MIGRATION (REVIEW) (1993) REGULATIONS 1993 NO. 18

MIGRATION (REVIEW) (1993) REGULATIONS 1993 NO. 18

STATUTORY RULES 1993 No. 18

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

Migration Act 1958

Migration (Review) (1993) Regulations

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 enable regulations to be made providing 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 Migration (Review) (1993) Regulations (the Regulations) will provide for review of specified decisions in relation to applications lodged under the Migration (1993) Regulations, which come into effect on 1 February 1993. The Regulations basically reproduce the current Migration (Review) Regulations in a continuous numerical sequence with various references to visa and entry permit classes being modified to accommodate the new terms in the Migration (1993) Regulations. The Regulations will provide review of decisions in similar circumstances as provided in the Migration (Review) Regulations.

The Regulations comprise five parts and a Schedule which sets out the visas and entry permits to which internal review is applicable. These parts are as follows:

Part 1 (Preliminary) sets out preliminary details such as, citation, commencement, interpretation of. terms used, and specifies the decisions which are internally reviewable decisions.

Part 2 (Internal Review) makes provision for matters related to applying for, and conduct of, an internal review.

Part 3 (Review of Decisions concerning Class 784 (Domestic Protection (temporary)) Entry Permits) provides a comprehensive and exclusive legislative regime for review of decisions concerning Class 784 (Domestic Protection (Temporary)) Entry Permits. Other provisions of the Regulations will not apply to review of this class of entry permit unless specifically provided for under this Part.

Part 4 (Review by Tribunal) makes provision for matters related to the application for, and conduct of, a review by the Immigration Review Tribunal.

Part 5 (Provisions relating to review by Review Authority) sets out general provisions related to internal review and review by the Immigration Review Tribunal such as, the persons and organisations who are entitled to apply for review, time limits for the lodging of applications for review, service of documents for the purposes of the Regulations and delegation of the Secretary's powers under the Regulations. This part also contains provisions which repeal of the Migration (Review) Regulations and set out consequential transitional arrangements.

While the Regulations will repeal the Migration (Review) Regulations, decisions made in relation to applications made under the Migration Regulations in force immediately before 1 February 1993 will continue to be reviewable in accordance with the Migration (Review) Regulations.

Details of the Regulations are set out in the Attachment.

The regulations commence on 1 February 1993.

ATTACHMENT

MIGRATION (REVIEW) (1993) REGULATIONS

PART 1 - PRELIMINARY

Regulation 1 provides that the proposed Regulations be cited as the Migration (Review) (1993) Regulations.

Regulation 2 provides that the proposed Regulations will commence on 1 February 1993.

Regulation 3 defines terms which are used in the proposed Regulations. The definition of "IRT reviewable decision" and subregulations (2) and (3) take account of new terms used by the Migration (1993) Regulations.

Regulation 4 specifies the decisions which are internally reviewable decisions and specifically excludes certain decisions from being internally reviewable decisions.

PART 2 - INTERNAL REVIEW

Regulation 5 provides that a review officer must conduct a review of an internally reviewable decision where an application has been made in accordance with the Regulations and the appropriate fee has been paid.

Regulation 6 provides for the Secretary to designate, for the purposes of section 115 of the Act, the officers of the Department who are to be review officers.

Regulation 7 specifies the requirements for making an application for internal review, including details to be included in the application, and payment of the $200 fee.

Regulation 8 allows the Secretary to waive the fee for internal review where he or she is satisfied that the fee would cause the applicant for review severe financial hardship.

Regulation 9 specifies how an application for internal review is to be lodged with the Department.

Regulation 10 provides the circumstances in which fees paid in relation to an application for internal review are to be refunded. The regulation also specifies two circumstances in which the fee is not to be refunded.

Regulation 11 requires a review officer to notify an applicant of the decision no later than 10 days after the review decision is made. Where the original decision is not set aside the review officer's notification must include reasons for the review decision.

PART 3 - REVIEW OF DECISIONS CONCERNING CLASS 784 (DOMESTIC PROTECTION (TEMPORARY)) ENTRY PERMITS

Regulation 12 provides that the prescribed permit to which Part 3 applies is a Class 784 (Domestic protection (temporary)) entry permit.

Regulation 13 provides that an application to review a decision to refuse a Class 784 entry permit may only be reviewed under Part 3 of the proposed Regulations. Parts 2, 4 and 5 of the proposed Regulations do not apply to Part 3 except as specifically provided by Part 3.

Regulation 14 sets out who is a review officer for the purposes of Part 3 and requires a review officer to conduct a review of a decision to refuse a Class 784 entry permit if an application for review is lodged in accordance with the requirements of Part 3.

Regulation 15 sets out the requirements for the making of an application to review a decision to refuse a Class 784 entry permit, including Payment of a $30 fee, unless waived by the Secretary where the Secretary believes payment of the fee would cause severe hardship to the applicant.

Regulation 16 specifies who may apply for review under Part 3.

Regulation 17 provides that regulation 10 (refunds of fees) applies in relation to internal review under Part 3.

Regulation 18 provides that subregulations 11(1) and (2) (requirements for notification of review decisions) apply to reviews under Part 3.

Regulation 19 applies regulations 38 (limiting review of a reviewable decision to one review) and 39 (setting out requirements for notification of review decisions) to reviews under Part 3.

Regulation 20 applies the time limits in regulation 40 to an application for review of a decision to refuse a Class 784 entry permit.

Regulation 21 applies the application lodgement provisions for a person in custody set out in regulation 41 (other than those related to the Immigration Review Tribunal) to reviews of decisions under Part 3.

Regulation 22 permits the Secretary to delegate his or her powers under Part 3, by application of regulation 44 to Part 3.

PART 4 - REVIEW BY TRIBUNAL

Regulation 23 requires the Immigration Review Tribunal to review an IRT reviewable decision if an application is made in accordance with the Regulations.

Regulation 24 prescribes, for the purposes of section 151 of the Act, the maximum number of Senior Members and members which the Immigration Review Tribunal may comprise.

Regulation 25 provides that the Immigration Review Tribunal has recommendatory powers in relation to a decision made by the Minister personally.

Regulation 26 specifies the requirements for making an application for review by the Tribunal, including the contents of the application and the payment of a $300 fee.

Regulation 27 provides that the Registrar or a Deputy Registrar of the Tribunal may waive the fee where he or she is satisfied that payment of the fee would cause the applicant for review severe financial hardship.

Regulation 28 requires applications for review by the Tribunal to be lodged at the Tribunal registry.

Regulation 29 prescribes the number of copies of documents, for the purposes of subsection 122(2) of the Act, which the Secretary is required to lodge with the Tribunal in relation to an application for review of a decision.

Regulation 30 specifies the time limits for the provision of other evidence to the Tribunal for the purposes of paragraph 130(1)(b) of the Act.

Regulation 31 specifies the manner in which a summons to attend before the Tribunal referred to in subsection 132(3) of the Act may be served on a person.

Regulation 32 specifies that the fees and allowances payable to a person summoned to appear before the Tribunal are to be in accordance with the scale in Schedule 2 to the Administrative Appeals Tribunal Regulations.

Regulation 33 prescribes the allowance for a Principal Member for the purposes of section 155 of the Act.

Regulation 34 describes the duties, powers and functions of each officer of the Tribunal in relation to the summoning of persons before the Tribunal and the taking of evidence before the Tribunal.

Regulation 35 provides for the circumstances in which fees paid in relation to the application for review by the Tribunal are to be refunded. The regulation also specifies two circumstances in which the fee is not to be refunded.

PART 5 - PROVISIONS RELATING TO REVIEW BY REVIEW AUTHORITY

Regulation 36 specifies the individuals and organisations who are entitled to apply for either internal or IRT review.

Regulation 37 provides who may apply for review in relation to a Class 812 (December 1989 (permanent)) entry permit.

Regulation 38 limits review rights in relation to a decision to one review by the review authority.

Regulation 39 specifies the methods for notification of the derision to the applicant by a review authority. Notification is taken to have occurred if any of the methods mentioned is complied with.

Regulation 40 sets the time limits within which an application for either internal, or IRT review must be made.

Regulation 41. sets out the method by which a person in custody under the Act must lodge an application for review.

Regulation 42 provides for the methods by which documents may be served for the purposes of a review under Part 3 of the Act.

Regulation 43 provides that a document is taken to have been served under regulation 42 on the day it is given to the person, another person, or left at a place of residence, or when served by post, on expiry of the periods of time specified.

Regulation 44 provides that the Secretary may, by signed instrument, delegate the Secretary's powers under the Regulations.

Regulation 45 provides for expedited review of close family visitor visas (Classes 673 and 683).

Regulation 46 provides that these regulations only apply in relation to decisions applications, nominations, or sponsorships lodged under the Migration (1993) Regulations.

Regulation 47 repeals the Migration (Review) Regulations.

Regulation 48 provides that the Migration (Review) Regulations continue to apply in relation to applications for review of decisions in relation to applications lodged under the Migration (1989) Regulations.

SCHEDULE sets out the classes of visas and entry permits to which internal review is applicable.