Migration (Review) Regulations

Commonwealth Coat of Arms of Australia

Statutory Rules 1989 No. 412

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Migration (Review) Regulations

TABLE OF PROVISIONS

PART 1—PRELIMINARY

Regulation

1. Citation

2. Interpretation

PART 2—INTERNAL REVIEW

3. Decisions subject to internal review

4. Review officers

5. Application for internal review and fee payable

6. Lodgment of application

7. Refund of fee for internal review

8. Notice of decision in relation to internal review

PART 3—REVIEW BY TRIBUNAL

9. Review by Tribunal

10. Prescribed number of Senior Members and of members

11. Powers of Tribunal on review

12. Application for review by Tribunal

13. Lodgment of application

14. Prescribed number of copies—subsection 122 (2) of the Act

15. Time limits in relation to other evidence

16. Summons to attend before Tribunal

17. Fees for persons giving evidence

18. Prescribed allowances—section 155 of the Act

19. Duties and powers and functions of officers of Tribunal

20. Refund of fee for review by Tribunal

PART 4—PROVISIONS RELATING TO REVIEW BY REVIEW AUTHORITY

21. Persons who may apply for review by review authority

22. Decision reviewable once only by particular review authority

23. Notification of decision of review authority

24. Time limits

25. Lodgment of application—person in custody

26. Service of documents

27. Time when service takes effect

SCHEDULE

VISAS AND ENTRY PERMITS TO WHICH INTERNAL REVIEW IS APPLICABLE

PART 1—VISAS

TABLE OF PROVISIONS continued

PART 2—CLASSES OF VISAS AND ENTRY PERMITS

PART 3—CLASSES OF ENTRY PERMITS

Commonwealth Coat of Arms of Australia

Statutory Rules 1989 No. 4121

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Migration (Review) Regulations

I, THE GOVERNOR-GENERAL of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, hereby make the following Regulations under the Migration Act 1958.

Dated 21 December 1989.

BILL HAYDEN

Governor-General

By His Excellency’s Command,

CLYDE HOLDING

Minister of State for the Arts, Tourism, and Territories for and on behalf of the

Minister of State for Immigration, Local Government and Ethnic Affairs

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PART 1—PRELIMINARY

Citation

1. These Regulations may be cited as the Migration (Review) Regulations. Interpretation

2. (1) In these Regulations, unless the contrary intention appears:

“extended eligibility entry permit” has the same meaning as in the Migration Regulations;

“internal review” means review by a review officer under Part 2;

“reconsidered” means reconsidered in accordance with regulation 20 of the Migration Regulations;

“the Act” means the Migration Act 1958.

(2) In these Regulations, a reference to a particular visa or entry permit is a reference to a visa or an entry permit of that class as specified:

(a) in the case of a class of visas—in Schedule 2; or

(b) in the case of a class of entry permits—in Schedule 3;

in the Migration Regulations.

(3) A word or expression used in these Regulations and in the Migration Regulations has, in these Regulations, unless the contrary intention appears, the same meaning as in the Migration Regulations.

PART 2—INTERNAL REVIEW

Decisions subject to internal review

3. (1) Subject to section 120 of the Act, a review officer may conduct a review of a relevant decision of the Minister.

(2) A decision of the Minister refusing to grant a visa or an entry permit of a class specified in the Schedule is, subject to this regulation, a relevant decision of the Minister.

(3) A decision referred to in subregulation (2) is not to be taken to be a relevant decision of the Minister:

(a) if taken:

(i) by the Minister personally; or

(ii) by the Secretary, or an officer of the Department being a Senior Executive Service officer, acting as the delegate of the Minister; or

(b) in the case of a decision refusing to grant a permanent entry permit on an application made after entry to Australia—unless, at the time of the application, the applicant was the holder of a valid temporary entry permit for the purposes of section 47 of the Act; or

(c) if the decision is a decision not to grant a further temporary entry permit, or a temporary entry permit of another class, to the holder of a trainee (English language) visa or entry permit.

(4) A decision referred to in subregulation (2) is not to be taken to be a relevant decision of the Minister where:

(a) the decision is a decision not to grant an extended eligibility entry permit or a permanent entry permit; and

(b) the applicant is the holder of a valid visa or a valid entry permit of one of the following classes:

(i) tourist;

(ii) tourist (special arrangements);

(iii) business visitor;

(iv) immediate family visitor;

(v) visitor (other);

(vi) medical treatment.

(5) A decision referred to in subregulation (2) is not to be taken to be a relevant decision of the Minister if the decision is a decision not to grant:

(a) a further entry permit of the same class; or

(b) an entry permit of another class;

to the holder of a visa or an entry permit granted subject to the condition specified in paragraph 23 (4) (b) or 33 (4) (b) of the Act, as the case requires.

(6) A decision by the Minister rejecting a nomination or sponsorship lodged in relation to an application for a visa or an entry permit of a class specified in the Schedule is a relevant decision of the Minister where:

(a) the criteria in relation to that class of visas or entry permits include a criterion in respect of nomination or sponsorship; and

(b) a decision by the Minister refusing to grant a visa or an entry permit on that application would be a relevant decision of the Minister; and

(c) at the time of the application for review, the Minister has not made a decision whether or not to grant the visa or entry permit.

(7) A decision by the Minister making an assessment in respect of an applicant for an entry permit or, subject to subregulation (8), a visa, being an entry permit or a visa of a class specified in the Schedule, is a relevant decision of the Minister.

(8) A review officer is not entitled to review a decision referred to in subregulation (7), being a decision determining the score of an applicant for a visa, if the application has been reconsidered.

(9) In subregulation (7), “assessment” means:

(a) in relation to an applicant for a visa—an assessment under subsection 30 (1) of the Act; and

(b) in relation to an applicant for an entry permit—an assessment under subsection 41 (2) of the Act.

Review officers

4. The officers who are to conduct reviews for the purposes of section 115 of the Act are the following officers:

(a) any officer of the Department appointed by name for that purpose by instrument of the Secretary; and

(b) any officer who, for the time being, is performing the duties of a position in the Department the position number of which is designated in writing by the Secretary for the purposes of this provision.

Application for internal review and fee payable

5. (1) An application for internal review:

(a) is to be in a form approved by the Minister and must contain:

(i) the name and address of the applicant for review; and

(ii) a brief statement of the capacity in which the applicant applies for review; and

(iii) details of the decision to which the application relates; and

(iv) if the application is in relation to a decision refusing to grant a visa or an entry permit and the applicant for the review was not also the applicant for the visa or entry permit—the name and address of that last-mentioned applicant; and

(b) must be accompanied by the fee specified in subregulation (2).

(2) The fee payable in connection with the internal review of a decision is a fee of $150.

Lodgment of application

6. (1) Subject to regulation 25, an application for internal review is to be lodged at an office of the Department in Australia:

(a) by posting the application to that office; or

(b) by leaving it in a box at that office designated for the lodgment of such applications; or

(c) by leaving it with a person employed by the Department at that office and authorised to receive such documents.

(2) An application posted in accordance with paragraph (1) (a) is not to be taken to have been lodged until received at an office of the Department.

Refund of fee for internal review

7. (1) Where, on an application for review, the decision to which the application relates is set aside or varied, the amount of the fee paid in connection with that review is to be refunded.

(2) Where, in relation to an application for internal review:

(a) the applicant is not entitled to apply for such a review; or

(b) the decision to which the application relates is not subject to internal review; or

(c) the Minister has given a certificate as referred to in subsection 120 (2) of the Act in relation to the decision to which the application relates;

the amount of any fee paid on lodging the application is to be refunded.

(3) The fee paid on an application for internal review is not to be refunded where:

(a) the application for review is withdrawn; or

(b) before the review is determined, the Minister has reconsidered the initial application and the applicant’s score on the reconsideration is more than or equal to the applicable pass mark; or

(c) before the review is determined, the applicant for the review is granted an entry permit on an application made following a notification by a review officer under subsection 121 (2) of the Act.

Notice of decision in relation to internal review

8. (1) The review officer who makes a decision on an internal review must, not later than 10 days after making the decision, give notice of the decision to the applicant for the review.

(2) Unless the review officer sets aside the decision to which the review relates, the notice must:

(a) set out the decision of the review officer; and

(b) set out the reasons for the decision, including brief reference to the findings and evidence on any material questions of fact.

PART 3—REVIEW BY TRIBUNAL

Review by Tribunal

9. (1) Subject to section 120 of the Act and to subregulation (2), the Tribunal may review decisions of the following kinds:

(a) decisions made by the Minister personally, or by the Secretary or a Senior Executive Service officer of the Department acting in either case as a delegate of the Minister, not to grant a visa or an entry permit of a class specified in the Schedule;

(b) decisions affirmed, varied or made on review under Part 2.

(2) A decision referred to in paragraph (1) (a), being a decision of a kind referred to in paragraph 3 (3) (b) or (c) or subregulation 3 (4) or (5), is not subject to review by the Tribunal if such a decision, when taken by the Minister, is not a relevant decision of the Minister within the meaning of regulation 3.

Prescribed number of Senior Members and of members

10. For the purposes of section 151 of the Act:

(a) the prescribed number of Senior Members is 6; and

(b) the prescribed number of members is 50.

Powers of Tribunal on review

11. The Tribunal has recommendatory powers in relation to the review of a decision made by the Minister personally.

Application for review by Tribunal

12. (1) An application for review by the Tribunal:

(a) is to be in a form approved by the Minister and must contain:

(i) the name and address of the applicant for review; and

(ii) a brief statement of the capacity in which the applicant applies for review; and

(iii) details of the decision to which the application relates; and

(iv) if the application is in relation to a decision refusing to grant a visa or an entry permit and the applicant for the review

was not also the applicant for the visa or entry permit—the name and address of that last-mentioned applicant; and

(b) must be accompanied by the fee specified in subregulation (2).

(2) The fee payable in connection with the review of a decision by the Tribunal is a fee of $300.

Lodgment of application

13. (1) An application for review by the Tribunal may be lodged at a registry of the Tribunal:

(a) by posting the application to that registry; or

(b) by leaving it at that registry in a box designated for the lodgment of such applications; or

(c) by leaving it with a person employed at that registry and authorised to receive such documents.

(2) An application posted in accordance with paragraph (1) (a) is not to be taken to have been lodged until received at a registry of the Tribunal.

Prescribed number of copies—subsection 122 (2) of the Act

14. For the purposes of subsection 122 (2) of the Act, the prescribed number of copies is:

(a) in respect of a statement referred to in paragraph 122 (2) (a) of the Act—2 copies; and

(b) in respect of each document or part of a document referred to in paragraph 122 (2) (b) of the Act—one copy.

Time limits in relation to other evidence

15. (1) The person who is required to provide to the Tribunal other evidence referred to in paragraph 130 (1) (b) of the Act must provide the evidence:

(a) if provided personally—not later than 10 days; or

(b) if provided by post from a place in Australia:

(i) not later than 14 days; or

(ii) if the Tribunal so directs—not later than 28 days; or

(c) if provided by post from a place outside Australia:

(i) not later than 30 days; or

(ii) if the Tribunal so directs—not later than 70 days;

after the Tribunal has required the evidence to be obtained.

(2) For the purposes of this regulation, evidence is not to be taken to be provided until received at a registry of the Tribunal.

Summons to attend before Tribunal

16. A summons referred to in subsection 132 (3) of the Act may be served on a person:

(a) by delivering the summons to the person personally or to a person duly authorised to receive documents on behalf of that first-mentioned person; or

(b) by leaving it at the last-known place of residence of the person with a person apparently an occupant of that place and apparently not less than 16 years of age; or

(c) by sending the summons by certified post to the last-known place of residence of that person.

Fees for persons giving evidence

17. For the purposes of subsection 145 (1) of the Act, the fees and allowances for expenses to be paid to a person summoned to appear before the Tribunal in relation to a review by the Tribunal are the fees and allowances in accordance with the scale in Schedule 2 to the Administrative Appeals Tribunal Regulations as in force from time to time, as determined by the presiding member.

Prescribed allowances—section 155 of the Act

18. (1) For the purposes of section 155 of the Act, the following allowance is prescribed for a Principal Member in relation to attendance at any business in respect of his or her duties as Principal Member, namely, an allowance of $6.63 in relation to each day or part of a day on which he or she so attends in respect of those duties.

(2) The allowance under subregulation (1) is not payable in respect of a Saturday or Sunday, a public holiday or any day on which the Principal Member is officially on leave from his or her duties.

Duties, powers and functions of officers of Tribunal

19. Each officer of the Tribunal has the following duties, powers and functions:

(a) to issue a summons by the presiding member in relation to a review for the purposes of paragraph 132 (3) (a) or (b) of the Act;

(b) to obtain documents in connection with the review of a decision;

(c) to direct attendance at a registry of the Tribunal in connection with the review of a decision.

Refund of fee for review by Tribunal

20. (1) Where, on an application for review by the Tribunal, the decision to which the application relates is set aside or varied, the amount of the fee paid in connection with that review is to be refunded.

(2) Where, in relation to an application for review by the Tribunal:

(a) the applicant is not entitled to apply for such a review; or

(b) the decision to which the application relates is not subject to review by the Tribunal; or

(c) the Minister has given a certificate as referred to in subsection 120 (2) of the Act in relation to the decision to which the application relates;

the amount of any fee paid on lodging the application is to be refunded.

(3) The fee paid on an application for review by the Tribunal is not to be refunded where:

(a) the application for review is withdrawn; or

(b) before the review is determined, the Minister has reconsidered the initial application and the applicant’s score on the reconsideration is more than or equal to the applicable pass mark; or

(c) before the review is determined, the applicant for the review is granted an entry permit on an application made following a notification by the Tribunal under subsection 121 (2) of the Act.

PART 4—PROVISIONS RELATING TO REVIEW BY REVIEW AUTHORITY

Persons who may apply for review by review authority

21. (1) A person is not entitled to apply for review unless the person:

(a) is lawfully present in Australia at the time of the relevant application for the grant of a visa or an entry permit; and

(b) subject to this regulation, is the applicant for the review.

(2) Where:

(a) a person applies, after entry to Australia and being lawfully present in Australia, for the grant of an entry permit of one of the following classes, being a permanent entry permit:

(i) spouse (after entry) entry permit;

(ii) child (after entry) entry permit;

(iii) aged parent (after entry) entry permit; and

(b) the Minister refuses to grant the entry permit to the person or to a family member included in the application (or both);

then, subject to subregulation (3):

(c) that person; and

(d) if the criteria in relation to the relevant class of entry permits include a criterion in respect of nomination in the case of an applicant who is such a family member—a person who nominated the applicant;

are each entitled to apply for review of that decision.

(3) A person referred to in paragraph (2) (c) or (d) is not entitled to apply for review in relation to the relevant application for an entry permit unless, at the time of application for that review, the applicant for the entry permit is present in Australia.

(4) Where, in relation to an application for a visa or an entry permit:

(a) the criteria in relation to the relevant class of visas or entry permits include a criterion in respect of nomination or sponsorship; and

(b) the Minister has refused to grant the visa or entry permit;

a person who has nominated or sponsored the applicant in relation to that application is entitled to apply for review if that person is an Australian citizen or an Australian permanent resident.

(5) Subject to this regulation, where the Minister has refused to grant to a person a visa or an entry permit of a class referred to in Column 2 of an item in the following table:

(a) that person (if lawfully present in Australia); or

(b) a person or organisation specified in Column 3 of that item, being, in the case of a person, a person lawfully present in Australia;

is entitled to apply for review of that decision:

(6) A person referred to in subregulation (5) to whom the Minister has refused to grant a visa or an entry permit is not entitled to apply for review unless the person was lawfully present in Australia at the time of that application for the visa or entry permit.

(7) A person referred to in Column 3 of item 3 in the table at the foot of subregulation (5) is not entitled to apply for the review unless particulars relating to that person were included in the application for the visa or entry permit to which the application for review relates.

(8) Where:

(a) an application is made by a person for a visa of one of the following classes:

(i) return visa, Class A;

(ii) return visa, Class B;

(iii) return visa, Class C;

(iv) return visa, Class D; and

(b) the Minister refuses to grant the visa;

then:

(c) if the application is made in Australia—the applicant; or

(d) if the application is made outside Australia—an immediate family member who is an Australian citizen or an Australian permanent resident;

are each entitled, subject to this regulation, to apply for review of that decision.

(9) A person who is an immediate family member is not entitled to apply for review under subregulation (8) unless the person is an Australian citizen or an Australian permanent resident who is present in Australia at the time of the application for review.

(10) Where the prescribed criteria in relation to a class of visas or entry permits include a criterion in respect of nomination or sponsorship, a person other than a natural person who has sponsored or nominated an applicant for a visa or an entry permit of that class is entitled to apply for review.

(11) Where, under a provision of this regulation:

(a) two or more persons are each entitled to apply for review; and

(b) one of those persons so applies;

the entitlement of the other, or each other, person so entitled lapses.

(12) Where:

(a) a person applies outside Australia for a visa or an entry permit; and

(b) the prescribed criteria in relation to the relevant class of visas or entry permits include a criterion in respect of nomination or sponsorship; and

(c) the applicant is nominated or sponsored by a person in Australia other than a natural person; and

(d) the Minister refuses to grant the visa or entry permit;

that last-mentioned person only is entitled to apply for review in relation to that refusal.

(13) In respect of a relevant decision referred to in subregulation 3 (6), an application for review may be made only by a person or organisation who or which has nominated or sponsored the applicant for the visa or entry permit to which that decision relates.

(14) In this regulation:

“immediate family member”, in relation to a person, means an Australian citizen or an Australian permanent resident who is a parent, stepparent, adoptive parent or spouse, a natural child, stepchild or adopted child, or a brother or sister, of the person;

“review” means review by a review authority.

Decision reviewable once only by particular review authority

22. A person who is entitled to apply for review of a reviewable decision to a review authority is not entitled to apply more than once to that review authority for review of that decision.

Notification of decision of review authority

23. (1) A notice or statement to be given to an applicant in relation to a decision of a review authority is to be taken to be duly given if the notice or statement is given:

(a) by posting it to the last address for service provided by the applicant in connection with his or her application for review; or

(b) by posting it to the residential address provided by the applicant in his or her application for review; or

(c) by giving it to the applicant or to a person authorised by the applicant to receive such documents on behalf of the applicant; or

(d) by leaving it at the place of residence of the applicant with a person apparently an occupant of that place and apparently not less than 16 years of age.

(2) The notice or statement is to be taken to have been received:

(a) if sent to an address in Australia—on the expiry of 5 working days after the day of posting; or

(b) if sent to an address outside Australia—on the expiry of 21 days after the day of posting or on such earlier day as is proved.

(3) It is sufficient compliance with the requirement to give a notice or statement under subregulation (1) if a facsimile or certified copy of the notice or statement is so given.

Time limits

24. (1) Subject to subregulation (3), an application for review by a review authority is not validly made unless made:

(a) if the person to whom the decision relates is physically present in Australia—within the period of 28 days; or

(b) if the person to whom the decision relates is not physically present in Australia—within the period of 70 days;

after the day on which that person is to be taken to have received notice of the primary decision in respect of which the application is made.

(2) In the calculation of a period for the purposes of subregulation (1), no account is to be taken of any period (being a period within that first-mentioned period) that commences on the day when a person who is entitled to apply for internal review so applies and ends on the expiry of the day when that person is to be taken to have received notice of the decision in relation to the internal review.

(3) Where, in relation to an application for review referred to in subregulation (1).

(a) the applicant for the visa or entry permit to which that application for review relates is an illegal entrant; and

(b) the period of grace will expire before the expiry of the period under paragraph (1) (a);

the application for review is not validly made unless made before the expiry of the period of grace.

(4) In this regulation, “primary decision” means a decision made by the Minister not to grant a visa or an entry permit, being a decision that is subject to review by a review authority.

Lodgment of application—person in custody

25. (1) An application for review by a review authority in respect of a person in custody under the Act:

(a) must be lodged:

(i) in the case of an application for internal review—at an office of the Department; or

(ii) in the case of an application for review by the Tribunal—at a registry of the Tribunal;

in the State or Territory where the person is in custody; and

(b) is to be so lodged by leaving it at the office or registry, as the case requires, with an officer of the Department.

(2) The person lodging the application must, on the day on which it is lodged, inform in writing an officer of the Department appointed by the Secretary to be a custody review officer in the relevant State or Territory of:

(a) the nature of the application and the name of the person in respect of whom it was lodged; and

(b) the office or registry at which, and the day on which, it was lodged; and

(c) the name of the officer with whom it was lodged.

(3) For the purposes of this regulation, an office occupied by an officer of the Department at an airport or detention centre is to be taken to be an office of the Department, or a registry of the Tribunal, as the case requires.

Service of documents

26. (1) Where:

(a) a document is to be given, or served on, a person for the purposes of a review under Part 3 of the Act; and

(b) no other provision as to the manner of giving or serving the document is made by the Act or these Regulations;

the document may be given to or served on the person:

(c) by giving it to the person personally or to a person duly authorised to receive documents on behalf of the first-mentioned person; or

(d) by posting it to the person at his or her last-known place of residence; or

(e) by leaving it at the place of residence of the person with another person apparently an occupant of that place and apparently not less than 16 years of age.

(2) It is sufficient compliance with a requirement to give or serve a document referred to in subregulation (1) if a facsimile or certified copy of the document is so given or served.

Time when service takes effect

27. A document given to, or served on, a person under regulation 26 is to be taken to be received by the person:

(a) on the day on which it is given to, or left with, the person or given to, or left with another person authorised by the first-mentioned person to receive documents of that kind on his or her behalf; or

(b) if the document is served by post on a person in Australia—on the expiry of 5 working days after the day of posting; or

(c) if the document is served by post on a person outside Australia— on the expiry of 21 days after the day of posting or on such earlier day as is proved.

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SCHEDULE Regulation 3

VISAS AND ENTRY PERMITS TO WHICH INTERNAL REVIEW IS APPLICABLE

PART 1—VISAS

PART 2—CLASSES OF VISAS AND ENTRY PERMITS

SCHEDULE—continued

PART 3—CLASSES OF ENTRY PERMITS

NOTE

1. Notified in the Commonwealth of Australia Gazette on 21 December 1989.