposes of section 47 of the Act. "(4) A decision to refuse an extended eligibility entry permit, or a permanent entry permit, to an applicant who held, on lodging the application for the entry permit, a visitor visa or an equivalent entry permit is not an internally reviewable decision unless the application was for: (a) an extended eligibility (spouse) entry permit or a spouse (after entry) entry permit; or (b) an extended eligibility (interdependency) entry permit or an interdependency (permanent) entry permit; and was made on or after 15 April 1991. "(5) A decision is not an internally reviewable decision if it is: (a) a decision to refuse a temporary entry permit to an applicant who held, when he or she applied for the entry permit, a student visa or entry permit that was granted for the primary purpose of enabling him or her to study a full-time English language course as a student paying full fees; or (b) to refuse an entry permit to an applicant who held, on or after entry into Australia, a visa or entry permit granted subject to a condition specified in paragraph 23 (4) (b) or 33 (4) (b) of the Act. "(6) A decision to reject a nomination or sponsorship lodged in connection with an application or proposed application for a visa or entry permit of a kind specified in the Schedule is an internally reviewable decision only if: (a) where such an application has been lodged--no decision in respect of the application has been notified to the person lodging the application; and (b) whether or not such an application has been lodged--some person would have, in the event of lodgment and refusal of the application, a right of review of the decision in respect of the application.". MIGRATION (REVIEW) REGULATIONS (AMENDMENT) 1991 No. 61 - REG 5. Regulation 3 (Decisions subject to internal review) 5.1Omit the regulation, substitute: Review officer to conduct review "3. A review officer must conduct a review of an internally reviewable decision if: (a) an application for review of the decision that complies with these Regulations has been lodged in accordance with these Regulations; and (b) the appropriate fee, if payable, has been paid.". MIGRATION (REVIEW) REGULATIONS (AMENDMENT) 1991 No. 61 - REG 6. New Part 2A 6.1After regulation 8, insert: "PART 2A--REVIEW OF DECISIONS CONCERNING DOMESTIC PROTECTION (TEMPORARY) ENTRY PERMITS Interpretation "8A. In this Part, `prescribed permit' means a domestic protection (temporary) entry permit. Restriction on application of Parts 2, 3 and 4 in relation to review of decisions to refuse prescribed permits "8B. (1) An application to review a decision to refuse a prescribed permit may be made only under this Part. "(2) Parts 2, 3 and 4 do not apply to an application for review under this Part except as expressly provided by this Part. Certain review officers to conduct review of decisions to refuse prescribed permits "8C. (1) A review officer specified in subregulation (2) must conduct a review of a decision to refuse a prescribed permit if an application for review of the decision has been lodged in accordance with this Part. "(2) A review officer who conducts a review referred to in subregulation (1) must be: (a) an officer of the Department appointed by name, in writing, for the purposes of this regulation, by the Secretary; or (b) an officer for the time being performing the duties of a position in the Department the position number of which is designated, in writing, for the purposes of this regulation, by the Secretary. Application for review and fee payable "8D. (1) An application for review of a decision to refuse a prescribed permit must be made on a form approved by the Minister for the purpose and contain details sufficient to identify the decision. "(2) The application must be accompanied by a fee of $30 unless the fee has been waived under subregulation (3) or the applicant is the Secretary. "(3) The Secretary may determine that the fee referred to in subregulation (2) should not be paid if he or she is satisfied that payment of the fee has caused, or will cause, severe financial hardship to the applicant for review. Persons who may apply under this Part "8E. (1) The applicant for a prescribed permit may apply for review of a decision to refuse the permit, but only if he or she: (a) was lawfully present in Australia when the application for the permit was lodged; or (b) became an illegal entrant before 1 July 1991, and: (i) the application for the prescribed permit was lodged before 1 July 1991; or (ii) the applicant is taken, under regulation 22D of the Migration Regulations, to have applied for the prescribed permit; and has not become an illegal entrant after 1 July 1991. "(2) The Secretary may apply for review of a decision to refuse a prescribed permit. Refund of fee if application allowed "8F. Regulation 7 applies in relation to reviews under this Part as if references in that regulation to internal review were references to review under this Part. Notification of decision in relation to application "8G. (1) Subregulation 8 (1) applies in relation to reviews under this Part as if the reference in that subregulation to internal review were a reference to review under this Part. "(2) Regulation 23 applies in relation to reviews under this Part. Decision reviewable once only by a particular review authority "8H. Regulation 22 applies in relation to reviews under this Part. Time limits "8J. Regulation 24 applies in relation to reviews under this Part as if references in that regulation to a primary decision were references to a decision to refuse a prescribed permit within the meaning of this Part. Lodgment of application--persons in custody "8K. Regulation 25 applies in relation to reviews under this Part as if: (a) references to internal review were references to review under this Part; and (b) subparagraph 25 (1) (a) (ii) were omitted; and (c) references to the Tribunal and a registry of the Tribunal were omitted. Delegation by Secretary "8L. Regulation 28 applies in relation to reviews under this Part.". MIGRATION (REVIEW) REGULATIONS (AMENDMENT) 1991 No. 61 - REG 7. Regulation 9 (Review by Tribunal) 7.1Omit the regulation, substitute: Jurisdiction of the Tribunal "9. (1) Subject to subregulation (2), the Tribunal is to review an IRT reviewable decision if an application for review of the decision is made in accordance with these Regulations. "(2) In the case of a decision to refuse to grant a December 1989 (temporary) entry permit or a December 1989 (permanent) entry permit, subregulation (1) applies only if the applicant for the permit: (a) was a prohibited non-citizen on or before 18 December 1989; and (b) had not been arrested under section 92 or 93 of the Act: (i) on or after 10 December 1990; and (ii) before lodgment of the application for the permit. "(3) The Tribunal is to review a decision in respect of which a prescribed application is referred to it under regulation 29.". MIGRATION (REVIEW) REGULATIONS (AMENDMENT) 1991 No. 61 - REG 8. Regulation 21 (Persons who may apply for review by review authority) 8.1 Omit the regulation, substitute: Individuals and organisations entitled to apply for review "21. (1) This regulation has effect subject to regulation 21C. "(2) In this regulation: `relevant decision' means: (a) an internally reviewable decision; or (b) an IRT reviewable decision; `third party', in relation to an application for a visa or entry permit, means: (a) an individual (other than the applicant for the visa or entry permit); or (b) an organisation. "(3) An applicant for a visa or entry permit may apply, in accordance with these Regulations, for review of a relevant decision, being a decision to refuse the visa or entry permit or a decision by way of an assessment under subsection 30 (1) or 41 (2) of the Act in relation to the application for the visa or entry permit, if: (a) the applicant was lawfully present in Australia when he or she lodged the application; or (b) the applicant: (i) was an illegal entrant on 19 December 1989; and (ii) has not subsequently left Australia; and (iii) in the case of an application for an entry permit, made the application on or after 19 December 1989 and before 1 November 1990; or (c) in the case of an application for an extended eligibility (family) entry permit lodged after 10 December 1990, the applicant was, when he or she lodged the application, an illegal entrant who had attained the age of 18 years and: (i) entered Australia; and (ii) became a prohibited non-citizen or an illegal entrant; before attaining that age; or (d) the applicant: (i) became an illegal entrant, by reason of subsection 14 (2) of the Act, on entry to Australia; and (ii) has not left Australia since that entry. "(4) Subject to subregulation (7), where an application for a visa or entry permit has been lodged, a third party may apply, in accordance with these Regulations, for review of the application: (a) if: (i) the application was for a visa or entry permit of a kind that has a prescribed criterion requiring nomination or sponsorship; and (ii) the third party is a nominator or sponsor of the applicant; or (b) if: (i) the application was for a visa or entry permit of a kind specified in an item in the table set out in subregulation (5); and (ii) particulars relating to the third party were included in the application; and (iii) the third party applying for review is an individual or organisation specified in column 3 of that item; or (c) in respect of an individual, if: (i) the application was for a return visa class A, B, C, D or F; and (ii) the applicant made the application overseas; and (iii) the third party is an individual who is a close relative of the applicant. "(5) For the purposes of subparagraph (4) (b) (i), the following table is set out: Column 1 Item No. Column 2 Kind of visa or equivalent entry permit Column 3 Individual or organisation 1. Business or joint venture an Australian citizen, Australian permanent resident or Australian organisation, being an individual or organisation that intends to associate with the joint venture 2. distinguished talent (Australian support) an Australian citizen, Australian permanent resident or Australian organisation, being an individual or organisation that has given written testimony of the applicant's standing 3. close family visitor a close relative who is an Australian citizen or an Australian permanent resident 4. visiting academic an Australian tertiary institution or research institution "(6) Subject to subregulation (7), a third party may apply, in accordance with these Regulations, for review of a relevant decision: (a) if: (i) the decision is one to reject a nomination or sponsorship lodged in connection with an application for a visa or entry permit; and (ii) the third party is the individual or organisation that lodged the nomination or sponsorship; or (b) if: (i) the decision is one by way of an assessment under subsection 30 (1) or 41 (2) of the Act; and (ii) the third party is the nominator or sponsor in relation to the application to which the decision relates. "(7) A third party is not entitled under subregulation (4) or (6) to apply for review of a relevant decision if, at the time of lodgment of the relevant application for a visa or an entry permit: (a) the third party, if an individual, was not an Australian citizen or an Australian permanent resident; or (b) in the case of a decision to refuse an entry permit-the applicant for the entry permit did not satisfy the requirements of subregulation (3). "(8) A third party may apply, in accordance with these Regulations, for review of a relevant decision to refuse the nomination or sponsorship by the third party in relation to a proposed application for a visa or entry permit if, at the time of lodgment of the nomination or sponsorship: (a) the proposed applicant for the visa or entry permit satisfied any requirement of subregulation (3); and (b) the third party, if an individual, was an Australian citizen or an Australian permanent resident.". MIGRATION (REVIEW) REGULATIONS (AMENDMENT) 1991 No. 61 - REG 9. Regulation 21A (Restrictions on applications for review) 9.1Omit the regulation. MIGRATION (REVIEW) REGULATIONS (AMENDMENT) 1991 No. 61 - REG 10. Regulation 21B (Illegal entrants who may apply for review) 10.1 Omit the regulation. MIGRATION (REVIEW) REGULATIONS (AMENDMENT) 1991 No. 61 - REG 11. Regulation 21C (Persons who may apply for review of decision to refuse a December 1989 entry permit) 11.1 Subregulation 21C (3): Omit the subregulation. MIGRATION (REVIEW) REGULATIONS (AMENDMENT) 1991 No. 61 - REG 12. Regulation 24 (Time limits) 12.1 Subregulation 24 (3): Omit "regulation 21B", substitute "paragraph 21 (3) (b)". 12.2 Subregulation 24 (3): Before "applies," insert "or regulation 21C". MIGRATION (REVIEW) REGULATIONS (AMENDMENT) 1991 No. 61 - REG 13. New regulations 28 and 29 13.1After regulation 27, insert: Delegation by Secretary "28. The Secretary may, by signed instrument, delegate the Secretary's powers under these Regulations. Secretary may refer certain review applications to the Tribunal "29. (1) The Secretary may, if he or she thinks fit, refer to the Tribunal a prescribed application that has not been decided. "(2) Where a prescibed application is so referred, no fee is payable in respect of the referral. "(3) In this regulation, `prescribed application' means an application for review by a review officer of a decision to refuse: (a) an extended eligibility temporary entry permit; or (b) a permanent entry permit after entry; where that application was lodged before 15 April 1991.". MIGRATION (REVIEW) REGULATIONS (AMENDMENT) 1991 No. 61 - REG 14. Schedule (Visas and entry permits to which internal review is applicable) 14.1 Headnote: Omit "Regulation 3", substitute "Subregulation 2A (1)". 14.2Part 2: Add at the end: "27 interdependency (temporary)". 14.3Part 3: Add at the end: "7 extended eligibility (interdependency) 8 interdependency (permanent)". MIGRATION (REVIEW) REGULATIONS (AMENDMENT) 1991 No. 61 - REG 15. Transitional 15.1 The amendments made by these Regulations, other than subregulation 12.2 or 13.1, do not apply in relation to an application for review that was lodged before the commencement of these Regulations. ____________________________________________________________ 1. Notified in the Commonwealth of Australia Gazette on 15 April 1991. 2. Statutory Rules 1989 No. 412 as amended by 1990 Nos. 110, 238, 280 and 400; 1991 No. 3. MIGRATION (REVIEW) REGULATIONS (AMENDMENT) 1991 NO. 61 - NOTES Compilation Information I, THE GOVERNOR-GENERAL of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Regulations under the Migration Act 1958. Dated 10 April 1991. BILL HAYDEN Governor-General By His Excellency's Command, GERRY HAND Minister of State for Immigration, Local Government and Ethnic Affairs ____________