Commonwealth Numbered Regulations - Explanatory Statements

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MIGRATION AMENDMENT REGULATIONS 2000 (NO. 7) 2000 NO. 335

STATUTORY RULES 2000 No. 335

Issued by the authority of the Minister for Immigration and Multicultural Affairs

Migration Act 1958

Migration Amendment Regulations 2000 (No. 7)

Subsection 504(1) 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 to be prescribed by the Act or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act. In particular, subparagraph 504(1)(a)(i) provides that the regulations may make provision for and in relation to the charging and recovery of fees in respect of any matter under the Act or the regulations, and paragraph 504(1)(b) provides for regulations to be made exempting persons from the payment of such fees.

In addition, regulations may be made pursuant to the following powers under the Act:

-       paragraph 347(1)(b) provides that an application for review by the Migration Review Tribunal must be given to the Tribunal within the prescribed period;

-       paragraph 347(1)(c) provides that an application for review by the Migration Review Tribunal must be accompanied by the prescribed fee (if any);

-       paragraph 347(2)(d) provides that if the MRT-reviewable decision is covered by subsection 338(9), the application for review may only be made by the person prescribed in respect of the kind of decision in question prescribed for the purposes of that subsection;

-       subsection 359B(2) provides that the regulations may prescribe the period which an invitation by the Migration Review Tribunal, to provide additional information or comments other than at an interview, is to specify for the giving of the information or comments;

-       subsection 359B(3) provides that where the Migration Review Tribunal invites a person to provide additional information or comments at an interview, the invitation must specify the time of the interview, being a time within a prescribed period;

-       subsection 359B(4) provides that the regulations may prescribe a further period for which an invitation to provide additional information or comments, other than at interview, may be extended; and

-       subsection 35913(5) provides that where the Migration Review Tribunal invites a person to provide additional information or comments at an interview, the Tribunal may extend the time for the interview to a time within a prescribed further period.

The purpose of the Regulations is to amend the Migration Regulations 1994 to prescribe certain procedural matters for the review by the Migration Review Tribunal of a decision to require lodgement of a cash deposit, negotiable instrument, or other form. of security, to ensure compliance with visa conditions.

In particular, the Regulations:

-       make provision for who may seek such a review;

-       exempt detainees seeking such a review from payment of the Migration Review Tribunal fee;

-       provide that where the applicant also seeks review of the decision to refuse the visa application in respect of which the security was sought, the two applications are taken to be combined; and

-       where the applicant is a detainee, align the time limits for applying for review and for providing comments and information with those applying to review of bridging visa decisions affecting detainees.

Details of the Regulations are set out in the Attachment.

Regulations 1 to 3 and Schedule 1 are taken to have commenced on 1 November 2000. Schedule 1 prescribes who may make an application for review of a security decision, and for there to be no fee for seeking such a review where the applicant is a detainee. Regulation 4 and Schedule 2 to the Regulations commence on 14 December 2000.

Schedule 1 is retrospective to 1 November 2000. The retrospectivity is not prejudicial to any person and does not therefore contravene subsection 48(2) of the Acts Interpretation Act 1901.

ATTACHMENT

Regulation 1 - Name of Regulations

This regulation provides that these Regulations are the Migration Amendment Regulations 2000 (No. 7).

Regulation 2 - Commencement

This regulation provides that regulations 1 to 3, and Schedule 1, are taken to have commenced on 1 November 2000; and that the remainder commences on 14 December 2000.

Regulation 3 - Amendment of Migration Regulations 1994

This regulation provides that Schedules 1 and 2 amend the Migration Regulations 1994.

Regulation 4 - Transitional

This regulation provides transitional provisions.

Subregulation 4(1) provides that the amendment made by item 1 of Schedule 2 applies only where the notification of the decision to refuse to grant the visa mentioned in subparagraph 4.02(4)(f)(ii) is received on or after 14 December 2000.

Subregulation 4(2) provides that the amendment made by item 2 of Schedule 2 applies only to applications for review by the Migration Review Tribunal lodged on or after 14 December 2000.

Subregulation 4(3) provides that the amendments made by items 3 to 6 of Schedule 2 apply to an invitations to give, or an extension of the period in which to give, information or comments, given on or after 14 December 2000.

Subregulation 4(4) provides that subregulation 4(3) applies regardless of when the application for review by the Migration Review Tribunal to which the application relates was made.

Schedule 1 - Amendments taken to have commenced on 1 November 2000 Item 1 - Paragraph 4.02(5)(d)

This item makes a technical drafting change to paragraph 4.02(5)(d), consequential to the insertion of new paragraph 4.02(5)(e) by item 2 below. This item is taken to have commenced on 1 November 2000.

Item 2 - After paragraph 4.02(5)(d)

This item inserts new paragraph 4.02(5)(d), which prescribes who may make an application for review by the Migration Review Tribunal of a decision referred to in paragraph 4.02(4)(f). The item provides that such an application may be made by the non-citizen in relation to whom the decision is made.

This item is taken to have commenced on 1 November 2000, the date upon which paragraph 4.02(4)(f) commenced (Statutory Rule No. 259 of 2000). The item commences retrospectively to ensure that there was standing for any applications made to the Migration Review Tribunal under paragraph 4.02(4)(f) from 1 November 2000 onwards.

Item 3 - Subregulation 4.13(2)

This item substitutes a new subregulation 4.13(2). New subregulation 4.13(2) maintains the current position with regard to there being no fee payable for an application for review by the Migration Review Tribunal of a decision of the kind referred to in subsection 338(4) of the Act. In addition, it provides that no fee is payable for an application for review by the Tribunal of a decision to which paragraph 4.02(4)(f) applies, where the application is made by a non-citizen in immigration detention.

This item will commence retrospectively on 1 November 2000, to apply to applications for review made on or after that date. This will ensure that no fee is payable for these applications.

Schedule 2 - Amendments commencing on 14 December 2000 Item 1 - After paragraph 4.10(2)(a)

This item inserts new paragraph 4.10(2)(aa) prescribing the time for seeking review by the Migration Review Tribunal of a decision to which paragraph 4.02(4)(f) applies. New paragraph 4.10(2)(aa) provides that the time for making the review application starts when the detainee receives notice of the decision to refuse to grant the visa mentioned in subparagraph 4.02(4)(t)(ii), and ends at the end of 2 working days after the day on which the notice is received.

This mirrors the time frame in which detainees must seek review of a decision refusing or cancelling a bridging visa, where the detainee is in detention because of that refusal. The shorter time frame for seeking review of these decisions reflects the need for expeditious processing of cases involving detainees.

Item 2 - After subregulation 4.12(4)

This item amends regulation 4.12, which allows for certain applications to the Migration Review Tribunal to be combined. The item inserts new subregulation 4.12(5), which provides that where a person applies for review of a decision to which paragraph 4.02(4)(f) applies, and also applies for review of the decision to refuse to grant the visa mentioned in subparagraph 4.02(4)(f)(ii), the person is taken to have combined his or her applications for review by the Tribunal of the decisions.

This will ensure that the Tribunal's review of the two decisions can proceed as one matter.

Item 3 - Subregulation 4.17(2)

This item amends subregulation 4.17(2). Subregulation 4.17(2) applies where the Migration Review Tribunal invites a person to give additional information or comments other than at an interview, by prescribing the time within which the information or comments must be given.

Item 3 amends subregulation 4.17(2) so that it applies not only to applications for review of bridging visa refusals or cancellations that apply to detainees, but also to decisions to which paragraph 4.02(4)(f) applies, that apply to a detainee.

Item 4 - Subregulation 4.18(2)

This item amends subregulation 4.18(2). Subregulation 4.18(2) applies where the Migration Review Tribunal invites a person to give additional information or comments at an interview, by prescribing the time within which the information or comments must be given.

Item 4 amends subregulation 4.18(2) so that it applies not only to applications for review of bridging visa refusals or cancellations that apply to detainees, but also to decisions to which paragraph 4.02(4)(f) applies, that apply to a detainee.

Item 5 - Subregulation 4.18A(2)

This item amends subregulation 4.18A(2). Subregulation 4.18A(2) applies where the Migration Review Tribunal invites a person to give additional information or comments other than at an interview, by prescribing the further time by which the time to give the information or comments may be extended.

Item 5 amends subregulation 4.18A(2) so that it applies not only to the applications for review of bridging visa refusals or cancellations that apply to detainees, but also to decisions to which paragraph 4.02(4)(f) applies, that apply to a detainee.

Item 6 - Subregulation 4.18B(2)

This item amends subregulation 4.18B(2). Subregulation 4.18B(2) applies where the Migration Review Tribunal invites a person to give additional information or comments at an interview, by prescribing the further time by which the time to give the information or comments may be extended.

Item 6 amends subregulation 4.18B(2) so that it applies not only to applications for review of bridging visa refusals or cancellations that apply to detainees, but also to decisions to which paragraph 4.02(4)(f) applies, that apply to a detainee.