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MIGRATION (REVIEW) (1993) REGULATIONS (AMENDMENT) 1993 NO. 176
EXPLANATORY STATEMENTSTATUTORY RULES 1993 No. 176
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 that the Governor-General may make regulations, not inconsistent with the Act, to prescribe all matters which are required or permitted by the Act to be prescribed, or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act.
In addition, regulations are prescribed pursuant to the following powers:
- 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;
- paragraph 166JA(b) of the Act provides for regulations to prescribe the maximum number of members of the Refugee Review Tribunal (the RRT);
- subsection 166JE(1) of the Act provides for regulations to prescribe the remuneration paid to the Principal Member if the remuneration has not been determined by the Remuneration Tribunal;
- subsection 166JE(2) of the Act provides for regulations to prescribe the allowances to be paid to the Principal Member of the RRT;
- subsection 166JF(3) of the Act provides that regulations may provide for the remuneration and allowances to be paid to members of the RRT other than the Principal Member;
- paragraph 166KA(3)(a) of the Act provides for regulations to prescribe the duties, powers and functions of officers of the RRT; and
- paragraph 181(1)(e) of the Act provides that regulations may be made in relation to the giving of documents to, the lodging of documents with, and the serving of documents on, the Minister, the Secretary or any other person or body, for the purposes of the Act.
Further, section 32 of the Migration Reform Act 1992 inserts new Divisions 2 to 8 of Part 4A into the Act, commencing on 1 July 1993.
Subsection 4(1) of the Acts Interpretation Act 1901 provides that where an amending Act amends a principal Act in such a way that the principal Act will confer power to make regulations, then the power may be exercised before the amendments come into operation as if they had come into operation. Regulations made by exercise of that power cannot commence earlier than the date of commencement of the Act or provision which confers the power.
Regulations are prescribed pursuant to the following powers in Divisions 2 to 8 of Part 4A of the Act:
- paragraph 166BA(1)(b) of the Act provides for regulations to prescribe that 'the period within which an application for review must be given to the RRT is not to exceed 28 days after the notification of the decision;
- subsection 166BA(4) of the Act provides that regulations made for the purposes of paragraph 166BA(1)(b) may specify different periods within which an application for review must be given to the RRT in relation to different classes of RRT-reviewable decisions;
- paragraph 166BC(2)(c) of the Act provides for regulations to prescribe a matter which the RRT, when reviewing a decision which relates to the matter so prescribed, may remit for reconsideration, and also to prescribe such directions or recommendations in accordance with which a prescribed matter may be remitted for reconsideration;
- subsection 166BF(2) of the Act provides for regulations to prescribe the number of copies of a statement about the decision under review required to be provided by the Secretary of the Department to the Registrar of the RRT within 10 working days after being notified of the application for review made to the RRT; and
- subsection 166GA(1) of the Act provides that regulations may prescribe the fees and allowances (if any) for expenses which persons summoned to appear before the RRT to give evidence are entitled to.
The purpose of the Regulations is:
• to prescribe the number of members of the RRT as 30 members (other than the Principal Member);
• to prescribe the period, after the date of notification of the decision, within which an application for review of an RRT-reviewable decision must be made as - in the case of a person in custody under the Act or detained in a processing area - 7 working days, or - in any other case - 28 days;
• to prescribe the manner in which an application for review must be lodged, and that an application posted or transmitted by facsimile is not to be taken to have been lodged until it is received at a registry of the RRT;
• to prescribe a requirement imposed on persons in custody under the Act or detained in a processing area who have lodged an application for review by the RRT to give written notice of that application to a custody review officer on the day on which the application is lodged;
• to prescribe that the RRT may remit an application for a Class 784 (domestic protection (temporary)) visa or entry permit for reconsideration in accordance with a direction that the applicant must be taken to have satisfied specified criteria for the grant of the visa or entry permit;
• to prescribe the number of copies of a statement about a decision under review which the Secretary of the Department must provide to the Registrar of the RRT to be 2;
• to prescribe the time limits applicable where a person has been required by the RRT to provide evidence;
• to prescribe the duties, powers and functions of officers of the RRT;
• to prescribe the fees and allowances (if any) to be paid to a person summoned to appear before the RRT;
• to prescribe the manner in which the RRT is required to notify an applicant of its decision, and the time at which such notice is taken to have been duly given;
• to prescribe the ways in which a document may be given to, or served on, a person for the purposes of a review under Part 4A of the Act; and
• to provide that, in spite of the continuation in force of the Migration (Review) Regulations in respect of certain review applications, in the case of an application, lodged on or after 1 July 1993, for review of a decision concerning a domestic protection (temporary) visa or entry permit, Part 2A of the Migration (Review) Regulations does not apply and Part 6 of the Migration (Review). (1993) Regulations, so far as it is relevant, does apply.
Details of each of the Regulations are set out in the Attachment.
The regulations commence on 1 July 1993.
ATTACHMENT - DETAILS OF MIGRATION (REVIEW) (1993) REGULATIONS (AMENDMENT)
Regulation 1 - Commencement
Subregulation 1.1 provides for these regulations to commence on 1 July 1993.
Part 4A of the Act, which was inserted by the Migration Reform Act 1992, incorporated into the Act a regime for reviewing decisions on refugee status applications and decisions on applications for visas and entry permits for which one of the criteria is that the applicant is a person to whom Australia has protection obligations under the Convention and Protocol Relating to the Status of Refugees, and for the creation of the RRT to conduct such reviews. Divisions 1, 9 and 10 of Part 4A relate to the establishment and membership of the RRT and commenced operation on 17 December 1992. Divisions 2 to 8 of Part 4A relate to the operation of the RRT and will commence operation on 1 July 1993.
The commencement of these regulations would coincide with the commencement of those provisions of the Migration Reform Act 1992 which relate to the operation of the RRT.
Regulation 2 - Amendment
Subregulation 2.1 provides for the Migration (Review) (1993) Regulations to be amended as set out in these Regulations.
Regulation 3 - New regulation 22A
Subregulation 3.1 inserts a new regulation 22A in Part 3 - Review of Decisions Concerning Class 784 (Domestic Protection (Temporary)) Entry Permits - of the Migration (Review) (1993) Regulations which provides that no application may be made under that Part on or after 1 July 1993. Any such applications will be considered by the RRT under Part 4A of the Act.
Regulation 4 - New Part 6
Subregulation 4.1 inserts a flew Part 6 - Refugee Review Tribunal - into the Migration (Review) (1993) Regulations after regulation 43A. This Part relates to the membership and general operation of the RRT.
Details of the regulations in the new Part 6 are as follows:
Division 1 - Introductory
Regulation 43B - Interpretation
New regulation 43B provides that, in Part 6 of the Migration (Review) (1993) Regulations, expressions defined in section 166A of the Act have the same respective meanings as in Part 4A of the Act.
Division 2 - Tribunal members
Regulation 43C - Membership
New regulation 43C provides that, for the purposes of paragraph 166JA(b) of the Act, the prescribed number of RRT members (other than the Principal Member) is 30.
Regulation 43D - Remuneration and allowances
New regulation 43D provides that, for the purposes of subsection 166JF(3) of the Act, the remuneration and allowances of the first full-time member (other than the Principal Member) of the RRT to be appointed are the maximum remuneration and allowances payable to a holder of an office in the Senior Executive Service of the Australian Public Service classified as SES Band 1. This provision was previously contained at regulation 7.20A of the Migration (1993) Regulations and is transferred to the Migration (Review) (1993) Regulations so that all provisions relating to the RRT are co-located.
Division 3 - General
Regulation 43E - Applications
New subregulations 43E(1) and (2) prescribe that, for the purposes of paragraph 166BA(1)(b) of the Act, an application for review of a RRT-reviewable decision must be lodged with the RRT - in the case of an application lodged by or for a person in custody under the Act or detained in a "processing area" (a term defined in subsection 4(1) of the Act as an area nominated by the Minister under section 54A) on the date of notification of the decision to which the application for review relates - within 7 working days after the date of notification of that decision.
New subregulation 43E(3) provides that, subject to this regulation, an application for review of a RRT-reviewable decision must be lodged at a registry of the RRT in one of a number of specified ways.
New subregulation 43E(4) provides that an application posted in. accordance with paragraph 43E(3)(a), or transmitted (by facsimile) in accordance with paragraph 43E(3)(d), is not to be taken to have been lodged until it is received at a registry of the RRT.
Regulation 43F - Notice of lodgment of application - person in custody
New regulation 43F provides that a person in custody under the Act or detained in a processing area who has lodged an application for review by the RRT of a RRTreviewable decision must give written notice (detailing certain particulars set out in paragraph 43F(3)(b)) to a custody review officer on the day on which the application for review is lodged.
Regulation 43G - Powers of Tribunal
New regulation 43G provides that, for the purposes of paragraph 166BC(2)(c) of the Act, the RRT (or the Administrative Appeals Tribunal, on referral of a RRT-reviewable decision to it by the RRT) may remit an application for a Class 784 (domestic protection (temporary)) visa or entry permit for reconsideration in accordance with a direction that the applicant must be taken to have satisfied specified criteria for the grant of the visa or entry permit.
Regulation 43H - Statement about decision under review - number of copies
New regulation 43H prescribes that, for the purposes of subsection 166BF(2) of the Act, the number of copies of the statement about the decision under review to be given by the Secretary to the Registrar of the RRT within 10 working days of being notified of the application for review by the Registrar, is 2.
Regulation 43J - Time limit for providing evidence
New regulation 43J sets out the time limits within which a person must provide evidence to the RRT, in response to a request by the RRT made pursuant to paragraph 166DB(1)(b) of the Act, in circumstances where the RRT is unable, after considering the material before the Registrar, to make the decision or recommendation on the review that is most favourable to the applicant. The relevant time limits are dependent on the manner in which a person is required by the RRT to provide the evidence.
Regulation 43K - Duties, powers and functions of officers of Tribunal
New regulation 43K provides that each officer of the RRT has the duties, powers and functions of issuing a summons by the RRT under paragraph 166DD(3)(a) or (b) of the Act, obtaining documents in connection with the review of an RRT-reviewable decision, and directing attendance at a RRT registry in connection with such a review.
Regulation 43L - Fees and allowances for persons giving evidence
New regulation 43L provides that where a person is summoned to appear before the RRT in relation to a review by the RRT, the person is to be paid, in respect of his or her attendance, fees and allowances for expenses in accordance with the scale in Schedule 2 to the Administrative Appeals Tribunal Regulations. The fees and allowances so payable are to be determined by the presiding member of the RRT.
Regulation 43M - Notice of Tribunal's decision
New regulation 43M provides that a statement to be given to an applicant in relation to a decision of the RRT is to be taken to be duly given if, had it been a statement of the kind mentioned in regulation 39 of the Migration (Review) (1993) Regulations, it would be taken under that regulation to be duly given.
Regulation 43N - Service of documents
New regulation 43N provides that regulation 42 of the Migration (Review) (1993) Regulations is taken to apply to service of a document on a person for the purposes of a review under Part 4A of the Act as though paragraph 42(1)(a) contained a reference to that Part.
Regulation 5 - New Part Heading
Subregulation 5.1 inserts a new Part Heading "Part 7 - Miscellaneous" before regulation 44 of the Migration (Review) (1993) Regulations.
Regulation 6 - Regulation 48 (Transitional)
Subregulation 6.1 adds a new subregulation (3) to regulation 48 of the Migration (Review) (1993) Regulations to provide that, in spite of the continuation in force of the Migration (Review) Regulations in respect of certain review applications, ' in the case of an application, lodged on or after 1 July 1993, for review of a decision concerning a Class 784 domestic protection (temporary) entry permit, Part 2A of the Migration (Review) Regulations does not apply and Part 6 of the Migration (Review) (1993) Regulations, so far as it is relevant, does apply.