Commonwealth Numbered Regulations - Explanatory Statements

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MIGRATION (REVIEW) (1993) REGULATIONS (AMENDMENT) 1993 NO. 219

STATUTORY RULES 1993 No. 219

Issued by the Authority of the Minister for Immigration and Ethnic Affairs

Migration Act 1958

Migration (Review) (1993) Regulations (Amendment)

Section 181 of the Migration Act 1958 (the Act) provides for the Governor-General to make regulations, not inconsistent with the Act, prescribing matters required or permitted by the Act to be prescribed. Without limiting the generality of section 181, particular provision is made by paragraph 181(1)(a) enabling the making of regulations providing for the charging and recovery of fees, including fees payable in connection with the review of decisions. Paragraph 181(1)(b) enables the making of regulations providing for the remission, refund or waiver of fees.

In addition, section 115 of the Act provides that regulations may provide for the internal review of decisions of the Minister. Section 116 of the Act provides that the regulations may provide for decisions made by the Minister personally, by a delegate of the Minister or by a review officer to be reviewed by the Immigration Review Tribunal (IRT).

Further, paragraph 118(4)(ba) of the Act provides that if the decision relates to a prescribed matter, a review authority may remit the matter for reconsideration in accordance with such directions or recommendations of the review authority as are permitted by the regulations.

The purpose of the Regulations is:

•       to provide for refund of the fee where a review officer or the Immigration Review Tribunal remits a prescribed matter for reconsideration; and

•       to make a number of minor technical amendments which clarify the intended operation of the Migration (Review) (1993) Regulations.

The Regulations commence on gazettal, except for regulations 4, 6 and 11 and subregulation 9.3, which enable refund of the fee where a prescribed matter is remitted by a review authority for reconsideration. Those regulations operate retrospectively from 3 June 1993, the date from which Statutory Rules 1993 No. 109 inserted regulation 43A in the Migration (Review) (1993) Regulations to enable a review authority to remit a prescribed matter under paragraph 118(4)(ba) of the Act.

Retrospective operation of the regulations concerned ensures that the fee may be refunded in respect of any application remitted for reconsideration since the commencement of regulation 43A. Retrospective operation of these regulations is entirely beneficial to applicants concerned as it permits the refund of the fee, and does not prejudicially affect the rights of any person. It is therefore in accordance with the requirements of subsection 48(2) of the Acts Interpretation Act 1901.

Details of each of the Regulations are set out in the Attachment.

ATTACHMENT

Regulation 1 - Commencement

This regulation provides for regulations 4 and 6, subregulation 9.3 and regulation 11 of these Regulations to be taken to have commenced retrospectively on 3 June 1993.

Regulations 4, 6 and 11 enable refund of the fee where a prescribed matter is remitted by a review authority for reconsideration. Statutory Rules 1993 No. 109 inserted regulation 43A in the Migration (Review) (1993) Regulations with effect from 3 June 1993, to prescribe an application for a visa or an entry permit as a matter which a review. authority may remit for reconsideration under paragraph 118(4)(ba) of the Act. The remitted application may have been made under either the Migration (1993) Regulations or the Migration (1989) Regulations, and the review may be conducted under either the Migration (Review) (1993) Regulations or the Migration (Review) Regulations. Regulations 4 and 6 have the effect of allowing refund of the fee where an application is remitted in the course of a review conducted under the Migration (Review) (1993) Regulations. Regulation 11 has the effect of allowing refund of the fee where an application is remitted in the course of a review conducted under the Migration (Review) Regulations. Retrospective operation of regulations 4, 6 and 11 therefore ensures that the fee may be refunded in respect of any application remitted for reconsideration since the commencement of regulation 43A.

Subregulation 9.3 inserts a new subregulation 48(4) in the Migration (Review) (1993) Regulations, to provide that the Migration (Review) Regulations continue to apply (as provided for in regulation 48 the Migration (Review) (1993) Regulations) with the modifications set out in the new Schedule 2 (Modifications of Repealed Migration (Review) Regulations) inserted in the Migration (Review) (1993) Regulations by regulation 11 of these Regulations. To achieve retrospective operation of the modifications made by regulation 11 in relation to the refund of the fee where an application is remitted for reconsideration (as noted in the above paragraph), it is technically necessary also to make operation of subregulation 9.3 retrospective.

The effect of retrospective commencement of regulations 4, 6 and 11 and subregulation 9.3 is entirely beneficial to the applicants concerned as its only effect is to permit refund of the fee. Retrospective commencement does not prejudicially affect the rights of any person. It is therefore in accordance with the requirements of subsection 48(2) of the Acts Interpretation Act 1901.

Regulation 2 - Amendment

This regulation provides for the Migration (Review) (1993) Regulations to be amended as set out in these Regulations.

Regulation 3 - Regulation 4 (Internally reviewable decisions)

Subregulation 3.1 makes technical amendments to paragraphs 4(1)(a), (b) and (c) of the Migration (Review) (1993) Regulations, consequential upon the insertion of a new Schedule 2 by these Regulations.

Subregulation 3.2 inserts a new subregulation 4(7) in the Migration (Review) (1993) Regulations. The purpose of the new subregulation is to put beyond doubt that the provision in regulation 4 of the Migration (Review) (1993) Regulations for a decision to be an internally reviewable decision is subject to the new regulation 44A, inserted by regulation 8 of these Regulations (see the notes on regulation 8, below). This ensures that a decision of the Minister under section 180A of the Act cannot be an internally reviewable decision.

Regulation 4 - Regulation 10 (Refund of fee for internal review

This regulation inserts a new paragraph 10(1)(aa) in the Migration (Review) (1993) Regulations. The purpose of the new paragraph is to allow refund of the fee when an application is remitted by a review officer for reconsideration under paragraph 118(4)(ba) of the Act. This regulation is taken to have commenced retrospectively on 3 June 1993 (for details of the reasons for retrospective commencement, see the related notes on regulation 1 of these Regulations, above). Retrospective commencement of this regulation is entirely beneficial to applicants whose applications are remitted under paragraph 118(4)(ba) of the Act, as it allows the fee to be refunded in those circumstances. It is not prejudicial to any person, and is therefore in accordance with the requirements of subsection 48(2) of the Acts Interpretation Act 1901.

Regulation 5 - Regulation 23 (Jurisdiction of the Tribunal)

Subregulation 5.1 makes a technical amendment to subregulation 23(1) of the Migration (Review) (1993) Regulations consequential to the insertion of a new subregulation 23(3) by these Regulations. (See the notes on subregulation 5.2, below.)

Subregulation 5.2 inserts a new subregulation 23(3) in the Migration (Review) (1993) Regulations. The purpose of the new subregulation is to put it beyond doubt that the provisions of regulation 23 of the Migration (Review) (1993) Regulations for the Tribunal to review an Immigration Review Tribunal reviewable decision is subject to the new regulation 44A, inserted by regulation 8 of these Regulations (see the notes on regulation 8, below). This ensures that a decision of the Minister under section 180A of the Act cannot be reviewed by the Tribunal.

Regulation 6 - Regulation 35 (Refund of fee for review by Tribunal

This regulation inserts a new paragraph 35(1)(aa) in the Migration (Review) (1993) Regulations. The purpose of the new paragraph is to allow refund of the fee when an application is remitted by the Immigration Review Tribunal for reconsideration under paragraph 118(4)(ba) of the Act. This regulation is taken to have commenced retrospectively on 3 June 1993 (for details of the reasons for retrospective commencement, see the related notes on regulation 1 of these Regulations, above). Retrospective commencement of this regulation is entirely beneficial to applicants whose applications are remitted under paragraph 118(4)(ba) of the Act, as it allows the fee to be refunded in those circumstances. It is not prejudicial to any person, and is therefore in accordance with the requirements of subsection 48(2) of the Acts Interpretation Act 1901.

Regulation 7 - Regulation 43A (Directions that may be given in relation to review by a review authority)

This regulation amends regulation 43A of the Migration (Review) (1993) Regulations to make it clear that the matter prescribed by regulation 43A under paragraph 118(4)(ba) of the Act as a matter which may be remitted by a review authority for reconsideration may be an application made under either the Migration (1989) Regulations or the Migration (1993) Regulations. That is, regulation 43A operates to permit a review authority to remit for reconsideration any application for a visa or entry permit, irrespective of whether the review is being conducted under the Migration (Review) (1993) Regulations or the Migration (Review) Regulations (in so far as those regulations are continued in operation by regulation 48 of the Migration (Review) (1993) Regulations).

Regulation 8 - New regulation 44A

This regulation inserts a new regulation 44A (Section 180A of the Act - prohibition on review of decision) in the Migration (Review) (1993) Regulations. The purpose of the new regulation is to ensure that a decision of the Minister under section 180A of the Act to cancel or refuse to grant a visa or entry permit cannot be reviewed by a review authority under the Migration (Review) (1993) Regulations. (Subsection 180(1) of the Act provides that applications may be made to the Administrative Appeals Tribunal for review of decisions of the Minister under section 180A.)

Regulation 9 - Regulation 48 (Transitional)

Subregulation 9.1 amends subregulation 48(1) of the Migration (Review) (1993) Regulations, to make it clear that the Migration (Review) Regulations as continued in force by subregulation 48(1) apply subject to the provisions of regulation 48 relating to their operation.

Subregulation 9.2 omits subregulations 48(2) and 48(3) of the Migration (Review) (1993) Regulations and substitutes two new subregulations. The substituted subregulations incorporate minor technical amendments only and the substantive effect of subregulations 48(2) and 48(3) is continued unchanged.

Subregulation 9.3 inserts a new subregulation 48(4) in the Migration (Review) (1993) Regulations to provide that in so far as the Migration (Review) Regulations are continued in operation by regulation 48 of the Migration (Review) (1993) Regulations, the Migration (Review) Regulations apply with the modifications set out in Schedule 2 of the Migration (Review) (1993) Regulations. Schedule 2 is added to the Migration (Review) (1993) Regulations by these Regulations (see the notes on regulations 11 and 12, below). To achieve retrospective operation, where this is required, of the modifications of the Migration (Review) Regulations set out in Schedule 2, it is technically necessary also to make operation of subregulation 9.3 retrospective to 3 June 1993 since the modifications made by regulation 11 of these Regulations commence retrospectively on that date. Retrospective operation of these provisions is entirely beneficial to the applicants concerned as it enables the refund of a fee in certain circumstances. It is not prejudicial to any applicant, and it is therefore in accordance with the requirements of subsection 48(2) of the Acts Interpretation Act 1901.

Subregulation 9.3 also adds a note after regulation 48 of the Migration (Review) (1993) Regulations. The purpose of this note is to make clear to the reader that regulation 43A of the Migration (Review) (1993) Regulations operates to permit a review authority to remit for reconsideration an application for a visa or entry permit if a review of the application is being conducted under the Migration (Review) Regulations, as continued in operation by regulation 48 of the Migration (Review) (1993) Regulations.

Regulation 10 - Schedule (Visas and entry permits to which internal review is applicable)

This regulation has the effect of numbering the existing Schedule to the Migration (Review) (1993) Regulations as "Schedule 1". This numbering is consequential upon the insertion in the Migration (Review) (1993) Regulations of Schedule 2 (Modifications of Repealed Migration (Review) Regulations) by these Regulations (see the notes on regulations 11 and 12, below, for details of the operation of the new Schedule 2).

Regulation 11 - New Schedule 2

This regulation inserts a new Schedule 2 (Modifications of Repealed Migration (Review) Regulations) in the Migration (Review) (1993) Regulations. The new Schedule 2 operates in conjunction with the new subregulation 48(4) (inserted in the Migration (Review) (1993) Regulations by subregulation 9.3 of these Regulations). The effect of subregulation 48(4) and Schedule 2 is to provide that the Migration (Review) Regulations, as continued in operation by regulation 48 of the Migration (Review) (1993) Regulations, apply subject to the modifications set out in Schedule 2.

Details of the modifications to the Migration (Review) Regulations set out in Schedule 2, as inserted in the Migration (Review) (1993) Regulations by regulation 11, are as follows:

Clause 202. Regulation 7 (Refund of fee for internal review)

The effect of this clause is to modify the Migration (Review) Regulations by providing that they continue to apply as if a new paragraph 7(1)(aa) were inserted in regulation 7.

The purpose of the new paragraph is to allow refund of the fee where an application is remitted by a review officer for reconsideration under paragraph 118(4)(ba) of the Act.

Clause 204. Regulation 20 (Refund of fee for review by Tribunal)

The effect of this clause is to modify the Migration (Review) Regulations by providing that they continue to apply as if a new paragraph 20(1)(aa) were inserted in regulation 20. The purpose of the new paragraph is to allow refund of the fee when an application is remitted by the Immigration Review Tribunal for reconsideration under paragraph 118(4)(ba) of the Act.

The operation of regulation 11 (that is, the operation of the modifications made to the Migration (Review) Regulations by clauses 202 and 204 of Schedule 2) is made retrospective to 3 June 1993, the date from which Statutory Rules 1993 No. 109 inserted regulation 43A in the Migration (Review) (1993) Regulations to enable a review authority to act under paragraph 118(4)(ba) of the Act and remit a prescribed matter for reconsideration. The effect of retrospective commencement of regulation 11 is to enable the refund of the fee in respect of any application remitted since the commencement of regulation 43A. This effect is entirely beneficial to the applicants concerned and is not prejudicial to any person. It is therefore in accordance with the requirements of subsection 48(2) of the Acts Interpretation Act 1901.

Regulation 12 - Schedule 2 (Modifications of repealed Migration (Review) Regulations)

The effect of this regulation is to amend Schedule 2 as inserted in the Migration (Review) (1993) Regulations by regulation 11 of these Regulations, from the date these Regulations are notified in the Gazette. Details of the amendments made to Schedule 2 are as follows:

Subregulation 12.1 inserts a further clause 201 (Regulation 2A (Internally reviewable decisions)) in Schedule 2. The effect of clause 201 is that the Migration (Review) Regulations continue to apply as provided for in regulation 48 of the Migration (Review) (1993) Regulations as if a new subregulation 2A(7) were inserted. The purpose of the new subregulation is to put beyond doubt that the provision in regulation 2A of the Migration (Review) Regulations for a decision to be an internally reviewable decision is to be subject to the new regulation 28A (inserted in the Migration (Review) Regulations by subregulation 12.3 of these Regulations; for further details see the notes, below, on subregulation 12.3).

Subregulation 12.2 inserts a further clause 203 (Regulation 9 (Jurisdiction of the Tribunal)) in Schedule 2. The effect of clause 203 is that the Migration (Review) Regulations continue to apply as provided for in regulation 48 of the Migration (Review) (1993) Regulations as if regulation 9 were amended. Subclause 203.1 provides for a technical amendment to subregulation 9(1). Subclause 203.2 provides for a new subregulation 9(4) to be inserted in the Migration (Review) Regulations. The purpose of the new subregulation is to put it beyond doubt that the provision in regulation 9 for a decision to be reviewable by the Immigration Review Tribunal is to be subject to the new regulation 28A (inserted in the Migration (Review) Regulations by subregulation 12.3 of these Regulations; for further details see the notes, below, on subregulation 12.3).

Subregulation 12.3 inserts clause 205 in Schedule 2 of the Migration (Review) (1993) Regulations. The effect of clause 205 is that the Migration (Review) Regulations continue to apply as provided for in regulation 48 of the Migration (Review) (1993) Regulations, as if a new regulation 28A (Section 180A of the Act - prohibition on review of decision) were inserted. The purpose of the new regulation 28A is to ensure that a decision of the Minister under section 180A of the Act to cancel or refuse to grant a visa or entry permit cannot be reviewed by a review authority under the Migration (Review) Regulations. (Subsection 180(1) of the Act provides that applications may be made to the Administrative Appeals Tribunal for review of decisions of the Minister under section 180A.)