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MIGRATION AMENDMENT REGULATIONS 2011 (NO. 4) (SLI NO 122 OF 2011)

EXPLANATORY STATEMENT

Select Legislative Instrument 2011 No. 122

Issued by the Minister for Immigration and Citizenship

Migration Act 1958

Migration Amendment Regulations 2011 (No. 4)

Subsection 504(1) of the Migration Act 1958 (Act) provides, in part, that the Governor General may make regulations, not inconsistent with the Act, prescribing all matters which by the Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act.

In addition, regulations may be made pursuant to the provisions of the Act in Attachment A.

The purpose of the Regulations is to amend the Migration Regulations 1994 (Principal Regulations) to charge applicants to the Migration Review Tribunal (Tribunal) a reduced review fee if the payment of the full fee would cause the applicant severe financial hardship.  The regulations would also reduce the amount of the fee refunded by the Tribunal in cases where the Tribunal varies, remits or sets aside the decision under review.

In particular, the Regulations amend the Principal Regulations to:

• provide that if Registrar or Deputy Registrar, or authorised officer of the Tribunal, is satisfied that the fee to be paid on an application for review by the Tribunal of a decision has caused, or is likely to cause, severe financial hardship to the review applicant, the Registrar or Deputy Registrar, or officer may determine that the fee payable is 50 percent of the fee prescribed in subregulation 4.13(1); and
• prescribe that the fee refunded by the Tribunal on an application for review by the Tribunal or a decision is to be 50 percent of the fee prescribed in subregulation 4.13(1), if the decision is to vary, or remit or set aside the decision under review or if the Registrar, Deputy Registrar or officer has made a determination resulting from a decision that the payment of the fee has caused or is likely to cause significant hardship.

Details of the Regulations are set out in Attachment B.

The Regulations commence on 1 July 2011.

The Office of Best Practice Regulation (OBPR) has been consulted in relation to amendments made by Schedule 1 to the Regulations and advises that the Regulations are not likely to have a direct effect, or substantial indirect effect, on business and are not likely to restrict competition.  The OBPR consultation reference is 12653.

Consultations were undertaken with the Migration Review Tribunal and the Attorney General's Department in relation to the amendments made by Schedule 1 to the Regulations.

The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

ATTACHMENT A

Subsection 504(1) of the Migration Act 1958 (Act) provides, in part, that the Governor General may make regulations, not inconsistent with the Act, prescribing all matters which by the Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act.

In addition, the following provision may apply:

*         Paragraph 347(1)(c) of the Act which provides that an application for review of an Migration Review Tribunal-reviewable decision must be accompanied by the prescribed fee (if any).

ATTACHMENT B

Details of the Migration Amendment Regulations 2011 (No. 4)

Regulation 1 - Name of Regulations

Regulation 1 provides that the title of the Regulations is the Migration Amendment Regulations 2011 (No. 4).

Regulation 2 - Commencement

Regulation 2 provides that the Regulations commence on 1 July 2011.

Regulation 3 - Amendment of Migration Regulations 1994

Subregulation 3(1) provides that Schedule 1 amends the Migration Regulations 1994 (Principal Regulations).

Subregulation 3(2) provides that the amendments made by Schedule 1 apply in relation to an application made on or after 1 July 2011 for review by the Migration Review Tribunal of a decision.

Schedule 1 - Amendments

Item [1] - Subregulation 4.13(4)

This item substitutes subregulation 4.13(4) in Part 4 to the Principal Regulation.

Subregulation 4.13(4) formerly provided that the Registrar, or a Deputy Registrar, of the Tribunal, or another officer of the Tribunal authorised in writing by the Registrar, may determine that the fee on an application for review by the Tribunal of a decision should not be paid if he or she is satisfied that payment of the fee has caused, or is likely to cause, severe financial hardship to the review applicant.

New subregulation 4.13(4) provides that if the Registrar, or a Deputy Registrar, of the Tribunal, or another officer of the Tribunal authorised in writing by the Registrar, is satisfied that the payment of the fee mentioned in subregulation 4.13(1) has caused or is likely to cause, severe financial hardship to the review applicant, the Registrar, Deputy Registrar or officer may determine that the fee payable is 50 percent of the amount mentioned in subregulation 4.13(1).

This amendment changes the ability to waive the entire fee to the abluty to reduce  the amount of the fee to 50 percent refund of the application fee if the decision maker is satisfied that the payment of the fee has caused or is likely to cause, severe financial hardship to the review applicant and has determined to reduce the fee due to that potential or actual severe financial hardship.

Item [2] - Subregulation 4.14(1)

This item substitutes subregulation 4.14(1) in Part 4 to the Principal Regulations.

Regulation 4.14 provides for the refund of fees by the Tribunal. 

New subregulation 4.14(1) provides for the circumstances in which the fee for an application is to be refunded and the amount that is to be refunded.

The subregulation includes in paragraph 4.14(1)(b) a table containing new items 1 to 6.

Refunds for severe financial hardship

New item 1 in paragraph 4.14(1)(b) provides that, if the applicant has paid the amount mentioned in subregulation 4.13(1) and the Registrar, or a Deputy Registrar, of the Tribunal, or another officer of the Tribunal has made a determination mentioned in subregulation 4.13(4), the amount refunded would be 50 percent of the amount mentioned in subregulation 4.13(1).

This amendment reduces the refund from 100 percent to 50 percent of the application fee, when the Registrar, or a Deputy Registrar, of the Tribunal, or another officer of the Tribunal authorised in writing by the Registrar, makes a determination mentioned in subregulation 4.13(4), that the payment of the fee has caused, or is likely to cause, severe financial hardship to the review applicant.

General Refunds

New item 2 provides that, if the applicant is not entitled to apply for review by the Tribunal, the amount to be refunded is the amount the applicant was required to pay by regulation 4.13.

New item 3 provides that, if the decision to which the application relates is not subject to review by the Tribunal, the amount to be refunded is the amount that the applicant was required to pay by regulation 4.13

New item 4 provides that, if the Minister has given a conclusive certificate as mentioned in section 339 of the Act (which deals with conclusive certificates) in relation to the decision, the amount to be refunded is the amount that the applicant was required to pay by regulation 4.13. 

The note to item 4 provides that the conclusive certificate certifies that review would be contrary to the public interest.

New items 2, 3 and 4 listed under this heading replicate and adapt former paragraphs 4.14(1)(d), (e) and (f) which are included in the new table in paragraph 4.14(1)(b).

Refunds after Tribunal decision

New item 5 provides that, if the decision to which the review relates is set aside or varied, the amount to be refunded is 50 percent of the amount mentioned in subregulation 4.13(1).

The purpose of this amendment is to ensure that, if the Tribunal sets aside or varies the decision under review under paragraphs 349(2)(b) or (d) of the Act, then the amount refunded would be 50 percent, rather than the former 100 percent.

New item 6 in paragraph 4.13(1)(b) provides that, if the application is remitted to the primary decision-maker for reconsideration, the amount to be refunded is 50 percent of the amount in subregulation 4.13(1).

This amendment would ensure that, if the Tribunal remits the application to the primary decision-maker for reconsideration under paragraph 349(2)(c) of the Act, then the amount refunded is 50 percent rather than the former 100 percent.

In circumstances where a person has only paid 50 percent of the fee in subregulation 4.13(1) due to the operation of the new subregulation 4.13(4), any amount refunded by new items 1, 5 or 6 in paragraph 4.14(1)(b), would still be 50 percent of the fee mentioned in subregulation 4.13(1), rather than 50 percent of the fee that the person paid.  Therefore, if an applicant pays 50 percent of the fee because of subregulation 4.13(4) then, if the Tribunal varies, remits or sets aside the decision or if item 1 in paragraph 4.14(1)(b) applies, the balance to be refunded to the review applicant under new subregulation 4.14(1).

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