Migration Reform Act 1992

Divisions 1 and 2 of Part 3 of the Principal Act are repealed and the following Divisions are substituted:

“Division 1A—Interpretation

Interpretation

“115. In this Part:

‘company’ includes any body or association (whether or not it is incorporated), but does not include a partnership;

‘member’ means a member of the Tribunal;

‘nominated’ has the same meaning as in the regulations;

‘Part 3 reviewable decision’ means a decision:

to refuse an application by a non-citizen, made while the non-citizen was in the migration zone, for a visa that could be granted while the non-citizen was in that zone (other than such a decision made at a time when the non-citizen was in immigration clearance or had been refused immigration clearance); or

to cancel a visa held by a non-citizen who is in the migration zone at the time of the cancellation (other than such a decision made at a time when the non-citizen was in immigration clearance); or

to refuse an application by a non-citizen for a visa where:

the visa is a visa that could not be granted while the applicant is in the migration zone; and

the decision was made while the non-citizen was outside the migration zone; and

the non-citizen, as required by a criterion for the visa, was sponsored or nominated by:

an Australian citizen; or

a company that operates in the migration zone; or

a partnership that operates in the migration zone; or

the holder of a permanent visa; or

a person covered by subsection 14(3); or

a citizen of New Zealand who holds a special category visa;

‘presiding member’, in relation to a review by the Tribunal, means:

if the Tribunal is, for the purposes of review, constituted by 2 or 3 members—the member who, in accordance with section 127, is to preside at the review; or

if the Tribunal is, for the purpose of the review, constituted by one member—that member;

‘Principal Member’ means the Principal Member of the Tribunal;

‘Registrar’ means the Registrar of the Tribunal;

‘review officer’ means an officer of the Department:

declared by the Secretary, in writing specifying the officer, to be a review officer for the purposes of this definition; or

holding, or performing the duties of, a position in the Department declared by the Secretary, in writing identifying the position, to be the position of a review officer for the purposes of this definition;

‘sponsored’ has the same meaning as in the regulations;

‘Senior Member’ means a Senior Member of the Tribunal;

‘Tribunal’ means the Immigration Review Tribunal.

“Division 1—Internal review of decisions

Internally-reviewable decisions

“115A.

Subject to subsection (2), Part 3 reviewable decisions are internally-reviewable decisions.

“(2) The following decisions are not internally-reviewable decisions:

a decision made by the Minister personally;

a decision in relation to which the Minister has issued a conclusive certificate under subsection (3);

a decision prescribed to be an IRT-reviewable decision;

an RRT-reviewable decision.

“(3) The Minister may issue a conclusive certificate in relation to a decision if the Minister believes that:

it would be contrary to the public interest to change the decision, because any change in the decision would prejudice the security, defence or international relations of Australia; or

it would be contrary to the public interest for the decision to be reviewed because such review would require consideration by the review officer of deliberations or decisions of the Cabinet or of a committee of the Cabinet.

Application for internal review

“115B.

An application for review of an internally-reviewable decision must:

be made in writing in the form approved by the Secretary; and

be given to the Secretary, at a prescribed place, within the prescribed period, being a period ending not later than:

if the decision is covered by paragraph (a) or (b) of the definition of Part 3 reviewable decision—28 days after the notification of the decision; or

if the decision is covered by paragraph (c) of that definition—70 days after the notification of the decision; and

be accompanied by the prescribed fee (if any).

“(2) An application for review may only be made by:

if the decision is covered by paragraph (a) or (b) of the definition of Part 3 reviewable decision—the non-citizen who is the subject of that decision; or

if the decision is covered by paragraph (c) of that definition—the sponsor or nominator.

“(3) An application for review of a decision covered by paragraph (a) or (b) of the definition of Part 3 reviewable decision may only be made by a non-citizen who is physically present in the migration zone when the application for review is made.

“(4) Regulations made for the purposes of paragraph (1)(b) may specify different periods in relation to different classes of internally-reviewable decisions (which may be decisions that relate to non-citizens in a specified place).

Review officer must review decisions

“115C.

Subject to subsection (2), if an application is properly made under section 115B for review of an internally-reviewable decision, a review officer must review the decision.

“(2) A review officer must not review, or continue to review, a decision in relation to which the Minister has issued a conclusive certificate under subsection 115A(3).

Powers of review officer

“115D.

The review officer may, for the purposes of the review of an internally-reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision.

“(2) The review officer may:

affirm the decision; or

vary the decision; or

if the decision relates to a prescribed matter—remit the matter for reconsideration in accordance with such directions or recommendations of the review officer as are permitted by the regulations; or

set the decision aside and substitute a new decision.

“(3) If the review officer:

varies the decision; or

sets aside the decision and substitutes a new decision;

the decision as varied or substituted is taken (except for the purpose of applications to the Tribunal for review) to be a decision of the Minister.

“(4) To avoid doubt, a review officer must not, by varying a decision or setting a decision aside and substituting a new decision, purport to make a decision that is not authorised by the Act or the regulations.

Notification of decision

“115E.

When the review officer makes a decision, he or she is to notify the applicant of the decision in the prescribed way.

“(2) Notification of a decision, the effect of which is to approve an application for a visa, must include:

if there are any prescribed requirements or requirements under any other law of the Commonwealth for the grant that have to be met—particulars of them and a statement that the visa will not be granted unless they are met within a specified time; and

the address of the office of the Department that will be responsible for granting the visa and providing evidence of the visa.

“(3) A time specified for the purposes of paragraph (2)(a) must begin on the date of the notification and not be longer than 12 months.

“(4) Notification of a decision, the effect of which is to refuse an application for a particular visa, must:

if the visa was refused because the applicant did not satisfy a criterion for the visa—specify that criterion; and

if the visa was refused because a provision of this Act or the regulations prevented approval—specify that provision; and

give the reasons why the criterion was not satisfied or the provision prevented approval; and

give notice:

that the decision can be reviewed; and

the time in which the application for review may be made; and

who can apply for the review; and

where the application for review can be made.

“(5) Notification of a decision to remit a decision for reconsideration must include:

notice of the directions or recommendations with which the decision is remitted; and

the address of the office of the Department to which the decision has been remitted; and

notice:

that the decision can be reviewed; and

the time in which the application for review may be made; and

who can apply for the review; and

where the application for review can be made.

“(6) Failure to give notification of a decision does not affect the validity of the decision.

Review of assessments made under section 30

“115F. In reviewing an assessment of the Minister under section 30, the only regulations for the purpose of that section which the review officer is to have regard to are whichever of the following are more favourable to the applicant:

the regulations for that purpose that were in force at the time the assessment was made by the Minister;

the regulations for that purpose that are in force at the time the decision is made by the review officer about the assessment.

Minister may substitute more favourable decision

“115G.

If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of a review officer under section 115D another decision being:

the decision sought by the applicant; or

another decision in terms to which the applicant agrees;

whether or not the review officer had the power to make that other decision.

“(2) In exercising the power under subsection (1), the Minister is not bound by Subdivision AA or AC of Division 2 of Part 2 or by the regulations, but is bound by all other provisions of this Act.

“(3) The power under subsection (1) may only be exercised by the Minister personally.

“(4) If the Minister substitutes a decision under subsection (1), he or she is to cause to be laid before each House of the Parliament a statement that:

sets out the decision of the review officer; and

sets out the decision substituted by the Minister; and

sets out the reasons for the Minister’s decision, referring in particular to the Minister’s reasons for thinking that his or her actions are in the public interest.

“(5) A statement made under subsection (4) is not to include:

the name of the applicant; or

if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned—the name of that other person.

“(6) A statement under subsection (4) is to be laid before each House of the Parliament within 15 sitting days of that House after:

if the decision is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or

if a decision is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.

“(7) The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances.

“Division 2—Review of decisions by Immigration Review Tribunal

Decisions reviewable by Immigration Review Tribunal

“116.

Subject to subsection (2), the following decisions are IRT-reviewable decisions:

decisions made by a review officer under section 115D;

Part 3 reviewable decisions made by the Minister personally;

other decisions prescribed to be IRT-reviewable decisions.

“(2) The following decisions are not IRT-reviewable decisions:

a decision in relation to which the Minister has issued a conclusive certificate under subsection (4) or 115A(3);

an RRT-reviewable decision.

“(3) A decision may not be prescribed as an IRT-reviewable decision unless the decision is a Part 3 reviewable decision.

“(4) The Minister may issue a conclusive certificate in relation to a decision if the Minister believes that:

it would be contrary to the public interest to change the decision, because any change in the decision would prejudice the security, defence or international relations of Australia; or

it would be contrary to the public interest for the decision to be reviewed because such review would require consideration by the Tribunal of deliberations or decisions of the Cabinet or of a committee of the Cabinet.

Application for review by Immigration Review Tribunal

“117.

An application for review of an IRT-reviewable decision must:

be made in the approved form; and

be given to the Tribunal within the prescribed period, being a period ending not later than:

if the primary decision is covered by paragraph (a) or (b) of the definition of Part 3 reviewable decision—28 days after the notification of the IRT-reviewable decision; or

if the primary decision is covered by paragraph (c) of that definition—70 days after the notification of the IRT-reviewable decision; and

be accompanied by the prescribed fee (if any).

“(2) An application for review may only be made by:

if the primary decision is covered by paragraph (a) or (b) of the definition of Part 3 reviewable decision—the non-citizen who is the subject of that decision; or

if the primary decision is covered by paragraph (c) of that definition—the sponsor or nominator.

“(3) If the primary decision was covered by paragraph (a) or (b) of the definition of Part 3 reviewable decision, an application for review may only be made by a non-citizen who is physically present in the migration zone when the application for review is made.

“(4) Regulations made for the purposes of paragraph (1)(b) may specify different periods in relation to different classes of IRT-reviewable decisions (which may be decisions that relate to non-citizens in a specified place).

Immigration Review Tribunal must review decisions

“118.

Subject to subsection (2), if an application is properly made under section 117 for review of an IRT-reviewable decision, the Tribunal must review the decision.

“(2) The Tribunal must not review, or continue to review, a decision in relation to which the Minister has issued a conclusive certificate under subsection 115A(3) or 116(4).

Powers of Immigration Review Tribunal

“119.

The Tribunal may, for the purposes of the review of an IRT-reviewable decision, exercise all the powers and discretions that are conferred by this Act on the person who made the decision.

“(2) The Tribunal may:

affirm the decision; or

vary the decision; or

if the decision relates to a prescribed matter—remit the matter for reconsideration in accordance with such directions or recommendations of the Tribunal as are permitted by the regulations; or

set the decision aside and substitute a new decision.

“(3) If the Tribunal:

varies the decision; or

sets aside the decision and substitutes a new decision;

the decision as varied or substituted is taken (except for the purpose of appeals from decisions of the Tribunal) to be a decision of the Minister.

“(4) To avoid doubt, the Tribunal must not, by varying a decision or setting a decision aside and substituting a new decision, purport to make a decision that is not authorised by the Act or the regulations.

Review of assessments made under section 30

“120. In reviewing an assessment of the Minister under section 30, the only regulations for the purpose of that section which the Tribunal is to have regard to are whichever of the following are more favourable to the applicant:

the regulations for that purpose that were in force at the time the assessment was made by the Minister;

the regulations for that purpose that are in force at the time the decision was made by the Tribunal about the assessment.

Minister may substitute more favourable decision

“121.

If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 119 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.

“(2) In exercising the power under subsection (1), the Minister is not bound by Subdivision AA or AC of Division 2 of Part 2 or by the regulations, but is bound by all other provisions of this Act.

“(3) The power under subsection (1) may only be exercised by the Minister personally.

“(4) If the Minister substitutes a decision under subsection (1), he or she is to cause to be laid before each House of the Parliament a statement that:

sets out the decision of the Tribunal; and

sets out the decision substituted by the Minister; and

sets out the reasons for the Minister’s decision, referring in particular to the Minister’s reasons for thinking that his or her actions are in the public interest.

“(5) A statement made under subsection (4) is not to include:

the name of the applicant; or

if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned—the name of that other person.

“(6) A statement under subsection (4) is to be laid before each House of the Parliament within 15 sitting days of that House after:

if the decision is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or

if a decision is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.

“(7) The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances.

Secretary to be notified of application for review by Immigration Review Tribunal

“122.

If an application for review is made to the Immigration Review Tribunal, the Registrar must, as soon as practicable, give the Secretary written notice of the making of the application.

“(2) The Secretary must, within 10 working days after being notified of the application, give to the Registrar the prescribed number of copies of a statement about the decision under review that:

sets out the findings of fact made by the person who made the decision; and

refers to the evidence on which those findings were based; and

gives the reasons for the decision.

“(3) The Secretary must, as soon as is practicable after being notified of the application, give to the Registrar each other document, or part of a document, that is in the Secretary’s possession or control and is considered by the Secretary to be relevant to the review of the decision.”.