Commonwealth Numbered Regulations - Explanatory Statements

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MIGRATION (REVIEW) (1993) REGULATIONS (AMENDMENT) 1993 NO. 53

STATUTORY RULES 1993 No. 53

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 for the purposes of the Act. In addition, 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.

The purpose of the Regulations is to make a number of technical corrections designed to avoid unintended effects flowing from the drafting of the 1993 Regulations. As the clarifying effect of these amendments is beneficial to all persons concerned, and the only other amendments provide for extended access to the review mechanism for certain persons, no persons will be disadvantaged by retrospectivity, and therefore section 48 of the Acts Interpretation Act 1901 will not be infringed.

The Regulations:

•       provide access to the internal review mechanism set out both in the Migration (Review) Regulations and in the Migration (Review) (1993) Regulations to an applicant who has been granted an Extended eligibility entry permit but who has been refused the corresponding class of permanent entry permit;

•       provide that, a decision to refuse an application for an entry permit Class 802, 804, 805 and 806 is an internally reviewable decision provided the applicant was not the holder of a visitor visa or equivalent entry permit on lodging the application in question; and

•       make a number of technical amendments to the Migration (Review) (1993) Regulations which are designed to ensure that no potential applicant for review is disadvantaged by reason of any unintended consequences arising out of the drafting of those Regulations.

These Regulations are taken to have commenced on 1 February 1993.

Details of the Regulations are set out in the Attachment.

ATTACHMENT

Regulation 1 - Commencement

This regulation provides that the following amendments to the Migration (Review) (1993) Regulations (the 1993 Regulations) are taken to have commenced on 1 February 1993, the date of commencement of the 1993 Regulations.

Regulation 2 - Amendment

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

Regulation 3 - Regulation 2 (Commencement)

This regulation makes a technical correction to the note appearing immediately after regulation 2 of the 1993 Regulations.

Regulation 4 - Regulation 3 (Interpretation)

This regulation makes a technical correction to the wording of subregulation 3(2) of the 1993 Regulations.

Regulation 5 - Regulation 4 (Internally reviewable decisions)

Subregulations 5.1 and 5.2 amend regulation 4 of the 1993 Regulations to provide access to the internal review mechanism provided for in the 1993 Regulations for an applicant who has been granted a Group 2.5 (Extended eligibility) entry permit but who has been refused the corresponding class of permanent entry permit.

The 1993 Regulations presently preclude from review an applicant who has been granted a Group 2.5 (Extended eligibility) entry permit but who has been refused the corresponding class 801 or 814 permanent entry permit. Paragraph 4(3)(b) only encompasses instances where the extended eligibility entry permit is refused and that refusal is internally reviewable.

In order to prevent any unintended consequences these subregulations provide for internal review of a decision to refuse a permanent entry permit application where the extended eligibility entry permit application was either approved or refused.

The Migration (Review) Regulations 1989 provided that decisions to refuse applications for class 802 (Child (after entry)), class 804 (Aged parent (after entry)), class 805 (Skilled occupation) and class 806 (Family and other close ties (after entry)) entry permits were internally reviewable decisions. In the course of drafting the 1993 Regulations the decisions in question were inadvertently omitted from the classes of internally reviewable decisions provided for in regulation 4.

Subregulation 5.3 therefore amends regulation 4 of the 1993 Regulations to provide that a decision to refuse an application for an entry permit in one of the abovementioned classes is an internally reviewable decision unless the applicant was the holder of a visitor visa or an equivalent entry permit on lodging the application in question.

Subregulation 5.4 omits subregulation 4(4) of the 1993 Regulations which, as a result of the aforementioned amendment, is unnecessary.

Regulation 6 - Regulation 8 (Waiver of fee for internal review)

This regulation makes a technical amendment to clarify that regulation 8 has application only in respect of applications for internal review, thereby bringing regulation 8 into line with the other regulations in "PART 2 - INTERNAL REVIEW".

Regulation 7 - Regulation 10 (Refund of fee for internal review)

This regulation makes two technical corrections to effect a re-numbering of the paragraphs of subregulation 10(3) of the 1993 Regulations.

Regulation 8 - Regulation 23 (Jurisdiction of the Tribunal)

This regulation makes a technical correction to ensure that paragraph 23(2)(b) accurately reflects the wording used in sections 92 and 93 of the Migration Act 1958.

Regulation 9 - Regulation 36 (Individuals and organisations entitled to apply for review)

This regulation makes a technical correction.

Regulation 10 - Regulation 37 (Persons who may apply for review of decision to refuse December 1989 entry permit)

This regulation re-formulates subregulation 37(2) by making a grammatical amendment to paragraph (a) and by omitting paragraph (b) which, as the Migration (1993) Regulations no longer provide for the grant of a December 1989 (temporary) entry permit, has become unnecessary,

Regulation 11 - Regulation 45 (Expedited review (Close family visit visas))

This regulation makes a grammatical correction to subparagraph 45(1)(a)(ii).

Regulation 12 - Regulation 48 (Transitional)

This regulation amends the transitional provisions contained in regulation 48 of the 1993 Regulations, thereby effecting a retrospective amendment to the 1989 Regulations to ensure that persons who lodged a combined application for both an extended eligibility entry permit and a permanent entry permit prior to 1 February 1993 (and whose review rights are therefore governed by the 1989 Regulations), and who were granted an extended eligibility entry permit but subsequently refused the corresponding permanent entry permit, are not precluded from having the decision to refuse the grant of a permanent entry permit reviewed.

In order to ensure that no potential applicant for review is disadvantaged by reason of this unintended consequence of the drafting of the 1989 Regulations, this regulation will commence retrospectively on 15 April 1991 - the date on which SR 60 of 1991 which introduced the two-year "qualifying EETEP period" requirement for Classes 801 and 814 permanent entry permits came into effect.

Regulation 13 - Schedule (Visas and entry permits to which internal review is Applicable)

This regulation makes a number of technical corrections to Part 2 of the Schedule which became necessary as a result of the re-drafting of the 1989 Regulations.

Subregulation 13.1 re-inserts references to class 120 (Employer nomination) and class 121 (Labour agreement) before class 124 (Distinguished talent (Australian support)). Both classes were inadvertently omitted from the Schedule in the course of drafting the 1993 Regulations.

Subregulation 13.2 corrects a numerical reference to an entry permit class, subregulation 13.3 re-numbers the second occurrence of "item 18", and subregulation 13.4 corrects the reference to a particular entry permit class.